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4 big questions about what’s next for immigration policy

This Washington, DC family is one of many facing uncertainty after a federal judge ordered the Obama administration to stop trying to protect immigrants from deportation.
This Washington, DC family is one of many facing uncertainty after a federal judge ordered the Obama administration to stop trying to protect immigrants from deportation.
(Sarah L. Voisin/Washington Post)

A federal judge in Texas on Monday threw a wrench into Obama's immigration policy by stopping the rollout of two programs to protect millions of unauthorized immigrants from deportation. Now what?

This is the beginning of a pitched legal battle, and the first phase could be settled within days — or remain in limbo for months. The lawsuit doesn't just affect the Obama administration: it creates uncertainty for immigrants who would have been protected, and could shape some ongoing battles on Capitol Hill.

Some of these have answers — or at least there are clues to where things are headed; some don't. Here are the four big questions about what's next.

Will the Department of Justice try to fast-track the court case?

Eric Holder

US Attorney General Eric Holder speaks to reporters. (Mark Wilson / Getty Images News)

The most urgent question facing the Obama administration right now is whether to ask for an emergency "stay" of the Texas judge's decision from Monday night. That would force the 5th Circuit Court of Appeals to consider whether or not to keep the program on hold in a matter of days or weeks, rather than months. This may or may not result in a victory for the administration — the 5th Circuit is among the most conservative courts in the country — but fast-tracking the case would also get it before the Supreme Court sooner, where the administration feels it has its best chance.

If the request for a stay makes it to the Supreme Court and the administration wins, the deferred-action programs could start back up in only a few weeks. If the Supreme Court sides with the states — or if the administration doesn't ask for a stay at all — they'll be frozen for a matter of months or years while the case makes its way through the courts at the usual pace.

On Tuesday, Attorney General Eric Holder said that the Department of Justice was looking at its options; the director of the White House's Domestic Policy Council, Cecilia Muñoz, told reporters on a press call that the DOJ would decide in the next few days whether to file a stay. That decision is going to determine whether federal immigration policy remains in flux, or whether it settles into a holding pattern for the next several months or longer.

Will immigrants who aren't protected be deported instead?

ICE officer putting on his SWAT gear Getty Images

For the immigrants affected by the court's decision, the most important question now is whether they're in danger of being deported before the court case is resolved.

In theory, they shouldn't be. The president's executive actions in November included a very clear redefinition of who ICE agents should be deporting, and who they shouldn't be. Immigrants who'd be eligible for deferred action, even if they didn't have it yet, were firmly in the second category. And ICE and Border Patrol agents were told last month that when apprehending an immigrant, they should be careful to figure out whether they'd qualify for relief or not — and to think twice about detaining or trying to deport them if they qualified.

None of this was affected by the court order on Monday. In fact, the judge explicitly said that he wasn't addressing the question of whether the government should or shouldn't try to deport particular individuals.

Here's the problem: relying on ICE agents to implement "prosecutorial discretion" and target their deportation efforts has worked out very badly for the administration in the past. The reason that the administration instituted the first deferred-action program in 2012, and expanded it while adding a second program in 2014, is that it couldn't rely on ICE not to deport immigrants who'd been in the US for years and had families, so it started allowing those immigrants to apply for protection proactively. The new enforcement memo is much clearer than previous memos were about how to decide whether someone should be deported, but ICE agents have long resisted attempts from higher-ups to tell them who not to deport.

ICE has released over a thousand people from detention since the executive actions were announced in November, according to Prerna Lal, an immigration lawyer in Washington, DC. So they're definitely implementing the new regulations to some extent. But because of ICE's track record, advocates are still leery of relying on agents to protect immigrants for the next several months.

Will this break the DHS stalemate?


The court case has drawn attention away from Congress, but it hasn't postponed its looming deadline: the Department of Homeland Security will run out of money on February 27th unless a funding bill can get passed. And to meet that deadline, Congress isn't just going to have to resolve a deadlock between parties, but a deadlock between chambers.

Republicans are refusing to fund the department unless they can add a provision that permanently gets rid of President Obama's new deferred-action programs, and House Republicans passed a funding bill that did just that. Democrats are refusing to get rid of the programs, and so Senate Democrats (along with one Senate Republican) filibustered the House bill on four different occasions when Senate Majority Leader Mitch McConnell kept trying to bring it up for a vote. And McConnell and House Speaker John Boehner are each saying that it's the other chamber's job to do something now.

The Texas judge's decision has done absolutely nothing to break the logjam. Republicans think that the ruling should persuade Democrats to give in and agree to get rid of deferred action, but Democrats are holding firm. So either one side will give in before the 27th, or DHS will shut down: 85 percent of employees will be going into work without pay, and the other 15 percent won't be able to work at all.

If DHS shuts down, most immigration enforcement will still happen. Ironically, the one program that will be shut down is the E-Verify program for checking that employees are working legally — a program that Republicans want to make mandatory to make it harder for unauthorized immigrants to work in the US.

Is anyone turning back to comprehensive immigration reform?

Jeb Bush

Both the Obama administration and some of its moderate Republican critics (like Jeb Bush) have reacted to the court ruling by saying that if only Congress passed comprehensive immigration reform legislatively, this wouldn't be happening. Which is true, but is probably irrelevant. It's not clear that anyone in Congress who wasn't interested in comprehensive reform, or in any immigration bill that addressed the status of unauthorized immigrants in the US, is going to be persuaded now that it's a good idea.