BY MOLLY HENNESSY-FISKE
AND CINDY CARCAMO
LOS ANGELES TIMES / TNS
HOUSTON – A split federal appeals court on Tuesday let stand a lower court’s ruling that has stymied plans to shield up to 5 million people – including young immigrants known as “Dreamers” – from deportation.
At issue was President Obama’s proposed extension of the Deferred Action for Childhood Arrivals program, or DACA, created in 2012, and the Deferred Action for Parents of Americans and Legal Permanent Residents, or DAPA, which was scheduled to start in May.
The case will probably end up before the U.S. Supreme Court, immigrant rights advocates told the media during a news conference Tuesday. The legal wrangling means that immigration officials would probably have just a few months to launch and implement the programs before the 2016 elections if the courts approve it.
Lee Gelernt, an American Civil Liberties Union attorney, said in an interview that the ruling would “cause needless hardship to thousands of law-abiding families. The federal program is consistent with congressional intent and the Constitution and the states have no business trying to enjoin this program.”
Nora Preciado, staff attorney with the National Immigration Law Center in Los Angeles, which filed a brief in support of the federal government’s case, had hoped the panel would rule in their favor.
“We’re disappointed, but we will continue to make sure this matter moves forward,” she said. “We are calling for the administration to continue to fight for the implementation of the initiatives.”
Although the programs do not create a path to citizenship, critics have labeled them “amnesty,” and on Tuesday they praised the 2-1 ruling from the New Orleans-based appellate court.
“Texas just won the executive amnesty case at the 5th Circuit Court of Appeals. The Constitution wins,” Texas Gov. Greg Abbott, a vocal critic of Obama’s immigration policies, wrote in a tweet.
States vs. states
The case has divided the country into warring blocs of states. Twenty-six mostly Republican-led states, led by Texas, sued to block the program; another 14 states, plus the District of Columbia, have intervened on the side of the administration.
In February, U.S. District Judge Andrew S. Hanen, sitting in Brownsville, Texas, issued an injunction putting the programs on hold. Tuesday’s ruling comes after the appeals court panel held an unusual 2½-hour hearing April 17 on the administration’s request to stay the injunction.
Court of Appeals Judges Jerry E. Smith and Jennifer Walker Elrod agreed with Hanen’s ruling. They also found that Texas officials could suffer a “cognizable injury” from the cost of having to issue driver’s licenses to at least 500,000 people that might be covered under the executive action.
The panel appeared to have been swayed by Scott Keller, Texas’ solicitor general, who argued that Obama bypassed Congress to create a policy of deferred action that the states were forced to follow without proper administrative notice.
Smith was appointed by President Ronald Reagan and Elrod by President George W. Bush. Judge Stephen A. Higginson, who dissented, was appointed by Obama.
The White House noted his dissent Tuesday.
“Today, two judges of the 5th Circuit chose to misinterpret the facts and the law in denying the government’s request for a stay,” said Brandi Hoffine, a White House spokeswoman. “As the powerful dissent from Judge Higginson recognizes, President Obama’s immigration executive actions are fully consistent with the law.”
She insisted that Obama’s actions were within his authority and cited the 14 states, the District of Columbia and other constituencies that have joined the administration in asking the courts that Obama’s immigration programs be allowed to move ahead.
Extension of authority
Obama announced last fall that he was using his executive power to grant three-year work permits and temporary protection from deportation to about 4 million adults who are parents of U.S. citizens and have lived in the country for at least five years. He said the DAPA program was an extension of his authority to prioritize immigration enforcement.
DACA allows young people brought into the United States illegally as children to apply for deportation deferrals and work permits.
Lawyers for the Obama administration said Wednesday that they were refocusing their legal strategy in an effort to restart the president’s efforts.
The Justice Department said it would work on overturning the order blocking the plan, but the administration will not go to the Supreme Court to seek the stay, a Justice Department spokesman said.
“The Department of Justice is committed to taking steps that will resolve the immigration litigation as quickly as possible,” spokesman Patrick Rodenbush said in a statement.
Administration lawyers would have faced a high hurdle if they had appealed to the Supreme Court.
The justices are usually unwilling to intervene in a pending legal battle and to change the status quo unless they are presented with an emergency.
To get a stay, Obama’s lawyers would have to convince a majority of the court that the president’s far-reaching order is legal – and that the government would suffer “irreparable harm” if the programs were kept on hold for a few more months.
Stephen Legomsky, a professor at Washington University’s law school and former chief lawyer at the U.S. Citizenship and Immigration Services, said he thinks the Justice Department’s decision makes sense.
Even if the stay is granted, he said in an email, immigrants would be left in a state of uncertainty while the legal arguments grind on, and that could discourage people from applying.
Presidential candidates may be placed in the dicey position of having to answer whether they would keep and extend the programs if elected, said Marielena Hincapie, executive director of the Los Angeles-based National Immigration Law Center.
“We know that U.S. citizen family members, neighbors and friends will vote with that in mind,” she said. “Will (the candidate) be supportive of extending this executive action?”
If the programs survive the courts and are implemented, a question still looms: Will immigrants who qualify be willing to apply and identify themselves to federal officials if there is the potential that the next person in the White House might scrap Obama’s efforts and take an enforcement-only approach to illegal immigration?
Hennessy-Fiske reported from Houston and Carcamo from Los Angeles. Staff writers James Queally in Los Angeles, Christi Parsons in Washington and Nigel Duara in Tucson, Ariz., contributed to this report.