Obama’s appeal of the Texas GOP anti-#immigrant lawsuit remains strong

This morning the 5th Circuit announced the three judge panel that will hear the Obama Administration’s motion to stay (lift) Judge Hanen’s order temporarily blocking DACA expansion and DAPA; and, as expected, it’s a very conservative panel.  Ian Millhiser of thinkprogress.com described the panel—which includes, Judges Jerry E. Smith (Reagan appointee), Jennifer Walker Elrod (G.W. Bush appointee) and Stephen A. Higginson (Obama appointee)—this way:

Two members of the three-judge panel that will decide whether to reinstate these programs are extraordinarily conservative judges. One of them once described himself, admittedly somewhat jokingly, as a former ‘right-wing activist.’

But here’s the good news.  These judges are not likely to decide the Obama Administration’s full appeal.  Their job is to rule on the Administration’s motion to temporarily lift Judge Hanen’s order so DACA expansion and DAPA can begin to go forward while the 5th circuit appeals court decides the full appeal of the preliminary injunction.

Importantly, the April 17 hearing is not a hearing on the appeal of Judge Hanen’s preliminary injunction.  It is a hearing on the Obama Administration’s motion to stay (lift) the injunction while the court of appeals considers the appeal.  In effect, the Obama administration is asking is that the court of appeals stop Judge Hanen’s order from taking effect until it decides the entire appeal.  If this panel does not postpone the injunction it will be disappointing for sure, but it doesn’t mean the Obama Administration will have lost the appeal.  It will just mean the panel will have decided to continue to let Judge Hanen’s temporary delay of DACA expansion and DAPA stay in place while the 5th circuit considers the full appeal of Judge Hanen’s order temporarily blocking the President’s actions on deportation.

It’s confusing.  But the upshot is that while today’s announcement may be a Monday morning bummer, it’s hardly a death knell to the Obama Administration’s appeal or the underlying case .

The appeals court has not yet scheduled oral argument on the full appeal of the preliminary injunction itself. Nor has it released the names of the three judge panel that will hear it.  That should happen near the end of May or beginning of June once the parties are finished briefing the case.

Given the fast track briefing schedule, the 5th Circuit Court of Appeals could issue a decision on the Obama Administration’s full appeal of the preliminary injunction sometime in June or July.  That means that regardless of whether or not the Court of Appeals temporarily lifts the injunction after Friday’s hearing, if the Obama Administration wins the full appeal, DACA expansion and DAPA could be back on track this summer.

Finally, regardless of the makeup of this or the panel that hears the full appeal, the law and facts are solidly on the side of the President’s immigration executive actions.  As a panel of the 5th circuit recently emphasized in Crane vs Napolitano the law of standing–which is the major issue in this appeal–is designed to keep politics out of the courtroom. And a court should be especially careful, the 5th appeals court cautioned, when it’s being asked to decide that an executive policy is unconstitutional.

Stay tuned.

DAPA Eligible Immigrants Will Not Be Deported and 3 Other Things You Need to Know About the GOP #Immigration Lawsuit

Originally posted on Huffington Post

By David Leopold

Since Judge Hanen issued his controversial midnight order blocking President Obama’s executive actions on immigration there has been a lot of speculation about what will happen next. Will the Court of Appeals quickly reverse the ruling? How long will it take for the case to wind its way through the appellate courts? Will the U.S. Supreme Court have to weigh in?

I’ve been answering questions like these on DAPAQuestions.org and will continue doing so, but there are three key questions that many people are asking today.

What does the Republican Lawsuit against expanding DACA and the new DAPA program mean for the 5 million immigrants that would qualify for these programs?

The Republican lawsuit against DACA expansion and DAPA was undoubtedly a bump in the road, but it is not the final word. The law is clear and DAPA/DACA expansion policies are legal, despite what Judge Hanen thinks. Until the Texas case is resolved on appeal, DREAMers and parents who were preparing to apply should continue to do so.

Importantly, applicants for the DACA program created in 2012 can and should continue to apply. The lawsuit does not affect them.

Applicants for DACA expansion (the changes announced in 2014) should continue to collect documents and other proof showing of arrival in the U.S. before the age of 16 and that they were in the U.S. on January 1, 2010.

DAPA applicants should collect all necessary proof that they’ve lived in the U.S. since before January 1, 2010 and, on November 20, 2014–the day President Obama announced his immigration executive actions–were the parent of a U.S. citizen or lawful permanent resident.

And, of course, applicants should be prepared to pay the expected $465 application filing fee which includes the cost of criminal background checks.

Does the Republican lawsuit block all of President Obama’s immigration actions?

No! While the future of DAPA and DACA expansion could be tied up in the courts for the next few weeks or (maybe even months), Republicans cannot touch Obama’s immigration actions that are already being implemented.

Judge Hanen’s order does NOT affect the original, existing DACA program. Individuals who qualify for deferred action based on the criteria outlined in 2012 can and should continue to apply.

Judge Hanen’s order also has NO effect on the immigration enforcement priorities that President Obama laid out as part of his executive actions. These new priorities, which are detailed in a memorandum from Homeland Security Secretary Jeh Johnson, direct immigration agents to focus on the deportation of aliens who are national security threats, felons, criminal gang members, visa abusers and serious immigration violators.

This means that DREAMers and parents of U.S. citizens who meet the criteria for DACA expansion and DAPA generally should not be deported–even if they come into contact with ICE or CBP. They are only at risk if their deportation would service an “important federal interest” such as individuals who pose a threat to community safety.

Nobody has (or can) seriously question whether or not President Obama’s immigration enforcement priorities are legal. And they go beyond the confines of DACA and DAPA to prevent unjust deportation of other undocumented immigrants with roots and ties to the United States.

But how can we trust that these priorities are being implemented?

This is an important question given past experience with various iterations of “enforcement priorities” memos.

The good news is that so far ICE field offices seem to be following the new enforcement priorities. In Ohio, for example, ICE agents took it upon themselves to postpone the imminent removal of an undocumented mother of a U.S. citizen child after the policies were announced. While the woman still needs DAPA to get stability, at least her low priority removal status allows immigration enforcement agents to focus on dangerous criminals and national security risks. Vox’s Dara Lindreportedlast week that 1000 people have been released from immigration custody since DHS released its enforcement priorities in November.

Nevertheless, immigration advocates must remain vigilant. If a DREAMer, undocumented parent or long-term resident is apprehended, detained or facing removal, ICE officials should be notified immediately that the person is not an enforcement priority and should not be detained or removed. Ideally this should be done through a licensed attorney who is experienced with the deferred action process. If local officials appear to not be following priorities, attorneys should sound alarm bells to higher immigration agency authorities and immigration advocacy groups like America’s Voice Education Fund who can work to ensure that ICE agents closely follow the President’s smart enforcement priorities.

5 things to know about the fight over Obama’s #immigration actions

Originally posted on MSNBC.com

By David Leopold

Late Monday night, U.S. District Judge Andrew Hanen temporarily blocked President Obama’s executive actions on deportations, which were challenged in federal court by Texas and 25 other states.

The immigration actions, which were set to begin going into effect today, expand DACA to undocumented immigrants over the age of 30 who arrived in the U.S. as children and create DAPA, a discretionary temporary deportation reprieve for undocumented parents of U.S. citizens and lawful residents. For now, both initiatives are on hold while the administration files its appeal with the court of appeals.

Here’s what else you need to know.

What is the Texas lawsuit about?

At bottom, the states claim that President Obama unconstitutionally bypassed Congress last year by offering deportation reprieves through executive action. The administration – with the support of 12 states, the District of Columbia, 33 cities, 27 police chiefs, highly respected legal scholars and nonprofit organizations – counters that DACA expansion and DAPA are solidly legal and that presidents of both parties have used their executive authority to grant similar deportation reprieves.

Why did the judge block the executive actions?

Judge Hanen focused on Texas’ claim that it would suffer financial loss by having to issue driver’s licenses to DACA and DAPA recipients. As he has done in previous cases, the judge used his 123 page order as a bully pulpit to excoriate the administration’s immigration enforcement policies. (The DACA program, which went into effect in 2012, was not affected by the judge’s order.)

Yet despite halting the immigration initiatives, Hanen did not rule that Obama in anyway exceeded his lawful authority or violated the constitution. Instead he ruled on very narrow, highly technical legal grounds: That the executive actions did not comply with the rule making requirements of the Administrative Procedures Act. The administration argues that the deportation reprieves are solidly legal and well within the president’s authority to focus limited immigration enforcement resources on the deportation of terrorists, felons and gang members – not DREAMers, and mothers and fathers of U.S. citizens and lawful permanent residents.

What happens now?

Judge Hanen’s order is of course an unwelcome setback for supporters of the president’s executive actions, but it’s hardly a fatal blow to DACA expansion or DAPA. The final decision – which most legal experts are confident will uphold the president’s immigration actions – will come from a much higher court; probably the U.S. Supreme Court.

Here’s how it will work: The Obama administration will appeal Judge Hanen’s decision to the Fifth Circuit Appeals Court. The higher court will likely take several weeks or months to decide the case. In the meantime, both the DACA expansion and DAPA will remain on hold. The government will not accept applications for either program, but potential applicants would be well advised to continue to collect documents so they are ready to apply when the injunction is eventually lifted.

If the Fifth Circuit reverses Judge Hanen’s order – as many experts expect it will do – the DACA expansion and DAPA processes will go forward as planned. If not, the president’s executive actions could be delayed for many more months while the administration asks the U.S. Supreme Court to review the case.

Importantly, Judge Hanen’s order is hardly the final word. It’s just the first act in what could be a very drawn out play that may conclude in the U.S. Supreme Court.

In the meantime, what happens to the DREAMers and parents who qualify for DACA plus and DAPA?

The law requires Obama to set immigration enforcement priorities – to decide, in effect, which undocumented immigrants should be deported first. Last November, when he announced his immigration executive actions, the president said he’ll prioritize the deportation of “felons, not families. Criminals, not children. Gang members, not a Mom who’s working hard to provide for her kids.”

What that means for immigrants who would qualify for the DACA expansion and DAPA is that, as long as they are not a deportation priority, their cases will remain at the bottom of the enforcement barrel while the Department of Homeland Security focuses on getting rid of those who threaten the safety of American communities.

How does the judge’s decision affect the larger battle over comprehensive immigration reform?

At the time Judge Hanen ruled on Monday, congressional Republicans were trying to figure out how to break a stalemate that threatens to shut down the Department of Homeland Security over GOP opposition to the president’s executive actions on immigration.

Hanen’s injunction clearly complicates things for the GOP. Conservative Republicans may harden their position against compromise with Democrats and the administration on homeland security funding. On the other hand, Hanen’s order temporarily halting the implementation of DACA expansion and DAPA arguably takes the issue off the table – at least for now – undercutting those in Congress intent on using homeland security funding to kill the president’s immigration initiatives.

Yet despite the GOP’s apparent obsession with creating an immigration system characterized by chaos and mass deportation, one thing is crystal clear – the DREAMERs and undocumented parents the Republicans long to deport are not going anywhere. They are already home.

Stay tuned.

Do Republicans have grandparents too?

Originally posted on Neil Steinberg’s blog.

BY NEIL STEINBERG
This is my grandfather, Irwin Bramson. I don’t believe his picture has ever appeared in a newspaper before. He would be delighted to see it here.
My grandfather was not famous, or successful, beyond supporting his family, working in a factory in Cleveland that made machine parts. He eventually owned his own house, on Rossmoor Road in Cleveland Heights. He was very proud of that.
My grandfather was born on a farm in Bialystock Poland, in 1907 and was sent to this country because things were very bad there and he had a relative, a distant cousin in Cleveland who owned an automobile parts factory and would employ him. He left at 16 and never saw any of his family again; they were all murdered, man, woman and child by the Nazis and their henchmen.
When he got here, he no doubt faced the scorn of those who felt that America was being corrupted by racially inferior immigrants such as himself that all manner of subhumans and Jews, were poisoning American blood, that they were constitutionally different and would never fit in.
But he did fit in. He never went to college, but he met my grandmother, got married—they went to the Century of Progress Exposition in Chicago on their honeymoon in 1934. They had three daughters, my mother being the eldest. Had they been born in Poland, they all would have been murdered too.
All of my memories of him involve him sitting in a green Barcalounger, watching “The Price Is Right.” He smoked cigarettes and drank bourbon. He sucked Luden’s Cherry Cough drops for his throat—he would die of emphysema in 1981.
He taught me chess. He would give me a dollar if I won and a dollar if I lost. He took me to my first baseball game. There was nothing mean or difficult about him. He did not complain. He asked nothing of anybody. In fact, he rarely spoke. He was a simple man, and I loved him.
Everyone in the United States, unless they are a Native-American, has a person like my grandfather in their past, someone who came over here to escape hardship or horror and make a life. Whether it was 5 or 50 or 500 years ago, the story is the same. They came over and the country let them in.
My grandfather became a citizen, not because he was a genius, not because he was harder working or smarter or better than any Mexican fording the Rio Grande. But because he could back then. There was an Ellis Island and a system that worked. Today Ellis Island is a shrine to ideals that half the country doesn’t believe anymore, who adopt the cruel role of the Americans who harassed their own forebears.
I thought of my grandfather, after I watched Barack Obama’s brief speech Thursday night—lucky I have cable because none of the networks, the supposed mainstream media supposedly in his thrall, bothered to show it. He announced his changes to immigration policy, to allow undocumented immigrants who have been here longer than five years to “get right with the law,” register and not fear deportation.
Before Obama even spoke, the Republicans, who oppose everything the president has done, is doing, or will do, made a show of opposing this too, a rare trifecta blending economic myopia, longterm political suicide, and lack of basic human decency. Only time will tell if they respond by trying to impeach him, shut down the government or some new strategem. The only thing that they are certain not to do is pass the comprehensive immigration reform which, announcing his stopgap, Obama called for.
That this is the right thing, that it is long overdue, that it will help the United States economy, that to do otherwise is cold hypocrisy and a denial of their own family, an insult the memory of my grandfather and theirs and the millions like him, never wrinkles their brow.
My wife and I watched the speech.
“He looks tired, frustrated,” my wife said.
“He’s trying to talk sense to idiots,” I said.
I’m glad I saw the speech, because I was starting to think very little of Obama, just by osmosis, just by living in a country where he is so despised. I wish he had done this three months, six months, a year ago. Not doing so was the kind of small, mean political calculation that has hobbled his presidency. The Democrats got drubbed anyway.
But now I realize, the bottom line with Obama is: he did what he could do. He didn’t waste effort trying the impossible. Even his narrowed options were tough to manage.
The good news is, he’s already won.
As with gay marriage, the notion of no longer keeping millions who came to this country illegally in rightless limbo forever will seem an impossibility until suddenly it doesn’t and everybody wonders what took us so long to do the moral thing. Then the people who are castigating the president now will be hard to find. Cornered, they will shrug off their fanatical opposition to people just like their own grandparents with some easy rationalization. What really struck me about the president’s speech is he could speak the words at all, that he somehow found the stamina to present a cogent argument to rabid enemies who stopped listening long ago. There is a nobility to that.

A personal postscript to an amazing week of #immigrationAction

2014-11-22 West WingFriends, I was honored to be among a handful of civil rights and immigration leaders and advocates invited to meet with President Obama in the West Wing of the White House on Thursday afternoon shortly before he announced his Immigration Executive Actions.

As I sat in the Roosevelt room with the President I was taken with thoughts of my grandparents and my dad, Holocaust survivors from Germany, who were given refuge in this great country. We owe so much to those who brought us to this day. And we owe a lot to future generations. I was truly humbled to be a part of this historic moment.

Last night families across America who’d grown accustomed to living in fear went to sleep knowing that in the morning they would wake up safe and together.

That’s not hyperbole, that’s a reality for families throughout the country.

There is a Talmudic saying that “if you save one life, it is as if you have saved the world.” This week the President used his authority to make the immigration system work better until Congress finally fixes it. And, in so doing, the President has “saved the world” for millions and millions of hard working honest people.

At the same time we must remember that what the President has done is only a first step; millions more families continue to live in the shadows, fearful of being separated from their loved ones every time they leave their homes to buy milk at the corner store, medicine for their children, or simply fill the car with gas. This is not who we are as a nation, as people, as a culture.

The step Mr. Obama has taken to make the immigration system work better is a bold and courageous (and yes–solidly legal) use of his lawful authority as President of the United States. But only Congress has the power to fix the antiquated, rigid and outdated immigration policy that plagues this country, devastates families, stymies American business and inhibits job creation.

We can only hope that amid the calls for lawsuits and legislation to block the President’s executive actions Republican congressional leaders will find the guts to do the right thing by the American People.

.@americasvoice: Two Key Points Regarding #Immigration Executive Action

For Immediate Release:                                             Contact: Michael Earls

August 12, 2014                                                                                202-494-8555

 

Two Key Points Regarding Immigration Executive Action

Opposing Legislative Reform and Executive Action Perpetuates Immigration Status Quo;

Former AILA President David Leopold Explains Why Executive Action is Legal

 

Washington, DC—Two new opinion pieces, in Spanish and English, further two of the key points to understand regarding potential executive action on immigration:

 

  1. Doing nothing, either via legislation or executive action, is the true radical option on immigration and an endorsement of the failed immigration status quo
  2. President Obama has broad legal authority to act on immigration policy

 

A new column from America’s Voice Senior Advisor Maribel Hastings, running in leading Spanish-language outlets, captures that Republicans are endorsing the broken immigration status quo by refusing to legislate on reform and then preemptively criticizing the president for taking executive action.  Writes Hastings:

 

“Only in the twisted world of immigration politics do the contradictions win out: The House of Representatives won’t legislate, but they blame the president for believing he’s a king if he issues executive orders.  They denounce ‘illegality’, but with their inaction they perpetuate the status quo of real illegality where it’s impossible to know who is among us.

 

Authority and discretion exist and they’re legal.  If they’re not used now for partisan political considerations it’s another matter.  But the last thing Obama should care about is what the obstructionist Republican opposition says.  If they don’t like executive action, then legislate.”

 

Former president of the American Immigration Lawyers Association (AILA), David Leopold, writes a new opinion piece in The Hill that adds to the volume of existing analysis showing that potential executive action on immigration rests on solid legal footingLeopold writes:

 

“Even Mr. Obama’s most ardent critics must concede that his constitutional duty to faithfully execute the immigration law gives him wide latitude in its enforcement.  What’s less clear are the limits of that authority.  How far can the President go?

 

The reason this is not an easy call is because the line between exercising discretion over enforcement and crossing over to policy making is often blurred.  One thing that exemplifies this is determining when a case-by-case grant of discretion crosses over to a categorical grant.  Critics like to argue that case-by-case exercises of discretion are acceptable but categorical are not.

 

But it does not follow that this crosses that line.  As long as the administrative decision to defer the removal of a group of undocumented immigrants is legitimately aimed at more efficient use of law enforcement resources, it arguably falls well within the President’s discretion.  This includes the discretion to defer the deportation of undocumented immigrants—individually or as a group—if doing so allows the administration to focus resources on keeping the country safe.

 

In fact, Presidents of both parties have used categorical grants of deferred action to postpone the deportation of large groups of undocumented immigrants, including abused women, hurricane victims and refugees.

 

Therefore, to violate the constitution, the President’s action must be a dramatic, extraordinary departure from universally accepted exercises of executive discretion.  DACA or its expansion don’t even come close…

 

…Legally therefore, DACA is not much different than executive discretion contemplated by the Morton Memo, which even conservatives concede was well within the president’s authority to issue.  Like the Morton Memo DACA or its expansion is nothing more than a temporary postponement of deportation for undocumented immigrants whose removal is a low enforcement priority. This temporary reprieve from removal falls far short of amnesty which, presumably, would offer qualified undocumented immigrants a new set of rights and obligations, including lawful immigration status and a pathway to citizenship coupled with due process rights, including the right to defend against denial or revocation.

 

Critics like to say that the availability of employment authorization or the use of forms and fees pushes the DACA process or its expansion over the blurry line from lawful discretion to executive lawlessness. But they conveniently forget (or are not aware) that the president’s authority to authorize employment of immigrants is long-standing and already well-established in the law.  The regulation that grants work authorization to immigrants granted deferred action predates DACA and applies to many other categories of people granted deferred action, such as abused women, hurricane victims, and refugees.  The president’s authority to grant work status long precedes DACA, and while it does apply to DACA and would apply to its expansion, it is not an outgrowth of either…

 

…Those who challenge President Obama’s authority to act on his own to limit deportations fail to make the case that DACA or its expansion is such a dramatic departure from the Morton Memo (or other universally accepted forms of prosecutorial discretion) that it constitutes the naked power grab they claim.  It’s not enough that it looks different, it must be different; significantly different from what is accepted as lawful discretion.  But it isn’t significantly different.

 

In other words, it’s legal.”

 

Follow Frank Sharry and America’s Voice on Twitter @FrankSharry and @AmericasVoice.
America’s Voice – Harnessing the power of American voices and American values to win common sense immigration reform


  1. americasvoice.org

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More nastiness from @SenatorSessions on #immigration

Senator Jeff Sessions (R-AL) injected his own brand of nastiness into the debate over the plight of the Central American refugees fleeing Honduras, Guatemala and El Salvador for other countries in the region, including the U.S.

Not surprisingly, Sessions fails to offer a single constructive policy solution; just more partisan rancor, including the absurd claim that the crisis is the result of the Administration’s failure to enforce the immigration law.

Of course Sessions does take the opportunity to call for an end to DACA and the deportation of DREAMERs.

Read the letter here:  2014-07-14 Sessions Letter

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