Is the politically charged Texas immigration case about to become more politically charged?

As the 9 justices of the U.S. Supreme Court ponder whether to review the Republican lawsuit attacking President Obama’s immigration executive actions, back in Brownsville, Texas U.S. District Judge Andrew Hanen—whom Republican politicians, led by the state of Texas, sought out late last year to block the actions known as DAPA and DACA expansion—appears to be making an already brazenly political lawsuit more political.

In a little noticed order issued earlier this month Hanen commanded the parties to appear in his courtroom on Tuesday December 15 to explain the effect of a procedural decision of the 5th Circuit Appeals Court “on the rights of individuals to intervene in the case.” (The intervenors are people who have expressed an interest in becoming parties to the Texas immigration case).

When I read Hanen’s order the first question that came to my mind was: Why have a hearing now?  Hanen’s temporary injunction blocking the immigration executive actions is currently on appeal to the Supreme Court.  If the Court agrees to hear the case this term the lawsuit will not likely return to Hanen’s court room for months, if ever.  Most legal scholars and observers believe that Hanen was wrong to block the president’s executive actions last February.  If the Supreme Court hears the case this term there’s a pretty good chance they’ll toss out the entire case, rendering a hearing on the intervenors pointless.

Wouldn’t it make more sense for Hanen to put the whole case on hold until after the Supreme Court reviews it?  Why waste precious tax payer dollars and limited judicial resources on a procedural hearing about the role of the intervenors if there is a chance the case won’t survive Supreme Court review?  On that point even the GOP politicians who brought the case seem to agree. They’ve joined the Obama administration in a motion asking Judge Hanen to shelve the case until after the Supreme Court makes a decision.

What’s driving Hanen to go forward with a hearing at this point? Doesn’t he have other cases on his docket that need his immediate attention?

Maybe Hanen’s sense of urgency has more to do with who the intervenors are? Among those seeking to impose themselves on the litigation are Orly Taitz, queen of the disgraced and discredited birther movement, which challenged President Obama’s U.S. citizenship and legitimacy as President (Taitz specifically sought out Hanen to file several anti-immigrant lawsuits) and the infamous Maricopa County Sheriff Joe Arpaio, who’s built his brand by terrorizing Latino neighborhoods, surreptitiously investigating the wife of a federal judge and violating folks’ civil rights.  Arpaio lost a case on this same issue in the D.C. District and on appeal at the D.C. Circuit Court of Appeals.  It’s difficult to imagine that either Taitz or Arpaio have a “concrete, personalized, and legally protectable” interest in the case as required for intervention. Yet Hanen has set the hearing for Tuesday, December 15 and that presumably means the interests of Taitz and Arpaio will be heard.

All this underscores the real nature of the Texas GOP attack on DAPA and DACA which, as a panel of the 5th Circuit appeals court observed in its order affirming Hanen’s hold on DAPA and DACA expansion, involves “policy disagreements masquerading as legal claims”. Taking the court’s apt description a step further, the Republican challenge to the deportation deferrals is more about the party’s rabid disdain for “anything Obama” than the sanctity of the law.  DAPA and DACA wouldn’t have even been necessary if the GOP House leadership had allowed an up or down vote on comprehensive immigration reform in 2013.  Everyone knows that immigration reform would have passed Congress and the President would have signed it into law obviating the need for a deportation deferral.  In the aftermath of the House GOP’s intransigence Obama set forth immigration enforcement priorities which target felons, national security threats and recent border crossers rather than DREAMers and undocumented parents.  While he was able to slap a temporary hold on DAPA and DACA expansion, Hanen—who has not shied away from launching gratuitous attacks on the Obama administration’s immigration enforcement policies—knows that the President’s enforcement priorities are unassailably legal.

Is that why Hanen appears so eager to open his courtroom to a discussion of the role of the intervenors, including the infamous Sheriff Joe Arpaio and birther queen Orly Taitz, as the Supreme Court decides whether it will hear the Texas immigration case this term?

It seems that the participation of Apraio and Taitz will do little more than inject more nasty politics into the GOP’s shamelessly political lawsuit.

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.

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