What to watch for in the appeal of the Texas #immigration lawsuit to the 5th Circuit

Originally posted by America’s Voice

by David Leopold

In March, the 5th Circuit appeals court granted the Obama Administration’s request to fast-track its appeal of Judge Hanen’s preliminary injunction which temporary blocked implementation of DACA expansion and DAPA. The Administration and the plaintiff states agreed to a briefing schedule which requires that all written arguments be filed with the appeals court by the third week in May.

In the meantime, on April 17, the court of appeals will hear oral argument on the Obama Administration’s request that it stay (or temporarily postpone) the hold Judge Hanen placed on DACA expansion and DAPA when he issued his preliminary injunction on February 16.

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 (temporarily postpone) the injunction while the court of appeals considers the case.  In effect, what the Obama administration is asking is that the court of appeals stop Judge Hanen’s order from taking effect until it decides the entire case.  So the April 17 hearing is not the final hearing on the appeal.  If, for some reason, the court of appeals does not postpone the injunction that doesn’t mean the Obama Administration has lost the appeal.  It just means the court of appeals has decided to continue to let Judge Hanen’s temporary delay of DACA expansion and DAPA stay in place while they consider the case.

It’s confusing.  But the upshot is that while the April 17 hearing is very important, it’s hopefully just another step along the way to getting the GOP lawsuit thrown out of court—where it belongs.

The appeals court has not yet scheduled Oral argument on the appeal of the preliminary injunction itself. That should happen toward the end of May 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 sometime in June or July.  That means that regardless of whether or not the Court of Appeals temporarily lifts the injunction after the April 17 hearing, if the Obama Administration wins the appeal the delay to DAPA/DACA expansion could be no more than a few weeks.

Stay tuned.

A Summary of Today’s Orders Of The 5th Circuit Appeals Court in the Texas #immigration Case

Here is a summary of the orders issued today by the 5th Circuit Appeals Court in the Texas Immigration lawsuit:

  1. The Court granted the Obama Administration’s motion to expedite the appeal of Judge Hanen’s preliminary injunction;
  2. Texas (and the plaintiff states) and the Obama Administration agreed to a briefing schedule lasting until about the third week in May;
  3. On April 17, 2015 the Court of Appeals  will hear oral arguments on the Obama Administration’s motion to stay (lift) Judge Hanen’s preliminary injunction pending appeal. Each side will be allowed one (1) hour for argument (Note: it’s rare for a Court of Appeals panel to hear oral argument on a motion to stay.  These are usually decided on papers alone); and
  4. The states opposing the preliminary injunction–Washington, California, Connecticut, Delaware, Hawai’i, Illinois, Iowa, Maryland, Massachusetts, New Mexico, New York, Oregon, Rhode Island, and Vermont and of the District of Columbia–are granted leave to file amicus briefs in support of the Obama Administration’s appeal of the preliminary injunction.

Note: The Court has set oral argument on the motion to stay the injunction.  Oral argument on the appeal itself has not yet been scheduled. Presumably oral argument on the appeal will be set in the next few weeks.

The Fifth Circuit website indicates that the names of the judges hearing oral argument will not be posted until at least a week before the beginning of the court week.

Given the expedited briefing schedule, the 5th Circuit Court of Appeals could issue a decision on the Obama Administration’s appeal of  Judge Hanen’s order sometime in June.  This means that regardless of whether the Court of Appeals temporarily stays (lifts) the injunction, if the Obama Administration wins the case the delay to DAPA/DACA expansion could be no more than a few weeks.

That’s good news.

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.

Obama Admin files emergency request to lift #immigration injunction; READ IT HERE–>

2015-02-23 Gov Motion for Stay

2015-02-23 Affidavit 1

2015-02-23 Proposed Order

2015-02-23 Affidavit 2

The Texas Lawsuit Challenging Obama’s Immigration Executive Actions Will Be Thrown Out — If the Judge Follows the Law

Originally posted in Huffington Post by David LeopoldUS-POLITICS-OBAMA-IMMIGRATION

Supporters of immigration reform are gearing up for what many expect to be bad news out of a federal court in Brownsville, Texas. Judge Andrew Hanen is about to decide whether or not to block the executive actions on deportations President Obama announced late last year. The actions, which have been challenged in federal court by the State of Texas and 25 other states, expand DACA — the deportation reprieve offered to undocumented immigrants who arrived in the U.S. as children — and create DAPA, a temporary deportation reprieve for undocumented parents of U.S. citizens and lawful residents.

The conventional wisdom is that Judge Hanen will enjoin implementation of the executive actions, perhaps as early as this week. Observers cite to a 2013 opinion Judge Hanen wrote in U.S. v. Navara-Martinez, an unrelated criminal prosecution for alien smuggling. There Judge Hanen, using extremely harsh language, lamented what he described as “the apparent policy of the Department of Homeland Security of completing the criminal mission of individuals who are violating the border security of the U.S.” He went on to say the “Department of Homeland Security should enforce the laws of the United States — not break them.”

To many that sounds like a jurist itching to rule against Mr. Obama’s executive action on deportations. And it’s likely why the State of Texas filed the case in the Southern District of Texas where Judge Hanen presides. The 30 page lawsuit prominently citesNavara-Martinez in an obvious effort to remind the judge that he has already found that the Administration has colluded in a criminal conspiracy to violate the law.

But the conventional wisdom could be way off. In fact, there’s a strong chance that Judge Hanen will throw the case out — if he correctly follows the law.

Here’s why:

First, and perhaps most importantly, the State of Texas has filed a bogus complaint; it reads more like a factually inaccurate press release than a legal document. It fails to describe exactly how the plaintiff states are or will be concretely harmed by the temporary deportation reprieves; especially when the Administration has used all resources allocated to it annually by Congress to detain and deport undocumented immigrants — approximately 400,000 people a year — leading some to label President Obama the “deporter-in-chief.” Further, at least one federal court has dismissed a similar challenge to the President’s executive actions brought by Joe Arpaio, the infamous anti-immigrant sheriff of Maricopa County Arizona, concluding Arpaio lacked standing to sue. While the decision is not binding on Judge Hanen, its cogent analysis of the complex legal doctrine of standing certainly provides persuasive authority for the dismissal of the Texas lawsuit.

Second, there’s no question Judge Hanen is extremely frustrated with DHS’s policy of reuniting unaccompanied minors with their undocumented parents in the U.S. But his opinion in Navara-Martinez was just that, an opinion. While reasonable minds may differ as to the prudence of using a judicial forum to express such views, nothing Judge Hanen did exceeded the bounds of his authority as a federal judge. Indeed, he noted judges are not authorized to make policy. “This Court takes no position on the topic of immigration reform,” Judge Hanen wrote, “nor should one read this opinion as a commentary on that issue. That is a subject laced with controversy and is a matter of much political debate which is not the province of the judicial branch.”

Third, while Judge Hanen severely criticized what he termed the Administration’s “failure to enforce current United States law,” he did so in the context of an alien smuggling prosecution. Whether or not one agrees with the judge’s views, it’s clear he was neither criticizing the Administration’s civil immigration enforcement priorities nor questioning prosecutorial discretion in general, including deferred action on deportations. “This Court is not opposed to the concept of prosecutorial discretion,” wrote Hanen, “if that discretion is exercised with a sense of justice and common sense.” And it would seem — at least to me — that common sense immigration enforcement includes processes like DACA and DAPA which allow the Administration to focus limited resources on deporting dangerous felons, national security risks and recent border crossers rather than DREAMERS and mothers and fathers of U.S. citizens and lawful permanent residents.

Judge Hanen, like all federal judges, has sworn to “faithfully and impartially discharge and perform” his duties under the Constitution. That is a serious oath which requires him to fairly apply the law — regardless of whether or not he personally agrees with the President’s executive actions on deportations. In the meantime many will take comfort in knowing that whatever Judge Hanen decides he will not likely have the last word. That’s all but certain to come from the appellate courts.

New Anti-Immigrant GOP Judiciary Committee Readies Itself for Loretta Lynch Hearing

From America’s Voice

Will Senate GOP Really Turn Critical Hearing on Attorney General Nominee into Anti-Immigrant Brawl?

Washington DC – In Congress and on the campaign trailRepublicans have been busy in the new year burnishing their anti-immigrant brand image.  In Washington, most of the anti-immigration action has taken place in the House of Representatives, where the GOP passed legislation straight from the top of the restrictionists’ wish list, including proposals that block the sensible and legal immigration actions announced by the President last November, end the DACA program for DREAMers, and maximize the deportation of all undocumented immigrants in America.

On the other side of the Capitol, Republicans on the Senate Judiciary Committee are preparing to turn the Attorney General confirmation hearings into yet another anti-immigration slugfest.  Rather than focusing on Loretta Lynch’s qualifications to serve as the next Attorney General for the United States, they are planning to spend much of their time criticizing President Obama’s actions on immigration.

Of course this should surprise no one, since the Republican side of the Senate Judiciary Committee is now stacked with hardliners who have promised to make immigration a dominant focus of the proceedings.

According to Lynn Tramonte, Deputy Director of America’s Voice, “It’s safe to say that Republicans in Congress are obsessed with immigration.  With all of the issues facing the nation today—terrorism, cybercrime, individual liberties, the role of law enforcement in communities, and so much more—Republicans’ decision to turn the Attorney General confirmation hearings into another anti-immigration press conference is just as irresponsible as it is reprehensible.”

It is difficult to predict which Republican Senator will express his anti-immigration obsession the most colorfully, and earn the most headlines.  There certainly are a lot of contenders on the Committee, such as:

“It seems that Republicans in Congress don’t feel they have sufficiently alienated voters who care about immigration reform.  They have to turn every occasion—no matter how important—into an opportunity to attack President Obama on immigration.  It’s a level of obsession that cries out for an intervention,” said Tramonte.

America’s Voice will be commenting on the hearings via Twitter; follow @AmericasVoice to stay informed.

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 

www.americasvoice.org

Mayors de Blasio and Garcetti Announce Mayoral Coalition to File Amicus Brief in Support of President Obama’s Executive Action on Immigration Reform


From the City of New York, Mayor’s Office

January 23, 2015

 More than 30 mayors sign on in Texas vs. United States in defense of President Obama’s reform action

 WASHINGTON—Mayors Bill de Blasio of New York City and Eric Garcetti of Los Angeles announced today plans by more than 30 mayors to file an amicus brief in the Texas vs. United States lawsuit to support President Obama’s recent executive action on immigration reform. The brief opposes a lawsuit pending in Brownsville, TX brought by states seeking to block President Obama’s immigration reform efforts.

The two mayors led the effort to organize more than 30 cities, the National League of Cities, and the U.S. Conference of Mayors in filing a brief arguing that the public interest across the country is served clearly and overwhelmingly by implementing immigration reform by executive action. The brief also argues that blocking executive action with preliminary injunction will stall desperately needed changes to the federal government’s immigration policies. The cities represented by the amici mayors together account for approximately 28.2 million people, including 7.5 million immigrants.

“Our mission is urgent. Delaying implementation of the President’s executive action will further hurt our families, negatively impact our economies, and create unnecessary insecurity in our communities,” said Mayor Bill de Blasio. “Cities are where immigrants live, and cities are where the President’s executive action will be successfully executed. We are organized, and we will fight for the changes this nation needs and deserves, and fight those who oppose immigration reform, be it in the courtroom, in Congress, or in our communities. Our voices will be heard.”

“Our cities cannot afford delays to immigration reforms that will strengthen our economy and help families,” said Los Angeles Mayor Eric Garcetti, who established a Mayor’s Office of Immigrant Affairs. “This isn’t a blue or red issue, but a human and economic one.”

This joint effort to offer the court the crucial perspective of American cities is an outcome of the December immigration summit hosted by Mayor Bill de Blasio at Gracie Mansion and the organizing efforts of the Cities United for Immigration Action (CUIA) coalition. By submitting this “friend of the court” brief, America’s mayors are making a strong statement in support of the President’s plan to grant administrative relief to over 4 million undocumented children and adults. The amicus brief will demonstrate to the Court that executive action will benefit cities by providing work authorization to millions, increasing local tax revenue, and stimulating local economies, facilitating the civic engagement of immigrants, keeping families together, and improving public safety by strengthening our neighborhoods and communities.

In December, 25 states led by Republican governors brought a lawsuit captioned Texas vs. United States in the Federal District Court for the Southern District of Texas, seeking to halt the implementation of the President’s executive action. In response, a group of 12 states in January joined by the District of Columbia filed an amicus brief challenging the lawsuit by arguing that, contrary to the plaintiffs’ claims, the President’s immigration reform will in fact “further the public interest” of states and their residents, both immigrants and citizens. A group of 27 law enforcement leaders and other groups have also filed amicus briefs in support of the President’s executive action on immigration reform.

This is the first submission to the court from the city perspective.

“San Francisco is proud to file an Amicus Brief joining cities large and small from across the country and the U.S. Conference of Mayors to support our President’s bold action on immigration and create the change to help our residents succeed,” said San Francisco Mayor Ed Lee. “As the son of immigrant parents, this issue is very personal to me. Mayors must lead on this reform to provide all of our residents with hope, opportunities, and the services they deserve. We know our diversity drives our cities’ economies and makes us all stronger.”

“The President’s executive action on immigration is a step forward for America,” said Salt Lake City Mayor Ralph Becker. “We need to support his efforts to address our broken immigration system.”

“Filing an Amicus Brief is our way of saying: Pittsburgh stands on the right side of history. The President’s action on immigration was an important first step towards progress—for the growth and prosperity of our nation. We must not go backwards,” said Pittsburgh Mayor William Peduto.

“The City of Dayton is proud to be a leader in welcoming people from diverse backgrounds to its community,” said Dayton Mayor Nan Whaley. “This order will strengthen our commitment to inclusion by allowing all residents to fully participate and help grow the economic vitality of the region. It is essential that all citizens feel safe and engaged in the place they call home.”

“This proposal is fair, economically beneficial for everyone, and the right thing to do,” said Madison Mayor Paul Soglin.

“Right now, our immigration system invites the best and brightest from all over the world to come and study at our top universities, including Washington University and St. Louis University, and then once they’ve gotten the training they need to build a new invention or create a new business, our system too often tells them to go back home so that other countries can reap the benefits, the new jobs, the new businesses, the new industries,” said St. Louis Mayor Francis Slay. “It’s evidence of the broken system we have today and why we must fight to fix it.”

The following Mayors have signed on to the amicus brief:

Mayor Bill de Blasio, New York, New York

Mayor Eric Garcetti, Los Angeles, California

Mayor Kasim Reed, Atlanta, Georgia

Mayor Stephanie Rawlings-Blake, Baltimore, Maryland

Mayor Byron Browm, Buffalo, New York

Mayor Rahm Emanuel, Chicago, Illinois

Mayor Steve Benjamin, Columbia, South Carolina

Mayor Nan Whaley, Dayton, Ohio

Mayor Michael Hancock, Denver, Colorado

Mayor Muriel Bowser, Washington, D.C.

Mayor Pedro Segarra, Hartford, Connecticut

Mayor Annise Parker, Houston, Texas

Mayor Steven Fulop, Jersey City, New Jersey

Mayor Paul Soglin, Madison, Wisconsin

Mayor Ras Baraka, Newark, New Jersey

Mayor Michael Nutter, Philadelphia, Pennsylvania

Mayor Bill Peduto, Pittsburgh, Pennsylvania

Mayor Charles Hales, Portland, Oregon

Mayor John Dickert, Racine, Wisconsin

Mayor Tom Butt, Richmond, California

Mayor Lovely Warren, Rochester, New York

Mayor Ralph Becker, Salt Lake City, Utah

Mayor Ed Lee, San Francisco, California

Mayor Gary McCarthy, Schenectady, New York

Mayor Ed Murray, Seattle, Washington

Mayor Francis Slay, St. Louis, Missouri

Mayor Marilyn Strickland, Tacoma, Washington

Mayor Mike Spano, Yonkers, New York

The following mayors have expressed their support and will sign on to the brief, pending final local approvals:

Mayor Karen Majewski, Hamtramck, Michigan

Mayor Virg Bernero, Lansing, Michigan

Mayor Tom Barrett, Milwaukee, Wisconsin

Mayor Betsy Hodges, Minneapolis, Minnesota

Mayor Greg Stanton, Phoenix, Arizona

 pressoffice@cityhall.nyc.gov

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