Obama Administration appeals stay of immigration orders to 5th Circuit Court of Appeals

Prior to President Obama issuing his executive orders to expand the deferral of immigration proceedings to a broader class of undocumented immigrants, I posted this piece by Greg Sargent of the Washington Post, Lawyers agree: Obama has broad authority to act on deportations:

With Obama administration officials debating how aggressively to use unilateral action to shield people from deportations, more than 100 immigration law professors have signed a letter to the President (.pdf) arguing that he has expansive legal authority to act to temporarily protect additional groups from removal — and that this authority is rooted in statute, court opinion, regulations, and precedent.

The letter (.pdf), which was shared with this blog before its release, is designed to make the case to media and opinion-makers that Obama has maximum legal room to maneuver — which could shape how much political space the administration thinks it has on this difficult and explosive decision.

The letter — which was distributed by the American Immigration Council and the National Immigration Law Center — was signed by over 130 professors, attorneys and experts, some from the major Ivy League law schools, and others from border and red states that are relevant to the politics of this decision.

Since President Obama issued his executive orders on immigration, a hand-picked Republican judge in South Texas with a reputation for being highly critical of the administration’s immigration policies issued a ruling staying implementation of those executive orders. (This is known as venue shopping, and it is unethical). The court has not ruled on the substantive issues in the case, despite the rhetoric being used by Tea-Publicans in the media.

NBC News reports Legal Experts: Ruling Blocking Immigration Action ‘Deeply Flawed’:

A group of 104 legal scholars and immigration law instructors signed a statement (.pdf) calling the Texas judge’s decision that blocked President Barack Obama’s immigration executive action “deeply flawed.”

In their statement provided to NBC News and made public Friday, the group argued that the executive action programs that would have shielded millions from deportation and provided them permission to work “are well within the legal authority of the federal executive.”

Their statement was issued a day after the Department of Justice asked the 5th Circuit Court of Appeals to free the programs, known as DACA and DAPA, that were temporarily blocked by U.S. District Judge Andrew Hanen.

Some of the points made by the group:

–There is strong legal authority for deferred action in general, and for DACA and DAPA particularly, as forms of deferred action, which is recognized in law as a form of prosecutorial discretion.

–The immigration system has more than 20 forms of prosecutorial discretion used by the Department of Homeland Security.

–Hanen confused deferred action with work authorization. Deferred action has provided for work authorization in the past.

–Hanen is mistaken to suggest a person cannot obtain lawful presence through programs like DACA and DAPA. He wrongfully conflates lawful status and lawful presence.

The statement, not part of the ongoing legal cases, is similar to two others that were signed by some of the same scholars and instructors as the president’s immigration executive actions have been debated.

As this report alludes to, on Thursday the administration appealed this “deeply flawed” stay order to the Fifth Circuit Court of Appeals. Administration Asks Court to Lift Order Halting Immigration Programs:

The Obama administration, fighting a lawsuit by 26 states against the president’s executive actions on immigration, asked a federal appeals court Thursday to lift an order by a judge in Texas that halted the programs.

Calling the legal reasoning behind the Feb. 16 injunction “unprecedented and wrong,” the administration filed for an emergency stay (.pdf) in the Court of Appeals for the Fifth Circuit in New Orleans. The ruling, by Judge Andrew S. Hanen of Federal District Court in Brownsville, Tex., forced the administration to cancel the start of programs to provide protection from deportation and work permits to more than four million immigrants in the country illegally.

If the appeals court grants the stay, the administration could move forward on the initiatives. But if it does not, the programs are likely to be significantly delayed.

The administration asked the appeals court to decide within 14 days. It said that the court should lift the nationwide injunction entirely or limit it to Texas, the lead state in the lawsuit and the only one Judge Hanen specifically found would be harmed if the initiatives went forward.

As a third alternative, the government suggested excluding the states that did not participate in the lawsuit.

Also on Thursday, 14 states and the District of Columbia filed papers in the same court supporting the administration and asking to be exempt from the injunction.

“A single state cannot [Texas] dictate national immigration policy, yet that is what the district court allowed here,” those states argued. Rather than suffering financial losses, as Texas said it would if the programs went forward, “states will benefit from these immigration reforms,” they said.

Among the states supporting the administration are Washington, which is leading the coalition; New York; and California.

Administration lawyers decided to seek a stay, which can be difficult to obtain, despite the legal risks.

* * *

The administration on Thursday also asked the New Orleans court to give fast-track consideration to a full appeal of Judge Hanen’s injunction that it has filed.

Administration lawyers had to do some explaining to Judge Hanen about why they were going ahead to seek the stay.

On March 3, the government pointed out for the first time to the judge that one part of the initiatives Mr. Obama announced Nov. 20 had already gone into effect. Since November, officials have been giving three-year deferrals and work permits — instead of the original two-year documents — to young immigrants applying under a program Mr. Obama started in 2012. About 100,000 immigrants have received new deferrals or renewals for a three-year term, the government said.

Judge Hanen said explicitly that his injunction did not apply to the 2012 program. But lawyers for Texas said that the administration had misled the judge, and he set a hearing for March 19 to sort out the facts. But the administration decided not to wait until then to ask for the stay.

“The district court has taken the extraordinary step of allowing states to override the United States’ exercise of its enforcement discretion in immigration laws,” the government argued in its papers.

The 5th Circuit should rule on the Administration’s emergency stay request within the next two weeks and, failing that, it’s back to Judge Hanen’s courtroom to argue pending motions. Any trial on the merits of this case is a long way in the offing.

UPDATE: POLITICO reports Court rebuffs Obama on immigration stay timing:

A federal appeals court has turned aside the Obama Administration’s proposal to accelerate its request for a stay of a lower judge’s order blocking President Barack Obama’s plan to give quasi-legal status and work permits to millions more illegal immigrants.

The Justice Department asked the New Orleans-based 5th Circuit U.S. Court of Appeals Thursday to shorten the time for states challenging Obama’s immigration moves. Federal government lawyers asked that the states, led by Texas, have only seven days to respond. The states asked the court to allow the normal 10-day period to answer a stay request.

In an order issued before 8 A.M. Central Time Friday, the 5th Circuit sided with Texas and the other challengers on the timing issue, giving them until March 23 to weigh in.