By R. Mark Frey
Immigration Law & You
ST. PAUL, Minn. (Nov. 24, 2015) — As you may recall, about one year ago President Obama issued a series of executive actions to address some of the more troubling aspects of our woefully inadequate immigration system. Through power granted him by the U.S. Constitution, he sought temporary relief for some out-of-status individuals meeting certain criteria (Deferred Action for Parents of Americans – DAPA) as well as an expansion of the field of eligible applicants for Deferred Action for Childhood Arrivals (DACA), among others. In December 2014, Texas and 25 other states filed a lawsuit in the Southern District of Texas seeking both to enjoin President Obama from implementing those executive actions and a decision finding him in violation of the U.S. Constitution.
On February 16, 2015, U.S. District Court Judge Andrew Hanen issued a preliminary injunction barring the executive actions’ implementation, pending resolution of the lawsuit. On March 12, 2015, the Obama Administration filed an emergency motion with the Fifth Circuit Court of Appeals seeking a stay of Judge Hanen’s preliminary injunction, allowing it to push ahead with its executive actions. On April 17, 2015, a Fifth Circuit motions panel heard oral arguments over the matter of the emergency stay request and issued a denial on May 26, 2015.
On July 10, 2015, oral arguments were made to a Fifth Circuit Court of Appeals panel over the preliminary injunction itself, that is whether it should be allowed to continue blocking implementation of the executive actions or overturned while the District Court reviews the lawsuit challenging the constitutionality of the executive actions themselves. On November 9, 2015, the panel, in a 2-1 decision, denied the Administration’s request to lift the preliminary injunction.
On November 20, 2015, the Obama Administration filed a petition with the U.S. Supreme Court asking it to review the Fifth Circuit’s decision to uphold the District Court’s preliminary injunction while the lawsuit is before the District Court in Texas.
Over the past few days, I’ve received a number of calls from people asking about the Fifth Circuit Court’s November 9 decision and news of the Obama Administration’s recently filed petition with the U.S. Supreme Court. It seems appropriate to address some of those questions.
Q: Republican candidate Donald Trump has made several incendiary remarks in recent months about “illegals” and sending them home. Does the Fifth Circuit Court’s decision and possible Supreme Court review mean that ICE and the police will soon round up out-of-status people en masse and send them home?
A: No, DAPA and expanded DACA have more to do with allowing approximately 4-5 million people to come out-of-the-shadows in order to be designated by the Immigration Service as low priority for removal at the present time, provided they meet certain criteria. Donald Trump and others like him are interested in vilifying and demonizing certain groups of people, exploiting that to their political advantage.
Q: What exactly did the Fifth Circuit Court of Appeals decide on November 9?
A: The Fifth Circuit’s decision affirms the District Court’s preliminary injunction halting implementation of President Obama’s executive actions pending resolution of the lawsuit filed by Texas and several other states in December 2014 over the constitutionality of those executive actions. There are some key points to consider. First, the Fifth Circuit panel asserted that Texas would be harmed if the injunction was lifted since it would face millions of dollars in expenses by having to provide driver’s licenses to those benefitting from the executive actions. (But, states are not required to provide driver’s licenses. That’s a decision to be made by individual states themselves). Second, the Fifth Circuit panel argued that an agency such as the Department of Homeland Security is required to formally publish notice of contemplated changes in its rules and seek comments before implementing them. (But, formal notice and comment are not required when, as in this case, discretion is employed by those adjudicating applications on a case-by-case basis rather than an across the board designation of relief for a specific group). Third, the Fifth Circuit panel contended that President Obama had overreached his statutory authorization by seeking to implement the executive actions. (But, he’s the executive and has the power to prioritize the prosecution of cases. It’s simply a matter of marshaling resources for their most effective use in the enforcement of our nation’s immigration laws).
Q: Why should the Fifth Circuit Court of Appeals lift the preliminary injunction if the lawsuit is still in District Court in Texas? Doesn’t it make more sense to hold off on implementing such a program until the District Court rules on the constitutionality of the executive actions themselves?
A: That’s a good point but the reverse question is even more crucial. What prompted this lawsuit? Concerns about the U.S. Constitution and overreaching by President Obama? Concerns about Texas and other states facing the disorder engendered by large numbers of people seeking driver’s licenses? No. This lawsuit reflects politics at it worst, clogging the courts with frivolous litigation seeking to delay or stop the Executive Branch from exercising its powers in matters such as these. Parties should not be encouraged to pursue this course of action if that is their agenda. One might think the executive actions would be applauded as people are brought out-of-the-shadows, fostering protection from unscrupulous employers intent on using cheap or slave labor, while also ensuring we know who they are, especially in these times of heightened concerns about national security.
Q: What will the Supreme Court review now that the case is before it?
A: Actually, the Supreme Court has not yet accepted the case but most expect it to decide by January 2016. If that is the case, it’s likely we can expect the Supreme Court to issue a decision in June 2016.
Q: Something’s still not right here. Didn’t President Obama announce deferred action for childhood arrivals (DACA) back in August 2012? And, wasn’t that done without formal notice and comment? Didn’t he also state “Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion [and] Under this process, USCIS will consider requests on a case-by-case basis”? So, if there’s a problem with President Obama’s November 2014 executive actions, doesn’t that mean the states may next go after DACA, notwithstanding its existence for a few years? Won’t that create all types of turmoil and chaos? Even more importantly, isn’t immigration law the province of the federal government? The lawsuit by Texas and the other states seems to reflect an effort by states to dictate immigration law and policy. Can they do that? And, would that be a good idea for states to develop their own individual immigration laws and policies? Wouldn’t it be better to have uniformity across the nation? Aren’t there also national security considerations as we’ve recently seen with events in Europe and the lack of coordination there?
A: Those are all very good questions. And, ultimately this will come under the scrutiny of the U.S. Supreme Court, provided they accept the case for review. More twists and turns to follow since it was just announced that the Texas Attorney General asked the Court on November 23, 2015 to extend its December deadline to January 20, 2016 in order to file a response to the Administration’s petition. If the Court grants that request, it could be deadly for review this Term and quite possibly destroy the chances of the executive actions ever taking place.
However, in matters involving immigration laws and policy, never say never. Stay tuned.
R. Mark Frey is a St. Paul, Minnesota attorney who has practiced immigration law exclusively for more than 25 years with an emphasis on political asylum, family and marriage-based immigration, naturalization, removal defense, appeals, H-1B visas, and religious workers.