Recently, Judge Hanon issued a temporary stay order against the Obama regime to stop the White House DAPA order on immigration. Now the Feds are on the move.
HOUSTON (CN) – The 5th Circuit on Monday will be asked to decide whether the Obama administration’s deferred deportation programs for immigrants who were brought to the United States as children are permissible because of prosecutorial discretion.
The Justice Department on Friday said it will ask the 5th Circuit today to stay an injunction that prevented hundreds of thousands of undocumented immigrants from applying for amnesty.
Twenty-six Republican-led states sued Department of Homeland Security Secretary Jeh Johnson and other top immigration officials late last year, claiming Obama’s executive actions are unconstitutional.
U.S. District Judge Andrew Hanen, granted an injunction against the programs last week. Critics claim that the Republican states forum-shopped to sue in Hanen’s court. Hanen, a George W. Bush appointee, was well known as a critic of Obama’s immigration policies.
Hanen did not rule that Obama’s programs are unconstitutional, but that they cannot take effect until legal questions are settled.
The Texas-led plaintiffs claim that because Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parental Accountability (DAPA) would allow qualifying immigrants to apply for work permits and driver’s licenses, the states will be stuck with the cost of processing them.
The U.S. Citizenship and Immigrations Services already has the authority to grant undocumented immigrants work permits, Immigration and Customs Enforcement spokesman Greg Palmore said. Immigration and Customs Enforcement (ICE) and USCIS both are branches of the Department of Homeland Security.
Obama’s programs are simply an element of the process of prosecutorial discretion, which immigration officials use to decide who should be deported, according to Palmore.
“Under the deferred action process, and prosecutorial discretion as a whole, ICE is screening every alien we encounter, including those in custody,” Palmore said Friday.
“Decisions are based on the merits of each case, the factual information provided to the agency and the totality of the circumstances,” Palmore said.
“ICE is focused on smart and effective immigration enforcement that prioritizes the removal of convicted criminal aliens, recent border-crossers and immigration fugitives who have failed to comply with final orders of removal issued by the nation’s immigration courts.”
Palmore said ICE would not discuss how it handles a particular case without the immigrant’s consent, as that information is protected by the Privacy Act.
The American Center for Law & Justice, a Christian conservative law firm based in Washington, D.C., joined 27 Republican congressmen in an amicus brief supporting the states’ lawsuit.
It claims Obama’s amnesty offer goes beyond the powers held by immigration agencies.
“As the judge indicated, there is no express or implied statutory authority to create entire new legal programs that go well beyond individualized discretion or resource-based priority determinations and extend into new, large-scale entitlements that actually contradict Congress’s expressed intent,” the firm said Friday in a statement.
DEFENDANTS’ EMERGENCY EXPEDITED MOTION TO STAY THE COURT’S
FEBRUARY 16, 2015 ORDER PENDING APPEAL AND SUPPORTING
MEMORANDUM
INTRODUCTION AND SUMMARY OF THE ARGUMENT
Defendants respectfully move for a stay, pending appeal, of the preliminary injunction entered in this case on February 16, 2015 [ECF No. 144], concerning the November 20, 2014, memorandum issued by the Secretary of Homeland Security (“Secretary”), setting forth guidelines for the consideration of deferred action for the parents of U.S. citizens or lawful permanent residents (“DAPA”) and modifying existing guidelines for the consideration of deferred action for certain individuals who came to the United States as children (“modified DACA”) (collectively, “Deferred Action Guidance” or “Guidance”). Defendants have filed a Notice of Appeal [ECF No. 149] from the Court’s February 16, 2015 Opinion and Orders granting Plaintiffs’ Motion for Preliminary Injunction [ECF Nos. 144 & 145].
A stay pending appeal is necessary to ensure that the Department of Homeland Security (“DHS” or “Department”) is able to most effectively protect national security, public safety, and the integrity of the border. Specifically, the Deferred Action Guidance enjoined by this Court is an integral part of the Department’s comprehensive effort to set and effectuate immigration enforcement priorities that focus on the removal of threats to public safety, national security risks, and recent border crossers, thereby best securing the Homeland in the face of limited resources.
Absent a stay, DHS will sustain irreparable harm—harm that would not be cured, even if Defendants ultimately prevail on that appeal. Allowing the preliminary injunction to remain in place pending appeal would also harm the interests of the public and of third parties, who will be deprived of the significant law enforcement and humanitarian benefits of prompt implementation of the Guidance. When these harms are weighed against the financial injuries claimed by Plaintiffs (and found by the Court only as to Texas), the balance of hardships tips Case 1:14-cv-00254 Document 150 Filed in TXSD on 02/23/15 Page 5 of 24 decidedly in favor of a stay; the harms claimed by Plaintiffs are not imminent and are fully within their power to avoid.
A stay is also warranted in view of Defendant’s substantial case that the preliminary injunction was issued in error—all that Defendants must establish concerning a likelihood of success in order to warrant the requested stay. Defendants’ case is substantial indeed: the Court lacked authority to issue the preliminary injunction, both because Plaintiffs lack standing and because the Deferred Action Guidance is an exercise of prosecutorial discretion by the Secretary that is neither subject to challenge by the States, nor required to be issued through notice-and comment rulemaking. That the Court’s reasoning on standing and the merits has been rejected by other district courts further underscores the fact that Defendants have a substantial case on appeal.
Read the entire Federal appeal here that was filed today.
DHS was to begin accepting requests for modified DACA on February 18, 2015. On February 16, 2015, the Court granted Plaintiffs’ Motion and preliminarily enjoined Defendants from “implementing any and all aspects or phases” of DAPA and modified DACA, as set forth in the Guidance. Order of Temporary Inj. (“Order”) at 1-2 [ECF No. 144]. The Court found that “at least” Texas has standing to sue, stating that Texas would be required under the existing terms of state law to expend funds to provide driver’s licenses to individuals who receive DAPA and modified DACA at some point in the future. Mem. Op. & Order (“Op.”) at 22-36 [ECF No. 145].
