Expanded DACA & DAPA – Fifth Circuit Denies Emergency Stay as Underlying Case on Immigration Action Proceeds Further

Yesterday (5/26/2015), a federal appeals court decided that President Obama’s most recent executive action on immigration (expanded DACA & DAPA) is to remain on hold during a further legal fight over presidential decision to provide as many as 4 to 5 million immigrants with a temporary relief from deportation. That means that the court rejected the administration’s request to lift an order blocking Obama from expanding his program for illegal immigrants who entered the country as children (DACA) and creating a new program for illegal immigrant parents of U.S. citizens (DAPA).

The 5th Circuit Court of Appeals voted 2-1 to deny an emergency stay of an injunction U.S. District Court Judge Andrew Hanen imposed on Obama’s plan back in February at the request of Texas and 25 other states challenging the president’s executive action. Hanen declared that Obama’s actions violated federal law because they were not properly announced and opened for public comment before being put into effect. Judge Hanen, however, did not rule explicitly on whether the president even has the legal authority to carry out such actions.

Writing for the majority, Judge Jerry Smith said the Justice Department had not met the legal standards required to block the lower court ruling. She was joined by Judge Jennifer Elrod, in stating that the federal government had failed to show that Hanen erred when he concluded that the new program amounted to a formal rule that should have been put through formal notice-and-comment procedures. The Obama administration claims that the policy involves the exercise of case-by-case discretion, but the appeals court found the evidence on that point to be conflicting and said Hanen’s conclusion wasn’t “clearly erroneous.”

The Obama administration can now turn to the U.S. Supreme Court, or Justice Department officials can wait until the 5th Circuit rules on the actual merits of Hanen’s legal rationale for the injunction he entered in February. A different panel of the appeals court is expected to hear arguments on those issues in early July.

Judge Stephen Higginson, the sole Democratic appointee on the 5th Circuit panel, dissented from Tuesday’s ruling. He portrayed Obama’s actions not as favors for certain groups of illegal immigrants, but a logical effort to prioritize deportation efforts. Higginson said he believes the lawsuit brought by the states is “non-justiciable,” meaning it is in a category of disputes the courts refrain from ruling on because doing so would impinge on the executive branch’s traditional authority.

About teperlaw

I am an attorney practicing family law, immigration and wills and estate planning. You can find out more about me and my firm by visiting my website at: www.teperlaw.com 106 W. Franklin Ave. Pennington, NJ 08534 (609) 737-3030
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