Federal Appeals Court Hints That It May Reinstate President Obama’s New Immigration Programs

by IAN MILLHISER –

i love this country

Last November, President Obama announced several changes to American immigration policy that, once implemented, could grant approximately 4.9 undocumented immigrants temporary relief from deportation. These changes, which include an expansion of the existing Deferred Action for Childhood Arrivals (DACA) and a new program for parents of citizens and permanent residents known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), were halted less than two days before the first stages of implementation were supposed to begin, by a Republican federal judge in Texas with a history of advocacy for a more restrictive immigration policy.

On Tuesday, the federal appeals court that oversees Texas handed down a decision which offers a ray of hope to immigrants who should be eligible for relief under the expanded DACA program or under DAPA. Though the United States Court of Appeals for the Fifth Circuit’s decision does not speak directly to the legality of the new immigration policies, it drops several hints that the panel of judges who decided this case will see both expanded DACA and DAPA differently than Judge Andrew Hanen, the Republican judge who suspended these programs.

Hanen’s opinion halting the new policies is very long and it relies on a number of legal conclusions that can charitably be described as controversial. For starters, the lawsuit challenging DAPA and expanded DACA was brought by a coalition of states led by officials who oppose President Obama’s policies. As in any federal case, these states are not permitted to bring a lawsuit unless they can show that they have actually been injured in some way by the actions they are challenging. Hanen’s opinion concludes that one of these states, the state of Texas, would be injured by DAPA and expanded DACA because the programs will cause more undocumented immigrants to apply for driver’s licenses in Texas, thereby imposing costs on the state.

The decision that the Fifth Circuit handed down on Tuesday in a case called Crane v. Johnson, also includes a state plaintiff — the state of Mississippi. It challenges the existing DACA program, which allows many undocumented immigrants who came to the United States when they were young to remain in the country. Though Mississippi’s claims that it will suffer financial injury if more immigrants are permitted to remain in the country are more speculative than Texas’s — and the Fifth Circuit lays out several reasons why Mississippi’s arguments for standing are especially weak — the Crane opinion also emphasizes the fact that the federal government has broad discretion to halt deportation proceedings against a particular immigrant. Federal immigration law, the Fifth Circuit explains, “only directs the Agents to detain an alien for the purpose of placing that alien in removal proceedings. It does not limit the authority of [federal officials] to determine whether to pursue the removal of the immigrant.”

This distinction matters because, if the federal government has discretion to halt deportation proceedings at any time, that means that there is no guarantee that a court order forcing immigration officials to detain certain immigrants will actually save the states money — as federal officials may decide at any time to “terminate removal proceedings after their initiation and release the immigrant back into” the state where the undocumented immigrant took up residence.

Indeed, the Crane opinion is peppered with language emphasizing the broad scope of executive branch officials’ discretion in matters relating to immigration. Quoting a seminal Supreme Court opinion, Crane explains that “a principal feature of the removal system is the broad discretion exercised by immigration officials.” The Fifth Circuit also emphasizes that “the concerns justifying criminal prosecutorial discretion are ‘greatly magnified in the deportation context.’”

Hanen’s opinion, by contrast, claims that this discretion dries up when the executive branch applies it broadly to a pre-defined class of immigrants. But DACA (the program at issue in Crane), DAPA and expanded DACA (the programs at issue in Hanen’s opinion) all apply broadly in this same way. It would be very strange for the Fifth Circuit panel to emphasize the broad scope of federal discretion if they believed it did not apply in cases such as these two.

Finally, Hanen rests what is probably the most important part of his opinion in his belief that DAPA and expanded DACA do not actually give low-level immigration officials discretion to decide who is eligible for relief — rather, he claims that they establish a blanket class of immigrants who, in practice, will automatically receive such relief. The Crane opinion, however, repeatedly emphasizes the fact that DACA, which is designed similarly to the programs at issue in Hanen’s case, only permits relief to be granted “on a case-by-case basis.” Contrary to Hanen’s position, the federal government “does not guarantee that relief will be granted in all cases.” These assertions cut against one of Hanen’s core allegations against the DAPA and expanded DACA programs.

So what then does this mean? First of all, it should be noted that, while the Crane opinion gives immigrants a reason to be hopeful, it does not give them anything approaching certainty. Much of the language in Crane is helpful to the federal government’s positions, but it could be distinguished by a Fifth Circuit panel that was already inclined to rule against the new immigration policies. Indeed, Judge Priscilla Owen, the most conservative member of the panel in Crane, authored a one-paragraph concurring opinion that appears designed to leave a window open for a later decision concluding that Texas does have standing to pursue its lawsuit.

The second takeaway is that how the Fifth Circuit interprets Crane is likely to hinge on which panel considers the appeal from Judge Hanen’s decision. The Fifth Circuit is a very conservative court, so there are many judges who are probably inclined to rule against the Obama administration that could be assigned to hear Hanen’s case (though there are few, if any, judges who have publicly expressed more animus towards Obama’s immigration policies than Hanen). Nevertheless, the panel in Crane, which consists of a Carter appointee, a Reagan appointee, and a very conservative Bush II appointee, is probably typically of the sort of panel that the Fifth Circuit typical produces.

In a conversation with this reporter on Twitter, ACLU immigration attorney Justin Cox explained that it is possible that the Fifth Circuit will assign Hanen’s case to the same panel that also decided Crane, as the two cases present related issues. Cox was careful to emphasize that it is not at all certain that the court will do so, but if it does, then much of the language in Crane takes on added significance, since it was written and agreed to by judges who are now actively pondering what to do with Hanen’s decision.

Coincidentally, the decision in Crane was handed down the same day that Hanen issued an order denying the Obama administration’s request to stay his orders halting DAPA and expanded DACA. The order is vintage Hanen. Much of its analysis relies on a White House press release containing quotes from an interview with President Obama, the kind of source that is more frequently cited by opposition researchers than by judges. Hanen begins his analysis by accusing the Justice Department of misconduct for failing to disclose a change in the administration’s immigration policy that it is unlikely that Hanen even had authority to consider at this early stage of the litigation because it will have no practical effect for nearly two years. If Hanen’s order dripped with any more acid, it would literally burn the reader’s fingers.

Ironically, however, the fact that Hanen actually issued this order may prove to be a positive development for the Obama administration. Hanen was never going to grant a motion seeking to reinstate Obama’s new immigration policies, but he has sat on DOJ’s request for such an order for weeks. Because the Federal Rules of Appellate Procedure typically require a party seeking a stay to first make that request to the trial judge who initially heard the case before seeking the stay from an appeals court, Hanen’s refusal to resolve the administration’s request one way or another could have prevented the Fifth Circuit from issuing the stay itself. Now that Hanen has given the administration his answer, however, this potential obstacle to a Fifth Circuit decision reinstating the new immigration policies has been removed.

Additionally, should the Justice Department decide that Hanen’s conduct in this case has been so egregious that it warrants a request that he be removed from the case due to bias, the substance of Hanen’s order denying the stay request is likely to bolster such a request.

 

Reprinted with permission from Think Progress, a branch of The Center for American Progress 

 

Save up to 80% on Electronics!