White House suffers setback on immigration plan after ruling by Texas judge

“The President’s actions are well within his legal authority,” says White House spokesman Josh Earnest.

A new ruling by a Texas federal judge on President Obama’s immigration initiative has irritated the White House and the Department of Justice is planning to appeal.

The ruling on State of Texas v. United States of America appears to temporarily block the President’s controversial executive action on immigration. It comes after the plan was legally challenged by many states.

On Feb. 16, U.S. District Court Judge Andrew Hanen basically argued in a ruling that the Obama administration did not meet the regulations under the Administrative Procedure Act by – among other things – not putting aside enough time for hearing of comments. And it appears he wants the 26 states to get their day in court to be able to prove their injuries because of the plan.

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When reached for her comment on the ruling, Lelsie Holman, an immigration lawyer based in Vermont who is also president of the American Immigration Lawyers Association (AILA), said she was contacting government officials on Tuesday to see how the issues will play out.

She noted that the case was brought to a certain circuit and got assigned to this judge, who shows a certain “pre-disposition” on prosecutorial discretion. She adds that it “feels calculated time-wise, for sure.” The ruling comes on the Monday before the Wednesday that the federal government was going to start accepting applications under the Obama plan.

As of Tuesday afternoon, she said that the “million dollar question of the moment” is “What do those who need to file, or can file tomorrow, do?”

Meanwhile, her advice to corporate legal departments is: “Until we hear otherwise, continue as planned…. I would stay the course. I would not change what I was doing for someone.”

She was not sure if the AILA will join the government’s likely lawsuit in an amicus brief, saying it has yet to be discussed. “There’s no question in my mind the government’s going to appeal,” she said. It is believed the appeal will be heard by the United States Court of Appeals for the 5th Circuit.

“It’s not unusual for these lawsuits to fail ultimately,” Holman added. There is also a question if the ruling is actually limited to the jurisdiction where the judge sits, rather than him having the authority to block something nationally.

In addition, Erica Loomba, an attorney at Proskauer Rose, said in an interview that the judge’s ruling may not “directly impact” many U.S. employers unless an employee comes forward now with new documents. If the judge’s decision is overturned, things will change, Loomba added.

“I would imagine that comparatively few professional corporate personnel would be directly affected by the temporary injunction delaying the President’s most high-profile deferral of prosecution programs – DAPA [Deferred Action for Parental Accountability] and expanded DACA [Deferred Action for Childhood Arrivals],” Vanessa Merton, who directs the Immigration Justice Clinic at Pace University School of Law, added in a statement to InsideCounsel.

“The decision may not impact employers right away,” agreed Praveena Swanson, another immigration attorney at Proskauer Rose. In the meantime, she notes that especially given that the decision came two days before the government was going to start accepting applications it impacts the “real lives of real people.”

Meanwhile, the ruling in State of Texas v. United States of America led to White House spokesman Josh Earnest to say in a statement, “The Supreme Court and Congress have made clear that the federal government can set priorities in enforcing our immigration laws—which is exactly what the President did when he announced commonsense policies to help fix our broken immigration system.”

“Those policies are consistent with the laws passed by Congress and decisions of the Supreme Court, as well as five decades of precedent by presidents of both parties who have used their authority to set priorities in enforcing our immigration laws,” the statement adds. “The Department of Justice, legal scholars, immigration experts, and the district court in Washington, D.C. have determined that the President’s actions are well within his legal authority. … The district court’s decision wrongly prevents these lawful, commonsense policies from taking effect and the Department of Justice has indicated that it will appeal that decision.”

In his ruling, Hanen said in part, “The DHS [Department of Homeland Security] was not given any ‘discretion by law’ to give 4.3 million removable aliens what the DHS itself labels as ‘legal presence.’”

“In fact, the law mandates that these illegally-present individuals be removed,” the judge added, based on news reports. “The DHS has adopted a new rule that substantially changes both the status and employability of millions. These changes go beyond mere enforcement or even non-enforcement of this nation’s immigration scheme.”

In response to the ruling, Texas Governor Greg Abbott, a Republican, sent out a tweet on Monday that a “Federal Judge just granted my request to halt Obama's Executive Amnesty Order Nationwide.”

But Merton predicts that because of the “very narrow legal basis for the ruling of this district court judge, known to be extremely partisan on immigration issues, [it] is unlikely to ultimately be upheld by the United States Court of Appeals for the Fifth Circuit.”

“The main question is whether the 5th Circuit will ‘stay’ … the lower court injunction,” she added.

The White House indicated on Tuesday that it will delay implementing the executive actions on immigration. 

In a statement from Department of Homeland Secretary Jeh C. Johnson he said he "strongly" disagrees "with Judge Hanen’s decision to temporarily enjoin implementation of Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA). The Department of Justice will appeal that temporary injunction; in the meantime, we recognize we must comply with it." 

Contributing Author

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Ed Silverstein

Ed Silverstein (emsilverstein@gmail.com) is a veteran freelance writer and and editor for magazines, websites and newspapers. He writes frequently for ALM Media's

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