NEW ORLEANS (CN) - With occasional interruptions by protesters' cheers and the brass-band second line marching outside, the Fifth Circuit met Friday to consider President Barack Obama's program to defer the deportation of certain undocumented immigrants.
Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) would have launched this past May, but for the injunction issued by U.S. District Judge Andrew Hanen in Brownsville, Texas.
Hanen sided with the 26 Republican-controlled states that filed suit in December, claiming that Obama violated the U.S. Constitution by announcing that he would not immediately deport undocumented people who have lived in the United States since Jan. 1, 2010, who pass background checks, and who entered as children or are parents of U.S. citizens or lawful permanent residents.
DAPA expands on a program former Department of Homeland Security Secretary Janet Napolitano started in 2012 called Deferred Action for Childhood Arrivals, which offered lawful presence rights to children brought to the United States illegally as children. Both DAPA and DACA were designed to give immigration officials discretion on whom to deport in the face of limited resources, and to keep families of law-abiding immigrants together.
Under DAPA, immigrants would be granted temporary, possibly renewable, lawful presence in the United States. They could also apply for a federal work permit and a driver's license.
Two of the three judges to hear Friday's appeal sat on the panel that upheld Hanen's injunction 2-1 on May 26.
That decision rested on Texas' standing to sue the federal government because it will bear the cost of issuing driver's licenses to qualifying immigrants if Obama's immigration policy goes into effect.
An estimated 4.3 million of the 11.3 million paperless immigrants would be eligible for classification as "deferred status" aliens and possibly for drivers' licenses under DAPA.
Justice Department attorney Benjamin Mizer on Friday called it a pretext for Texas to focus its argument against DAPA on the cost of issuing drivers' licenses.
"Texas could eliminate subsidy on temporary visitor licenses" if it wanted to, Mizer said. "They don't have to engage in alien classification at all."
Mizer called it "remarkable that the entire policy is being enjoined on the matter of drivers' licenses."
"I just don't think that is a strong enough reason," he added.
Judges Jerry Smith and Jennifer Elrod, appointees of Presidents Ronald Reagan and George W. Bush, respectively, comprised the majority who sided with Texas in May.
Judge Stephen Higginson, who dissented in the last appeal, was replaced on Friday's panel by Judge Carolyn Dineen King, a nominee of Jimmy Carter.
King echoed many of Higginson's points while discussing DAPA's self-reporting requirement.
DAPA had at least one strong advantage in the eyes of the government, King said: that it requires people seeking deferred deportation to come forward and give the government their names and personal information, including address.
Echoing Judge Higginson, King observed that giving this information potentially carries much risk.
If for any reason the federal immigration policy changes and deferred status ends, the government would know where to find registered individuals to send them back.
Scott Keller, Texas solicitor general, told the judges that Texas and the other states oppose DAPA because "it is the only thing that can confer lawful presence."
Judge Smith seemed to disagree.
Smith said the Fifth Circuit sees "deferred action cases every day," possibly hundreds a year.
"That doesn't confer any lawful presence or benefits other than that you're not going to be shipped out," Smith said.
Judge King told Keller, "You don't want these people to have employment authorization," and reiterated this view a few moments after.
"You don't want them to have work authorization. You don't want them to have Social Security numbers. And you don't want them to pay taxes," the judge said.
"Congress is only going to devote a certain number of dollars to deportation," he added. "Then Congress gave the executive order to others to govern the remaining people. You say that structure is flawed, and I say that structure is exactly what we're here over."
Alex Galvez, an immigration attorney from Los Angeles who attended the oral arguments, shook his head in disagreement at times during Keller's arguments.
Galvez's clients include Jersey Vargas, the little girl who made national news in 2014 when she asked Pope Francis to help keep her father, who had lived in the United States since he was 16, from being deported.
Before Vargas' trip to the Vatican, she told the Los Angeles Times that she would tell the pope she was "representing millions of children who are in my situation ... and I think it's unfair that people are separating families because right now is a time when kids really need their parents."
Vargas was reunited with her father after a judge accepted a $5,000 bond in exchange for his release from a Louisiana deportation facility.
After the hearing, Galvez said he didn't think the 26 states had much of a chance at winning their appeal, as "their argument disintegrated."
Whether or not Friday's panel agrees with Galvez's assessment, a "comprehensive reform is going to happen within three years," Galvez surmised.
But even without reform, he said, there are legal avenues undocumented citizens can take to avoid deportation.
Unfortunately, they require hiring an immigration attorney and going to court, he added.
After the hearing, Congressman Luis V. Gutierrez drew a crowd of hundreds to the courthouse steps as he spoke in Spanish of immigration reform.
Oral arguments lasted for more than three hours. The judges did not say when a decision will be issued.
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