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Sunday, February 25, 2024 | Back issues
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Fifth Circuit Hears|Immigration Arguments

HOUSTON (CN) - The 5th Circuit got an earful Monday from congressmen and senators, police chiefs, unions, professors, state attorneys general and religious groups who weighed in on litigation over President Obama's immigrant amnesty programs.

At issue is the peace of mind of an estimated 5 million undocumented immigrants who could qualify for Obama's programs, which would allow them to live in the country without fear of being deported and get federal work permits.

Twenty six Republican-controlled states, led by Texas, sued the United States in December, claiming Obama's executive orders infringe on powers reserved for Congress.

U.S. District Judge Andrew Hanen in Brownsville issued an injunction in February that blocked the programs from taking effect. The Justice Department then filed an emergency motion to stay the injunction and an appeal with the 5th Circuit in New Orleans.

"This is proceeding on two different levels on two different issues. One is the emergency stay. That will be resolved on April 17 with the hearing that's already been scheduled," University of Houston law professor Michael Olivas said.

"But there's still going to be the full appeal and the final briefings are due on May 18 and they will set that appeal soon thereafter. That will be on the substantive merits of the case."

Olivas said everyone recognizes the importance of getting the case promptly resolved and the hearing on the merits will likely be scheduled for late May or early June.

He joined a group of 109 college professors who on Monday urged the 5th Circuit to reverse Hanen's injunction.

Observing that together they have more "more than 1,500 years of experience in immigration law" the professors say it is well within Department of Homeland Security Secretary Jeh Johnson's authority to decide which paperless immigrants should be deported.

DHS includes several subagencies, including U.S. Immigrations and Customs Enforcement, U.S. Customs and Border Protection and U.S. Citizenship and Immigration Services, which will process applications for the Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parental Accountability (DAPA) programs.

The programs would suspend deportation for three years of immigrants whose parents brought them here as children, and of parents of U.S. citizens or lawful residents, if they can pass background checks and meet other qualifications, with a goal of keeping law-abiding families together.

The application fee is $465 for both programs and includes $85 for fingerprints.

DACA and DAPA rely on the principle of prosecutorial discretion that policymakers use to prioritize which immigrants should be deported in the face of limited resources.

"The secretary has extraordinarily scarce resources with which to pursue removal of the 11 million undocumented immigrants in the United States - enough to remove fewer than 400,000 of them, or less than 4 percent. ... Immigration enforcement, therefore, is selective by necessity and this selectivity is clearly intended by Congress: the Secretary must prioritize the removal of some classes of people and accordingly deprioritize other classes," the professors say in one of 15 amicus briefs filed with the 5th Circuit on Monday.

Another brief came from 181 members of the U.S. House of Representatives who voiced their support for DACA and DAPA.

The lawmakers said they have a strong interest in ensuring that federal courts honor Congress' decision to give the DHS secretary broad authority to decide how immigration laws will be enforced.

"As representatives of diverse communities across the United States, amici have witnessed how an approach to enforcement of the immigration laws that does not focus on appropriate priorities, such as felons or national security threats, undermines confidence in the nation's immigration laws, wastes resources, and needlessly divides families," the congressmen wrote.

"Amici regard the actions of the executive branch challenged in this suit as appropriate measures to ensure that the Department of Homeland Security's limited enforcement resources are directed toward the removal of persons who pose actual threats to public safety."

That sentiment was reinforced by a brief from U.S. Sens. Richard Blumenthal, D-Conn., Christopher Coons, D-Del., Mazie Hirono, D-Hawaii, and Sheldon Whitehouse, D-R.I.

"Since enforcement is a core agency function, agency heads must have the flexibility to issue and alter administrative guidance regarding enforcement priorities without delay," the senators wrote.

Texas Sens. John Cornyn and Ted Cruz, both Republicans, have also given their opinions about the case to the 5th Circuit in a brief supporting Hanen's injunction.

Their take on Congress' intent with its immigration laws is markedly different than that of their Democratic colleagues.

They claim Obama's "blanket grant of 'lawful presence' to aliens who would otherwise be inadmissible ... exceeds executive authority and contravenes Congress's intent."

Others who filed amicus briefs Monday included American Apparel, the American Federation of Teachers, AFL-CIO and the Major Cities Chiefs Association, an association of police chiefs from the largest cities in the United States, who claim undocumented immigrants' cooperation with police is vital for public safety.

The AFL-CIO also supports Obama's programs because, according to its brief, 8.1 million undocumented immigrants are employed in the United States and many work in industries "in which AFL-CIO affiliate unions have a strong presence, including meatpacking, leisure and hospitality, construction, domestic services, and agriculture" and many are represented by these unions.

The union federation says these workers aren't fully protected by federal law and are vulnerable to retaliation if they complain about working conditions.

"This lack of legal remedies and vulnerability to retaliation creates an incentive for some unscrupulous employers to employ large numbers of undocumented workers at sub-standard wages and working conditions," the AFL-CIO wrote.

"Law-abiding employers must compete with these employers, making it more difficult for AFL-CIO affiliate unions to raise wages and improve working conditions."

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