HOUSTON (CN) - The 5th Circuit on Monday will be asked to decide whether the Obama administration's deferred deportation programs for immigrants who were brought to the United States as children are permissible because of prosecutorial discretion.
The Justice Department on Friday said it will ask the 5th Circuit today to stay an injunction that prevented hundreds of thousands of undocumented immigrants from applying for amnesty.
Twenty-six Republican-led states sued Department of Homeland Security Secretary Jeh Johnson and other top immigration officials late last year, claiming Obama's executive actions are unconstitutional.
U.S. District Judge Andrew Hanen, granted an injunction against the programs last week. Critics claim that the Republican states forum-shopped to sue in Hanen's court. Hanen, a George W. Bush appointee, was well known as a critic of Obama's immigration policies.
Hanen did not rule that Obama's programs are unconstitutional, but that they cannot take effect until legal questions are settled.
The Texas-led plaintiffs claim that because Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parental Accountability (DAPA) would allow qualifying immigrants to apply for work permits and driver's licenses, the states will be stuck with the cost of processing them.
The U.S. Citizenship and Immigrations Services already has the authority to grant undocumented immigrants work permits, Immigration and Customs Enforcement spokesman Greg Palmore said. Immigration and Customs Enforcement (ICE) and USCIS both are branches of the Department of Homeland Security.
Obama's programs are simply an element of the process of prosecutorial discretion, which immigration officials use to decide who should be deported, according to Palmore.
"Under the deferred action process, and prosecutorial discretion as a whole, ICE is screening every alien we encounter, including those in custody," Palmore said Friday.
"Decisions are based on the merits of each case, the factual information provided to the agency and the totality of the circumstances," Palmore said.
"ICE is focused on smart and effective immigration enforcement that prioritizes the removal of convicted criminal aliens, recent border-crossers and immigration fugitives who have failed to comply with final orders of removal issued by the nation's immigration courts."
Palmore said ICE would not discuss how it handles a particular case without the immigrant's consent, as that information is protected by the Privacy Act.
The American Center for Law & Justice, a Christian conservative law firm based in Washington, D.C., joined 27 Republican congressmen in an amicus brief supporting the states' lawsuit.
It claims Obama's amnesty offer goes beyond the powers held by immigration agencies.
"As the judge indicated, there is no express or implied statutory authority to create entire new legal programs that go well beyond individualized discretion or resource-based priority determinations and extend into new, large-scale entitlements that actually contradict Congress's expressed intent," the firm said Friday in a statement.
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