Raucous Courthouse Crowd for Immigration Arguments

NEW ORLEANS (CN) - A Justice Department attorney on Friday urged the 5th Circuit to lift an injunction that blocks the Obama administration from implementing executive actions allowing aliens to register for work permits and stave off deportation.

"The United States vigorously objects to the district court's order," Benjamin Mizer, lead attorney for the Department of Justice, told the three-judge panel.

Chants from some 200 protesters outside the courthouse were heard inside as attorneys delivered arguments about U.S. District Judge Andrew Hanen's injunction against the government's plans to expand a deferred-action program that began in 2012 for immigrants brought to the United States illegally as children.

President Obama announced last fall his intentions to extend the program to include the undocumented parents of U.S. citizens. Under the programs, immigrants would be granted temporary, possibly renewable, "lawful presence" status in the United States.

The Obama administration has appealed Hanen's injunction and wants the court of appeals to stay the order.

Judge Jennifer Walker Elrod, an appointee of G.W. Bush, told Mizer the 5th Circuit could not simply stay the lower court's stay. But Mizer disagreed.

"I disagree with that premise," Mizer said. "This court has the authority" to lift a stay for whatever reason it deems fit, he said.

The courtroom was packed with members of the press and human rights activists. In the front row of the crowded room sat Louisiana Attorney General Buddy Caldwell, who joined Texas and 24 other states as plaintiffs in December.

Judge Stephen A. Higginson said he found it "troubling"' that the lower court held no evidentiary hearing before issuing the stay.

Higginson reiterated two points throughout the hearing: how Obama's executive action might be perceived were it flipped in intention; and an observation that Texas probably just wants to have a voice in a process that could transform the status of hundreds of thousands of aliens in the state.

"In a way, Texas is just saying: 'We want to be heard; we've got a say in what this entails,'" Higginson said.

"Could the next administration come in and use the same terms [as outlined in Obama's executive order that would grant work papers to people who voluntarily register and meet certain qualifications] but flip them?" Higginson asked Mizer.

Although the Obama administration has deported more than 2 million aliens, it does not have the resources to deport what is estimated to be nearly 11 million more.

Its stated reason for crafting the programs is that granting temporary lawful presence to those who have clean criminal records and self-report would be a simpler, cheaper way to weed out dangerous or uncooperative immigrants.

But what if the "next administration chose deportation on the basis of those who have been identified" by signing up with the government's database of illegal immigrants? Higginson asked. "Could that happen?"

"Yes," Mizer said, "but that isn't the question. The question is if there is a line in the sand" that cannot be violated.

In other words, if the Department of Homeland Security has the authority to confer or revoke status, then what gives a lower court in Texas the authority to deny the executive action?

"This injunction has less to do with removal as with resources," said Scott Keller, Texas solicitor general.

Keller said the issue was one of agency discretion. He said Obama's discretionary order "makes unlawful conduct lawful."

"They are fugitives; they are illegal people," Judge Higginson said in response to Keller's assertion that signing into the system might be the first step to becoming U.S. citizens. "The first step toward removing them is getting them entered into the database," said Higginson.

On paper, the administration's executive actions have little to do with permanent residency. Documented immigrants who are granted work orders may be eligible for extensions to their temporary lawful status, but permanent residency is not a component of the rule, Higginson said.

"There is never an end," Higginson said, "the government can always send them back."

Throughout the two and a half hour hearing that ran over by half an hour, pounding drums, brass instruments and loud cheering from the crowd outside periodically drowned out the soft-spoken attorneys and judges.

In closing, Judge Jerry E. Smith, a Reagan appointee who remained quiet throughout most of the oral arguments, said hearings like this are rare in the 5th Circuit. He said it was uncertain when a decision would be made.

Outside the courthouse, hundreds of protesters, many of them day laborers, stood grouped around a speaker. They held children and signs with slogans such as "No more delays, families can't wait."

The speaker held a microphone.

"There's a new United States," the speaker said as a crowd of journalists and attorneys poured from the courthouse. "There's a new New Orleans. There's a new world if we can make a bright new future possible for people who will be the citizens."

"Together we rebuilt this city," he said. "And now we are going to rebuild the South."

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