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Tuesday, June 18, 2024 | Back issues
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Texas Asks Justices to Strike Immigration Plan

HOUSTON (CN) - Texas said in a brief to the Supreme Court that President Barack Obama's plan to defer deportation for millions of undocumented immigrations is illegal because it would legitimize "unlawful conduct."

The U.S. Supreme Court is set to hear arguments on April 18 on Deferred Action for Parents of Americans, or DAPA, an executive action that Obama announced in November 2014, only to have it enjoined by a federal judge and the Fifth Circuit.

At stake is the peace of mind of an estimated 4 million to 5 million undocumented immigrants who could qualify for the right to live in the United States without being deported for renewable three-year terms. They could also apply for driver's licenses and federal work permits.

A Texas-led coalition of 25 Republican-controlled states blocked the government from starting the program as planned in May 2015 with a December 2014 lawsuit.

The states argue that Obama exceeded authority reserved for Congress by issuing an executive order on immigration and that he did not follow the required public notice-and-comment process for new rules.

The Republican-led states say they want to prevent the undocumented immigrants from taking jobs from legal citizens and from draining government coffers, as DAPA recipients could get a Social Security number, which would convey eligibility for the earned income tax credit.

"The nonpartisan congressional Joint Committee on Taxation estimates that, over a 10-year period, DAPA recipients could receive $1.7 billion in Earned Income Tax Credit payments alone," Texas Solicitor General Scott Keller said in Monday's brief.

U.S. District Judge Andrew Hanen in Brownsville found in February 2015 that Texas has standing to sue the government because it will bear the cost of issuing driver's licenses to DAPA qualifiers, and the Fifth Circuit in New Orleans agreed later that year.

The feds call that a self-inflicted wound because Texas chooses to subsidize its driver's licenses - it does not make applicants pay processing fees - so it would pay $130.89 for each license issued to a DAPA beneficiary, which could add up to millions, since an estimated 500,000 people could qualify in Texas.

Texas counters that removing the subsidy goes against its policy of giving residents affordable driver's licenses as the "break-even fees could be as high as $198.73" for applicants.

The government argues that DAPA is a solution for a fundamental problem in U.S. immigration policy: Homeland Security's $6 billion immigration enforcement budget is not enough to deport everyone who is in the country illegally.

The same day Obama announced DAPA, his administration issued a memo ordering immigration authorities to prioritize deporting serious criminals and new illegal arrivals, a process known as prosecutorial discretion.

First in line for deportation hearings in Houston's immigration courts are the thousands of women and children who fled violence, corruption and poverty in El Salvador, Honduras and Guatemala, starting in the summer of 2014, traveled to the U.S. and turned themselves in to Customs and Border Patrol officers, according to several Houston immigration attorneys.

Hoping to send a message to others in those countries not to travel to the United States, the administration has ordered immigration judges to fast track their cases so they're adjudicated within eight months, while pushing the docket for non-priority cases to November 2019, according to numerous immigration attorneys.

The Obama administration has maintained DAPA's goals are to bring the undocumented out of the shadows of shady employment arrangements and to keep law-abiding families together with an added benefit of increasing public safety, because immigrants are more likely to help law enforcement investigations if they aren't scared of being deported.

Texas, however, claims that Congress has shown no such sympathy for immigrant families.

"Congress strictly limited an alien's ability to acquire lawful presence on family-unification grounds. Alien parents have no way to obtain lawful presence based on their child's [legal permanent resident] status. And alien parents can obtain lawful presence based on their child's citizen status only by fulfilling a number of demanding requirements, which typically include waiting until the child turns 21, leaving the country, and waiting out a 10-year reentry bar," the brief states.

Texas has so far successfully stuck to its guns and it held its aim steady in its brief to the Supreme Court.

"This case is about an unprecedented, sweeping assertion of executive power," Keller wrote.

Texas claims that DAPA is a substantive rule change that must undergo a public review-and-comment process, and that Obama violated the Administrative Procedure Act by trying to force it through.

"The public interest in providing input on one of the largest immigration policy changes in the nation's history is extraordinarily high," the brief states.

In keeping with a strategy it has used since day one of the litigation, Texas uses the president's own words against him to bolster its argument that his executive action trampled the Constitution.

"Shortly after DAPA issued, the president admitted, 'I just took an action to change the law.' The President later explained that DAPA 'expanded [his] authorities,' and conceded that DAPA recipients would get 'a legal status,'" the brief states.

Houston immigration attorney Ruby Powers said she's optimistic the Supreme Court will lift the injunction on DAPA with a ruling that's expected to come in June.

But immigrants will likely wait to see who wins the presidential election before applying for the program, she said.

"If a Republican were to go into power who is anti-immigrant many people would not feel comfortable filing anything, because after January that Republican would be in power and they could use that filing date, in theory, against them. Or [they] might just completely abolish the program all together. Because it's one thing to get it, it's another for people to use it," Powers said.

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