Time Counts, in Immigration Legal Labyrinth

HOUSTON (CN) - As the Obama administration prepares to appeal the president's signature immigration program to the U.S. Supreme Court after rejection at the Fifth Circuit, legal scholars and attorneys are studying their law books - and their crystal balls.

A Fifth Circuit panel ruled 2-1 Monday that the president overstepped his authority by offering temporary protection to undocumented parents of some U.S. citizens. The Fifth Circuit accepted the argument from 26 Republican states, led by Texas, that the states could challenge the policy because they would have to bear the cost of processing driver's licenses for people quo qualified.

The Department of Justice said Tuesday it will appeal to the Supreme Court, but has not done so yet.

The Supreme Court is almost certain to take the case because of its national import, and only four of the nine justices' votes are required for the court to accept it. Almost as likely will be a split decision, 5-4, as at least four of the justices have been hostile to the administration.

If the Supreme Court agrees to hear the case this term, a decision could come by June, on the eve of the Democratic and Republican national conventions, which would thrust the contentious issue into the limelight as politicians, pundits and millions more argue about what should be done with the country's estimated 11 million undocumented immigrants.

University of California-Davis law professor Gabriel "Jack" Chin said Supreme Court precedent favors the Obama administration.

He disputed the states' argument that Obama violated procedural laws by not publishing the program, known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, in the Federal Register for public comment.

"If the case is reviewed, it will likely be reversed," Chin said. "I doubt that the states have standing. If they do, they will lose on the merits.

"The government is allowed to put out guidance like DAPA without notice and comment, so long as it does not create judicially enforceable rights.

"The states have no right to interfere with the federal government's discretion, particularly in an area like immigration, which is an exclusive federal power," Chin said in an email.

Jay Sekulow, chief counsel of the American Center for Law & Justice, a Christian conservative law firm based in Washington, D.C., disagrees.

His firm represented 113 members of Congress, including Texas Republican Senators Ted Cruz and John Cornyn in numerous amicus briefs filed in the case. Sekulow said the case is bigger than the estimated 5 million immigrants who could qualify for DAPA.

"This case isn't about immigration policy preferences," Sekulow wrote in a blog. "It is about the law. It is about upholding our Constitution against an imperial presidency."

The timing of the case already is contentious.

Houston immigration attorney Ruby Powers told Courthouse News it appears that the Fifth Circuit waited until Nov. 9 to issue its ruling, after hearing arguments in July, so the Supreme Court would not have time to hear an appeal this term.

And a Supreme Court ruling next summer would surely set off noisy debate again.

Donald Trump, today's frontrunner for the Republican nomination, became public enemy No. 1 for many immigrants when he began his campaign began by calling them rapists and murders and declaring his intent, if elected, to deport all 11 million of them.

Trump said this week that the country needs a "deportation force" to carry out his plan.

White House press secretary Josh Earnest on Thursday called Trump's plan unrealistic.

"I think this is just one more of many places where Mr. Trump is fundamentally in a place that doesn't reflect the broad view of a vast majority of Americans," Earnest said. "In terms of how inhumane what he's emphasizing is, but also how he refuses to discuss how much it would cost."

Democratic front-runner Hillary Clinton supports DAPA. It was to begin in May, but U.S. District Judge Andrew Hanen in Brownsville enjoined it.

Hanen accepted the Republican states' arguments that they had standing to sue because of the cost of processing and issuing driver's licenses for applicants, though immigration policy always has been a federal issue.

The Fifth Circuit upheld Hanen's injunction on Monday.

Were it not for the injunction, law-abiding immigrant parents of U.S. citizens and lawful residents could apply for 3-year lawful presence rights. Those who qualify could apply for driver's licenses and federal work permits.

Powers, the Houston immigration attorney, said DAPA raised her clients' hopes when Obama announced it in November 2014. Since then her clients have run the gamut of emotions as they collected and prepared paperwork - bank statements, tax records, background checks, proof of continuous residency - only to face the states' lawsuit in December and Hanen's injunction in February.

Powers said she expected the Fifth Circuit panel to rule against DAPA, as it contained the same two judges who ruled against an emergency motion to lift the injunction in May.

Despite the injunction, the DAPA program has affected her practice. "It got people in the door to talk to them and maybe they qualify for something else, and that was good for them," Powers said.

She hopes the government will expand a provisional waiver rule it proposed in January 2012 and adopted in March 2013.

The law requires undocumented immigrants who voluntarily leave the country, or are deported, to wait 3 years or 10 before applying for an immigrant visa at a U.S. consular office, depending on how long they lived without papers in the United States.

The provisional waiver allows immigration authorities to waive the waiting period if the applicant can show that his or her absence from the United States would cause "extreme hardship" to a U.S. citizen spouse or parent, according an analysis of the rule on regulations.gov.

Under the proposed expansion, relatives of lawful permanent residents and U.S. citizens could qualify for the waiting period wavier.

Though less heralded than DAPA, the administration says the provisional waiver has the same goal: to keep law-abiding families intact.

Powers said she's optimistic the Supreme Court will take up the case and rule favorably on DAPA in June, which would give the Obama administration just months to roll it out before the president leaves office in January 2017.

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