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White House Appeals|Immigration Injunction

HOUSTON (CN) - The Justice Department on Monday asked a federal judge to stay his injunction against the Obama administration's deferred deportation programs for immigrants who were brought to the United States as children.

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 orders are unconstitutional.

U.S. District Judge Andrew Hanen, in Brownsville, granted an injunction against the programs last week.

Hanen issued his ruling two days before the Department of Homeland Security was to begin accepting applications for Deferred Action for Childhood Arrivals (DACA), which would suspend deportation for qualifying undocumented immigrants brought to the United States as children, and let them apply for work permits and driver's licenses.

On Monday, the Justice Department notified Hanen that it is appealing his ruling to the 5th Circuit and asked him to stay his ruling pending that appeal.

The Justice Department claims a stay is needed because Hanen issued the injunction in error.

"The court lacked authority to issue the preliminary injunction, both because plaintiffs lack standing and because the Deferred Action Guidance is an exercise of prosecutorial discretion by the secretary that is neither subject to challenge by the states, nor required to be issued through notice-and comment rulemaking," the motion states.

The Justice Department claims that without a stay the Department of Homeland Security will suffer "irreparable harm" by not being able to implement a program central to its "effort to set and effectuate immigration enforcement priorities that focus on the removal of threats to public safety, national security risks, and recent border crossers, thereby best securing the homeland in the face of limited resources."

Hanen ruled that lead plaintiff Texas has standing to sue because it will bear the cost of processing driver's license applications for undocumented immigrants under DACA.

Hanen did not address how the programs will apply to the 25 other plaintiff states.

The Justice Department seized on this in its motion and asked Hanen at the least to stay the injunction so it applies only to DACA applicants in Texas.

"The injunction purports to extend beyond implementation of the guidance in Texas (the only state whose claims of harm the court credited) to states the court did not find to have established any injury, and even to states that have informed this court that they desire and expect to benefit from implementation of the Deferred Action Guidance," the 23-page motion states.

Federal attorney Kyle Freeney warned Hanen that if he does not rule on the motion by 5 p.m. Wednesday, the United States will seek relief from the 5th Circuit.

Obama unveiled the policy directives last November.

The executive orders on DACA and Deferred Action for Parental Accountability (DAPA) would suspend deportation, during Obama's term, of immigrants whose parents brought them here as children, who graduated from school, stayed out of trouble, passed background checks and met other qualifications.

Obama's programs are simply an element of the process of prosecutorial discretion, which immigration officials use to decide who should put into deportation proceedings, Immigration and Customs Enforcement spokesman Greg Palmore told Courthouse News on Friday.

"Under the deferred action process, and prosecutorial discretion as a whole, ICE is screening every alien we encounter, including those in custody," Palmore said.

"Decisions are based on the merits of each case, the factual information provided to the agency and the totality of the circumstances. 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."

But opponents claim Obama's amnesty programs went too far.

"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," according to The American Center for Law & Justice, a Christian conservative law firm based in Washington, D.C., that joined 68 Republican congressmen in an amicus brief supporting the states' lawsuit.

The legal flurry comes as Congress approaches a Friday funding deadline that could cause the Department of Homeland Security and all of its immigration departments to shut down. Republicans, led by Speaker of the House John Boehner, are threatening to withhold DHS funding unless President Obama changes his immigration policies.

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