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Feds file appeal of immigration injunction to Fifth Circuit

Time to force the issue.

The Obama administration Thursday asked a federal appeals court to do what a Texas-based judge didn’t: allow a controversial immigration program to move forward while the issue plays out in the courts.

Attorneys with the U.S. Department of Justice filed an emergency motion asking the U.S. Fifth Circuit Court of Appeals to lift a temporary halt to a federal immigration program that was issued by Brownsville-based U.S. District Judge Andrew Hanen in February.


In the request filed with the appeals court Thursday, the administration argues that Hanen’s ruling was wrong because immigration enforcement falls under the purview of the federal government. Individual states had no right to infringe on that right, federal officials argue.

“Yet the district court has taken the extraordinary step of allowing a State to override the United States’ exercise of its enforcement discretion in the immigration laws,” the filing reads.

Federal officials also argue that preventing the program from moving forward will interfere with other immigration-enforcement operations that are essential to the country’s security.

“In light of the urgent circumstances and critical federal interests at issue, including the need to protect national security, public safety, and the integrity of the border, the Government now seeks a stay from this Court,” the filing reads.

The Department of Justice urged the appeals court to rule within two weeks.

See here and here for some background, and here for a copy of the DOJ’s motion. The Washington Post has a good summary of it:

The DOJ argues, in fairly aggressive language, that Texas judge Andrew Hanen’s injunction was wrong on multiple levels. It contests Hanen’s claim that the executive actions cause “irreparable harm” to states, in the form of money spent on driver’s licenses to beneficiaries, arguing that such harm is “indirect” and “speculative” — the result of state driver’s license policies — and thus not sufficient to show “standing.” It argues that Hanen was wrong to conclude that the states’ lawsuit against the actions is likely to succeed on the merits, claiming Hanen misstated the policy basics underlying the “prosecutorial discretion” rationale that justifies these actions.

The DOJ also argues that halting Obama’s executive actions harms the public interest — and even national security:

An injunction…irreparably interferes with DHS’s ability to protect the Homeland and secure our borders. Deferred action helps immigration officials distinguish criminals and other high-priority aliens from aliens who are not priorities for removal and whose cases may additionally burden already backlogged immigration courts…DAPA and the expansion of DACA will advance important border-safety, public-safety and national-security goals in the public interest…the injunction also impairs the humanitarian interest of providing temporary relief for close family members of U.S. citizens and lawful permanent residents.

David Leopold, a prominent immigration attorney who backs Obama’s actions, explains the signficance this way:

“The administration turns Hanen’s ‘irreparable harm’ reasoning on its head, saying, in effect, ‘You want to talk about irreparable harm? Let’s talk about irreparable harm. This injunction hurts our national security and prevents us from enforcing immigration law in a sane manner.’”

Interestingly, the government’s brief calls for the 5th Circuit to, at the very least, limit the injunction by confining it just to Texas (the only state that has standing), or barring that, only to the 25 or so states that are suing

The states that supported the President’s executive order also filed their brief. There will be a hearing next week on the state of Texas’ allegation that the feds misled Judge Hanen about the work permits it has issued. In theory, the Fifth Circuit could take action before Judge Hanen does. Daily Kos has more.

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