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Fifth Circuit hears immigration ruling appeal

We’ll see, but as always with this court it is better to expect the worst and hope to be pleasantly surprised.


Noise from hundreds of chanting immigration activists outside a federal appeals court building competed at times Friday with lawyers arguing inside over President Barack Obama’s proposal to shield an estimated 5 million people from deportation who are in the U.S. illegally.

“The three judges felt the vibrancy and power of our movement,” said Marielena Hincapie, of the National Immigration Law Center, speaking to the crowd that rallied while a panel of the 5th U.S. Circuit Court of Appeals heard the case.

Demonstrators gathered on the steps of the federal courthouse with permission from authorities, their chanting mixed with speeches in English and Spanish and music from a brass band. Activists criticized Republican resistance to the Obama program and called for policies that let immigrants stay and work in the country.


Scott Keller, representing the Texas Solicitor General’s Office, argued that the administration was doing more than simply deferring action. He said the plan would effectively grant a new legal status – legal presence – to people in the country illegally, putting them in line to get permission to work and benefit from Social Security.

Judge Carolyn Dineen King seemed skeptical of that argument at times, noting that deferred action wouldn’t change the fact that someone entered the country illegally and would not protect them from deportation under any circumstance.

“Based on the unlawful thing that they did to begin with, you can turn them out tomorrow,” she said.

Arguments also settled on whether Texas and the states even have the power to challenge the federal executive branch’s authority to regulate immigration. Arguments on that issue largely have centered on the costs Texas would incur by having to issue driver licenses to DAPA beneficiaries – an injury, the state argued – that gave them the right to sue.

Two of the judges on Friday’s panel, Jerry Smith and Jennifer Walker Elrod, were in the majority on a panel that voted 2-1 in May against allowing the deferred action programs to continue pending the appeal outcome. In that opinion, they disagreed with government contentions that Texas had no standing.

They also ruled that the Obama action was subject to judicial review under the federal Administrative Procedures Act, which the Justice Department disputes.

See here and here for some background. The previous order from the court on the injunction suggested there may be some cause for optimism, but the hearing itself didn’t appear to support that. Complicating things further, while this lawsuit was brought by several states and has halted the immigration plan nationwide, several other states and dozens of cities, including Houston, have filed amicus briefs on behalf of the administration. There’s no indication when the Fifth Circuit may rule, and it seems likely this could stretch out into the term of the next President, especially if it goes to SCOTUS. Just another reason why 2016 matters, since quite a few of the candidates out there would be more than happy to drop the appeal. The Trib and BOR have more.

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