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APRIL 2015

Update on Federal Court Challenge to President’s Executive Action on Immigration

As previously reported, on February 16, a federal district court judge in Texas ordered a halt, or temporary injunction, to President Obama’s executive actions on immigration. Judge Andrew Hanen sided with Texas and 25 other states that filed a lawsuit opposing initiatives that would offer protection from deportation (and work permits) to as many as five million undocumented immigrants. Shortly afterwards, Judge Hanen also denied the Department of Justice’s (DOJ) motion to stay the temporary injunction. The parties are now in the discovery phase of the lawsuit, which is expected to conclude by May 8. At that time, Judge Hanen will consider the parties’ requests and issue an appropriate order as soon as practicable.

However, in March, Judge Hanen stated that because of the seriousness of the matters before the court, he would not rule on any other pending motions “until it is clear that these matters, if true, do not impact the pending matters or any rulings previously made by this Court,” thus paving the way for DOJ to appeal to the U.S. Court of Appeals for the Fifth Circuit. In mid-March, DOJ filed an emergency motion for a stay pending appeal with the Fifth Circuit, requesting that that court stay the lower court’s nationwide preliminary injunction in its entirety or, at minimum, stay it with respect to implementation in states other than Texas, or states that are not parties to the suit. The court of appeals set a hearing date of April 17 on whether the temporary hold on President Obama’s immigration executive actions should be lifted.

As the litigation proceeds, a myriad of stakeholders and interest groups have weighed in as friends of the court (“amici”). In support of the federal government’s bid to reverse the injunction, the mayors of New York, Los Angeles, and over 70 other cities and counties, 100+ immigration law professors, and 15 states plus the District of Columbia, as well as 181 members of Congress all filed amicus briefs with the Fifth Circuit. Twenty-six states urged the Fifth Circuit not to lift Judge Hanen’s injunction.

Meanwhile, a recent decision in Mississippi case rejected a similar challenge to the President’s authority and may portend what the court will rule in Texas v. US.
Reuters reported:

A U.S. appeals court . . . rejected a challenge to President Barack Obama’s 2012 executive action granting deportation relief to immigrants brought to the United States illegally as children, upholding a lower court’s earlier ruling.

A panel of the New Orleans-based 5th U.S. Circuit Court of Appeals found that the plaintiffs in the case — the state of Mississippi and a group of Immigration and Customs Enforcement officers upset by White House directives — had not shown they had been sufficiently harmed by the rule to keep the case alive.

“We conclude that neither the agents nor the state of Mississippi has demonstrated the concrete and particularized injury required to give them standing to maintain this suit,” the decision stated.

While it is possible that the Fifth Circuit will distinguish the Texas case from the case in Mississippi, this decision is good news for the Administration and the five million individuals expected to be eligible for benefits under the executive action.

And, in another positive development for the Administration and the legality of the President’s executive action, the Supreme Court in March reversed a court of appeals judgment by 9-0, finding that federal agencies do not need to use the Administrative Procedure Act’s (APA) notice and comment procedures when changing their interpretation of their own rules. The Texas lawsuit also argued that the executive action violated the APA on these same grounds. Not so, said the Supreme Court.

Stay tuned.

This update is for informational purposes only and is not intended as specific legal advice in any way.
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