Published November 11, 2015
Earlier this week, a panel of the U.S. Court of Appeals for the 5th Circuit Court, issued a 70 page opinion in support of their ruling that the Obama administration overstepped its authority in seeking to implement a plan to temporarily legalize millions of undocumented immigrants. This appellate ruling comes after a lower court ruled against the implementation of the program and in favor of the 25 plaintiff states that brought the lawsuit challenging the legality of the Obama initiative. The ruling was issued by a 2 judge majority, but with a 50 page dissent penned by one judge on the panel, thus highlighting the gray area legal issues in dispute here. Most probably, the final say will come from the U.S. Supreme Court, the forum within which any further appeal by the Obama Administration will be ruled upon. In the meantime, President Obama’s expanded legalization program remains on hold.
As a matter of review, the main legalization at issue is the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). Under this program – first announced on November 20, 2014, a now undocumented individual who: A) arrived in the U.S. on or before January 1, 2010, B) resided in the U.S. continuously through November 20, 2014, C) paid taxes on income earned, D) has not been convicted of any significant criminal offense AND E) is the parent of a U.S. citizen or lawful permanent resident would qualify for Deferred Action status and a 3 year Employment Authorization Document (“EAD”). Individuals facing removal proceedings, or an order of removal, would be eligible to apply under this new program, put a halt to removal proceedings, and remain in the U.S. An additional component of the Obama Executive Action put on hold by the 5th Circuit ruling are the provisions allowing for an expanded pool of eligible applicants under the 2012 Executive Order allowing for Deferred Action for Childhood Arrivals (“DACA”).
Just like the circumstances leading to President Obama acting to issue the Executive Orders at issue in the first place, the 5th Circuit’s decision this week was very much influenced by politics, although rationalized by legal authority. President Obama would likely never have had to resort to Executive Action to achieve the results he was seeking if Congress would have been given a chance to vote on various pieces of immigration reform legislation proposed by a bipartisan group of lawmakers in recent years. Partisan bickering prevented the full Congress from being able to even consider, debate or vote on the bipartisan proposals.
Next stop, U.S. Supreme Court: So, the fight continues and with there being little or no chance Congress will pick up on the immigration issue before a new President is in office, the status quo will continue as the Obama administration will almost assuredly appeal the 5th Circuit’s ruling to the U.S. Supreme Court. Supreme Court consideration would likely take place within a period of months and developments on this issue will continue to be featured here.
PUBLISHED November 11, 2015– “IMMIGRATION LAW FORUM” Copyright © 2015, By Law Offices of Richard Hanus, Chicago, Illinois