Last Thursday, the U.S. Department of Justice (DOJ) filed an emergency motion with the Fifth Circuit Court of Appeals to lift a preliminary injunction issued by U.S. District Judge Andrew Hanen last month in lawsuit filed by a coalition of 26 states. Contending that this matter was an emergency, the DOJ also requested that the Fifth Circuit require the coalition of states to respond within a week of the DOJ’s filing. The Fifth Circuit quickly rebuffed the DOJ’s demand for a shortened response deadline.
As background, a coalition of 26 states (Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wisconsin) sued the U.S. government in Brownsville, Texas as a result of the President’s Execution Actions on Immigration. Led by Texas, the coalition of states contends that the executive actions on immigration are unconstitutional and would require the states to invest more in law enforcement, health care, and education.
Rather than allow the President’s Executive Actions on Immigration go forward, U.S. District Judge Andrew Hanen entered a preliminary injunction to maintain the status quo while the lawsuit moved forward. The DOJ appealed Judge Hanen’s injunction to the Fifth Circuit. The DOJ also requested that Judge Hanen lift his injunction while the case was being appealed, or at least lift the injunction as to the states not opposing the lawsuit.
Judge Hanen’s injunction only affected the expanded Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) programs. The business-based executive actions (including plans to extend work authorization to H-4 spouses of certain H-1B beneficiaries and the revamping of the way employment-based immigrant visas are made available) are not subject to Judge Hanen’s February 16 injunction.
Judge Hanen has put the DOJ’s request for a lift of the injunction on hold pending a hearing scheduled for March 19 to review allegations that the government misled the court on the implementation of the executive actions. Although it was widely communicated that U.S. Citizenship & Immigration Services (USCIS) would not accept any requests prior to February 18, 2015, it has been reported that USCIS granted three-year deportation reprieves as well as work permits to 100,000 individuals before the institution of the February 16 injunction.
Because the Fifth Circuit is largely seen as fairly conservative, legal experts speculate that it is highly unlikely to grant the DOJ’s request. If that is the case, however, this case could end up before the U.S. Supreme Court in the very near future.
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