Obama Administration Asks 5th Circuit to Stay Immigration Order

We wrote here about the preliminary injunction issued by a federal court in Texas that barred the Obama administration from implementing the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program that was announced by DHS Secretary Jeh Johnson. The DAPA program would, in effect, legalize several million immigrants who are illegal under federal law, and would issue work permits to them, also contrary to federal law.

As expected, the administration has now gone to the 5th Circuit Court of Appeals, seeking an “emergency stay” of the district court’s order, pending the administration’s appeal of the preliminary injunction. The emergency stay, if granted, would not preserve the status quo, as is usually the case when stays are sought. Rather, it would allow the administration to go forward with its illegal program.

You can read the administration’s motion here. To me, it seems strikingly disingenuous. It refers to “prioritization,” “prosecutorial discretion,” and “border security”–as if the Obama administration has ever cared about that. To hear the Justice Department tell the story, you would think the plaintiff states were interfering with the Obama administration’s heroic efforts to enforce the nation’s immigration laws. I doubt that the 5th Circuit will be fooled.

One of the fundamental problems in the administration’s case is that the DAPA and DACA programs are not just a matter of prioritizing illegal immigrants for deportation. Rather, it includes affirmative acts of de facto legalization, like issuing work permits, which in turn will lead to conferring other benefits, like Social Security. The government’s brief ignores this basic point, except for dropping this bombshell:

In treating the Guidance as a substantive rule, the district court erroneously suggested that it entitles deferred action recipients to obtain the ability to work lawfully and to receive other affirmative benefits. Aliens who receive deferred action may be granted work authorization where there is economic necessity, but that is not due to the Guidance; it is due to an agency regulation originally promulgated in 1981 through notice-and-comment rulemaking. 8 C.F.R. § 274a.12(c)(14).

Whoa! That is a news flash. Some obscure regulation already permits millions of illegal immigrants to be issued work authorizations and become eligible for Social Security benefits, contrary to unambiguous provisions of federal law? Here is 8 C.F.R. § 274a.12(c)(14), which describes one of a number of categories of aliens that are “authorized to accept employment”:

(14) An alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment;

So that provision, dating from 1981, authorizes the issuance of millions of work permits to illegal aliens, contrary to federal statutes–and, according to the administration, it is too late to challenge the regulation, since “Under the APA, once is enough.”

There are a number of technical issues, relating particularly to standing. We will see how the court responds.