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DACA/DAPA

Appeals court rejects Obama immigration programs

Administration must appeal to Supreme Court

The fate of two Obama administration programs intended to shield the parents of Americans and lawful residents from deportation may hinge on a U.S. Supreme Court decision after a lower court again refused to remove an injunction keeping the program from going forward while a lawsuit is pending.

A three-judge panel of the Fifth Circuit Court of Appeals in New Orleans issued a decision on Monday, upholding a challenge to the deferred action program brought by Texas, and joined by Arizona and 24 other states, almost immediately after President Barack Obama announced the program nearly a year ago.

Monday's decision leaves at least 4 million people in legal limbo.

In Arizona alone, the expansion of the program for childhood arrivals would impact 39,000 people, and the program for parents would affect at least 97,000, or nearly half of the state's total unauthorized population, according to estimates from the Migration Policy Institute.

During a televised speech last November, Obama announced he was expanding the 2012 Deferred Action for Childhood Arrivals program, and creating a second program — known as DAPA or Deferred Action for Parents of Americans and Lawful Permanent Residents — that would allow parents to seek their own work permits and protection from deportation.

Federal officials were preparing to accept applications last Feb. 18, however, the program came to a halt when U.S. District Court Judge Andrew S. Hanen issued a last-minute injunction halting both programs until the lawsuit could be tried.

In April, Hanen rejected an appeal from federal officials and the case went to the Fifth Circuit. In May, a three-judge panel agreed with Hanen and the injunction remained in effect.

Lawyers for Texas challenged the program arguing that the expansion of deferred action would create a substantial financial burden by requiring the state to spend millions on new drivers licenses for immigrants.

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Additionally, the plaintiffs argued that the Obama administration had failed to follow the Administrative Procedure Act, which governs how federal regulations are made and guides public input.

In the 70-page decision, Judge Jerry E. Smith said that Texas had demonstrated "that it would incur significant costs in issuing driver’s licenses to DAPA beneficiaries." Instead of rejecting this argument, Smith wrote, the government said that the costs would be offset by other benefits to the state as DAPA beneficiaries would register their vehicles, generating income for the state, and buy auto insurance, reducing the expenses associated with uninsured motorists.

The government also argued that employment authorizations would lead to increased tax revenue and decreased reliance on social services, wrote Smith.

However, Smith rejected this saying that deferred action is "much more than nonenforcement: It would affirmatively confer 'lawful presence' and associated benefits on a class of unlawfully present aliens."

This would "trigger" associated benefits under the Social Security Act, and state benefits otherwise not available to illegal aliens, Smith said.

Smith also rejected an argument that the court could limit the injunction to Texas and the 25 other plaintiff states. Partial implementation of DAPA would "detract from the ‘integrated scheme of regulation’ created by Congress," wrote Smith. "There is a substantial likelihood that a geographically-limited injunction would be ineffective because DAPA beneficiaries would be free to move among states."

Judge Carolyn D. King disagreed, writing in a 50-page dissent that she was "skeptical" about the claims made by Texas that the DAPA would be a substantial burden to Texas. The cost she said was "entirely manufactured by the Plaintiffs in this case."

King also said the Obama administration program was an "exercise of prosecutorial discretion" beyond the reach of federal court judges.

"Because all parties agree that an exercise of prosecutorial discretion itself is unreviewable, this case should be dismissed on justiciability grounds," King wrote.

She also criticized the court for holding the decision past its normal 60-day review period.

"I have a firm and definite conviction that a mistake has been made," she said. "That mistake has been exacerbated by the extended delay that has occurred in deciding this 'expedited' appeal. There is no justification for that delay."

The decision means that if the Obama administration wants to remove the injunction before his term ends in 14 months, the U.S. Supreme Court must agree to hear the case and decide by summer 2016.

If not, the fate of both programs will be decided by whomever wins the 2016 presidential election.

While the Democrats running for president support DACA and DAPA, Republicans have bashed the programs as "amnesty," while openly supporting mass deportations and pushing for an end to birthright citizenship, a right enshrined in the 14th Amendment.

Republican Sen. Marco Rubio, who once championed immigration reform, told an audience in New Hampshire on Friday that without or without immigration reform, he would end DACA.

Marielena Hincapié, executive director of the National Immigration Law Center, called the lawsuit a "partisan attack."

"We now call on the Department of Justice to seek Supreme Court review immediately, where we are more likely to obtain justice for our communities. In the meantime, we are prepared to continue the fight for immigrant rights — in the courtrooms, in our communities, and at the ballot box," Hincapié said.

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Paul Ingram/TucsonSentinel.com

In January 2015, legal clinic volunteer Myrna Velasco helped Karina Monter, Jocelyn Carino and Raul Carino organize documents for their application to the deferred action program, which was delayed by a federal judge in February.

Deferred deportation – deferred

Arizona ranks high among states for the number of people eligible for the expanded DACA program and the new DAPA program, according to estimates from the Migration Policy Institute. Its estimates for the nation and the top 10 states were:

DAPA

  • United States: 3,712,000
  • California: 1,116,000
  • Texas: 560,000
  • New York: 234,000
  • Illinois: 199,000
  • Florida: 163,000
  • New Jersey: 137,000
  • Georgia: 122,000
  • North Carolina: 117,000
  • Arizona: 97,000
  • Washington: 77,000

DACA expansion

  • United States: 292,000
  • California: 99,000
  • Texas: 34,000
  • New York: 24,000
  • Florida: 18,000
  • Illinois: 16,000
  • New Jersey: 12,000
  • Georgia: 8,000
  • Arizona: 7,000
  • North Carolina: 5,000
  • Washington: 5,000

Who are the 'Dreamers?'

Announced on June 15, 2012, by President Obama, Deferred Action for Childhood Arrivals is a federal program gives based around prosecutorial discretion that offers temporary relief from deportation, and work permits, to some unauthorized immigrants brought to the United States as children.

The deferment lasts for two years before it must be renewed.

To receive DACA, applicants must:

  • Have come the United States before their 16th birthday.
  • Have lived continuously in the United States since 15 July 2007.
  • Were under age 31 on 15 June 2012.
  • Have completed high school or a GED, or were honorably discharged from the armed forces, or are currently enrolled in classes.
  • Have not been convicted of a felony or serious misdemeanors.
  • Pay an application fee of $465.