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DOJ lawyers challenge judge's immigration decision

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DOJ lawyers challenge judge's immigration decision

  • A Border Patrol agent on patrol along the Southwest border near Nogales in this CBP photo.
    Customs and Border ProtectionA Border Patrol agent on patrol along the Southwest border near Nogales in this CBP photo.

Arguing that the government will be “irreparably harmed” by an court order that keeps federal officials from implementing two deferred action programs for immigrants, Department of Justice lawyers requested Monday that the order be stayed until the case can be appealed. 

On Feb. 16, U.S. District Judge Andrew S. Hanen issued an injunction over the Department of Homeland Security new programs, halting the agency’s efforts to implement them. Announced by President Barack Obama in November were the expansion of the 2012 Deferred Action for Childhood Arrivals program and the creation of a sister program for parents of citizens and legal residents, known as DAPA.

Hanen's order was prompted by a lawsuit by Texas and 25 other states, including Arizona, filed almost immediately after the president announced his executive actions during a speech on Nov. 20. 

If a ruling on the DOJ's request is not made by Wednesday, lawyers for the government said they will appeal to the Fifth Circuit Court of Appeals in New Orleans. 

In a 24-page filing, the Department of Justice argued that programs enjoined by Hanen are "an integral part" of Homeland Security’s effort to set immigration enforcement priorities focused on the removal of public safety threats, national security risks, and those who have crossed the border since January 2014. 

Echoing similar arguments by Homeland Security Secretary Jeh Johnson and others, the lawyers said the use of discretion helps the agency secure the U.S. in "face of limited resources."

The main thrust of the argument by Texas and other states was that the new deferred action program would come at a huge expense for the states and Hanen agreed, noting that Texas would spend millions offering driver’s licenses to immigrants covered under the program. 

Federal lawyers dismissed this argument, saying that the harms of halting deferred action outweighed the financial cost for individual states. The cost of driver’s licenses was the direct result of the state’s own laws, and would not affect the state immediately. 

Federal lawyers said that the deferred action programs would allow DHS to "focus its limited resources on aliens who are a high priority for removal — including aliens who pose national security risks, serious criminals, and recent border crossers — rather than on aliens with significant ties to the community and no serious criminal records."

Officers could rely on proof of deferred action to "quickly and efficiently confirm" that people in their custody were not among these priorities. 

This would allow the agency to "to secure the border and protect the public, while also recognizing important humanitarian considerations."

Federal lawyers also offered an alternative version of the injunction. Rather than halting the president’s executive actions nationwide, federal lawyers argued that the stay should be limited to Texas. This would keep Texas from suffering harm, while allowing 12 states and the District of Columbia that had submitted briefs in support of DACA and DAPA to receive benefits. 

Last week, federal officials stopped accepting bids for a new facility in Virginia that would process up to 5 million applications for DAPA.

As lawyers battle for the president’s executive actions, Congress has five working days to produce a funding bill for the Department of Homeland Security before it runs out of money on Friday. Unlike the rest of the federal government, DHS has been operating on a continuing resolution, a consequence of congressional skirmishes over immigration.

"The clock is ticking," said Johnson during a press conference Monday. "And as I stand here there is nothing from Congress to fund us beyond that point."

During the conference, Johnson, backed by officials from several agencies underneath the DHS umbrella, insisted that the continuing resolution limited the agency’s abilities to protect the United States. "It’s like trying to drive cross-country with no more than five gallons of gas in the tank," he said. 

Without a bill, DHS will be forced to shutdown parts of the agency, including at least 30,000 personnel, including the staff at Homeland Security’s headquarters. This limits the agency’s ability to say ahead of terrorists groups and threats to U.S. aviation, Johnson said. 

The shutdown would also hurt the agency’s ability to "closely monitor and keep one keep ahead of illegal immigration along our sothern border,” Johnson said. 

"There’s a real human face to this,” said Gil Kerlikowske, the commissioner of Customs and Border Protection. "We have 60,000 employees that we’re going to be asking to go to work without a paycheck."

According to Johnson around 75 to 80 percent of the agency’s workforce are required to work, but will not be paid until a funding bill is passed by Congress. 

This will also affect at least 3,360 at the Federal Emergency Management Agency, said Craig Fugate, the director of FEMA.

Johnson also noted that the shutdown would affect almost 500 people currently at training facilities in Georgia and New Mexico, training to become CBP officers and Border Patrol agents. Those people will be sent home, he said. 

Johnson praised a House bill from several weeks ago, but he criticized amendments tacked on that defunded administration’s immigration actions. 

"As the president and I have said many times, we welcome a debate about immigration and immigration reform, but don’t tie that debate to the ability of our ability to function," Johnson said. 

"The disruption to department is definitely real and definitely there. We can’t stay on top of existing challenges and threats to homeland security,” Johnson said. "In these challenging times, it’s most unfortunate that there’s even the potential for a shutdown."

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