Festival Cinco de Mayo de Amarillo

El 3 de Mayo estaremos participando en el "Festival Cinco de Mayo," en AMARILLO, TX!

Amigos de Amarillo, no se les olvide recoger sus boletos GRATIS en nuestra oficina localizada al 4104 SW 33rd Ave, Ste. 200, Amarillo, TX, 79109.

Revealed: Three Judge Panel to Hear Arguments Over Immigration Injunction

Yesterday, the Fifth Circuit Court of Appeals in New Orleans announced the three judge panel scheduled to hear arguments this Friday, April 17^th, over the Department of Justice’s request for a stay of an injunction against the Obama administration’s executive immigration actions.

The issue the judges will have to consider is whether to allow the injunction issued on February 16^th by District Judge Andrew Hanen to remain in effect while an expedited appeal moves forward.  The panel announced Monday is unlikely to be the panel that makes the final decision on the legal merits of Judge Hanen’s decision.  A new panel will likely be scheduled to hear arguments over that issue sometime next month.

Regardless, the composition of the panel may not bode well for the Obama administration.  Of the three judges, two are Republican appointees.  The third, Stephen Higginson, was appointed by President Obama.  The GOP appointees include Jennifer Walker Elrod, appointed by President George W. Bush, and Jerry Smith, appointed by President Ronald Reagan.

Judge Smith is by far the most famous of the panel.  His quasi celebrity status dates back to his involvement in litigation concerning the Affordable Care Act in 2012 when he garnered attention for lecturing Department of Justice attorneys and assigning them homework.  Antics aside, his reputation is that of a very conservative judge, having described himself as a former “right wing activist.”  Judge Smith is Yale educated and came to the circuit court after practicing law in Houston.

Judge Jerry Smith of the Fifth Circuit Court of Appeals - Courtesy of the Federalist Society

With Judge Smith’s history and Judge Higginson being an Obama appointee, the decision may come down to how Judge Elrod views the issue.  While she is a Bush appointee, and presumably conservative, her record is not as extreme as that of Judge Smith, so it is possible she could be swayed.

Of course, the issue most people are not talking about is the role the Fifth Circuit’s recent unanimous decision in Crane v. Johnson might play.  In Crane, the Fifth Circuit rejected a challenge to President Obama’s 2012 Deferred Action for Childhood Arrivals (DACA) program brought by the state of Mississippi and agents of Immigration & Customs Enforcement (ICE).

In Crane, the arguments presented by the plaintiffs mirrored those offered by Texas and 25 other states in their lawsuit.  Additionally, the immigration actions currently enjoined by District Judge Hanen are an expansion of his 2012 DACA program.

Governor Greg Abbott and Texas lead the lawsuit against President Obama's Immigration Actions - 
Courtesy of The Texas Tribune

It will be interesting to see how the Fifth Circuit attempts to differentiate the current lawsuit from Crane, assuming they want to.  Until then, arguments will last two hours this Friday with a decision to follow.  Regardless, these issues may not be resolved until the U.S. Supreme Court has a say on the matter.  Time will tell.

Nathan R. Bogart is an immigration attorney at Petty & Associates, P.C.  He works out of the firm's Amarillo office and focuses his practice on removal defense, asylum, and citizenship. 

The Plot Thickens - Fifth Circuit Sets April 17th Hearing on Executive Action Injunction

By now, almost everyone has heard that Federal District Judge Andrew Hanen entered a temporary injunction blocking portions of President Obama’s immigration actions from going into effect.  Specifically, an amplified version of Deferred Action for Childhood Arrivals (DACA), originally announced in June 2012, and a similar program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) are currently on hold.

It is important to note that the 2012 version of DACA has not been affected by Judge Hanen’s order.

The Obama Administration appealed the temporary injunction earlier this month.  The appeal was filed with the Fifth Circuit Court of Appeals based in New Orleans, LA.  This week, Fifth Circuit responded, setting arguments for Friday, April 17, 2015.

The Fifth Circuit Court of Appeals Building in New Orleans, LA - Courtesy of Waggonner& Ball Architects

Each side will be allowed one hour to present arguments regarding why the injunction should or should not be lifted.  Hopefully, the Fifth Circuit will enter a decision on the injunction within a few weeks of the arguments.

The April 17^th hearing was part of a court order granting the Obama Administration’s request to expedite the appeal of Judge Hanen’s injunction.  The administration asked Judge Hanen to lift the injunction himself; however, to this point, the judge has taken no actions except to call Department of Justice attorneys into his courtroom and threaten sanctions on the pretext they misled him about the implementation of DAPA and DACA.

In support of the injunction are 26 states, led by Texas, that filed a lawsuit alleging the programs are a constitutional overreach on the part of the president.  They argue that allowing the programs to move forward will cause them irreversible economic harm.  This despite the overwhelming majority of economists believing the actions will be an economic boom.

You might ask, what is the economic harm the states fear so much?  This is where it gets good.  Apparently, they are afraid of printing driver’s licenses for DAPA and DACA recipients.  They argue that because the state subsidizes the cost of making driver’s licenses, and the fee paid by driver’s license applicants will not be enough to cover the costs, the states will incur onerous financial costs in creating them.

Of course, the states fail to contrast the cost of printing driver’s licenses with the benefit of having thousands of drivers who previously did not have licenses licensed.  More importantly, financial harm such as the cost of driver’s licenses is the quintessential reparable harm.  If the states are worried about losing money on driver’s licenses, the solution is simple: raise the price of driver’s licenses or refuse to issue them to DAPA recipients. 

But that really does not matter, because in the end, this really is not about arriving at a solution as much as it is a political game.  A game being played with real people’s lives hanging in the balance.

NathanR. Bogart is an immigration attorney at Petty &Associates, P.C.  He works out of the firm's Dallas and Amarillo offices and focuses his practice on removal defense, asylum, and citizenship.