NEW ORLEANS (AP) — President Barack Obama’s plan to shield as many as 5 million immigrants living in the U.S. from deportation remained on hold Tuesday after a federal appeals court panel refused to allow it to take effect immediately.
Obama announced an executive action in November seeking to expand a program that protects young immigrants from deportation if they were brought to the U.S. illegally as children. The order also would extend deportation protections to some parents of U.S. citizens and permanent residents.
Although Obama argued lack of action by Congress forced him to make sweeping changes on his own, Republicans blasted the plan as an executive overreach. Twenty-six states have sued to stop it, and a federal judge based in Texas issued a preliminary injunction against it in February.
The administration is appealing that injunction and had asked a three-judge panel of the 5th U.S. Circuit Court of Appeals to let the program proceed pending an argument on the merits, tentatively set for July.
But, in refusing to stay the Texas judge’s injunction, 5th Circuit judges Jerry Smith and Jennifer Walker Elrod said that the federal government lawyers are unlikely to succeed on the merits of the appeal. Judge Stephen Higginson disagreed in a lengthy dissent.
Immigrant advocates decried the continued roadblock. And, White House spokeswoman Brandi Hoffine said the two-judge majority in Tuesday’s ruling “chose to misinterpret the facts and the law.”
U.S. District Judge Andrew Hanen sided with the states and, from his court in Brownsville, Texas, issued a temporary injunction on Feb. 16 to block the plan from taking effect while the lawsuit works its way through the courts.
In denying a stay, Smith and Elrod rejected the government’s argument that it has such broad discretion to defer legal action against immigrants absent judicial review. The Obama policy, the ruling said, goes beyond simple non-enforcement. “It is the affirmative act of conferring ‘lawful presence’ on a class of unlawfully present aliens,” Smith wrote.
Higginson noted congressional inaction on the issue in his dissent and said the administration was acting within its authority.
Smith and Walker were nominated to the court by Republican presidents, Ronald Reagan and George W. Bush; Higginson, by Obama.
The White House said its appeal of the preliminary injunction will proceed on an expedited basis in the 5th Circuit while the Justice Department reviews Tuesday’s opinion and contemplates other possible steps.
“This decision is a victory for those committed to preserving the rule of law in America,” Texas Attorney General Ken Paxton said in a statement.
Marielena Hincapie, executive director of the National Immigration Law Center, said the decision will result in confusion and fear in immigrant communities. But she predicted eventual victory in the courts.
The first of Obama’s orders — to expand a program that protects young immigrants from deportation if they were brought to the U.S. illegally as children — was set to take effect Feb. 18. The other major part, extending deportation protections to parents of U.S. citizens and permanent residents who have been in the country for some years, had been scheduled to begin May 19.
Hanen issued his injunction believing that neither action had taken effect. But the Justice Department later told Hanen that more than 108,000 people had already received three-year reprieves from deportation as well as work permits. Hanen said the federal government had been “misleading,” but he declined to sanction the government’s attorneys. Earlier this month, the U.S. government told Hanen it had mistakenly awarded three-year work permits to another 2,000 people.
Along with Texas, the states seeking to block Obama’s action are 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, Utah, West Virginia and Wisconsin.