Los Angeles Times
By Molly Hennessy-Fiske
July 10, 2015
State
and federal lawyers on opposite sides of the immigration divide are set
to square off Friday in a federal appeals court over the merits of
President Obama's executive
action seeking to shield up to 5 million people from deportation.
Immigrant
advocates have planned protests outside the federal courthouse in New
Orleans, where hundreds are expected to rally in support of the
programs, holding a vigil
and marching through downtown.
The
court battle began in December, when Texas officials, joined by 25
other states, filed suit against the programs before they were launched.
In February, an outspoken
conservative federal judge in Texas, Andrew S. Hanen, issued a
preliminary injunction preventing the administration from starting the
programs.
In
May, a three-judge panel of the U.S. Court of Appeals for the Fifth
Circuit in New Orleans refused the administration’s request to lift
Hanen's stay after hearing oral
arguments from both sides.
Now
the two sides will meet at 9 a.m. Friday for oral arguments about the
programs, known as Deferred Action for Parents of Americans and an
extension of Deferred Action for Childhood Arrivals.
“We
are hoping they move faster. Every day they delay is a day 5 million
people cannot apply for these programs,” said Nora Preciado, a litigator
with the Los Angeles-based
National Immigration Law Center who attended the last oral arguments
and plans to be at the court again Friday.
But
opponents of Obama’s executive action had reason to be encouraged,
particularly by the panel of judges randomly selected to hear the case:
two conservatives and a
moderate.
“The
question is really who decides what U.S. immigration policy is.
Congress has been deciding. Now, for the first time, we have a different
situation where the president
says, ‘No, I decide,' ” said Jan Ting, a professor at Temple
University’s Beasley School of Law who consulted with Texas officials
preparing their case.
The
repeat selection of two conservative judges surprised some legal
observers, and has led many to expect that the case will be headed to
the Supreme Court on appeal,
possibly at the height of the 2016 presidential campaign.
“The
administration has been stopped in its tracks,” Ting said of the stay,
adding that as for Friday’s hearing, “It almost doesn’t matter how this
turns out, because
whoever loses is going to appeal to the Supreme Court. It’s liable to
last until almost the end of President Obama’s term.”
The
Justice Department has argued that the states lack legal standing to
object, but the judges set to hear the case Friday have already signaled
their doubts about that
argument.
On
June 29, the judges ordered both sides to file briefs addressing a new
Supreme Court ruling upholding the Arizona Legislature’s right to sue
over a referendum that
allowed an independent commission to handle redistricting. While the
Supreme Court ultimately rejected the Arizona challenge, the majority of
justices found the Legislature did have standing to file the case.
In
addition to the states’ case Friday, the three-judge panel will
consider a related case involving three immigrant mothers from South
Texas who are eligible for the
executive action, represented by Nina Perales, vice president of
litigation for the Mexican American Legal Defense and Educational Fund.
Perales,
who is known for her work on voting rights, redistricting and
anti-immigrant housing laws in Arizona and Texas, has said Judge Hanen's
decision was "a temporary
setback but is not the end" of the programs. "We expect the decision
will likely be overturned on appeal because the judge did not adequately
consider the federal government's authority to enforce its priorities
in immigration.”
The
administration will again be represented by Benjamin C. Mizer, acting
U.S. attorney general for the Justice Department’s Civil Division and
former Ohio solicitor general.
Arguing
on behalf of Texas and the other states that sued to stop Obama’s
executive action will be conservative Texas Solicitor General Scott
Keller and Assistant Texas
Solicitor General Alex Potapov.
Keller and Mizer will each have an hour to speak. Perales will have 20 minutes; Brinkmann and Potapov 10 minutes each.
That doesn’t include questions and comments from the judges, which during oral arguments on the stay proved extensive.
The
Fifth Circuit includes 15 judges responsible for cases from Louisiana,
Mississippi and Texas, and Friday’s randomly assigned judges will be
Jennifer Walker Elrod,
Jerry E. Smith and Carolyn Dineen King.
King,
77, is a judicial moderate new to the case; the last panel included
Stephen A. Higginson, an Obama appointee who wanted to lift the stay,
and dissented.
King
graduated from Smith College in 1959, Yale Law School in 1962, then
worked in private practice in Houston until she was appointed by Jimmy
Carter in 1979. She is
married to a fellow Fifth Circuit judge, Thomas Morrow Reavley (also
appointed by Carter the same year).
Smith,
68, a conservative, was appointed by Ronald Reagan in 1987. A native of
the border city of Del Rio, Texas, he graduated from Yale University
and law school and
later served as Texas’ special assistant attorney general and as
Houston’s city attorney.
Elrod,
48, a native of Port Arthur, Texas, who now lives in Houston, graduated
from Baylor University and Harvard Law School, was appointed by George
W. Bush in 2007 and
is also seen as a staunch conservative.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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