Justice Department attorneys said Texas and 25 other states, in suing to halt the amnesty, should never have been granted standing in the first place. At the very least, they said, lower court Judge Andrew S. Hanen should have allowed the administration to approve applications from illegal immigrants in states that haven’t objected.
“In short, the preliminary injunction is a sweeping order that extends beyond the parties before the court and irreparably harms the government and the public interest,” the lawyers said.
But even as the attorneys were asking the 5th U.S. Circuit Court of Appeals to allow the amnesty to take place, they were apologizing to Judge Hanen for potentially misleading him in the case, saying they never meant to imply they weren’t already approving some applications under the expansion that Mr. Obama announced in November.
Filing the appeal and asking for a stay are considered bold moves for the administration. Some immigrant rights advocates fear a second court loss so soon after Judge Hanen’s thorough ruling could sap momentum from their movement at a time they believed they were on the offensive.
Mr. Obama, however, has seemed eager to begin processing applications, telling audiences that once his program is up and running, he doubts it can be stopped.
As many as 4 million illegal immigrants could qualify for the policy, announced in November, that would grant tentative legal status, work permits and Social Security numbers to illegal immigrant parents whose children are either U.S. citizens or lawful permanent residents.
Hundreds of thousands of so-called Dreamers could qualify under a separate policy Mr. Obama announced in 2012 but expanded in November, which applies to illegal immigrants brought to the U.S. as children.
The policy allows immigrants a three-year stay of deportation rather than the two-year stay included in his 2012 policy.
The administration has already processed about 100,000 Dreamer applications under the three-year policy, the Justice Department told Judge Hanen earlier this month â€” news that stunned Texas and the court.
Texas has asked Judge Hanen to approve limited discovery in the case, and Judge Hanen has scheduled a hearing for March 19 to give the Justice Department a chance to explain itself.
In a filing Thursday, Kyle R. Freeny, a lawyer in the federal programs branch of the Justice Department, said the three year versus two year questions don’t affect the fundamentals of the case, which have to do with whether Texas has standing to sue and whether Mr. Obama broke the law or violated the Constitution by trying to write laws himself.
“Defendants regret any confusion,” Mr. Freeny said, although he told the judge they are going around him to ask the appeals court to get involved.
Texas Attorney General Ken Paxton, who is leading the challenge, said he is focused on clearing up the confusion the administration sowed in the district court.
“The most pressing issue at hand is the extent to which the Obama Administration has already issued expanded work permits to illegal immigrants, in direct contradiction to what they told the district court,” Mr. Paxton said in a statement.
The administration’s appeal for the court to allow the amnesty to go into effect for some states also raises tricky questions â€” and marks a major turnaround for an administration that just a few years ago sued to halt Arizona’s immigration laws, arguing there couldn’t be a patchwork of policies for different states.
Still to be seen is how the administration would determine who would be deemed to be a resident of one state or another.
Judge Hanen halted the amnesty on Feb. 16, just two days before the first applications were supposed to roll in. Immigrant rights advocates had to change plans for application clinics, and the administration canceled support contracts and put on hold hundreds of job offers it had extended to employees who were supposed to approve the amnesty applications.
The judge ruled that Texas had standing to sue because it was harmed by the amnesty â€” stemming from the driver’s licenses it would have to issue to tens of thousands of illegal immigrants. The judge then ruled that Texas was probably correct in saying the administration didn’t jump through the procedural hoops required to announce a major new policy.
The Obama administration, though, says Texas should never have been granted standing to sue in the first place, and said the policies Mr. Obama announced were only guidelines that don’t need to be shared for public comment.
Mr. Obama has insisted his actions are based on his powers of prosecutorial discretion, saying he has the complete right to determine whom to deport.
Judge Hanen agreed with that, but said the president went too far when he then created a program to go beyond nondeportation and to grant tentative three-year legal status and work permits to illegal immigrants.
Judge Hanen ruled that the safest course was to halt the amnesty while he hears the full case, but the administration told the appeals court Thursday that it will be more difficult to ramp the amnesty back up now.
Immigration activists, while happy with Mr. Obama’s moves last year to expand his amnesty, said they still believe he’s deporting too many illegal immigrants. They called on him to stop agents from trolling prisons and jails looking for criminal aliens to oust.
As part of his new policies last year, Mr. Obama canceled the Secure Communities program that had targeted state and local jails and prisons, and announced a new Priority Enforcement Program designed to only troll for the most serious criminals.
But the National Day Laborer Organizing Network said Thursday it fears the new program “will become a dangerous dragnet” that will still lead to too many illegal immigrants being deported.
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