Immigration Order Target of Second Lawsuit

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By Laura D. Francis

Oct. 12 — The scope of a nationwide ban on the Obama administration’s deferred action programs for undocumented immigrants is being challenged in a second federal lawsuit ( Lopez v. Richardson , N.D. Ill., No. 1:16-cv-09670, complaint filed 10/12/16 ).

The lawsuit filed Oct. 12 in the U.S. District Court for the Northern District of Illinois comes just over a week after the U.S. Supreme Court rejected the administration’s request to revisit a case brought by 26 states opposing the programs. In June, the justices tied 4-4 over whether the deferred action for parents of Americans and lawful permanent residents and expanded deferred action for childhood arrivals programs are legal, leaving in place a lower court’s ban on their implementation.

Much like New York resident Martín Batalla Vidal, who sued in August, Chicago resident José Lopez is claiming that he shouldn’t have had his three-year work permit under DACA revoked as a result of the ban. Neither New York nor Illinois is participating in the case that made its way to the Supreme Court.

The three-year permits were issued to applicants under the original DACA program, which wasn’t challenged in the lawsuit. But the original program only provides work permits in two-year increments—it’s the expanded version of DACA that allows for the three years. And once Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas blocked the expanded program, the government took back about 2,000 three-year work permits it said were issued mistakenly.

‘Substantially Similar’ Cases

The two cases are “substantially similar” but differ in their “geographic scope,” Karen Tumlin, legal director of the National Immigration Law Center, told Bloomberg BNA Oct. 12. Even if the federal judge in New York agrees with Batalla Vidal, that ruling may apply only to DACA recipients in that state, she said.

At the time the Supreme Court denied the administration’s rehearing request, immigration practitioners told Bloomberg BNA that the lack of a definitive ruling from the nation’s highest court means more litigation is to come. And now two lawsuits already have been filed.

“We hope that litigation in 24 states is not necessary,” Tumlin said. But “certainly you could see multiple suits,” she said.

Tumlin, whose organization is representing both Batalla Vidal and Lopez, said it is also possible that some or all of those 24 states that weren’t involved in the challenge to DAPA and expanded DACA could sue. Alternatively, they could intervene in the lawsuits that already have been filed, she said.

Likely Return to Supreme Court

And the original case is far from over.

One issue is that Hanen’s February 2015 order was preliminary. That means there still could be a trial in the case and a final ruling on the legality of DAPA and expanded DACA. Another possibility is that the parties could agree to a permanent ban on the programs, which would skip further litigation before Hanen and allow for a direct appeal to the U.S. Court of Appeals for the Fifth Circuit.

In both scenarios, the case could very well end up back before the Supreme Court, which could have a ninth justice by that time.

Batalla Vidal’s and Lopez’s cases raise a separate issue: whether a single federal judge can shut down an entire federal immigration program in a lawsuit that wasn’t filed as a class action, and in states that weren’t parties to the case. And that’s an important issue going forward in immigration law, even under a new administration, Tumlin said.

Can’t ‘Sweep Away’ Work Permits

Republican presidential nominee Donald Trump has pledged to end DACA, but what he actually does as president may differ from his campaign promises, Tumlin said. She said there are federal regulations governing the circumstances under which a work permit may be revoked, which is the legal basis for Lopez’s case.

“You can’t just sweep away a validly issued federal document,” she said.

Democratic presidential contender Hillary Clinton, on the other hand, has said she not only wants to keep DACA and DAPA, but also to expand them further.

Whether Batalla Vidal’s and Lopez’s lawsuits extend to DAPA is the “$10 million question,” Tumlin said. A ruling that Hanen doesn’t have the authority to ban the expanded version of DACA beyond his own state’s borders could be applied to DAPA, although it likely would take a separate lawsuit for that to happen, she said.

In addition to NILC, Lopez also is represented by the National Immigrant Justice Center and Dady & Hoffman.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editor responsible for this story: Peggy Aulino at maulino@bna.com

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