Justices’ Immigration Denial Means More Litigation

By Laura D. Francis

Oct. 3 — The Obama administration won’t get another chance to convince the U.S. Supreme Court that its deferred action programs for undocumented immigrants are legal ( United States v. Texas, U.S., No. 15-674, rehearing denied 10/3/16 ).

On its opening day for the 2016-2017 term, the Supreme Court Oct. 3 denied the administration’s request to rehear a case that resulted last June in a 4-4 deadlock. The justices’ inability to reach a majority meant that a lower court’s order blocking the programs, which have been in place since February 2015, remains in effect (see related story).

Texas and 25 other states brought the challenge to the expanded deferred action for childhood arrivals program and deferred action for parents of Americans and lawful permanent residents program. Together, the two programs would have provided deportation relief and work permits to some 5 million undocumented immigrants.

But the case and other lawsuits over the programs are far from over.

‘Potential for Judicial Chaos.’

“This has the potential for judicial chaos,” Cleveland immigration attorney David Wolfe Leopold told Bloomberg BNA Oct. 3. Leopold, who is a past president and past general counsel of the American Immigration Lawyers Association, said the lack of a definitive answer from the Supreme Court has the potential to spur additional lawsuits from individuals and other states.

“It’s very disappointing that the Supreme Court didn’t allow this case to be reheard,” Leopold said. “That would’ve been the right thing to do.”

It’s not just individuals who are affected by the decision, American Immigration Lawyers Association Executive Director Ben Johnson said Oct. 3. “This is a hugely important issue for businesses and for employers,” he told Bloomberg BNA. “They need and deserve some clarity and some consistency on the issue of immigration just as much as anybody does.”

Businesses “need stability, and the kind of chaos we’ve seen in the immigration system is just not good for business,” Johnson said.

Texas Praises Decision

The position of Texas “has been validated by the U.S. Supreme Court today,” Texas Attorney General Ken Paxton (R) said in an Oct. 3 statement. “This is the latest setback to the president’s attempt to expand executive power and another victory for those who believe in the Constitution’s separation of powers and the rule of law.”

“The issues in U.S. v. Texas are too big for our country to accept a decision by default by the nation’s highest court,” National Immigration Law Center Executive Director Marielena Hincapié said Oct. 3. DAPA and expanded DACA “would reap sizable economic and public safety gains for our country,” she said in a statement.

The Congressional Budget Office estimated that blocking the programs would cost the government about $6.3 billion in deficits over a period between 2015 and 2025. That represents the difference between $12.6 billion in savings from not having to pay out the earned income and child tax credits and the $18.9 billion in lost revenue from the Social Security taxes the immigrants would have paid.

The Supreme Court’s decision doesn’t affect the original DACA program, which has been ongoing since 2012. That program covers young, undocumented immigrants who came to the U.S. as children and who meet certain educational criteria.

New Lawsuit Testing Waters

But there’s a separate lawsuit that’s testing the limits of the February 2015 order by Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas. Martín Batalla Vidal, a New York DACA recipient, is claiming that the order—which was imposed nationwide—shouldn’t apply to him.

As the case made its way to the Supreme Court, Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas accused the Justice Department of lying about whether the DACA expansion was being implemented while litigation was proceeding. He ultimately issued a sanctions order requiring DOJ attorneys to undergo remedial ethics training and requiring the Department of Homeland Security to turn over the personal information of more than 50,000 undocumented immigrants living in the states that brought the lawsuit.

Those immigrants applied under the original DACA program, which provides deportation relief and work permits for two-year periods. When granting their applications, the DHS gave them three-year work permits, a feature of DACA.

The DHS also yanked about 2,100 three-year work permits issued to DACA recipients after Hanen issued his order, replacing them with two-year permits. Batalla Vidal’s was one of them.

‘Whole New Ballgame.’

The case “raises some serious questions” about whether a single federal judge can issue an order that affects the whole country, Leopold said. “I think there’s a whole new ballgame” if the U.S. District Court for the Eastern District of New York, where Batalla Vidal filed his lawsuit, decides the order doesn’t apply, he said.

But whether the Department of Homeland Security actually implements DAPA and expanded DACA outside of the states controlled by the U.S. Court of Appeals for the Fifth Circuit remains to be seen.

“They’re between a rock and a hard place,” Johnson said. On the one hand, the administration disagrees with the order blocking the programs, but on the other, not having a “consistent national immigration policy” causes “all kinds of problems,” he said.

“This really does begin to tear at the fabric of a uniform, consistent, national immigration policy,” Johnson said. “Hanen’s effort to issue a national injunction is wrong as a matter of law,” he said, and “the truth is we are now in uncharted territory in terms of what could happen by pitting one state against another.”

“This is exactly why the Supreme Court should be rehearing this case,” he said.

Immigration in ‘Limbo.’

“We are once again in limbo and waiting for somebody in one of the branches of government to take some decisive action,” Johnson said. “Ultimately it looks like the executive branch is the one branch that has the authority and the ability to break up some of the deadlock on the issue of immigration.”

“We are setting new records on how far and how long we can kick a political can down the road,” he said. “It is long, long past time for Congress to do its job, for the Supreme Court to make clear what are the extents and limits of executive authority and for the executive branch to use the authority that it has to create clarity on this issue.”

The case also “underscores the importance of the election,” Leopold said. “We really need to elect a president who is going to appoint a ninth justice to the Supreme Court,” either President Barack Obama’s pick of Merrick Garland or another judge who “understands that the job of a judge and the job of a justice is to apply and interpret the law,” he said.

What happened in this case is that “politics took over the courtroom,” Leopold said.

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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