Immigrant rights groups are pressing the Obama administration to take steps to ensure the president’s lenient new deportation policies go forward quickly despite a federal judge’s ruling blocking them.
Administration officials say they'll appeal Monday's decision by Andrew Hanen, a Texas-based U.S. district judge, to halt a pair of executive actions providing deportation relief to millions of immigrants in the United States illegally.
But the appeals process could take months, and the advocates want the White House to jump-start the immigration programs by asking the courts for an emergency order — known as a “stay” — that would essentially undo Hanen's ruling and allow the new initiatives to launch while lawsuits against them proceed.
“This seems like a no-brainer to do an emergency stay. ... We were expecting that it would be sort of automatic,” Lynn Tramonte, deputy director of America's Voice, an immigrant rights group, said Wednesday. “We want to get this program rolling. We've got a lot of people's lives who are on hold.”
Marielena Hincapié, head of the National Immigration Law Center, echoed that message, warning a long delay could suppress participation at the expense of immigrant families.
“Each day that passes will represent a lost opportunity for advocates, organizers and community members to encourage their friends and loved ones to come forward and apply,” she said.
“If there isn't an emergency stay filed, that means [Hanen's] injunction would stay in place ... for three, four, five, six months,” Hincapié added. “We don't have a sense of that [timeline], but we do know the difference would mean a matter of weeks versus a matter of months.”
Administration officials, who were quick to commit to an appeal, say they're still weighing all other legal options, including that of an emergency stay.
“The Department of Justice intends to appeal and it will determine within the next couple of days any additional next steps that may be appropriate,” DOJ spokesman Kevin Lewis said Wednesday in an email. “No decision has been made on whether to seek a stay.”
The administration declined to comment on what specific factors it was weighing. Some legal experts noted that one consideration might be the fact that the request for a stay must first go to Hanen — a step that could delay not only the stay but the underlying appeal.
“They may just want to focus their time and resources on the appeal,” said Melissa Crow, the legal director of the American Immigration Council, which is backing the stay option.
The administration's indecision has agitated some advocates, who have hailed Obama's executive actions but have also long been critical that he didn't announce them much sooner.
“Our community has waited too long, and we need the president to lead in this moment,” Cristina Jimenez, managing director of United We Dream, said Wednesday.
Hanen’s ruling came as he weighs a lawsuit filed by Texas and 25 other states challenging two new initiatives announced by Obama just weeks after November’s midterm elections.
One would expand an existing program, the Deferred Action for Childhood Arrivals (DACA) initiative, halting deportations and allowing work permits for illegal immigrants brought to the country as children. The other, dubbed the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), would extend similar benefits to the undocumented parents of both American citizens and legal permanent residents.
The White House and other supporters of the changes say the administration is merely exercising its authority to use discretion in prioritizing deportations given the limited resources allotted by Congress.
But the states, echoing Republican criticisms on Capitol Hill, argue that Obama overstepped his executive authority in launching new programs that will hit their budgets with significant new costs.
Hanen sided with the states, characterizing the programs as “a substantive change to immigration policy” and charging that the administration violated the Administrative Procedures Act (APA) by launching the initiatives without undergoing the formal rule-making process.
“The [Department of Homeland Security] has adopted a new rule that substantially changes both the status and employability of millions,” Hanen wrote. “These changes go beyond mere enforcement or even non-enforcement of this nation’s immigration scheme.”
Quickly complying with the ruling, the administration said it won't begin accepting applications for the expanded DACA program this week, as initially scheduled. Officials said they will also delay the May launch of DAPA until the legal questions are resolved.
Some public policy experts say the administration has a good chance of winning its appeal based on Hanen's APA argument.
“Prosecutorial discretion is not regularly handled by the rule-making process,” said Stuart Shapiro, associate professor and director of public policy at Rutgers. “I’d be surprised if the judge’s decision gets upheld.”
If the agency were lose an appeal it could choose to adopt the program through traditional rule-making, but Shapiro said that's highly unlikely due to the lengthy regulatory process.
“Writing a proposed rule and accepting public comments could take the bulk of the remainder of the administration,” he said.
Debbie Smith, an attorney at the Service Employees International Union, cited another reason the administration would likely be reluctant to go the rule-making route: It could undermine Obama's claims to prosecutorial discretion in future legal and political fights.
“That would be a lot for a president to give up — on principle alone,” Smith said.
—Lydia Wheeler contributed.