Appeals court wants more briefs in Obama immigration fight

Politico

By Josh Gerstein

June 4, 2015

Appeals court wants more briefs in Obama immigration fight

A little more than a week after denying President Barack Obama's effort to move forward with controversial executive actions on immigration, a federal appeals court has ordered both sides in the case to file new legal briefs.

The order Thursday from the 5th Circuit U.S. Court of Appeals asked the Justice Department and the 26 states challenging Obama's moves to file legal briefs by June 18 offering views on the opinions a three-judge panel issued May 26. That panel split, 2-1, rejecting the Obama Administration's request for an emergency stay that would allow immigration authorities to move forward with immigration policy changes blocked since February by a district court's injunction.

The 5th Circuit has announced that a three-judge panel will hear arguments in New Orleans on July 10 on the merits of the current appeal: whether U.S. District Court Judge Andrew Hanen's preliminary injunction should be upheld or lifted. The injunction bars the Department of Homeland Security from implementing Obama's plan to expand a program offering quasi-legal status and work permits to illegal immigrants who arrived in the U.S. as children and to start a new program for illegal immigrants who are parents of U.S. citizens.

Some immigration advocates earlier expressed concern that the three-judge panel that considered the stay issue might try to tie the hands of the three-judge panel that will hear the merits of the injunction.

However, supporters of Obama's actions said Thursday they were heartened by wording in the new order that indicates the so-called merits panel does not consider itself obligated to adopt the reasoning of the panel that decided against a stay.

"This might indicate that the merits panel does not regard itself as being bound by the reasoning of the May 26 motions panel decision," said Stephen Legomsky, a Washington University in St. Louis law professor.

"I think that 5th circuit precedent pretty much gives the judges who’ll hear the final appeal of the preliminary injunction the freedom to make whatever decision they deem appropriate, regardless of the motions panel's refusal to lift Hanen’s order blocking the immigration executive actions," immigration attorney David Leopold said. "Here the motions panel said, in effect, that the government was unlikely to succeed on the merits of its appeal -- but it didn't in fact make any conclusion about the merits of the preliminary injunction—e.g. whether Hanen got it right or wrong.  [Last week's majority] opinion might be highly persuasive to the panel that hears the final appeal in July, but strictly speaking I don’t think it binds the panel that will hear the full appeal."

The new order refers to a 1997 case in which the 5th Circuit held that a merits panel wasn't bound by an earlier motions panel, particularly on the question of jurisdiction.

The new order does seem to assuage another worry some immigrant rights advocates had expressed that the same panel that heard the stay issue might wind up ruling on the substance of  the dispute as well. The order doesn't name the panel considering the merits of the appeal, but wouldn't make much sense if it was the same set of judges.

The Obama Administration passed up a chance to ask the Supreme Court to issue the stay the 5th Circuit refused to grant last week. The White House's best hope in the short-term may be to get a Democratic-leaning panel for the argument next month. The odds don't favor that with the 5th Circuit's active bench split 2-1 Republican versus Democrat, making it the most conservative appeals court in the country.

Spokespeople for the Justice Department and for the Texas Attorney General's office, which is leading the lawsuit against the immigration moves, did not immediately respond to requests for comment on the new order.

In a somewhat related development, the House voted Wednesday in support of an amendment that would bar funding for the Justice Department's defense of the pending appeal as well as the underlying lawsuit.

For more information, go to:  www.beverlyhillsimmigrationlaw.com