BREAKING: Republican Appellate Judges Refuse to Reinstate Obama’s Immigration Policy

Think Progress (Opinion)

By Ian Millhiser

May 26, 2015

BREAKING: Republican Appellate Judges Refuse to Reinstate Obama’s Immigration Policy

In a decision that should surprise no one who is familiar with the judges who just decided this case, a divided panel of the United States Court of Appeals for the Fifth Circuit held on Tuesday that immigration policies that a Republican judge blocked last February will stay blocked. The Fifth Circuit is among the most conservative appeals courts in the country, and this panel included two of its most conservative judges. Among other things, Judges Jerry E. Smith and Jennifer Elrod were among the six judges who dissented in a 2013 case striking down an anti-immigrant law. Nine of the court’s members joined the majority in that 2013 decision.

The third member of the panel that handed down Tuesday’s decision was Judge Stephen Higginson, an Obama appointee. He voted to reinstate the administation’s policies.

The case concerns an expansion of the existing Deferred Action for Childhood Arrivals (DACA) program and a new program for parents of citizens and permanent residents known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). Together, these new policies could allow approximately 4.9 million undocumented immigrants to temporarily remain in the country. Yet, while this program is both very significant and very politically charged, Judge Smith’s decision for the Fifth Circuit largely focuses on procedural issues and preliminary questions rather than offering a firm statement on whether DAPA and expanded DACA are legal.

DAPA and expanded DACA were previously halted by Judge Andrew Hanen, a George W. Bush appointee with a history of using his judicial opinions to offer gratuitous criticisms of federal immigration policy. Hanen’s immigration decisions often drip with anger at the Obama administration’s policies, and his opinions in this particular case engage in political tactics such as treating the president’s off-the-cuff remarks as definitive statements of federal policy. He’s also engaged in questionable tactics that appeared intended to delay further review of his decision.

Judge Smith’s opinion, by contrast, reads like a judicial opinion. Smith’s seemingly more measured approach to this case, however, owes a huge debt to Hanen’s approach to the case. Although Hanen’s February decision continues for 123 pages, offering various substantive attacks on DAPA and expanded DACA, the actual holding of Hanen’s decision was that the Obama administration failed to jump through a time-consuming procedural hoop known as “notice and comment” rulemaking before announcing the two programs.

This time-consuming process, however, is not required every time a federal agency acts. Rather, as Judge Smith explains, a major factor in determining whether the administration is required to engage in notice and comment rulemaking is whether the administration’s newly announced policy “genuinely leaves the agency and its decisionmakers free to exercise discretion” when an undocumented immigrant petitions the agency for relief, or whether it compels the agency to act as a kind of rubber stamp for petitions.

Smith’s opinion details much of the evidence that DAPA and DACA do indeed afford decisionmakers this discretion. “The agency’s characterization of both the DACA and DAPA criteria exudes discretion—using terms such as ‘guidance,’ ‘case-by-case,’ and ‘prosecutorial discretion,’” Smith explains. Meanwhile, while it is true that the overwhelming majority of DACA applicants have been granted relief, this fact does not necessarily mean that the officials who administer the program lack discretion, as “eligibility for DACA was restricted to a younger population—suggesting that DACA applicants are less likely to have backgrounds that would warrant a discretionary denial.” Smith also claims to be “attentive to the difficulty of evaluating an agency’s discretion where the action involves issuing benefits to self-selecting applicants, as distinguished from imposing obligations on a regulated industry.”

Nevertheless, Smith ultimately concludes, Hanen’s decision trumps these concerns. To prevail at this stage of the litigation, the Justice Department must show that Hanen’s finding that “[n]othing about DAPA ‘genuinely leaves the agency and its [employees] free to exercise discretion’” — a decision Hanen reached largely by examining the high percentage of DACA applicants who were granted relief — must be treated with deference unless it is “clearly erroneous,” and DOJ does not manage to carry this very high burden.

It is possible, even likely, that the conservative Smith and Elrod would have found a way to rule against the administration even if Hanen had not made it easy for them to do so. As things stand, however, Hanen gave them an opportunity to appear reasoned and deferential, even as they deferred to a judge who has engaged in some highly questionable readings of both the law and the facts of this case.

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