Immigration Impact (Opinion)
By Joshua Breisblatt
March 30, 2016
This
week, Texas and the 25 other states challenging the President’s
executive actions on immigration filed their brief with the Supreme
Court in
United States v. Texas. The brief attempts to defend the Fifth
Circuit’s decision to block expanded DACA and DAPA from being
implemented, but instead makes entirely confusing arguments and sets
forth inaccurate statements about immigration law.
The
Texas brief begins by spending a significant amount of time on the
issue of standing, or the legal capacity to bring the lawsuit. While the
states claim four different ways that they
have standing in this case the lower courts found that Texas has
standing to sue because of additional costs the state might incur to
issue drivers’ licenses to individuals granted deferred action. As the
states note in the brief, “Texas would lose over $130
per license… Texas therefore would lose millions of dollars if even a
small fraction of DAPA-eligible aliens applied for driver’s licenses.”
The Administration states in its brief, filed earlier this month, that
these claims “are nothing more than allegations
of indirect or incidental effects from the [DAPA] Guidance, not
invasions of any legally-protected interest under the Constitution.” In
fact, “virtually any administration of federal law by a federal agency
could have such effects.”
As
the brief continues on, the states try to distinguish expanded DACA and
DAPA from other ways in which the immigration agencies may set policy
priorities or exercise prosecutorial discretion.
In fact, they do not dispute that the president can create enforcement
priorities for removal. The brief even goes so far as to say that, “The
Executive has been free all along to issue ‘low-priority’
identification cards to aliens.” What the states object
to, and claim is unlawful, is that those who would obtain expanded DACA
and DAPA would get work authorization and what they call “lawful
presence.” This objection reflects a clear misunderstanding of
immigration law.
As Melissa Crow, Legal Director of American Immigration Council, previously explained,
“Well
established legal authority makes eligibility for employment
authorization automatic for people who receive deferred action. The
states’ argument that the government overstepped its
bounds by rendering deferred action beneficiaries eligible to work
ignores the fact that eligibility stems not from DAPA or expanded DACA,
but rather from longstanding, independent legal authority.”
With
respect to the “lawful presence” claim, Crow stated, “A grant of
deferred action does not confer any other type of lawful immigration
status, enforceable legal rights, or an ability
to remain permanently in the United States.” Rather, according to
Crow, “‘lawful presence’ is merely a reflection of [the government’s]
decision to grant a favorable exercise of prosecutorial discretion.”
“Lawful status” and “lawful presence” are two distinct
concepts.
In
an article published this week, immigration attorney David Leopold
further explained that “the concept of ‘lawful presence’ does not exist
as a legal concept in the sense that” Texas uses
it. Leopold pointed out that the states’ argument that expanded DACA
and DAPA unlawfully transform an unlawfully present noncitizen into a
noncitizen with lawful immigration status is simply wrong as a matter of
law.
Now
that the states have filed their brief, those who wish to file an
amicus brief (a friend of the court brief) in support of the state’s
position have until April 4, 2016 to file.
Oral
arguments are scheduled for April 18, 2016, and the Court will likely
issue a decision before its current term ends at the end of June 2016.
For the sake of the immigrant families whose
lives are riding on this decision, let’s hope that the Court makes
clear that President Obama, like every President before him dating back
to Eisenhower, has the authority to take executive action on
immigration.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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