By Juan A. Lozano (Associated Press) on February 23, 2015
The U.S. government asked a federal judge Monday to lift his temporary hold on President Barack Obama's action to shield millions of immigrants in the country illegally from deportation.
The Justice Department's motion for a stay was filed with the court of U.S. District Judge Andrew Hanen in Brownsville, Texas.
The federal government on Monday also filed a three-page notice with Hanen, telling him it is appealing his decision to the 5th U.S. Circuit Court in New Orleans.
Last week, Hanen issued a preliminary injunction sought by 26 states suing to halt the executive action by Obama, who wants to spare from deportation as many as 5 million people who are in the U.S. illegally. The states, led by Texas, have argued the action is unconstitutional and would force states to invest more in law enforcement, health care and education.
If Hanen puts his ruling on hold during the appeal to the 5th Circuit, then Obama's immigration action would be allowed to go forward while the lawsuit proceeds through the courts.
Obama announced the executive action in November, saying lack of action by Congress forced him to make sweeping changes to immigration rules on his own. Republicans, who say Obama has overstepped his authority, are blocking funding for the Department of Homeland Security unless Democrats agree to cancel Obama's order.
Justice Department attorneys said a stay of Hanen's ruling is necessary "to ensure that the Department of Homeland Security is able to most effectively protect national security, public safety, and the integrity of the border." The 20-page motion argued that keeping the temporary hold "would also harm the interests of the public and of third parties who will be deprived of significant law enforcement and humanitarian benefits of prompt implementation" of the president's immigration action.
Government lawyers also contended Hanen lacked the authority to issue the injunction, the national effect of which is "vastly" excessive.
The injunction issued by Hanen should only focus on Texas "so that we can move forward with these executive actions in other states," White House spokesman Josh Earnest said Monday.
It is not unheard of for judges to delay rulings they have issued. Last year, a federal judge ruled Texas' same-sex marriage ban unconstitutional but put that on hold to allow the state to appeal. But legal experts say it's unlikely Hanen will put his ruling on hold, because his ruling said states would "suffer irreparable harm in this case" if Obama's actions on immigration were to proceed while the lawsuit is argued.
"Based on (Hanen's) language, it stands to reason that if you stay this order then those harms would start to accrue and that's the whole point of him enjoining the order in the first place," said Pratheepan Gulasekaram, a constitutional and immigration law professor at Santa Clara University School of Law in California.
The first of Obama's orders — to expand a program that protects young immigrants from deportation if they were brought to the U.S. illegally as children — had been set to take effect Feb. 18. The other major part, extending deportation protections to parents of U.S. citizens and permanent residents who have been in the country for some years, was not expected to begin until May 19.
The government said if Hanen doesn't act by the end of business Wednesday, they may ask the 5th Circuit for a stay. But Lourdes Martinez, an attorney with the Immigrant Legal Resource Center in San Francisco, said the 5th Circuit is known to be fairly conservative, and is likely to deny the request. Ultimately, it could end up before the U.S. Supreme Court.
The stay request is separate from the Justice Department's appeal to the 5th Circuit; documents detailing the government's arguments have not yet been filed. That appeal would likely take anywhere from four to nine months to be ruled upon, Gulasekaram said.
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