The Obama administration announced Friday that it would seek a stay in a court order putting a temporary halt on plans to provide temporary legal status to some unauthorized immigrants. If successful, the administration could begin the program before the courts have ruled whether the program is legal.
The U.S. Department of Justice will seek an emergency stay by Monday in U.S. District Judge Andrew Hanen's injunction that put a halt to the program until the courts sort out the legal issues, according to a White House spokesperson.
Two programs announced by President Barack Obama in November are at stake: Deferred Action for Parental Accountability, which is for the parents of U.S. citizens and legal residents, and an expansion of Obama's 2012 program, Deferred Action for Childhood Arrivals, which is for unauthorized immigrants who came to the country as a minor.
Together the programs, if enacted, could provide temporary legal status for as many as 5 million residents who are living in the country without government permission.
The Obama administration has argued that it has the authority to implement the programs without congressional action due to the executive branch's prosecutorial discretion. The executive must decide which crimes will be prioritized and the resources do not exist to deport all unauthorized immigrants, they say.
Judge Hanen did not dispute the prosecutorial discretion claim but wrote that the programs go beyond that because the administration seeks to provide unauthorized immigrants with government benefits, rather than to simply not prosecute them.
Additionally, Hanen wrote that the programs violated the Administrative Procedure Act because the administration did not follow the correct procedures in implementing the program. The APA requires that any changes in federal rules undergo a review process, including a period of public comment. The programs were simply announced through an internal memo, however.
The case will next be appealed to the Fifth Circuit Court of Appeals.
Some of the reactions to Hanen's decision accused the judge of anti-immigrant animus.
In an op-ed for The Los Angeles Times, Erwin Chemerinsky, dean of the UC Irvine School of Law and Samuel Kleiner, a fellow at the Yale Law Information Society Project, argued that Hanen's decision "is based on xenophobia and stereotypes about immigrants."
In a press release, Samuel Rodriguez, president of the National Hispanic Christian Leadership Conference, called the decision "morally reprehensible."
"Regardless of the court's decision I stand convicted that while the goats from Matthew 25 may have won the day, the sheep that recognize the voice of the master will certainly overcome," he added.
Arizona Republic columnist Robert Robb defended Hanen, writing, "The claim that the decision was political is apparently based on the fact that Hanen was appointed by President George W. Bush, something critics strongly highlight. Which is odd. Bush was an ardent supporter of comprehensive immigration reform, including a path to citizenship for those currently in the country illegally. He was hardly trying to pack the federal bench with immigration restrictionists.
"In reality, Hanen has made a very narrow ruling on grounds that appellate judges will find hard to ignore."