Texas Judge’s Decision Complicates Immigration Issue

The Feb. 16 ruling blocks President Obama’s recent executive actions to assist undocumented immigrants, but some Catholic advocates describe it as only a temporary setback.

WASHINGTON — Calling it a “temporary setback,” Catholic immigrant advocates said they are not deterred by a federal judge’s recent ruling that halted President Barack Obama’s executive actions to extend temporary work permits and legal protections to as many as 5 million immigrants who are in the United States without documents.

“The judge’s ruling wasn’t unexpected. … It’s important that the legal process work its way through before anyone draws any conclusions,” said Kevin Appleby, director of the U.S. Conference of Catholic Bishops’ Office of Migration Policy and Public Affairs.

Jeanne Atkinson, executive director of the Catholic Legal Immigration Network, Inc. (Clinic), told the Register that she is looking forward to the 5th U.S. Circuit Court of Appeals hearing arguments on U.S. district-court Judge Andrew Hanen’s Feb. 16 ruling.

“We are moving forward, telling our affiliates around the country to move forward, to prepare documents, to prepare to implement the administration’s administrative action, which will give millions of people the chance to live, work and stay in America with their families,” Atkinson said.

The White House disclosed Feb. 20 that it would seek an emergency ruling to block Hanen’s decision, which granted a preliminary injunction to 26 states that sued the Obama administration over its plans to expand Deferred Action for Childhood Arrivals, a program that protects young immigrants from being deported if they were brought to the United States illegally as children. The expanded DACA program was set to take effect Feb. 18.

Obama’s executive orders on immigration, which he announced last November, also would expand legal protections to immigrant parents of young children who are U.S. citizens, as well as spouses and children of lawful permanent residents.

“These programs would make a huge impact for the people who are eligible,” said Melissa Lopez, executive director of Diocesan Migrant and Refugee Services, an agency based in El Paso, Texas, that provides immigration legal services in West Texas and New Mexico.

Lopez told the Register that the programs would enable people who migrated to the United States illegally to apply for work permits, obtain driver’s licenses, pay their own way through school and become self-sufficient.

“It would essentially help them move on with their lives,” Lopez said.


The Legal Context

The Obama administration said the president’s actions were “well within his legal authority” and consistent with federal law and U.S. Supreme Court decisions that allow the federal executive branch to set priorities in enforcing the nation’s immigration laws. Instead of trying to arrest and deport every immigrant who is in the country illegally, the administration’s plan would focus instead on targeting criminals and those considered threats to national security.

The USCCB’s Appleby endorses the White House’s assessment. “I think we’re on solid legal ground regarding these executive actions,” he said.

But Judge Hanen, at federal district court in Brownsville, Texas, said the suing 26 states, led by Texas, have legal standing to challenge the president’s policies. The states said they stand to be impacted with higher expenses for law enforcement, education and health care, as well as increased risks to public safety. The lawsuit argues the president’s unilateral action is unlawful.

Hanen agreed that the states would “suffer irreparable harm” without a preliminary injunction, which halts the president’s executive orders while the lawsuit is pending.

“The genie would be impossible to put back in the bottle,” wrote Hanen, who also said that legalizing millions of immigrants is a “virtually irreversible action.” Hanen, who was appointed to the federal bench in 2002 by President George W. Bush, has criticized the Obama administration’s immigration policies, writing in one decision that the Department of Homeland Security “should enforce the laws of the United States — not break them.”

In his ruling, Hanen also said the president’s actions violated the Administrative Procedure Act, a federal law that regulates how federal agencies implement regulations, including 90-day notices and comment periods.


The Political Debate

In a written statement, U.S. Sen. Mitch McConnell of Kentucky, the Senate majority leader, said Hanen’s ruling “underscores what the president has already acknowledged publicly 22 times.”

“He doesn’t have the authority to take the kinds of actions he once referred to as ‘ignoring the law’ and ‘unwise and unfair,’” McConnell said. “Senate Democrats — especially those who’ve voiced opposition to the president’s executive overreach — should end their partisan filibuster of Department of Homeland Security funding.”

Immigration advocates called Hanen’s decision “a political ruling,” but Marguerite Telford, the communications director for the Center for Immigration Studies, a Washington think tank that argues for a stricter national immigration policy, told the Register that Hanen’s ruling was “very well thought out.”

Telford also questioned the Obama administration’s position that it is simply setting enforcement priorities in immigration policy.

“It’s not about enforcing the law; and, more than that, they are actually providing a benefit, and that’s legislation,” Telford said. “Not only are they not deporting, but they are providing work permits, income tax credits going back three years and driver’s licenses. This is actually providing a benefit to a group of people.”

Obama announced his executive orders on immigration in November, after legislative efforts in Congress stalled last summer. A surge of young, unaccompanied migrants from Central America crossing the U.S. border illegally complicated what was already a contentious and polarizing debate. Any hopes of Congress passing comprehensive immigration reform — which the bishops support — were further dashed when House Majority Leader Eric Cantor, a Virginia Republican, lost a primary election in June 2014 to a Tea Party-backed candidate who ran on a strong anti-illegal-immigration platform.

“The reason President Obama had to act was because Congress is unwilling and incapable of immigration reform itself,” Atkinson said.

The politics remain as tense as ever. Congressional Republicans have inserted language to overturn the president’s immigration actions in a bill to fund the Department of Homeland Security through the end of the budget year. President Obama has vowed to veto any legislation with that language, increasing the possibility of a partial shutdown of the Department of Homeland Security.

Appleby joined other analysts who believe Hanen’s decision could provide political cover for congressional leaders to pass a Homeland Security funding bill that would not reverse the president’s executive actions.

“But we’ll see how that works. It’s another complicating factor,” Appleby said.


Bishop Kicanas

On Feb. 11, Bishop Gerald Kicanas of Tucson, Ariz., testified before the House Judiciary Subcommittee on Immigration and Border Security to voice the USCCB Committee on Migration’s opposition to three immigration bills focused mainly on enforcement and border-security issues. Bishop Kicanas said the bills would “take our nation in the wrong direction.”

“Mr. Chairman, we believe these bills would not fix our immigration system,” Bishop Kicanas said. “Rather, they would make it less just and would undermine our nation’s moral authority, both domestically and globally.”

Said Appleby, “I think there will be attempts by Congress to do something, but if it’s heavy on enforcement and light on changing the legal immigration system, then we would have concerns about that.”

Telford, a practicing Catholic, said she was present during Bishop Kicanas’ testimony and added that she disagreed with the bishop’s statements that the “community of faith” was disappointed that Congress did not pass a comprehensive reform bill last year.

“A lot of people disagree with the bishops' conference,” Telford said. “The majority of Catholics in the pews disagree with the conference of bishops.”

Meanwhile, immigration advocates are telling individuals who planned to apply for the expanded immigration programs to not panic and continue to get their personal papers in order, assuming the 5th Circuit overturns the preliminary injunction.

“I would encourage people to be patient, to let this go through the court system,” Lopez said. “We hope that, eventually, it will result in this policy being reviewed, and, hopefully, we’ll have a fully implemented program that they can apply for shortly.”

Atkinson said Clinic affiliates will use “every moment of this time” to prepare and help immigrants apply for the programs.

“Quite frankly, I think [the immigration issue] has been used as a political tool,” she said. “I think there are many members of Congress from both parties who understand what immigrants bring to this country, but I think it’s something that’s being used as a weapon at this point. And I think that’s a real shame.”

Register correspondent Brian Fraga writes from Fall River, Massachusetts.