President Obama Executive Order on Immigration

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A federal appeals court denied a request from Department of Justice lawyers to allow President Obama’s immigration actions to go into effect pending appeal. Seth Draper, associate with the Salvatierra Law Group talks about the ruling.

JOSE CARDENAS: Good evening, I'm Jose Cardenas. A federal appeals court keeps President Obama's immigration plan on hold, we'll talk about the ruling. Plus, a study looking to understand the effect of the Deferred Action for Childhood Arrivals program on youth. And find out how kids can get free nutritious meals this summer when they are not in school, coming up next on "Horizonte."

VIDEO: Funding for "Horizonte" is made possible by contributions by the Friends of Eight, members of your Arizona PBS station.

JOSE CARDENAS: Thank you for joining us. This week a federal appeals court denied a request from the Justice Department lawyers to allow President Barack Obama's controversial immigration actions to go into effect pending an appeal. The decision is a victory for Texas and 25 other states that are challenging the Obama administration's actions, which were blocked by a District Court judge in February. Here to talk about the ruling is Seth Draper, an associate with the Salvatierra Law Group. Seth, welcome back to Horizonte.

JOSE CARDENAS: Tell us what happened. There's reports on the radio, different people speaking saying that this was a decision on the merits, that the fifth circuit has rejected or found unconstitutional President Obama's actions, which is not really what happened.

SETH DRAPER: No, it's not. So what happened was, when Texas first filed that suit they sought an injunction. They got it at the District Court level, saying President Obama, you can't implement this until we get to the final hearing. The Department of Justice wanted to appeal that injunction and they did. It went to three justices in the Fifth Circuit Court of Appeals. And they said hey we still believe this injunction should stay in place until we hear the merits. What that means is the merits of this case have still not been heard.
JOSE CARDENAS: And it was two judges out of three decided the injunction would stay in effect.

SETH DRAPER: Right, it's unsurprising, just a little disappointing with how they ruled. The justice who wrote the opinion is an appointee from Reagan. The judge who concurred with him was appointed by Bush, and the only dissenting opinion was appointed by Obama.

JOSE CARDENAS: Before we talk about what we might expect in terms of a decision on the merits, the two who said no, we're going to leave this injunction in effect, what was the rationale?

SETH DRAPER: The rationale was Texas said you need to put this injunction in place because we'll suffer irreparable harm. If all of these people start getting deferred action, the state has to provide some benefits. The big one was driver's licenses. They said we incur costs, that's a real cost and we shouldn't have to incur that cost until we decide whether it's constitutional or not. The district court and panelists said that cause is sufficient.

JOSE CARDENAS: This is in the context of a legal document called standing, and that is whether the state challenging this did have a basis to be in court, correct?

SETH DRAPER: That is part of it. That's what the Department of Justice was arguing. They were saying, listen, this is a political question, you don't -- no one should have granted this injunction in the first place. Judges just kind of dismissed that saying no, this is not just a political action, obviously this has to do with law and implementations. This is not clearly political. The dissent agreed with them. They said hey, executive action, that's political action at its finest, that is a political decision by the Executive Branch and it's off-touch.

JOSE CARDENAS: Judges should not be involved in making those decisions or reviewing them.


JOSE CARDENAS: Going back to the reference to driver's licenses being issued, I had a chance to skim the appeal very quickly. And I noticed they cite the decision in the 9th Circuit in the case here involving driver's licenses. In a way that came back to haunt the people pushing for these benefits. Even though it was a victory here for DACA students.
SETH DRAPER: Well, obviously we decided once they get this deferred action we have to provide certain benefits to them. It's real, the states will incur these costs. Importantly, what I think we need to keep in mind is that this is not a ruling on the constitutionality or not. Everybody is going off about that, everybody who's kind of throwing up the white flag already, they shouldn't. We will reach some argument on the merits and I believe it's in July we'll hear some oral arguments on the real issue of this case.

JOSE CARDENAS: And another thing to emphasize in terms of the scope of the decision this week is, and even the one to come, it doesn't impact the existing DACA program.

SETH DRAPER: No, it doesn't. The initial announcement, as announced on June 15th 2012 is in full effect. People can apply for DACA for the first time, people can continue to renew their DACA. There has been no impact on that at all. Importantly also, out of the fifth circuit last month in April, they actually dismissed some suits brought against the initial DACA program. So we're seeing a lot of mixed decisions coming out of the 5th circuit right now, regarding deferred action in total where they have really held up the initial program saying, the initial DACA is fine, it's only this expanded one that we maybe want to hear more on the merits.
JOSE CARDENAS: The expanded DACA- that's part of what the President announced in his new executive action. The court's concern was with something else called DAPA.

SETH DRAPER: This is where I think you see a lot more of the politics coming into play. The DAPA was going to reach a lot of parents of U.S. citizen or Lawful permanent residents' children. Right now what we've seen with DACA is that about 550,000 people have applied and received the benefit. DAPA was estimated to hit about three to 4 million people. The numbers are a little unclear because no one has hard numbers on how many people are here without presence. But I think that's a lot more of the politics and the concern in this, is that this is such a larger program and therefore, maybe the costs to the states could be more. I don't really think so, and we'll see once we get to arguments on the merits that these costs and worries about having to provide driver's licenses. Really, why we keep going back to that, that's the only kind of damage Texas could provide as something that it would incur. It would be the constant printing and providing driver's licenses to people who apply.

JOSE CARDENAS: I understand one other reason why you can't read too much into this decision this week, as regards to merits is it may well be a different set of judge who decide the case?

SETH DRAPER: Right. It will be a different set of judges that are going to hear this case on the merits. From there, there's always the Supreme Court, even with this injunction. The Department of Justice could say hey, lift this injunction. That's what we saw with the driver's licenses here in Arizona with the DACA case. Arizona had appealed the injunction to the supreme court asking the supreme court to leave it in place. They lost at the supreme court level. The Department of Justice did not comment on their plan. There are quite a few different steps that they can take now and they have not made it public what they are planning.

JOSE CARDENAS: So there's a lot more to come and we'll probably have you back to talk more about it. Thank you so much for joining us this evening.

SETH DRAPER: It was a pleasure, thank you for having me back.

Seth Draper:Salvatierra Law Group Associate

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