The Fifth Circuit Court of Appeals’ 2-1 decision to uphold a nationwide injunction of the Obama administration’s expansion of immigration deferred action not only leaves thousands of American families in limbo, but recklessly reaches beyond the scope of the legal questions the case was intended to address.
The Fifth Circuit’s sweeping decision went beyond the District Court’s shortsighted finding that the Department of Homeland Security (DHS) ought to have engaged in “rulemaking” before adopting the Deferred Action for Parental Accountability (DAPA) program. The DAPA program would allow parents of U.S. citizens and lawful permanent residents who meet other requirements to apply for temporary protection from deportation. District Court Judge Andrew Hanen found that the federal government ought to have engaged in “notice and comment” procedures before adopting the program. Rather than limit its ruling to that question, two of the court’s three judges went even further, finding that the administration lacks authority to implement the program at all—a question which was never raised in briefing or in oral argument. The panel’s third judge dissented from this overreach.
“The Fifth Circuit decision is wrongheaded and mean-spirited, in a case that was politically driven and had no legal basis to begin with,” said Mary Meg McCarthy, executive director of the National Immigrant Justice Center (NIJC). “Issuing this simplistic decision, with hardly a nod toward fair process, makes a mockery of our legal system and gives short shrift to the actual legal questions involved.”
“Immigration law is often described as ‘second only to the Internal Revenue Code in complexity,’” said Charles Roth, NIJC’s Director of Litigation. “By deciding these issues without full briefing and argument, the Fifth Circuit made a hash out of the law and causes untold harm to thousands of people.”
NIJC is confident that at the end of the day this irresponsible ruling will not stand.
NIJC was an amici curiae in the case, together with more than 150 other organizations with immigration law expertise.