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By Molly Hennessy-Fiske, Los Angeles Times (TNS)

NEW ORLEANS — A panel of three federal appeals court judges grilled government lawyers here Friday as they considered whether to lift a temporary stay on President Barack Obama’s executive action on immigration, which seeks to shield up to 5 million people from deportation.

The judges — one Democrat and two Republican appointees — had been randomly selected from among 15 judges on the conservative U.S. 5th Circuit Court of Appeals, and they did not rule on the stay from the bench. But they asked plenty of pointed questions during the unusual hearing, which included more than 2 1/2 hours of oral arguments.

The gallery was packed with about 80 spectators, including immigrants eligible for deferred action and the Louisiana attorney general, who joined to the lawsuit to stop the programs.

Both sides left feeling optimistic.

“This lawsuit is not about the wisdom of any particular immigration policy. The lawsuit is about the separation of powers,” said Scott Keller, Texas solicitor general, who argued on behalf of states that sued to stop the programs.

“This is about a 26-state coalition upholding the rule of law,” Keller said, noting that “the arguments went very well” and calling the judges, “very engaged” and “very well prepared.”

Nora Preciado, staff attorney with the National Immigration Law Center based in Los Angeles, which filed a brief in support of the federal government’s case, also left the hearing feeling encouraged.

“We remain very confident that these programs will be implemented,” Preciado said as about 50 immigrants and supporters demonstrated in a nearby park.

Immigrants traveled from across the country to attend the hearing and protest outside, drumming and chanting loud enough to be heard inside the courtroom.

The Obama administration appealed after a federal judge in Texas, Andrew S. Hanen, declined earlier this month to lift the stay, which Hanen had issued in February to put the two deferred action programs on hold while the case was pending.

The judge’s move affected a planned extension of the Deferred Action for Childhood Arrivals program, or DACA, created in 2012, and a new effort, the Deferred Action for Parents of Americans and Legal Permanent Residents or DAPA. DAPA was scheduled to start next month.

Hanen had granted the preliminary injunction to Texas, Louisiana and the 24 other states after they sued to stop the programs, arguing the president had overstepped his constitutional authority.

Arguing for the federal government in court Friday was Benjamin C. Mizer, acting assistant U.S. attorney general for the Justice Department’s Civil Division and former Ohio solicitor general.

“The states do not have standing to challenge the downstream effects of federal immigration policy,” Mizer said.
But Mizer was repeatedly challenged by Judge Jennifer Walker Elrod, a conservative George W. Bush appointee, who noted that, “You haven’t brought forward any arguments on the constitutional claims.

“In order for us to find for you on the stay, we would have to find you likely to succeed on the merits” underlying the case, Elrod said.

Mizer went on to argue that Obama and the administration were within their rights in creating the programs, and that Texas was not harmed as a result, as state officials have argued.

Keller, the Texas solicitor general, challenged that view. Keller said states would incur “substantial” added costs, such as providing driver’s licenses, education and health care, for those living in the country illegally and who qualify for deferred deportation. He said suggestions that such immigrants provide benefits to the states were “irrelevant” and “speculative” — and that such benefits would not offset the costs.

He argued that Obama bypassed Congress to create a policy of deferred action that the states were forced to follow without proper administrative notice.

“This would be one of the largest changes in immigration policy in our nation’s history,” Keller told the panel.
Judge Stephen A. Higginson, an Obama appointee to the court and former federal prosecutor, questioned how much discretion federal officials have in evaluating whether applicants qualify for deferred action.

He noted that the Department of Homeland Security is “deporting more than ever before,” that deferred action postpones but doesn’t halt deportation and that those screening DACA applications often requested additional information — indicating it was discretionary, not a rubber-stamp approval policy.

It’s not clear how soon the panel will rule. If the administration loses, it can appeal the closely watched case to the full 5th Circuit and ultimately to the U.S. Supreme Court.

(c)2015 Los Angeles Times, Distributed by Tribune Content Agency, LLCPhoto: ndlon via Flickr

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