Professor Stephen Yale-Loehr Explains What Comes Next

dtrt09 · 09:06 PM

Quote:

The U.S. Court of Appeals for the 5th Circuit has blocked President Obama’s executive action on immigration from going into effect. The executive action would have blocked the deportation of the parents of lawful citizens and would have granted work permits. The Court held that the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) likely violated federal law and the Constitution. Professor Stephen Yale-Loehr discusses the ruling in this report. (The original action was also discussed by Professor Loehr in this earlier LBN report.)
Professor Loehr points out that the action by the Court of Appeals only concerns the preliminary injunction and does not address the merits of the lawsuit. In fact, the Court’s decision was not a decision on the initial action, but on a request by the administration to stay the injunction while the basic lawsuit is decided. That request was the subject of the Court’s adverse ruling.

As to what will happen next, the 5th Circuit will hear arguments on the preliminary injunction in July and will probably not issue a decision until the fall. If the government loses on the injunction, it might ask the Supreme Court to hear the case, but it is unlikely that the Supreme Court would agree to hear an injunction case. It would probably require a full trial in the district court before there could be any reasonable chance of an appeal to the Supreme Court.

As to what is likely to happen, Prof. Loehr notes that a number of things are going on in this case. One complaint is that the government violated the procedural requirement by not publishing a rule and asking for comments. That particular issue is the only thing before the 5th Circuit in the appeal from the preliminary injunction. However, the states have also argued that there are constitutional and statutory issues involved in the disputed policy. Prof. Loehr suggests that it will take some time for the district court to sort everything out in order to have a trial on the merits.

There is also the larger issue whether states should be allowed to inject themselves into the actions of the federal government in its implementation of immigration policy. Probably everyone would agree in principle that the federal government should be in charge. “Immigration touches foreign borders and foreign affairs.” There shouldn’t be fifty different immigration policies, one for each state. On the other hand, if a state feels it is being affected unfairly or disproportionately by a federal policy, it has a right to sue the federal government. The district court will have to work through all of this.

Stephen W. Yale-Loehr is an Adjunct Professor of Law at the Cornell University Law School. He is one of the nation's preeminent authorities on U.S. immigration and asylum law. A prolific scholar, he has written many law review articles, and is author or co-author of four standard reference works. He is the 2001 recipient of the American Immigration Lawyers Association (AILA)'s Elmer Fried Award for Excellence in Teaching and the 2004 recipient of AILA's Edith Lowenstein Award for excellence in advancing the practice of immigration law

http://legalbroadcastnetwork.com/the...ext#commenting

So, just so everyone understands, if the government loses the fight against the injuction, there has to be a full trial in district court, not an order, not an opinion, a trial under Judge Hanen. He issued the injuction while a trial on the merits for DAPA - not DACA - are discussed. And that is another thing, the entire 5th circuit opinion is about DAPA because DAPA is the new program. DACA is simply being amended or modified. It is being lumped together with DAPA, and I don't understand why the DOJ won't make it clear that they have the authority to make changes to DACA policy since it is existing guidelines. The court made it clear that the issue is with DAPA, not DACA or even extended DACA for that matter.

Pianoswithoutfaith · 06-01-2015, 11:55 PM

something tells me they (the bad mean side) is going to cling hard on the few thousnads of EAD issued with 3 years

dtrt09 · 12:33 AM

Does this injunction preclude DHS/DOJ from amending or modifying DACA in any way or form?
Not that I can see. Legal minds, care to weigh in?

Extended DACA is not mentioned at all as a problem in the 5th circuit's response. Their response specifically addresses the 4.5 million DAPA recipients, and all references to DACA have to do with DAPA being modeled after DACA.

Also, the programs as Prof. Loehr has explained, can go ahead today as soon as DHS publishes a notice and comment period. They did it for DACA, and they did it after DACA had started.

https://www.federalregister.gov/arti...dhood-arrivals

Published on 08/16/2012, a day after DACA had begun.

DACA-IR-DA · 06-02-2015, 02:47 AM

So more chances of DACA Expansion getting started and not DAPA?

DACA-IR-DA · 06-02-2015, 02:48 AM

Your thoughts IamAman?

Pianoswithoutfaith · 06-02-2015, 04:31 AM

no no what are your thoughts DA user?

Shootingstars2014 · 06-02-2015, 09:15 AM

Quote:

Originally Posted by dtrt09

Does this injunction preclude DHS/DOJ from amending or modifying DACA in any way or form?
Not that I can see. Legal minds, care to weigh in?

Extended DACA is not mentioned at all as a problem in the 5th circuit's response. Their response specifically addresses the 4.5 million DAPA recipients, and all references to DACA have to do with DAPA being modeled after DACA.

Also, the programs as Prof. Loehr has explained, can go ahead today as soon as DHS publishes a notice and comment period. They did it for DACA, and they did it after DACA had started.

https://www.federalregister.gov/arti...dhood-arrivals

Published on 08/16/2012, a day after DACA had begun.

Thank you for sharing this info. I was wondering why Original DACA started without any court injunction while the Expanded version got stuck even before it began. I was aware that there was no federal register for the Expanded version, but I thought that's what they did with the Original version too. I was too lazy to look into it...

Are Democrats THAT stupid? I don't think so. I don't want to admit they are smart either, but I think this is their strategy, trying to fish us without giving us live bait. Think about it. Why are they not issuing a notice and comment now like some legal experts are saying? Because that will infuriate Republican judges? Do it anyway and see what happens; it's getting messy anyway. Why did Obama repeatedly say he didn't have the authority but then started this EO in a most incomplete way so that it won't take off, allowing Republicans to attack him/immigrant community? I think the real answer lies somewhere in between...

IamAman · 06-02-2015, 09:37 AM

I am more confused now than ever. I thought that the recent ruling WAS on the injunction and the next hearing was going to be on the actual case. I guess the next hearing is on the injunction too? Then what was the first hearing for?

No wonder Greg Abbott had a shit eating grin on his face before his lawsuit. He knew he was sending this into a never ending court battle and he was smiling about it and sleeps well at night.

dtrt09 · 06-02-2015, 02:49 PM

Quote:

Originally Posted by Shootingstars2014

Thank you for sharing this info. I was wondering why Original DACA started without any court injunction while the Expanded version got stuck even before it began. I was aware that there was no federal register for the Expanded version, but I thought that's what they did with the Original version too. I was too lazy to look into it...

Are Democrats THAT stupid? I don't think so. I don't want to admit they are smart either, but I think this is their strategy, trying to fish us without giving us live bait. Think about it. Why are they not issuing a notice and comment now like some legal experts are saying? Because that will infuriate Republican judges? Do it anyway and see what happens; it's getting messy anyway. Why did Obama repeatedly say he didn't have the authority but then started this EO in a most incomplete way so that it won't take off, allowing Republicans to attack him/immigrant community? I think the real answer lies somewhere in between...

No, they are playing both sides, and that just doesn't cut it. Again, go back and read the 5th circuit response about lifting the stay; it's all about DAPA, not DACA. I am not an attorney, but it doesn't take one to see that there's nothing that prevents the administration from modifying DACA because DACA already exists. "Extended" DACA is just a saying; DACA guidelines to qualify for discretion remain the same, they just removed the age cap and the presence date. It's like granting TPS for 3 years instead of 4 or 2 or whatever. TPS already exists. DAPA is an entirely new program whose actual requirements, unlike DACA are unknown. We only know that those present since 2010 with citizen or resident children can qualify, but we do not know what they need to have in order to qualify.

Do they have to be current in taxpayer filings? We don't know.
Do they need to have never used public benefits? We don't know.
Do they need to have worked? Not likely.

Etc, etc. Lifting the age cap on DACA is not prevented by this the TX lawsuit simply because DACA is an existing program being modified.

dtrt09 · 06-02-2015, 02:52 PM

Mods:

I want to close my account in this forum and I don't see the option - how do I do it?

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Professor Stephen Yale-Loehr Explains What Comes Next