This week the Immigration Reform Law Institute (IRLI) filed a friend-of-the-court brief (attached here) in the U.S. Court of Appeals for the Fifth Circuit in support of the state of Mississippi and several Immigration and Customs Enforcement (ICE) agents’ petition for rehearing by the full court after their appeal was denied. The case is Crane v. Johnson (Civil Action No. 14.10049), a lawsuit challenging President Obama’s Deferred Action for Childhood Arrivals (DACA) executive action, which prevents ICE agents from arresting and detaining illegal aliens as required by federal law.
Although the district court below found DACA to be illegal, it dismissed the case because it believed that (1) Mississippi had not provided sufficient evidence that DACA illegal aliens resided in Mississippi and would consume state benefits and service to establish standing to sue in federal court, and (2) the ICE agents must first pursue their case through government employee administrative channels. Recently, a three-judge panel of the Fifth Circuit upheld the lower court’s ruling. On June 22, Mississippi and the ICE agents requested a rehearing of their case before the full Fifth Circuit court consisting of fifteen judges. IRLI’s brief field this week supports the full court hearing the case.
In its brief, IRLI urged the court to rehear the case as the three-judge panel decision extensively conflicts with another recent panel decision in the Fifth Circuit, specifically Texas v. U.S., No. 15-40238, 2015 U.S. App. LEXIS 8657 (5th Cir. Tex. May 26, 2015). In the Texas v. U.S. case, 26 states have sued to stop the Obama Administration’s extended DACA program and new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. In May, the Southern District of Texas and subsequent Fifth Circuit panel ruled that Texas (and thus the 25 other states) had standing to challenge extended DACA and DAPA based upon economic injury to the state.
IRLI also noted that the three-judge panel decision in the Crane case failed to apply the correct standard for consideration of the factual record for a jurisdictional challenge, erred by construing evidence of particularized injury presented by the State of Mississippi in favor of the federal agency defendants, erred in waiving Mississippi’s standing evidence submitted at the appellate level, and failed to consider Mississippi’s standing under the Administrative Procedure Act.