IRLI submitted friend-of-the-court briefs in support of the State of Mississippi and Immigration and Customs Enforcement (ICE) agents in a federal lawsuit brought to challenge President Obama’s DACA (Deferred Action for Childhood Arrivals) executive action that prevents ICE agents from obeying requirements under federal law that immigration officers arrest and detain illegal aliens. Kris Kobach, Of Counsel with IRLI, was lead counsel in the case.
On July 31, 2013, Judge O’Connor of the Northern District of Texas dismissed the case on a jurisdictional issue. In doing so, the Court for the second time found that the challenged Obama Administration policies are unconstitutional: “[T]he Court finds that Plaintiffs are likely to succeed on the merits of their claim challenging the Directive and Morton Memorandum as contrary to the provisions of the Immigration and Nationality Act…” SeeJuly 31 Op. p. 6 (attached here). In April of 2013, the Court made the same finding: “[T]he Court finds that DHS does not have discretion to refuse to initiate removal proceedings when the requirements of Section 1225(b)(2)(A) are satisfied.” See April 4, 2013 Op. p. 24 (attached here). Although the district court 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.
The State of Mississippi and ICE agents appealed to the United States Court of Appeals for the Fifth Circuit. IRLI submitted a friend-of-the-court brief supporting the State of Mississippi and ICE agents. A three-judge panel of the Fifth Circuit upheld the lower court’s ruling. On June 22, 2015, Mississippi and the ICE agents requested a rehearing of their case before the full Fifth Circuit court consisting of fifteen judges. IRLI filed another brief supporting 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. The Fifth Circuit refused to hear the case. The case was not appealed to the U.S. Supreme Court.
IRLI files amicus brief in Fifth Circuit supporting DACA challenge, July 2, 2015
IRLI Counsel Testifies before the U.S. Senate about the Latest Court Challenge against the Obama Administration’s Decree of Amnesty, March 19, 2015
Kris Kobach Takes on the Obama Administration’s DACA Policy before the Fifth Circuit, February 4, 2015
Crane v. Napolitano–Why has the Obama Administration not Rescinded the Unconstitutional DACA Program?, August 5, 2013