May 29, 2015
By Jared Wright
A federal appeals court ruled Tuesday that an injunction will stand against President Barack Obama’s sweeping executive actions on immigration reform. While the decision was made 1,300 miles away from Denver in the historic John Minor Wisdom U.S. Court Building in New Orleans, the 5th Circuit Court of Appeals opinion in the case, State of Texas, et al v. USA, et al, provoked immediate response from Colorado and national decision-makers and activists.
Two members of the three judge panel agreed in a 42 page majority opinion that the injunction should be kept in place. The original injunction was filed by a federal judge in Texas on Feb. 16 against two programs created out of Obama’s executive actions: Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and Deferred Action for Childhood Arrivals (DACA).
An immediate complaint lodged by proponents of Obama’s immigration actions was that activist, conservative judges in Texas were essentially obstructing from the bench. One of the two 5th Circuit judges agreeing in the majority opinion was appointed by President Ronald Reagan, the other by President George W. Bush. The dissenting judge was appointed in 2011 by Obama.
Judge Andrew S. Hanen, the federal district court judge in Texas who originally imposed the injunction in the case, was also a G.W. Bush appointment.Marshall Fitz, the vice president of Immigration for the Center for American Progress, issued a scathing statement on Tuesday’s decision, first referencing Hanen’s original injunction.
“Bush-appointed District Judge Andrew Hanen authored a 123 page rambling diatribe en route to blocking the expansion of DACA and the implementation of DAPA but then issued a narrowly tailored ruling about an Administrative Procedure Act violation,” Fitz said. “The 5th Circuit opinion, rendered by two of the most conservative appellate judges in the country, hews closely to Judge Hanen’s implausible conclusion about Texas’ basis for standing to sue and his faulty factual findings about the existence of discretion.”
Days earlier, on May 19 — the day DAPA and DACA would have gone into effect prior to the injunction — Colorado Democratic Party chair Rick Palacio echoed similar sentiments, but instead aimed his sights at National Republican Committee chairman Reince Priebus.
“Just weeks ago, RNC Chairman Reince Priebus stressed the importance of reaching out to Hispanic families, yet in their typical pander and pivot type of way, Washington Republicans are blocking immigration reform and suing the President for attempting to keep immigrant families together,” Palacio said. “It’s time for Republicans to stop their counterproductive attacks on immigrants and their families, and work with Democrats on a comprehensive solution to our broken immigration system.”
Ruth Guerra, communications director for Hispanic Media for the RNC, defended Priebus’s, telling The Colorado Statesman that Palacio’s accusations were, at best, misplaced.
“Even President Obama admitted over 22 times he didn’t have the legal authority to take this politically motivated action,” Guerra said. “If Democrats want to point fingers at someone for our broken immigration system, they should be pointing at themselves. It’s Democrats who use immigration reform as a political football, refuse to work with Republicans to get anything done, and who did not pass immigration reform when they had control in Washington.”
Republican U.S. Rep. Scott Tipton of Cortez, agreed, telling The Statesman that Obama — not the GOP — is to blame for the current immigration stalemate.”The President has once again seen his unparalleled executive overreach rebuffed by the Courts, and this ruling only serves to reinforce the need for Congress to produce a step-by-step solution to address the challenges facing our nation’s broken immigration system,” Tipton said.
On the other side of the issue is Mi Familia Vota — a national Latino advocacy organization. The group is ready to “vote and hold accountable those who pushed the anti-immigration lawsuit” in the first place, organizers said, while cautioning that the reform fight is far from over.
In a statement, Mi Familia Vota Executive Director Ben Monterroso said, “We continue to believe that, at the end of the day, the politically inspired lawsuit challenging the president’s executive actions will be dismissed by the courts, and the immigration community will be ready to sign up for the DACA expansions and DAPA.”
Carla Castedo, the Colorado state director for Mi Familia, stuck to a positive note, telling The Statesman the continuance of the injunction was more or less an expected hurdle the organization was prepared for.
“The legal burden to lift the stay and allow DAPA and DACA expansion to begin immediately was heavy, and we knew we had a tough hill to climb, but we are strong and we will keep fighting for relief,” Castedo said. “We are ready to defend this program as more than 80,000 people in Colorado could potentially benefit from DAPA and DACA.”
Castedo described a substantial effort by the organization to push back against what it views as obstructionist lawsuits blocking DAPA and DACA through voter registration efforts, facilitating registration drives in Arizona, California, Colorado, Nevada and Texas. Castedo said the group has so far registered 1,200 voters in Colorado alone.
Republican U.S. Rep. Ken Buck of Greely doesn’t share the analysis that the injunction upheld against DAPA and DACA is politically driven, but rather contends he decision is constitutionally sound.
“The ruling is a huge victory for everyone who values our republican form of government’s separation of powers and traditional deference to the interests of the States,” Buck told The Statesman. “President Obama went too far. He attempted to change the law unilaterally; the 5th Circuit has held him up. I’m confident their ruling will be further upheld by the full 5th, and ultimately the Supreme Court, should the President choose to appeal. The real question now should be: Would the President like to work with Congress on a solution to our immigration problems, or will he continue to put politics over the interests of America?”
Members of the Colorado Congressional delegation disagreed widely on the ruling. Boulder Democrat U.S. Rep. Jared Polis said in a statement he was “deeply disappointed” by the 5th Circuit’s decision and went on to slam Judge Hanen for being “blatantly biased.”
“These aspiring Americans are not lawbreakers or criminals,” Polis said, “they’re simply individuals who want to build a better life for themselves and their families. They are parents of American children or, in the case of DACA, they’re individuals who came to the U.S. as young kids and know no other home.”
Polis emphasized that he too believes only Congress can fix a “broken immigration system, secure our borders, and establish a pathway to citizenship,” but added that the “President’s use of prosecutorial discretion will help restore some order and unite families.”
“In the face of these compelling truths,” he said, “the state of Texas has filed this politically-driven lawsuit before a blatantly biased judge. It’s judicial activism at its worst. Ultimately, I believe this lawsuit will fail, and I take solace in the fact that the affected community, as well as Americans fed up with our broken immigration system, will not forget these actions anytime soon and will hold Republicans responsible for continuing to keep our immigration system lawless, chaotic, and dangerous.”
Among all the partisan commentary shuttled back and forth over social media following the 5th Circuit decision Tuesday, one posting to Twitter stood out. César Cuauhtémoc García Hernández, a visiting assistant professor at the University of Denver Sturm College of Law and an expert in “Crimmigration” law, pointed out that it was important to remember that the 5th Circuit immigration decision was only about the propriety of the preliminary injunction, not about the legality of the DAPA and DACA programs.
Cuauhtémoc expanded on the comment in an interview with The Statesman, “The court simply concluded that the federal government would not be irreparably harmed if the plans were delayed longer and that Texas has the legal right to sue the federal government about the legality of those plans. The 5th Circuit did not make any ruling about the legality of President Obama’s immigration prioritization plans. It did not say anything about whether the President can announce a set of guidelines for immigration officials to consider when determining how best to spend limited immigration enforcement resources, or about the decision to delay immigration proceedings for a limited period of time for a specific group of immigrants who have been in the United States for many years.”
Colorado’s top law enforcement official said she was pleased with the 5th Circuit’s decision.
“This hold will afford the Texas federal district court an opportunity to fully consider significant constitutional issues raised by the states,” Colorado Attorney General Cynthia Coffman told The Statesman. “My office is watching the case carefully because it has implications for other executive actions which impact Colorado.”Joining Colorado’s top cop, the National Sheriffs’ Association applauded the decision. Jonathan F. Thompson, CEO and executive director of the association, said in a statement that “the cornerstone of our democracy requires adherence to laws” and that immigration reform must first be acted upon by Congress to be such a law.
“We must find a way to honor those who legally emigrate to this country,” said Thompson. “NSA and the nation’s sheriffs have long held that Congress and the Administration should put its focus on funding programs to enhance border security, strengthen employment verification, and create a pathway for legal employment and status. The President’s actions, however, have created amnesty for those who have entered this country illegally, thereby undermining the efforts of state and local law enforcement to keep their communities safe.”
The NSA joined with the Federation for American Immigration Reform and the Immigration Reform Law Institute on an amicus brief in support of the 26 states suing to prevent the expansion of the DAPA and DACA programs.While disappointed by the continued injunction, one local organization, the Metro Denver Sanctuary Coalition, took the opportunity to demonstrate on the steps of the state Capitol Wednesday.
“Given the continued delay of Deferred Action for Parents of Americans in the courts and the lack of action from Congress, it’s even more critical we organize as a community to defend against unjust deportations,” said Kristen Psaki, member of First Unitarian Society of Denver, while at the gathering. She continued to call on those at the demonstration to step up and “demand policies and laws that respect the human dignity of all Coloradans.”
One fact most parties involved in the debate agree upon is that the fate of the DAPA and DACA programs is far from resolved. The 5th Circuit Court of Appeals will take up the legality of Obama’s immigration prioritization plans in July.
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