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  1. #1




    After a split Fifth Circuit
    panel declined
    to lift Judge Hanen's preliminary
    in Texas v. United States
    blocking President Obama's two executive actions that could defer the
    deportations of an estimated 4.4 million people, the score was 2 in favor of
    Texas and 0 for President Obama.  One of
    the memorable quotes in the Rocky movie about boxing is apt here, "[I]t ain't
    how hard you hit; it's about how hard you can get hit, and keep moving forward."

    Although President Obama has
    been hit hard, his legal team has to keep moving forward and there is plenty to
    look forward to that can ultimately win the day for the 4.4 million who will
    benefit from deferred action.  Although
    there has been substantial analysis regarding the flaws in the latest decision,
    scant attention has been paid to a 2013 decision of the Fifth Circuit that held
    that a local ordinance penalizing  landlords and occupants for not being lawfully
    present in the United States was preempted under federal immigration law.  This decision may provide a narrow path to
    victory for President Obama.

    In Villas
    at Parkside Partners v. Farmers Branch
    , 726 F.3d 524 (5th
    Cir. 2013), the Fifth Circuit struck down a Farmers Branch, TX, ordinance on
    preemption grounds because it conflicted with federal law regarding the ability
    of aliens not lawfully present in the United States to remain in the US. The
    Fifth Circuit also noted that the federal government’s ability to exercise discretion
    relating to removal of non-citizens is a key reason for a state or local
    regulation of immigration being preempted under the Supremacy Clause of the US Constitution:

    the Supreme Court has made clear that there are "significant complexities
    involved in [making] . . . the determination whether a person is
    removable," and the decision is "entrusted to the discretion of the
    Federal Government," Arizona, 132 S. Ct. at 2506; see also Plyler, 457
    U.S. at 236 (Blackmun, J., concurring) ("[T]he structure of the
    immigration statutes makes it impossible for the State to determine which aliens
    are entitled to residence, and which eventually will be deported."), the
    Ordinance allows state courts to assess the legality of a non-citizen's
    presence absent a "preclusive" federal determination, opening the
    door to conflicting state and federal rulings on the question.

    v. United States
    , on first brush, is not a preemption case as
    it does not involve a state law regulating immigration that conflicts with
    federal law. Plaintiff states challenged President Obama’s executive actions,
    mainly on grounds that the President did not issue a rule prior to implementing
    deferred action for parents who have citizen or permanent resident children in
    the US (DAPA) or expanded deferred action for childhood arrivals (DACA). Still,
    the Fifth Circuit’s panel refusing to stay the preliminary injunction of  Judge Hanen  does not bode too well for federal preemption
    of immigration law and policy, which has been upheld not only by the Fifth
    Circuit in Farmers Branch, but also
    by the Supreme Court in Arizona
    v. United States
    , 132 S.Ct. 2492, 2499 (2012),   which articulated:

    A principal feature of the removal
    system is the broad discretion exercised by immigration officials…... Federal
    officials, as an initial matter, must decide whether it makes sense to pursue
    removal at all. If removal proceedings commence, aliens may seek asylum and
    other discretionary relief allowing them to remain in the country or at least
    to leave without formal removal….

    Discretion in the
    enforcement of immigration law embraces immediate human concerns. Unauthorized
    workers trying to support their families, for example, likely pose less danger
    than alien smugglers or aliens who commit a serious crime. The equities of an
    individual case may turn on many factors, including whether the alien has
    children born in the United States, long ties to the community, or a record of
    distinguished military service. Some discretionary decisions involve policy
    choices that bear on this Nation’s international relations. Returning an alien
    to his own country may be deemed inappropriate even where he has committed a
    removable offense or fails to meet the criteria for admission. The foreign
    state maybe mired in civil war, complicit in political persecution, or enduring
    conditions that create a real risk that the alien or his family will be harmed
    upon return. The dynamic nature of relations with other countries requires the
    Executive Branch to ensure that enforcement policies are consistent with this
    Nation’s foreign policy with respect to these and other realities.

    When the actual merits of
    Judge Hanen’s injunction are considered by another panel of judges in the Fifth
    Circuit, they will hopefully take notice of Farmer's
    that was decided en banc, which upheld the federal government's
    ability to exercise discretion in the removal of aliens under the preemption
    doctrine. Interestingly, Judges Smith and Elrod, who  decided against President Obama in the Fifth
    Circuit, were also among the dissenting judges in the Farmers Branch case.  

    The key issue in Texas v. United States is whether states
    should be even permitted to sue the federal government on immigration
    enforcement policy. If President Obama loses in the Fifth Circuit on the actual
    appeal, and the Supreme Court upholds it, then this would be an open invitation
    for any cantankerous state politician to bring a law suit against the federal
    government over an immigration policy that he or she dislikes. The ability of a
    state to harass the federal government could be endless. For instance, the
    federal government can invoke its authority to parole aliens into the United
    States under INA 212(d)(5), and could bring in a large group of people into the
    US for humanitarian reasons, such as victims of atrocities by ISIS in Iraq and
    Syria. A state opposed to the paroling of these aliens can potentially sue the
    federal government if it can manufacture some harm that would befall it, like
    Texas did, that it would be costly for the state to issue drivers licenses to
    them. Similarly, a state could sue the federal government for granting deferred
    action to victims of domestic violence or crime victims or widows and widowers
    of US citizens, like the federal government has done in the past. These sorts
    of challenges from states would undermine the long established doctrine that
    immigration policy is within the purview of the federal government and Congress.
    Another concern for upholding preemption of federal immigration law from
    interference by states is the concern about the relationship between
    immigration and foreign affairs. See Toll
    v. Moreno
    , 458 U.S. 1 (1982); Hines
    v. Davidowitz
    , 312 U.S. 52 (1941).  If
    a state were allowed to sue each time the federal government issued a policy
    and blocked it, this would upset the long acknowledged preemption doctrine
    relating to immigration. If there is a disagreement in how the Executive Branch
    implements immigration policy, it is for Congress to intervene by changing the
    law rather than for states like Texas to file a law suit.

    Judge Higginson’s dissenting opinion (who also
    wrote the majority opinion in Farmers
    ) in the Fifth Circuit’s decision refusing to lift the stay correctly
    opined that President Obama’s executive actions are non-justiciable as they are
    internal executive enforcement guidelines. The dissenting opinion appropriately
    relied on the Supreme Court decision in Heckler
    v. Chaney
    ,  470 U.S. 821 (1985), which
    held  “that an agency’s decision not to
    prosecute or enforce, whether through civil or criminal process, is a decision
    generally committed to an agencies absolute discretion.”  Whether executive enforcement guidelines
    provide deferred action to millions rather than thousands or hundreds should
    not make them any more or less amenable to a legal challenge by a state. So
    long as the President does not grant legal status, which he cannot do under the
    INA (and both Judge Hanen and the majority in the Fifth Circuit confused legal
    status with lawful presence), it should not make a difference under Heckler v. Chaney whether deferred action
    is granted to thousands of spouses of military personnel or to millions of parents
    of citizen and permanent resident children.  Charles
    and others
    have forcefully proposed that President Obama should publish a rule in the
    Federal Register, and this would weaken plaintiffs’ chief claim that the
    President violated the Administrative Procedure Act by not proposing a rule for
    public notice and comment when implementing DAPA and DACA. While this is an intriguing
    idea, it would also be a cop out. Every new enforcement decision would have to
    go through the notice and comment procedure under the APA out of fear of
    inviting more law suits from states, and this would again undermine the
    preemption doctrine relating to immigration.

    Indeed, one of the
    concurring opinions in Farmers Branch
     acknowledged that the largely federal discretionary
    immigration enforcement system, including the grant of deferred action,  would be upset if a state regulation conflicted
    with it, and relied on Arizona v. USA
    by opining:  “The Court held that the
    statute stood as an impermissible obstacle to the design and purposes of the
    largely discretionary immigration enforcement system Congress created because
    it could result in “unnecessary harassment of some aliens (for instance, a
    veteran, college student, or someone assisting with a criminal investigation)
    whom federal officials determine should not be removed” and ultimately “would
    allow the State to achieve its own immigration policy.” [citation omitted].
    Because such state-to-state variance “is not the system Congress created,” the
    Court held that the Arizona statute “violates the principle that the removal
    process is entrusted to the discretion of the Federal Government.””

    There are many arguments
    that may ultimately carry the day for the Obama administration and its ability
    to bring relief to millions who are a low enforcement priority. In Crane
    v. Johnson
    , the federal government was victorious in a law suit against
    the previous 2012 DACA program as the Fifth Circuit held that Mississippi
    lacked standing since its claim to injury was speculative.  Texas, however, has been able to manufacture a
    more cogent harm regarding the burdens that would be caused in the issuance of
    new driver licenses. Regardless of the merits
    of a state’s standing claim
    , standing would be moot if the claim is non-
    justiciable as Judge Higginson found, and  Farmers
    should provide the basis for this on the ground that a state cannot
    upset the preemption doctrine on immigration. It is no secret that Texas v. United States is a political
    fight as the plaintiff states are Republican, and the judges that have ruled
    against Obama have been appointed by Republican Presidents.  It is also true that the majority of judges in
    the Fifth Circuit are Republican appointees, but Farmers Branch was also decided en banc in the Fifth Circuit,
    and the panel that considers the appeal will be bound by its own precedent.

    This post originally appeared on The Insightful Immigration Blog. Reprinted with permission.

    About The Author

    Cyrus D. MehtaCyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Member of Cyrus D. Mehta & Associates, PLLC in New York City. He is the current Chair of AILA's Ethics Committee and former Chair of AILA's Pro Bono Committee. He is also the former Chair of the Board of Trustees of the American Immigration Council (2004-06) and Chair of the Committee on Immigration and Nationality Law (2000-03) of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including on administrative remedies and ethics, and is also an adjunct associate professor of Law at Brooklyn Law School, where he teaches a course entitled "Immigration and Work." Mr. Mehta received the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the immigration field.

    The opinions expressed in this article do not necessarily reflect the opinion of

  2. #2
    Retired INS
    I worked 30 years for the INS and 9 years with Homeland Security. I agree the President has the right to determine who is deported and who is allowed to stay. This is a part of his authority through prosecutorial discretion. However, during my 29 years as an immigration manager, I was constantly reminded that prosecutorial discretion cannot be used to grant a benefit, only to not take an action. As a manager with U.S. Citizenship and Immigration Services (USCIS), I was told that our agency had no authority to use prosecutorial discretion because we granted benefits and we had no arrest authority. That authority in immigration matters was given to ICE and CBP. Therefore, it is interesting that USCIS is the agency assigned to administer the proposed use of prosecutorial discretion contained in DACA and DAPA.

    i am not opposed to the outcome of the President's proposal, but I believe this should have been done through Congressional legislation, which could have easily passed during his first two years in office. At the very least, this should have been a rule submitted for comments in the Federal Register.

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