Appeals Court: The Law Does Not Allow Obama to Legalize 4.3 Million Illegals

By Staff | November 10, 2015 | 12:06am EST
(AP Photo/Jaquelyn Martin)

( - A two-judge majority of a three-judge panel on the U.S. Court of Appeals for the Fifth Circuit issued an opinion on Monday ruling that an injunction issued by a U.S. District Court in Texas against President Barack Obama’s plan to amnesty approximately 4.3 million illegal aliens should stand.

The court determined that what Obama was trying to do was contrary to the existing immigration laws of the United States that were duly enacted by Congress.

“In June 2012, the Department of Homeland Security (“DHS”) implemented the Deferred Action for Childhood Arrivals program (“DACA”),” said the court.

“At least 1.2 million persons qualify for DACA, and approximately 636,000 applications were approved through 2014,” it said.

“In November 2014, by what is termed the ‘DAPA Memo,’ DHS expanded DACA by making millions more persons eligible for the program and extending ‘[t]he period for which DACA and the accompanying employment authorization is three-year increments, rather than the current two-year increments.' The Secretary also ‘direct[ed] USCIS to establish a process, similar to DACA,’ known as DAPA, which applies to “individuals who...have, [as of November 20, 2014], a son or daughter who is a U.S. citizen or lawful permanent resident’ and meet five additional criteria.”

“Of the approximately 11.3 million illegal aliens in the United States, 4.3 million would be eligible for lawful presence pursuant to DAPA,” said the court.

In total, by unilateral action not approved by Congress, President Obama may have granted 5.5 million illegal aliens “lawful presence” in the United States, giving them the right to work here and take government benefits.

The appeals court ruled that the injunction issued against DAPA by the district court should stand because the executive did not have the lawful power to do what the administration did.

“In summary, the states have established a substantial likelihood of success on the merits of their procedural claim,” the court said. “We proceed to address whether, in addition to that likelihood on the merits, the states make the same showing on their substantive APA claim.”

“A ‘reviewing court shall...hold unlawful and set aside agency action...found to be—(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law...[or] (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,’” said the court.

“Although the district court enjoined DAPA solely on the basis of the procedural APA claim, ‘it is an elementary proposition, and the supporting cases too numerous to cite, that this court may affirm the district court’s judgment on any grounds supported by the record,’” said the court. “Therefore, as an alternate and additional ground for affirming the injunction, we address this substantive issue, which was fully briefed in the district court.

“Assuming arguendo that Chevron applies,we first ‘ask whether Congress has ‘directly addressed the precise question at issue.’ It has,” declared the court.

“‘Federal governance of immigration and alien status is extensive and complex,’” said the court. ‘The limited ways in which illegal aliens can lawfully reside in the United States reflect Congress’s concern that ‘aliens have been applying for and receiving public benefits from Federal, State, and local governments at increasing rates,’ 8 U.S.C. § 1601(3), and that ‘[i]t is a compelling government interest to enact new rules for eligibility and sponsorship agreements in order to assure that aliens be self-reliant in accordance with national immigration policy,’ § 1601(5).

“In specific and detailed provisions, the INA expressly and carefully provides legal designations allowing defined classes of aliens to be lawfully present and confers eligibility for ‘discretionary relief allowing [aliens in deportation proceedings] to remain in the country,’” said the court. “Congress has also identified narrow classes of aliens eligible for deferred action, including certain petitioners for immigration status under the Violence Against Women Act of 1994, immediate family members of lawful permanent residents (“LPRs”) killed by terrorism, and immediate family members of LPRs killed in combat and granted posthumous citizenship.

“Entirely absent from those specific classes is the group of 4.3 million illegal aliens who would be eligible for lawful presence under DAPA were it not enjoined,” the court declared.

“DAPA would make 4.3 million otherwise removable aliens eligible for lawful presence, employment authorization, and associated benefits, and ‘we must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency,” said the court.

“The interpretation of those provisions that the Secretary advances would allow him to grant lawful presence and work authorization to any illegal alien in the United States—an untenable position in light of the INA’s intricate system of immigration classifications and employment eligibility,” the court concluded.

“Even with ‘special deference’ to the Secretary, the INA flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization,” said the court.

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