President Barack Obama’s plan to shield as many as five million immigrants living in the United States from deportation remains on hold after a federal appeals court panel refused to allow it to take effect immediately.
Mr Obama announced an executive action in November seeking to expand a programme that protects young immigrants from deportation if they were brought to the US illegally as children. The order would also extend deportation protections to some parents of US citizens and permanent residents.
Although Mr Obama argued that a lack of action by Congress forced him to make sweeping changes on his own, Republicans blasted the plan as an executive overreach. Twenty-six states have sued to stop it, and a federal judge based in Texas issued a preliminary injunction against it in February.
The administration is appealing that injunction and had asked a three-judge panel of the 5th US Circuit Court of Appeals to let the programme proceed pending an argument on the merits, which has been tentatively set for July.
But, in refusing to stay the Texas judge’s injunction, 5th Circuit judges Jerry Smith and Jennifer Walker Elrod said that the federal government lawyers are unlikely to succeed on the merits of the appeal. Judge Stephen Higginson disagreed in a lengthy dissent.
Immigrant advocates decried the continued roadblock, and White House spokeswoman Brandi Hoffine said the two-judge majority in Tuesday’s ruling “chose to misinterpret the facts and the law”.
US District Judge Andrew Hanen sided with the states and, from his court in Brownsville, Texas, issued a temporary injunction on 16 February to block the plan from taking effect while the lawsuit works its way through the courts.
In denying a stay, Judges Smith and Elrod rejected the government’s argument that it has such broad discretion to defer legal action against immigrants without a judicial review.
The Obama policy, the ruling said, goes beyond simple non-enforcement. “It is the affirmative act of conferring ‘lawful presence’ on a class of unlawfully present aliens,” Judge Smith wrote.
Judge Higginson noted congressional inaction on the issue in his dissent and said the administration was acting within its authority.
Judges Smith and Walker were nominated to the court by Republican presidents Ronald Reagan and George W Bush, while Judge Higginson was nominated by Mr Obama.
The White House said its appeal of the preliminary injunction will proceed on an expedited basis in the 5th Circuit while the Justice Department reviews Tuesday’s opinion and contemplates other possible steps.
The first of Mr Obama’s orders – to expand the programme protecting young people brought into the US illegally – was set to take effect on 18 February.
The other major part, extending deportation protections to parents of US citizens and permanent residents who have been in the country for some years, had been scheduled to begin on 19 May.
Texas Attorney General Ken Paxton praised the ruling, calling it a “victory for those committed to preserving the rule of law in America”.
“Telling illegal aliens that they are now lawfully present in this country, and awarding them valuable government benefits, is a drastic change in immigration policy,” he said.