ImmigrationDivided court denies emergency stay of injunction stopping Obama's immigration executive order

In a disappointing decision for immigration advocates, a divided panel of the Fifth Circuit Court of Appeals yesterday denied the federal government’s request for an emergency stay of a preliminary injunction which has temporarily stopped President Obama’s deferred action initiatives from being implemented.

The court’s order keeps in place the hold on implementation of these initiatives while the Fifth Circuit considers the appeal of the preliminary injunction itself. The Fifth Circuit will hear argument on the appeal in early July.

The deferred action initiatives, announced last November, include Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and an expansion of Deferred Action for Childhood Arrivals (DACA) and could provide as many as four to five million immigrants with a temporary relief from deportation.

The administration was “unlikely to succeed on the merits of its appeal,” Appeals Court Judge Jerry Smith wrote in an opinion joined by Judge Jennifer Elrod. “The public interest favors maintenance of the injunction” as the lower court continues to weigh the constitutionality of the president’s executive actions.

In a dissenting opinion, the third judge on the panel, Stephen Higginson, wrote that deferred action has been a longstanding and appropriate exercise of the executive branch’s ability to set enforcement priorities for removal of immigrants. Those priorities “must be decided, presently is being decided, and always has been decided, by the federal political branches,” wrote Higginson, who was appointed to the appeals court by Obama in 2011. Smith and Elrod were appointed by Republican presidents.

In the meantime, the underlying case is pending in the district court in Brownsville, Texas before Judge Andrew Hanen. The case is still in the early stages of discovery. A similar suit challenging the President’s actions filed by Maricopa County, Arizona Sheriff Joe Arpaio was dismissed by a Washington, D.C., federal court at the end of last year. It is currently on appeal before the D.C. Circuit Court of Appeals.

Supporters of the executive order did not hide their disappointment.

“Today, two judges of the Fifth Circuit chose to misinterpret the facts and the law in denying the government’s request for a stay,” White House spokeswoman Brandi Hoffine said in a statement. She defended Obama’s actions as “fully consistent with the law. . .[and] squarely within the bounds of his authority.”