President Obama will ask a federal appeals court this week to let him begin approving applications for his deportation amnesty as it tries to overturn an injunction issued by a judge in Texas last week that halted the program, just two days before it was to begin.
Top administration officials said the Justice Department will ask the 5th U.S. Circuit Court of Appeals in New Orleans to issue a stay lifting an injunction on the amnesty, which Judge Andrew S. Hanen issued a week ago, ruling Mr. Obama went beyond his powers and broke the law by creating the amnesty for more than 4 million illegal immigrants.
“We will appeal and we will seek a stay so that we can go back to implementation of our efforts to build accountability in the non-documented community,” Homeland Security Secretary Jeh Johnson told CNN on its “State of the Union” program Sunday.
The request for a stay will be made immediately, while the Justice Department works up a broader appeal. But even the circuit court may not be the final word — whichever side loses there is likely to ask the Supreme Court for a quick final ruling.
Mr. Johnson had hoped to begin accepting applications for part of the new amnesty Feb. 18, but Judge Hanen issued his injunction late Feb. 16, throwing the program into disarray.
The judge ruled that Mr. Obama has discretion to decide which illegal immigrants to deport, but he ran afoul of the law by creating a new program to allow millions of them to come forward to apply for a proactive amnesty into the future, and to be awarded work permits, Social Security numbers, travel rights and other benefits.
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The judge said it was likely he would rule against the administration, so he issued an injunction halting the program until he can hold a whole trial.
Rep. Lamar Smith, Texas Republican, blasted the administration’s move to challenge the judge’s ruling.
“It comes as no surprise that the most partisan and imposing Department of Justice of our time would rush to defend the president’s lawless actions,” he said. “Putting a stop to these overreaching executive actions isn’t about Republicans or Democrats; it’s about respecting and restoring the rule of law.”
For now the Homeland Security Department said it would comply with the injunction — though it has given no details about how it is doing so.
The department admitted in court papers it was already spending money to prepare to take the applications, even though Congress has not appropriated any money for that purpose. That means the department may be violating another federal law, the Anti-Deficiency Act, according to some members of Congress.
U.S. Citizenship and Immigration Services, the agency spending the money, would not answer questions about that last week.
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The agency also refused to answer how it would handle the expansion of a 2012 amnesty for so-called Dreamers, or illegal immigrants brought to the U.S. as children. Under Mr. Obama’s new order, they were to be allowed to apply for three-year stays of deportation and work permits, rather than the initial two-year permits granted in 2012.
Thousands of illegal immigrants likely applied for new or renewed permits between Nov. 20, when Mr. Obama announced his expansion, and last week, when Judge Hanen halted the new orders.
The administration’s push to lift Judge Hanen’s injunction could help clean up the matter.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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