- The Washington Times - Tuesday, April 7, 2015

A federal appeals court Tuesday tossed a lawsuit trying to halt President Obama’s 2012 deportation amnesty for illegal immigrant “Dreamers,” ruling that neither immigration agents nor Mississippi could show enough of an injury to be allowed to sue.

The ruling comes from the same appeals court that is about to hear an even bigger challenge to Mr. Obama’s new amnesty announced in November 2014, and the new decision suggests the 26 states challenging that amnesty will have to clear a high bar if they are to succeed.

“Neither Mississippi nor the agents have alleged a sufficiently concrete and particularized injury,” the three-judge panel said, throwing out the lawsuit for lack of standing.

The judges said they never had to decide whether Mr. Obama’s 2012 amnesty is legal in the first place — though they did give several hints on major issues, saying they believe the president’s orders do not tie anyone’s hands and agents can still decide whom to try to deport. That’s a key issue in the challenge to the 2014 amnesty as well.

Immigrant rights advocates said Tuesday’s decision is a boost for Mr. Obama, maintaining that if the court holds steady, it will also have to toss the challenge brought by Texas and the 25 other states, a challenge seen as a direct threat to Mr. Obama’s policy.

“Such a holding would result in a reversal of the district court’s injunction and clear the way for immediate implementation of the president’s deferred action programs, bringing relief to millions,” said Jessica Karp Bansal, litigation director for the National Day Laborer Organizing Network.

Kris W. Kobach, the lawyer for Mississippi and the agents, said the plaintiffs will either ask the appeals court to reconsider or else take their fight to the Supreme Court.

“If the court is correct that a state does not have standing and that the [immigration] agents do not have standing, then the court is essentially saying that the federal courts are powerless to stop the president from shredding the Constitution and violating U.S. law,” said Mr. Kobach, who is also secretary of state in Kansas.

The 2012 policy applies to hundreds of thousands of so-called Dreamers, young adult illegal immigrants brought to the country as children. That policy was seen as the test for Mr. Obama’s broader amnesty, announced last year, which applies to as many as 4 million illegal immigrant parents.

Both policies have spawned a series of legal challenges that are working their way through the courts — often with complex and contradictory rulings.

The immigration agents and Mississippi first sued to stop the 2012 amnesty. A lower court ruled Mississippi didn’t have a case but found the agents did, and that the Department of Homeland Security was breaking the law by ordering agents to let illegal immigrants go. That first judge, however, also ruled that the agents needed to take their complaint to a personnel board rather than the federal courts.

Both the administration and Mr. Kobach appealed that ruling to the 5th Circuit Court of Appeals, which found the agents didn’t even have standing to sue, and neither did Mississippi.

Proving damages

Mississippi, the court said, showed it faces costs from illegal immigration but never proved that Mr. Obama’s amnesty specifically increases those costs. In fact, the judges argued, granting legal status to Dreamers could free up the federal government to go after other illegal immigrants who pose a bigger cost to the state, which would mean Mississippi would actually come out ahead fiscally.

One of the GOP appointees, Judge Priscilla R. Owen, wrote a brief note saying it’s possible a state could show damages, but Mississippi failed to do so.

As for the agents, the court said that since no one has actually been punished for flouting the policies, and the memos explicitly say agents still have final say over whom they arrest, there is no harm done to them and no legal grounds for them to challenge the order.

“The fact that the directives give this degree of discretion to the agent to deal with each alien on a case-by-case basis makes it highly unlikely that the agency would impose an employment sanction against an employee who exercises his discretion to detain an illegal alien,” the judges said.

But that contradicts what Mr. Obama said at a televised town hall on immigration in February, when he was asked what he would do if agents continued to try to deport illegal immigrants he thought should be allowed to stay.

“The bottom line is that if somebody’s working for ICE, and there’s a policy, and they don’t follow the policy, there are going to be consequences to it,” the president said.

Mr. Kobach said he notified the appeals court of Mr. Obama’s remarks, but the judges ignored that in their ruling. Mr. Kobach said the judges’ ruling will be of little help to agents who do try to use their own discretion in putting illegal immigrants into deportation proceedings.

“These words from the court are empty in the wake of the president’s threat to the officers,” Mr. Kobach said.

Even as the judges disposed of Mr. Kobach’s case, they are about to hold oral arguments next week on the Texas challenge to the 2014 amnesty.

A federal district judge in Texas in February ruled that Texas did have standing to sue since it proved it would shell out hundreds of dollars for every new driver’s license it was required to print for illegal immigrants granted amnesty.

And Judge Andrew S. Hanen also said it was likely Mr. Obama broke the law in bypassing Congress to issue the policy, failing to follow the usual administrative procedures. He issued an injunction halting the law nationwide.

Judge Hanen was appointed by a Republican president, as were two of the three judges in Tuesday’s appeals court ruling. The third was appointed by President Carter, a Democrat.

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