NEW ORLEANS — A federal appeals court refused Tuesday to lift a temporary hold on President Barack Obama's executive action that could shield as many as 5 million immigrants illegally living in the U.S. from deportation.
The 2-1 ruling by a panel of the 5th U.S. Circuit Court of Appeal is far from the final word; more arguments on the merits of the case are tentatively set at the 5th Circuit for early July.
But immigrant advocates decried the continued roadblock on Obama's actions. And, White House spokeswoman Brandi Hoffine said the two-judge majority in Tuesday's ruling "chose to misinterpret the facts and the law."
Obama announced the executive action in November, saying lack of action by Congress forced him to make sweeping changes to immigration rules on his own.
Twenty-six states sued to block the plan, led by Texas. They argue that Obama acted outside his authority and that the changes would force them to invest more in law enforcement, health care and education.
U.S. District Judge Andrew Hanen sided with the states and, from his court in Brownsville, Texas, issued a temporary injunction on Feb. 16 to block the plan from taking effect while the lawsuit works its way through the courts.
Justice Department lawyers sought a stay while they appealed the injunction. They argued that keeping the temporary hold interfered with the Homeland Security Department's ability to protect the U.S. and secure the nation's borders. They also said immigration policy is a domain of the federal government, not the states.
But 5th Circuit judges Jerry Smith and Jennifer Walker said that the federal government lawyers are unlikely to succeed on the merits of the appeal.
Smith and Elrod rejected the government's argument that it has the discretion to selectively defer legal action against immigrants. 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," Smith wrote.
Judge Stephen Higginson dissented, saying the administration had not abused its discretion. He also noted congressional inaction on immigration issues.
Smith and Walker were nominated to the court by Republican presidents, Ronald Reagan and George W. Bush; Higginson, by 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.
"This decision is a victory for those committed to preserving the rule of law in America," Texas Attorney General Ken Paxton said in a statement.
Marielena Hincapie, executive director of the National Immigration Law Center, said the decision will result in confusion and fear in immigrant communities. But she predicted eventual victory in the courts.
The first of Obama's orders — to expand a program that protects young immigrants from deportation if they were brought to the U.S. illegally as children — was set to take effect Feb. 18. The other major part, extending deportation protections to parents of U.S. citizens and permanent residents who have been in the country for some years, had been scheduled to begin May 19.
Hanen issued his injunction believing that neither action had taken effect. But the Justice Department later told Hanen that more than 108,000 people had already received three-year reprieves from deportation as well as work permits. Hanen said the federal government had been "misleading," but he declined to sanction the government's attorneys. Earlier this month, the U.S. government told Hanen it had mistakenly awarded three-year work permits to another 2,000 people.
Along with Texas, the states seeking to block Obama's action are Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, West Virginia and Wisconsin.
Lozano reported from Houston.