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Over-Optimistic Reaction to 5th Circuit's Rejection of DACA Lawsuit? By Roger Algase

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There is some optimism among supporters of President Obama's November 20, 2014 executive action on DAPA and extension of DACA, based on speculation that an April 7 decision by a three-judge panel of the US Circuit Court of Appeals throwing out a lawsuit against DACA by the state of Mississippi and a group of ICE agents (Crane v. Johnson) based on plaintiffs' lack of standing could be a sign that a different panel of the same court might use similar reasoning in order to lift Federal District Judge's Andrew Hanen's injunction against implementation of the president's two more recent programs in Texas v. US.

See, for example, Josh Gerstein's April 8 POLITICO article: Appeals Court Sides With Obama on Immigration Action

http://www.politico.com/story/2015/4....html?hp=b1_r2

The optimism over the decision throwing out the Mississippi lawsuit for lack of standing is based on the 5th Circuit opinion's statement that:

"Neither Mississippi nor the Agents have alleged a sufficiently concrete and particularized injury that would give Plaintiffs' standing to block DACA."

However, looking further into the above ruling in the Mississippi case, there could be reason to dampen any optimism over whether it might be a precedent for a similar ruling by the same 5th Circuit Court of Appeals throwing out the lawsuit by 26 states in Texas v. US for lack of standing as well. As quoted in the same POLITICO article, the court's ruling in the Mississippi lawsuit also states:

"Mississippi submitted no evidence that any DACA eligible immigrants resided in the state. Nor did Mississippi produce evidence of costs it would incur if some DACA-approved immigrants came to the state." (Emphasis added.)

Even the most optimistic DAPA/DACA extension supporter would have to find it not too difficult to distinguish the above conclusion from the facts in Texas v. US.

In Texas, the chance of the court's concluding that there is no evidence of DAPA or DACA extension-eligible immigrants living in even a single one of the 26 plaintiff states is a virtual impossibility. Moreover, as the POLITICO article also points out, Texas presented at least some evidence of increased drivers' license costs which might result if the president's two latest initiatives were to be implemented.

Even assuming the existence of such costs, whether they would sufficient to give the state standing to argue in court in favor of mass expulsion of 11 million immigrants is an entirely different question, which one would hope that the 5th Circuit will look into more seriously than Judge Hanen did when he issued his injunction.
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Roger Algase is a New York lawyer and Graduate of Harvard College and Harvard Law School. For more than 30 years, he has been helping employment-based and family-based immigrants overcome the obstacles of our immigration system and attain their goals in America. Roger welcomes questions at algaselex@gmail.com

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Updated 04-09-2015 at 07:56 PM by ImmigrationLawBlogs

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