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5th Cir. Uses Drivers Licences as Immigration Power Grab Pt. 1 By Roger Algase

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The 5th Circuit US Court of Appeals' November 9 decision in Texas v. US, (case no. 15-40238), upholding a lower court injunction against the DAPA program announced by President Obama almost exactly one year ago, can be looked at as an attempt by 26 states to bring back the discredited policy of "attrition" or "self-deportation" which formed the heart of Arizona's S.B. 1070 immigration law that was in large part overturned by the Supreme Court three years ago, in 2012.

This is because, contrary to many misleading media stories and statements by anti-immigrant pundits and politicians, the 5th Circuit decision did not order the federal government to deport anyone. Instead, it blocked the government from granting affirmative benefits, such as work permits, to unauthorized non-US citizens in this country who have been selected as low priority for deportation and therefore eligible for "deferred action".

Therefore, the purpose of the lawsuit against the Obama administration by the 26 states can best be understood as an attempt to bring back the discredited "attrition" policy (which was resoundingly rejected by the voters in the 2012 election - just ask "President Romney") by the back door of claiming that the plaintiff states would be injured if DAPA were fully implemented.

The problem with this claim, however, is the same issue that led the Supreme Court to strike down most of the Arizona immigration law - immigration is a federal matter, not a state one, and has been ever since the predecessors of our modern immigration system were enacted by Congress in the late 19th Century.

Whether "attrition", i.e. denial of work permits and other benefits to unauthorized non-US citizens in the hope that they will leave is good policy or not is not the real issue. The issue is who has the authority to set this or any other immigration policy. What business do the states have in asking the courts to interfere with federal immigration policy?

This is the real question presented by Texas v. U.S. In order to be able to sue over immigration policy, the states have to show that they would be injured by that policy. What kind of injury have the states shown in this case?

In its decision, the 5th Circuit majority mentions some possible grounds of injury that the states might claim to have suffered, and then, at least by implication, it rejects those grounds.

In page 8 of its decision the Circuit court says, without any evident disagreement:

"The [District] court also considered but ultimately did not accept the notions that Texas could sue as parens patriae on behalf of citizens facing economic competition from DAPA beneficiaries and that the state had standing based on the losses it suffers generally from illegal immigration." (Citation omitted.)

But if the states could not sue to block DAPA because of any alleged general injury to themselves or their citizens from illegal immigration, where did their right to inject themselves into a federal matter come from?

The answer, according to the 5th Circuit majority was: driver's licenses.

Driver's licences? Is this the kind of issue which is so important that it justifies putting the states back into the business of effectively imposing their own immigration priorities, including the discredited "self-deportation" policy, on the federal government?

In the next part of this series I will look more closely at the drivers license rationale for bringing this lawsuit affecting the basic existence of millions of people in this country and show that it was nothing more than a sham, manufactured, argument ("Trumped-up" would be a good description), as the powerful dissent by the sole Democratic-appointed judge on the panel, Carolyn King, points out in precise, unanswerable, detail.

To be continued in Part 2.
__________________________
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. He has been helping mainly skilled and professional immigrants with work permits and green cards for more than 30 years. His email address is algaselex@gmail.com

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Updated 11-13-2015 at 12:34 PM by ImmigrationLawBlogs

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Comments

  1. Unregistered222's Avatar
    I have deleted a comment that the above anonymous reader posted about refugees, since it is off topic. My above post has nothing to do with refugee issues.

    The above individual is welcome to re-post his or her comment after one of my other posts, dealing with refugees, and I will leave it undisturbed.

    Roger Algase
    Attorney at Law
    Updated 11-13-2015 at 05:50 PM by ImmigrationLawBlogs
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