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President & Congress Guide Immigration Law -- Not Texas Judge

Posted on March 10, 2015 by Alice Kenny  |  Share

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El Diario, the premier Spanish-language newspaper, turns to Catholic Charities Director of Immigrant and Refugee Services C. Mario Russell for regular updates on immigration reform. Questions about the impact of Texas Judge Andrew Hanen on immigration reform? Read Mr. Russell’s latest El Diario column below:

By C. Mario Russell The lawsuit brought by Texas and 25 other states against President Obama’s Deferred Action program for 4.7 million undocumented immigrants was bound to draw the attention of the federal courts. And with over 670 federal judges in the United States, one of them—Judge Andrew Hanen in Brownsville, Texas—was bound to find a reason disagree with the President. Because, in his view, Texas would have to absorb the cost of issuing more state driver’s licenses to immigrants who qualified for Deferred Action, last week Judge Hanen ordered that the programs be put on hold. This was to be expected. On Monday, lawyers for the government filed court papers requesting that the judge’s decision be reversed and that the federal programs immediately be allowed to go forward. This also was to be expected. This litigation back-and-forth will last for a while, with more preliminary legal battles and more substantive decisions to come from the judge and from the Court of Appeals. Some of the decisions will be appealed further, possibly to the Supreme Court of the United States, which would have the last word. This, too, is to be expected.

For these reasons it is important to remember a few points. First, the decisions that will come from the courts in the next months will neither come as a surprise nor be permanent in effect. Second, all of the President’s prior programs, including the 2012 DACA initiative, are intact and not under threat. Third, anyone who thinks they are eligible for DAPA/DACA, should continue to collect evidence of residence, evidence of identity, save money for filing fees, and keep away from scammers. Is this blind optimism? No, it is prudence and practicality guided by scholarly consensus that immigration law ultimately is decided by what the President and Congress want, not by what Texas says. Laurence H. Tribe, professor of constitutional law at Harvard University, said last week that on questions of immigration law the states have no place in disputes between the President and Congress. They are like interlopers, without “any right of their own.” Therefore, Judge Hanen’s decision, while expected, was unusual. He first allowed the state of Texas to make its case in court and then pronounced his decision to cover all 50 states. Ignoring the fact that Texas could choose not to issue licenses to DAPA and DACA recipients, Judge Hanen said he would listen to “firsthand, in-the-trenches knowledge of the border situation” in his state and “at least a measurable level of common sense” to reach the decision. Perhaps the Brownsville judge might have wanted also to listen to what his town’s Mayor, Tony Martinez, had to say after filing a brief in support of the federal government’s case and undocumented families in Texas: “Not only are we on sound legal basis but, just as important, this is the right thing to do.”

  Mario Russell is Senior Attorney and Director of Immigrant and Refugee Services at Catholic Charities, 80 Maiden Lane, NY, NY 10038 and  teaches immigration law at St. John’s University School of Law. Read this in Spanish in El Diario.