On Monday evening, in front of a Las Vegas hotel ballroom full of immigrant-rights activists gathered from across the country, Kica Matos delivered the breaking news: The US Court of Appeals for the Fifth Circuit had, as expected, affirmed a lower court’s block on the implementation of President Obama’s latest deportation-relief program. And the gathered activists interrupted her with cheers.
Matos, director of immigrant rights and racial justice at the Center for Community Change, couldn’t even get all of that information out at first. “The Fifth Circuit ruled,” Matos said, and the crowd cut her off with applause. She explained the rest, that the ruling was a legal setback for those in the room, among them many undocumented immigrants and those who’d qualify for the program, “But this is a good loss, because now we’ll be able to push the case forward to the Supreme Court,” she said. And the activists cheered again, chanting, “¡Si se pudo!”—“We did it!”
It was perhaps a puzzling reaction, but in keeping with the long-term game immigrant-rights activists are waging to bring their fight to the Supreme Court. Indeed, on Tuesday, the Obama administration pledged to appeal Monday’s decision to the High Court.
The lawsuit, filed in February by Texas and 25 other states, challenged the constitutionality of Deferred Action for Parents of Americans (DAPA), President Obama’s second major deferred-action program. The program would offer a select class of parents who are undocumented immigrants access to short-term work permits and protection from deportation. DAPA is estimated to benefit more than four million people who are parents of US citizen or green card–holder children and who clear a set of other requirements.
The Fifth Circuit, in a 2-1 decision, sided with Texas, which argued that it and other states would “incur significant costs” in offering DAPA recipients benefits like driver’s licenses. Judge Jerry Smith, writing for the majority, ruled that deferred action, by giving millions of immigrants work authorization, was also granting them “legal presence” in the country, undercutting the will of Congress, which has not seen fit to pass immigration reform despite more than a decade of attempts on the topic. The majority separately ruled that the US government failed to follow proper procedures in the creation of its program.
Judge Carolyn Dineen King, in her dissent, called the decision “a mistake.” King wrote that deferred action is simply a form of prosecutorial discretion. That is, in a country with an estimated 11 million people who are eligible for removal and the resources to deport only a fraction of that group annually, an immigration agency has the authority and indeed, the mandate, to prioritize whom it will most aggressively pursue for deportation. The regulations that would allow those who aren’t deported to apply for work authorization, meanwhile, are wholly separate from deferred action itself and have been in place for decades, King wrote.