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Immigration Attorneys, Feds Mull Options After Ruling

Texas immigration attorneys are telling their clients not to panic following a federal court ruling that temporarily halted President Obama’s November executive action.

Immigration reform protesters walked up Congress Avenue toward the Texas Capitol on Feb. 22, 2013.

*Editor's note: This story has been updated to include a response from the Obama administration. 

Don’t panic and stay the course.

That’s what Austin-based immigration attorney Jackie Watson is telling her clients the day after a federal judge temporarily halted President Obama’s executive action on immigration.

Brownsville-based U.S. District Judge Andrew Hanen on Monday ruled that Texas, the first state to file suit against the White House over the plan, made its case that the policy would cause irreparable harm here. Gov. Greg Abbott, the state's former attorney general, filed the lawsuit in December.

“Having found that at least one plaintiff, Texas, stands to suffer direct damage from the implementation of [Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)], this court finds that there is requisite standing necessary for pursuit of this case,” Hanen wrote.

The president’s November deferred action proposal sought to grant deportation relief and a work permit to up to 5 million undocumented immigrants, including a portion of the 1.6 million currently living in Texas.

The federal government originally planned to accept applications for one part of Obama's plan, an expansion of 2012’s Deferred Action for Childhood Arrivals initiative, on Wednesday. Applications for the DAPA program were slated for May.

Both have been postponed.

Department of Homeland Security Secretary Jeh Johnson said in a statement that while the agency disagrees with the ruling, it must respect it and let the process play out in the courts.

“Accordingly, the Department of Homeland Security will not begin accepting requests for the expansion of DACA tomorrow, Feb. 18, as originally planned,” Johnson said. “Until further notice, we will also suspend the plan to accept requests for DAPA.” 

Watson and other supporters of the program conceded that the ruling is a setback. But they said they were confident that the White House would ultimately prevail.

“It’s a very political stunt,” Watson said of the ruling. “I am telling [clients] that I think this will probably ultimately still go through. I don’t think this will necessarily be the final word on it.”

Hanen halted the executive order in part because he said the government didn’t comply with the Administrative Procedure Act, which governs the way federal policies are crafted and how much input the public gets. 

The Obama administration has a few options: It can ask Hanen to “stay” his own order – or put it on hold – while the issue plays out before the U.S. 5th Circuit Court of Appeals in New Orleans.

Or it can file an immediate appeal to the higher court and ask it to toss Hanen's ruling. If that court acted fast, the government would be back on track to begin accepting applications – at least temporarily.

Either way, the 5th Circuit will likely rule on the merits of the case, something Watson said would be more complicated and time-consuming.

During a conference call with reporters on Tuesday, White House officials said details on how the administration moves forward would come soon, but declined to offer specifics. 

“The Department of Justice has already determined that it will appeal,” said Cecilia Muñoz, the director of the White House’s Domestic Policy Council. “It’s going to determine within the next couple of days any additional steps that they might take." 

White House spokesman Josh Earnest added that Monday’s decision wasn’t the first district court-level ruling on the executive order. In December, U.S. District Judge Beryl Howell threw out a similar suit filed by Arizona's Maricopa County Sheriff Joe Arpaio, who sought to halt the policy.

“We have a pretty good track record of dealing with these kinds of rulings and ensuring we pursue a legal strategy that allows this to be implemented,” Earnest said.

Meanwhile, the Department of Homeland Security is reminding the public that Hanen's ruling does not shoot down 2012’s deferred action initiative. That policy grants certain undocumented immigrants a two-year work permit and a reprieve from deportation proceedings.

The new policy would have expanded that to a pool of new applicants who have lived in the country since 2010. It would also have removed the current DACA age limit — 30 – and made the work permit valid for three years instead of two.

“Individuals may continue to come forward and request initial grant of DACA or renewal of DACA pursuant to the guidelines established in 2012,” Johnson said.

The Hanen ruling doesn’t affect the department's immigration enforcement strategy either, Johnson added. The agency announced in November that it would shift its resources to prioritize the deportation of immigrants who have violated criminal law.

“I am also pleased that, due in large part to our investments in and prioritization of border security, apprehensions at the southern border – a large indicator of total attempts to cross the border illegally — are now at the lowest levels in years,” Johnson said. 

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