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Illegal aliens might get another chance in court to force amnesty

Conservative Review

An illegal alien who was the recipient of Obama’s “Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) amnesty” is now suing in federal court to have the nationwide injunction on Obama’s executive amnesty overturned. The scary thing is this alien will likely get standing in court and might succeed in reconstituting Obama’s executive amnesty for half the country.


When the Fifth Circuit Court’s decision to uphold the injunction against DAPA was kept in place by a split Supreme Court decision, I warned at the time not to celebrate the Court’s involvement in immigration. The concern was that, on net, the courts have done a lot more harm by illegally overturning enforcement actions and statutes and granting rights to illegal aliens than any benefit we gained from the DAPA decision. It would have been much better had Congress fought Obama’s amnesty by refusing to fund the operation through agencies tasked with implementing it.

To begin with, the Court never addressed the DACA amnesty, and indeed, the lower courts and the Supreme Court refused to grant standing to ICE agents and states in their challenge of the 2012 amnesty. In fact, the Ninth Circuit has already legitimized and codified Deferred Action for Childhood Arrivals (DACA) by forcing states to issue driver’s licenses to recipients of that executive amnesty program. Also, while the Court was able to prevent Obama from issuing work permits and Social Security cards to DAPA recipients (DACA recipients, on the other hand, are still obtaining affirmative benefits to this day), no court can practically force Obama to actively resume deportations. And indeed, deportations — including those of criminal aliens — have dropped to a 9-year low.

Moreover, the fact that four justices could blissfully allow a president to violate the sovereignty of a nation and Congress’ plenary power over immigration, especially when these same individuals strike down constitutional laws on a regular basis, is scandalous. The dirty little secret is that conservatives were lucky that Texas Attorney General Ken Paxton was able to shop this issue to one of the few remaining conservative district and appellate courts in order to achieve this victory. Almost any other circuit would have ruled the other way, even though King George himself lacked the power to implement what Obama did without Parliament.

This is where the National Immigration Law Center (NILC), a leviathan of thousands of open borders litigators funded by George Soros and the Ford Foundation, sees a major play down the field. Given that the Supreme Court was deadlocked, NILC is maintaining that District Judge Hanen’s injunction should only be valid within the jurisdiction of the 26 states that were plaintiffs in the lawsuit.[1] As such, the NILC has sued on behalf of Martin Jonathan Batalla Vidal, an illegal alien from Mexico who resides in New York and was a recipient of DACA. He is now suing to have his work authorization extended for three years, pursuant to Obama’s expansion of DACA under the November 2014 DAPA amnesty, which was put on ice following Judge Hanen’s injunction.

Here are the details, according to Law360 (subscription required):

Batalla Vidal has been issued a two-year employment authorization, according to the suit. However, he had initially been given a three-year period of deferred deportation and work authorization, and saw that three-year work authorization rescinded in May 2015, due to the injunction, the complaint states.

“Through this lawsuit, Batalla Vidal seeks reinstatement of his three-year work permit because its revocation on the basis of the overbroad injunction was unlawful,” NILC said in its statement. “Furthermore, by challenging the scope of the Texas injunction, the lawsuit could lead to the reinstatement of DAPA and expanded DACA for millions of families in states that are not part of the Texas lawsuit.”

For now, I’ll leave to others the general legal question over whether a lower court’s injunction against a national policy automatically applies to states that were not a party to a litigation. The real question is how illegal aliens can even get standing in court to openly sue for affirmative rights against longstanding congressional statutes governing sovereignty?

As Justice Felix Frankfurter observed, the notion that immigration policy is “entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government…"[2] “[T]here is not merely 'a page of history'… but a whole volume,” wrote Frankfurter, that any alien not legally domiciled in this country is as if he is standing outside our soil as it relates to due process rights or judicial review to overturn a deportation, much less get standing in court to demand affirmative privileges such as work authorization and Social Security cards.

Yet, if the plaintiff is able to get a hearing before a liberal judge in the Eastern District of New York, a favorable decision would likely be upheld by the Second Circuit Court of Appeals, which is full of post-constitutionalists. Thus, if Congress fails to stand its ground, the one benefit we’ve ever gotten from court intervention in immigration might be overturned.

In the irony of all ironies a recipient of DACA might get standing to bring back DAPA — all because ICE agents, states, and taxpayers couldn’t get standing to bring a lawsuit against Obama’s original executive amnesty.

[1] The 26 states are: Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin.

[2] Galvan v. Press 347 US 531–32 (1954). This case involved the deportation of a legalMexican immigrant who had lived in America for more than thirty years, but was expelled for being a member of the Communist Party. How much more so an illegal alien who is here against the national will has no right to sue for affirmative rights. What better authority on this subject than Justice Robert Jackson, the famous Nuremberg prosecutor who was a champion of due process rights ( he wrote the dissent in Korematsu v. United States, the Japanese internment case) and regarded as one of the greatest writers of his time? Here is what he had to say: “Due process does not invest any alien with a right to enter the United States, nor confer on those admitted the right to remain against the national will.” Shaughnessy v. Mezei, 345 US 222-223 (1953) (Jackson, J., dissenting).

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