BY LINDA BENTLEY | DECEMBER 23, 2014
Obama appointee dismisses Arpaio’s quest to halt amnesty plan
WASHINGTON – Oral arguments were held on Monday before U.S. District Judge Beryl Howell, after she agreed to Attorney Larry Klayman’s (r) request for an expedited preliminary injunction hearing to halt President Barack Obama’s executive amnesty programs.
On Tuesday, however, Howell, who was appointed by Obama in 2010, granted the defendants’ motion to dismiss, citing lack of subject matter jurisdiction, and denied Arpaio’s motion for a preliminary injunction.
Klayman filed the complaint on Nov. 20 on behalf of his client Maricopa County Sheriff Joe Arpaio, the same day Obama announced his executive action to effectively grant legal status to approximately five million illegal aliens, despite previously stating, on more than 20 separate occasions, he lacked the authority to take such action.
In contesting the defendants’ request for more time to respond, Klayman, founder of Freedom Watch, who ran up against the same proposed unreasonable delay tactics by the U.S. Department of Justice in his case against the National Security Administration, quoted U.S. District Judge Richard Leon, who said in that case, “We work 24/7 around this courthouse. I don’t want to hear anything about vacations, weddings, days off. Forget about it. This is a case at the pinnacle of public national interest, pinnacle. All hands 24/7. No excuses. You got a team of lawyers. Mr. Klayman is alone apparently. You have litigated cases in this courthouse when it is matters of this consequence and enormity. You know how this court operates.”
Although defendants argued time was not of the essence because defendants’ executive action programs do not take immediate effect, Klayman stated, “On the contrary,” and said Department of Homeland Security (DHS) Secretary Jeh Johnson’s several memoranda issued Nov. 20, 2014 are orders issued to DHS having immediate effects, with no limitation as to the orders by Johnson to department employees and officials being implemented in the future rather than immediately.
Klayman noted the only mention of timing has to do with accepting applications from foreign nationals illegally present in the United States within 180 days of the Nov. 20 memoranda.
He wrote, “To begin accepting applications no later than 180 days from Nov. 20, 2014, perhaps sooner but not later than 180 days in any event, DHS and U.S. Customs and Immigration Services (USCIS) in particular would be expected to begin preparations immediately.”
Klayman also quoted from the USCIS website, which stated under next steps: “USCIS and other agencies and offices are responsible for implementing these initiatives as soon as possible. Some initiatives will be implemented over the next several months and some will take longer.”
Additionally, the memoranda orders direct DHS personnel, including Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) to immediately suspend enforcement of immigration laws with regard to any individuals who appear eligible for the new deferred action programs, even though they may not yet be able to apply for formal recognition.
ICE and CBP were instructed via the memoranda to “immediately begin identifying persons in their custody, as well as newly encountered individuals, who meet the above criteria and may thus be eligible for deferred action to prevent the further expenditure of enforcement resources with regard to these individuals.”
Klayman also points out defendants have already leased office workspace just outside of Arlington, Va. for 1,000 new DHS workers to process the estimated five million applications expected.
According to the Washington Times, the Obama administration has already posted job openings – formal requests for applications – for 1,000 new government workers with salaries up to $157,000 per year to process amnesty requests for approximately six million illegal aliens and DHS has already leased space in Arlington for these 1,000 new bureaucrats to do their work processing applications.
Klayman stated, “It should be noted as an aside that these plans put the lie to DHS’ claims to prosecutorial discretion.”
DHS is hiring temporary workers to process the deferred action applications and Klayman asserts they are neither experienced nor permanent officials or employees of the department.
“Clearly these temporary hires processing paperwork are not going to be making professional case-by-case decisions about deferred action applicants based on specialized expertise of the department, but are simply going to rubber stamp and approve all applications that present the required paperwork and meet a checklist of the criteria announced in the Memoranda."
He points out government resources may be wasted if the programs proceed but are later found to be invalid legally or unconstitutional and, by contrast, delaying implementation until a court decision is reached, no such harm will occur.
While a preliminary injunction would apply more weakly to the approximately 612,000 illegal aliens, mostly in their thirties, that have already received DACA (Deferred Action for Childhood Arrivals) status and authorization to work, which Arpaio believes was provided unlawfully, Klayman stated the court could still issue a preliminary injunction in those instances.
He argued, at the minimum, DHS should be ordered to stop issuing any new DACA amnesty, work permits or renewal of their DACA status and employment authorization cards until after the court determines whether DACA status is legally valid and constitutional.
After the hearing, Klayman stated, “"On behalf of our client, Sheriff Arpaio (l), we are very pleased that the judge held an expedited preliminary injunction hearing. This was important because as we speak, millions of illegal aliens are in the process of being granted amnesty. As presented to the court, a large number of these illegal aliens will be back onto the streets of Maricopa County and the nation as a whole. Many of these illegals are repeat criminal offenders. This puts a great strain on the resources of Sheriff Arpaio's office and endangers the people of Maricopa County."
Although he hoped for a positive ruling, Klayman stated the case is likely to go to the Supreme Court, the final arbiter of whether the president's actions are constitutional or not.
He said, “On behalf of Sheriff Arpaio, we thank Judge Howell for conducting a very professional and rapid hearing in the interest of justice.”
In her 33-page opinion, Howell stated, “The plaintiff’s suit raises important questions regarding the nation’s immigration policies, which affect the lives of millions of individuals and their families. The wisdom and legality of these policies deserve careful and reasoned consideration.”
However, she went on to state, “The key question in this case … concerns the appropriate forum for where this national conversation should occur.”
Stating, “Concerns over the judicial role are heightened when the issue before the court involves, as here, enforcement of the immigration laws. This subject raises the stakes of, among other factors, “immediate human concerns” and policy choices that bear on this Nation’s international relations.”
According to Howell, “Halting these deferred action programs would inhibit the ability of DHS to focus on its statutorily proscribed enforcement priorities (national security, border security, and public safety) and would upset the expectations of the DACA program’s participants and the potentially eligible participants in the other challenged programs when none of those participants are currently before this court.”
Immediately following Howell’s order dismissing the case, Arpaio filed a notice of appeal to the D.C. Circuit Court.
