The administration contends that the law grants the executive branch the prosecutorial discretion to prioritize who should be removed from the country. It also claims that the states lack legal standing to challenge its immigration program.
But the administration faces long odds in the Fifth Circuit. In May, a three-judge panel of the court denied the administration’s request to stay Judge Hanen’s injunction while the two sides continued to battle it out in court, concluding in a 2-1 ruling that “the government is unlikely to succeed on the merits of its appeal.”
The two Fifth Circuit judges who sided against the administration in May, Republican appointees Jerry E. Smith and Jennifer Walker Elrod, are among the three judges who will consider the follow-up appeal. They will be joined by Carolyn Dineen King, who was appointed by Democratic President Jimmy Carter and is new to the case.
Legal experts said the case likely will wind up before the Supreme Court and could ultimately land back in Judge Hanen’s court.
Ahead of Friday’s hearing, pro-immigrant activists from across the country descended on New Orleans for what is expected to be the biggest demonstration since the president’s plan landed in court.
“In New Orleans I am representing my family and millions of other families in the same situation,” said Elizabeth Rodriguez, 26, who traveled to the city from Los Angeles. She said that she and her three siblings were born in the U.S. and attend college, but their father has been in the country for three decades without legal status.
Advocates said they want to remind 2016 presidential contenders that many U.S.-born children of illegal immigrants will be eligible to vote for the first time in the next election.
“We have been mobilizing our communities to ensure we send a strong message to Democrats, Republicans and the country that we are going to fight,” said Cristina Jimenez, managing director of United We Dream, which represents undocumented youth.