The U.S. government asked a federal judge Monday to lift a temporary hold on President Obama’s executive action to protect millions of immigrants from deportation, Fox News has confirmed.
Justice Department lawyers requested a “stay” to delay a federal judge’s decision to block Obama’s immigration order, which legally allows 5 million immigrants to stay in the country.
DOJ lawyers filed the motion for a stay with the court of US District Judge Andrew Hanen in Brownsville, Texas. Last week Hanen issued a preliminary injunction for 26 states suing the US government to stop Obama's executive action on immigration.
The states, led by Texas, have argued Obama's action is unconstitutional and would force increased state investment in law enforcement, health care and education.
The Justice Department is asking Hanen to put his ruling on hold while the federal government appeals the decision. If the stay were to be granted, Obama's immigration action would be allowed to go forward while the lawsuit proceeds through the courts.
Obama announced the executive action in November, saying lack of action by Congress forced him to make sweeping changes to immigration rules on his own. Republicans, who say Obama has overstepped his authority, are blocking funding for the Department of Homeland Security unless Democrats agree to cancel Obama's order.
It is not unheard of for judges to delay rulings they have issued. Last year, a federal judge ruled Texas' same-sex marriage ban unconstitutional but put his decision on hold to allow the state to appeal. But legal experts say it is unlikely Hanen will put his ruling on hold, because he wrote in his 123-page court order that states would "suffer irreparable harm in this case" if Obama's actions on immigration were to proceed while the lawsuit is argued.
"Based on (Hanen's) language, it stands to reason that if you stay this order then those harms would start to accrue and that's the whole point of him enjoining the order in the first place," said Pratheepan Gulasekaram, a constitutional and immigration law professor at Santa Clara University School of Law in California.
The first of Obama's orders -- to expand a program that protects young immigrants from deportation if they were brought to the U.S. illegally as children -- had been set to start taking effect Feb. 18. The other major part of Obama's order, which extends deportation protections to parents of U.S. citizens and permanent residents who have been in the country for some years, was not expected to begin until May 19.
If Hanen denies the motion for a stay, the Justice Department was expected to take its request to the 5th U.S. Circuit Court of Appeals in New Orleans. Hanen is expected to issue a ruling on the stay by 5 p.m. Wednesday.
But Lourdes Martinez, an attorney with the Immigrant Legal Resource Center in San Francisco said the 5th Circuit is known to be fairly conservative, and is likely to also deny the request for a stay. The request for a stay could ultimately end up before the U.S. Supreme Court.
The stay request is separate from an appeal the federal government is expected to file with the 5th Circuit over Hanen's ruling. That appeal, once filed, would likely take anywhere from four to nine months to be ruled upon, Gulasekaram said.
Fox News' Jake Gibson and The Associated Press contributed to this report.