Audio of Oral Argument in DAPA Moms' Intervention Bid in CA5

Allissa Wickham, Law360, July 10, 2015 - "A Fifth Circuit panel seemed open Friday to a bid by three immigrant mothers to intervene in the high-profile suit over the president’s executive actions, in an oral argument session that highlighted the federal government’s alleged credibility troubles with the Texas judge overseeing the case.  [Link to audio here.]

Before hearing arguments on whether to reverse the block on President Barack Obama’s new deferred deportation policies, a Fifth Circuit panel considered the appeal of three immigrant moms from South Texas, who are hoping to intervene in the suit.

Identified as “Jane Does,” each of the immigrant women are eligible for the new deferred deportation program for parents created by the president’s actions, referred to as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA.

Although the district court brusquely shot down the women’s intervention bid in February after finding their interests were adequately represented by the federal government, the Fifth Circuit panel seemed more open to the idea of officially letting them into the case.

Judge Jerry Smith said he believed the Fifth Circuit has taken a “more expansive view of intervention” than other appeals courts, and said it seemed to him that “our court has a record of being fairly generous on interventions such as this.”

Nina Perales of the Mexican American Legal Defense and Educational Fund, who is representing the women, argued that they have a direct interest in the suit, since the mothers have a stake in staying in their communities and maintaining custody of their children. The federal government, on the other hand, does not represent the women in their desire to stay in the U.S., she said.

“And in fact, if the Does were ever placed into removal proceedings, not only would the federal government not be defending them, it would be the federal government that would be prosecuting them,” Perales argued.

Perales also raised a recent July 7 order from U.S. District Judge Andrew Hanen, who is overseeing Texas' suit challenging the executive actions, in which the judge slammed the federal government for its “cavalier attitude” toward fixing its violation of his February injunction on the immigration policies.

Judge Hanen’s order further shows that “the federal government has suffered a severe loss of credibility and cannot defend the Jane Does interests,” according to Perales.

Alex Potapov, an Assistant Solicitor General for Texas, argued on behalf of the 26 states suing over the executive actions that the women aren’t entitled to intervene because the federal government can represent their interests in the suit.

Potapov also argued that although the district court has sharply criticized the federal government, none of the criticism has to do with its ability to put forth legal arguments in support of DAPA.

“We think that there’s a very strong presumption that with [the federal government’s] tremendous resources and their tremendous cache, they’re able to adequately defend the adequacy of a federal program,” Potapov said. “So even if a private litigant’s credibility might be irretrievably tarnished, the same might not be true for the Department of Justice.”

Judge Smith replied, however, that he did “not understand that argument at all.”

Judge Jennifer Walker Elrod also brought up the credibility issue with Beth Brinkmann, the attorney representing the U.S. Department of Justice, after she rose to argue against intervention.

“But certainly it’s highly unusual for a federal district court to say that the government’s conduct is unacceptable and completely unprofessional, isn’t it?” Elrod said. “And wouldn’t that highly unusual circumstance bode for the would-be intervenors?”

Brinkmann replied that the DOJ believes the government attorneys have behaved with professionalism, blaming the drama at the lower court level on miscommunication with the court.

Judge Carolyn Dineen King also sat on the panel, and while she didn’t ask many questions, the judge did prompt Perales to reiterate her theory of why the Does should be able to intervene at the end of the hearing.

Immediately following oral arguments in the immigrant women’s case, the considered whether to grant the DOJ’s bid to reverse Judge Hanen’s block on the executive actions, in a lengthy hearing that was punctuated by the sounds of protesters outside the courthouse.

The immigrants are represented by Nina Perales of the Mexican American Legal Defense and Educational Fund, Adam P. KohSweeney and Gabriel Markoff of O'Melveny & Myers LLP, and Linda Smith of DLA Piper.

The federal government is represented by Kyle R. Freeny, Hector G. Bladuell, Bradley H. Cohen, Adam D. Kirschner and Julie S. Saltman of the U.S. Department of Justice's Civil Division.

The states are represented by J. Campbell Barker of the Texas Office of the Solicitor General.

The case is Texas et al. v. U.S. et al., case number 15-40333, in the U.S. Court of Appeals for the Fifth Circuit."