Though Federal judges in Texas decided not to overturn a lower court's decision blocking a hold on the execution of President Obama's recent immigration policy initiatives, there may be some problems with the majority's decision, Professor Anil Kalhan told Law360 in a May 27 article (account required). 

The case before the Texas federal appeals court involves two new policies executed by President Obama that seek to defer deportation for child immigrants and their parents, Law360 reported. Earlier, Kalhan was not optimistic that the court would overturn an existing court decision to stay the execution, and now that it has reached that result, Kalhan questions the rationality of the majority's opinion.

For example, the court lumped the doctrine of "lawful presence" - temporary and government revocable permission to stay in the U.S. - with the more permanent legal authority to stay proposed by the Obama initiatives, Kalhan argued. “They sort of just roll it all into one,” Kalhan said. “As if by labeling what these programs do as giving lawful presence — which isn't really a thing in the way that they describe it — they're just acting as if this is somewhat different from the form of deferred action that individuals have been getting for a long time.”

Kalhan also claimed that the decision might conflict with previous immigration rulings made in Crane v. Johnson.  “Whether it's flatly inconsistent or not, there is some tension,” Kalhan said. “And that might be a reason why the full circuit sitting en banc might want to hear this case."

Professor Kalhan is an expert on immigration law, criminal law, U.S. and comparative constitutional law, privacy and surveillance, and international human rights law. Before coming to Drexel, he was a litigation associate at Cleary, Gottlieb, Steen & Hamilton, where he served as co-coordinator of the firm’s immigration and international human rights pro bono practice group.