No surprise from 5th Circuit on immigration, but Judge Hanen’s reliance on “sublime intelligences” exposed

Yesterday, in a 2/1 split decision, a three judge motions panel of the 5th circuit appeals court refused to lift the injunction placed on President Obama’s immigration executive actions last February by Texas Judge Andrew Hanen. Hanen’s order temporarily blocked the implementation of DACA expansion and DAPA, which offer an estimated 5 million undocumented DREAMers and parents a chance to apply for a brief temporary reprieve from deportation.  The Obama administration had asked the 5th circuit panel to temporarily lift the injunction while the court heard the full appeal of Hanen’s ruling.

Yesterday’s refusal to lift the injunction comes as no surprise.  The 5th Circuit Appeals court is considered by many to be the most conservative federal appeals court in the county and the two Republican appointed judges who declined to lift the stay, Jerry E. Smith and Jennifer Walker Elrod, are among the most conservative judges on the court. In a very narrowly tailored opinion they reasoned that the State of Texas would be harmed as a result of increased driver’s license costs due to DAPA and that the executive actions likely violate the technical rule making requirements of the Administrative Procedures Act.

But the real news yesterday was the powerful, well-reasoned dissent of Judge Higginson, an Obama appointee, who reminded his colleagues in no uncertain terms that Texas’ complaint against President Obama’s deferred action programs should be thrown out of court.  “I would hold,” Higgenson wrote, “that Supreme Court and Fifth Circuit caselaw forecloses plaintiffs’ arguments challenging in court this internal executive enforcement guideline.”

Higgenson didn’t stop there.  Using respectful, even deferential, language, he took aim not at his colleagues, but at Judge Hanen, the Brownsville Texas judge who’d entered the injunction at the request of the Republican Governors and Attorneys General who’d filed the case in his courtroom.   With the deft use of genteel prose Higginson hammered Hanen hard, all but calling him out for playing fast and loose with the law and facts—something Professor Anil Kalhan has termed Hanen’s “Judicial Truthiness.”

In a particularly biting rebuke to Hanen’s claim that Obama’s November 20, 2014 deferred action memorandum constitutes a refusal to enforce the immigration law, Higginson wrote that Hanen’s “twofold extrapolation—focusing not on [the deferred action guidance] itself set against current law, but instead on an embellishment of it set against a perceived imperative to remove all illegal immigrants—rests on sublime intelligences.”

Wow.  That’s some strong stuff (and I had to look up the meaning of “sublime intelligences,” which is apparently a reference to a godly force). You rarely see language like that from one Judge describing the work of another Judge.

Unfortunately, Jerry Smith and Jennifer Elrod, the two judges who refused to lift the injunction, took the same confusing and circuitous route Hanen did to get to where they got.  That path required them to give short shrift to what Higginson described as “the four corners” of the deferred action guidance, coupled with inappropriate speculation and guesswork—speculation and guesswork which is necessary to success of the Texas litigation because, as Higginson observed, the executive actions on deportations have “yet to go into effect, and no evidentiary hearing was held, the record is underdeveloped and contains considerable conjecture, and conjecture is guided by feeling.”

As for the contention that the deferred action guidance does not permit case-by-case discretionary determinations by immigration agents and therefore runs afoul of the rule making requirements of the Administrative Procedures Act—a claim which is central to Hanen’s and the 5th circuit panel’s opinion—Higginson all but implored his GOP appointed colleagues to actually read the guidance—something which objective judges are supposed to do. He painstakingly summarized the language of the deferred action memorandum which repeatedly reminds immigration officers that Obama’s executive action is not an edict, but policy guidance which leaves the final enforcement decision to their discretion.  “No fewer than ten times”, Higginson wrote,

[T]he November 20, memorandum instructs immigration officers that: (1) “DHS must exercise prosecutorial discretion in the enforcement of the law”; (2) “[immigration laws] are not designed to be blindly enforced without consideration given to the individual circumstances of each case”; (3) “[d]eferred action is a form of prosecutorial discretion by which the Secretary deprioritizes an individual’s case for humanitarian reasons, administrative convenience, or in the interest of the Department’s overall enforcement mission”; (4) “deferred action is legally available so long as it is granted on a case-by-case, and it may be terminated at any time at the agency’s discretion”, (5) “[c]ase-by-case exercises of deferred action for children and long-standing members of the American society who are not enforcement priorities are in the Nation’s security and economic interests and make common sense”; (6) “this Department’s limited enforcement resources…must continue to be focused on those who represent threats to national security”; (7) “USCIS [should] establish a process, similar to DACA [2012], for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis”; (8) “ICE is further instructed to review pending removal cases…and to refer [certain] individuals to USCIS for case-by-case determinations”; (9) “immigration officers will be provided with specific eligibility criteria for deferred action, but the ultimate judgement as to whether an immigrant is granted deferred action will be determined ton a case-by-case basis”; and (10) “[i]t remains within the authority of the Executive Branch…to set forth policy for the exercise of prosecutorial discretion and deferred action…This memorandum is an exercise of that authority.”

Had Smith and Elrod focused on what the DACA expansion and DAPA guidance actually says—not what the GOP governors and attorneys general who brought the Texas lawsuit say it says—yesterday’s decision would have likely gone the other way and lifted Hanen’s injunction.  As Higginson reminded his two colleagues, seemingly out of frustration, the deferred action guidance is founded on well settled, long-standing principles of prosecutorial discretion which are firmly rooted in the law.  “On this record,” Higginson wrote, “as well as focusing below on the four corners off the November 20 [DACA expansion and DAPA guidance], I would say DHS is adhering to law, not derogating from it.”

When the 5th Circuit appeals court hears the full appeal on July 6 it will, of course, have to carefully consider the opinion of Judges Smith and Elrod. But the appeals court will also have to take into account Judge Higgenson’s authoritative dissent which instructs the court—and the public at large—in a clear, well-reasoned voice, that the GOP Texas lawsuit against DACA expansion and DAPA is nothing more than a partisan attack masquerading as a lawsuit. As Higginson wrote, “[t]he political nature of this dispute is clear from the names on the briefs…”

Importantly, Judge Higginson is not alone in his view that lawsuits attacking executive actions on deportations have no place in court.  In April another panel of the Fifth Circuit Court of Appeals upheld a decision from a lower court that ruled Mississippi lacked standing to challenge President Obama’s 2012 immigration executive action to protect DREAMers.  And in December of 2014, U.S. District Court Judge Beryl Howell “wasted little time dismissing a lawsuit brought by Maricopa County, Ariz., Sheriff Joe Arpaio against President Barack Obama’s November executive action.” The D.C. Court of Appeals has already heard arguments on that decision and is expected to issue a decision shortly.

No question, yesterday’s panel decision is a setback for mixed immigration status American families across the U.S. who fear losing a loved one to deportation. But it’s a delay, not the death knell for DACA expansion and DAPA.

And it’s certainly not last word on President Obama’s executive actions on deportations.

READ–>5th Circuit Appeals Ct opinion denying DOJ motion to temporarily lift hold on Obama #immigration action

–> 5th Circuit Decision Denying Request to Temporarily Lift Hold on Obama immigration executive acctions

Texas judge should heed his own advice in GOP lawsuit against #immigration executive action

Originally published on The Hill Congress Blog

U.S. District Judge Andrew Hanen of Brownsville

U.S. District Judge Andrew Hanen of Brownsville, TX

by David Leopold

On Friday, Judge Andrew Hanen, the Texas judge who was sought out by Republican governors and attorneys general to hear their immigration lawsuit against President Obama’s executive actions on deportations, filed a “Supplemental Order” to his earlier refusal to stay the injunction blocking Obama’s executive actions.

Of course federal district court judges like Hanen can pretty much issue any order they want. But, issuing a “Supplemental Order” on an already denied stay motion seems a bit unusual—particularly when the issue is already on appeal. And, it raises the question of why Hanen felt the need to issue a supplemental order; especially one that reads more like a blog in support of the GOP litigation then a serious legal document?

Hanan claims he wrote it to further address “statements made by the President to the effect that there would be consequences for any Executive Branch employee who did not follow the requirement of the November 20, 2014 DHS Directive”—a reference to comments Obama made at a Telemundo-sponsored Town Hall shortly after Hanen issued his injunction blocking DACA expansion and DAPA.
“[T]he bottom line is,” the president said, “that if somebody is working for ICE and there is a policy and they don’t follow the policy, there are going to be consequences to it.” Obama later went on to add:

We are now implementing a new prioritization. There are going to be some jurisdictions, and there may be individual ICE officials or Border Patrol who aren’t paying attention to our new directives. But they’re going to be answerable to the head of the Department of Homeland Security, because he’s been very clear about what our priorities should be. And I’ve been very clear about what our priorities should be.

According to Hanen he penned his supplemental order “solely to acknowledge the existence of congressional testimony that confirms the President’s statements.” Hanen was referring to the appearance of ICE Director Sarah R. Saldaña who testified before the House Judiciary Committee in mid-April and took heavy fire from Republicans intent on scoring cheap political points.

As he has done before in the Texas immigration case, Hanen jumped on Obama’s “there will be consequences” remark as smoking-gun evidence that the president has abdicated his duty to enforce the immigration law. The subtext couldn’t be more plain: The president, in his zeal to discard the law and tear up the constitution, has even gone so far as to threaten dedicated, hardworking immigration enforcement agents with unspecified, grave “consequences” for simply doing their jobs.

Hanen’s reference to the “November 20, 2014 DHS Directive” is as disingenuous as it is confusing. He refers to a single “DHS Directive”—implying that the president was threatening consequences for any agent who doesn’t grant an eligible immigrant deferred action under DACA expansion or DAPA. Yet he knows—or should know—that on November 20, 2014 the administration issued a series of guidance memoranda as part of the immigration executive actions including therevised DHS’ immigration enforcement priorities. As Hanen himself pointed out in his order blocking the deferred action programs, the immigration enforcement priorities—which direct immigration agents to prioritize the removal of threats to national security, border security and public safety before DREAMers and undocumented parents—are unquestionably legal and “not subject to judicial second-guessing.”

So it’s just as likely, if not more likely, that Obama was appropriately saying there would be consequences for any enforcement agent that ignored the DHS enforcement priorities—the legality of which Hanen himself does not dispute.

But clarity blurs the narrative of the brazenly political lawsuit filed by GOP politicians against the president’s executive actions. And it certainly does not serve Hanen’s contention that the deferred action guidance requires immigration agents to ignore the law, constituting an abdication of the administration’s obligation to enforce it.

Moreover, even if Obama did say what Hanen gropes to claim he said—that there will be consequences for any agent who fails to follow the DHS deferred action guidance—that still would not support Hanen’s contention that Obama was threatening to penalize any immigration agent that enforced the law. Nowhere does the DACA expansion or DACA guidance prohibit any executive branch employee from doing his or her job, including arresting, detaining and deporting an undocumented immigrant. To the contrary, the deferred action guidance—which is central to the implementation of the administration’s effort to prioritize the removal of dangerous criminals and national security threats—unequivocally leaves final enforcement decisions to immigration officers on a case-by-case basis and reminds agents that it conveys no pathway to citizenship or lawful immigration status to anyone.

In December of 2014, U.S. District Court Judge Beryl Howell “wasted little time dismissing a lawsuit brought by Maricopa County, Ariz., Sheriff Joe Arpaio against President Barack Obama’s November executive action.” In fact, Howell issued her ruling just over a month after the case was filed. The D.C. Court of Appeals has already heard arguments on that decision. The Fifth Circuit Court of Appeals recently upheld a decision from a lower court that ruled Mississippi lacked standing to challenge President Obama’s 2012 immigration executive action to protect DREAMers.

In other words, this is not a new issue and the precedent for the president’s actions is very strong.

In an earlier ruling Hanen wrote immigration reform is a “subject laced with controversy and is a matter of much political debate which is not the province of the judicial branch.” He’d be wise to heed his own advice. Instead it feels like he’s gone in the opposite direction.

Leopold is the former president of the American Immigration Lawyers Association.


From America’s Voice

Elizabeth, an Ohio mom of two young children, bravely served her country for ten years in the U.S. Military and was honorably discharged from the U.S. Marine Corps.

But in 2010, her country thanked her by deporting her husband, Marcos.

A heart-wrenching new video about Elizabeth’s story highlights the impact of deportations, which have not only devastated the immigrant community, but have torn apart spouses and children, many of whom are U.S. citizens and permanent residents.

Elizabeth has been a fierce advocate in Ohio’s booming immigrant community for years, most recently last year when she marched alongside Ricardo, a long-time Ohio resident who was facing imminent deportation.

The march was successful, and Ricardo was able to stay in his Ohio home with his family. But, Elizabeth and her two children have still been forced to try to build their lives without Marcos, and somehow remain a united Marine family.

As a U.S. citizen herself, Elizabeth thought her husband would be safe from deportation. But, a gargantuan deportation machine, combined with Congress’s failure to fix our broken immigration system, resulted in Marcos’s 2010 deportation to Mexico.

Late last year, the Obama Administration announced that it was changing its deportation priorities so that the spouses, children, and parents from other military families might be protected from deportation.

But, that move came too late for Elizabeth’s family.

This upcoming Monday, Elizabeth will again march, but this time to highlight her own family’s story (more information on this 20 mile, May 4th march is available here).

Elizabeth will be joined by scores of other Ohio leaders and community members, many of whom she supported in the past, and now want to see her family reunited, too.

“My home is what we had before he was deported,” Elizabeth says in her video. “I’m not going to live in a home again until he’s back. It’s just going to be living in a house as I’m waiting.”

Watch Elizabeth’s heartbreaking story below, and take action by signing her petition to reunite her family here.

#Immigration Enforcement Run Amok? 24-Year-Old Pleads With @DHSgov To Let Her Fly Back To #Australia

Originally posted on Huffington Post Politics by Elise FoleySARAH JANE MCCROHAN

WASHINGTON — Sarah Jane McCrohan, a 24-year-old Australian, says she stayed in the U.S. for about 11 hours longer than she was supposed to, and it’s landed her in detention for three weeks.

She was traveling from New York to Ottawa on March 26 to go to the Australian embassy when a Canadian border officer noted that she had been in the U.S. longer than the 90 days allotted by the Visa Waiver Program, according to McCrohan and her boyfriend, Chauncey Carter, who was with her at the time. The officer suggested they go back to the American side to sort it out, they said, and they wanted to do the right thing. The point of going to the Australian embassy was for McCrohan to speak to someone there about legal avenues for her to return — she said she hadn’t even realized she had overstayed and had intended to leave the U.S. on time.

So they turned around and went back to the American side of the border crossing. Once they got there, officers detained McCrohan, and she is now set to be deported to Australia.

McCrohan, her lawyer and her supporters aren’t disputing her removal, or that she stayed longer than she was supposed to, albeit unintentionally. But they say it’s absurd that she has been detained for so long based on a mistake.

“It’s such an innocent mistake, and they tried to leave,” said her attorney, David Leopold. “The worst thing you can say about her is maybe she should have planned her trip a little better. … We’re not talking about a significant overstay, we’re talking about a matter of hours.”

Immigration and Customs Enforcement spokesman Khaalid Walls said the agency chose not to exercise prosecutorial discretion and release McCrohan because “recent violators who, in the judgment of an ICE field office director, have abused the visa or Visa Waiver Programs” are a priority for removal.

“Additionally, under the Visa Waiver Program, Ms. McCrohan is subject to mandatory detention and her case is not eligible for immigration court hearings,” Walls said in an email. “She will remain in custody while the agency finalizes her removal.”

In a phone interview from the facility, McCrohan said she wanted to go home and that the uncertainty of not knowing when her detention would end was difficult.

“They give you a mythical date [for removal]. Like they say 10 days, but it’s been 21 days,” she said. “I don’t know anything.”

Gilles Carter, Chauncey’s father, said he offered to pay for her flight back to Australia.

“Yes, she overstayed her visa waiver,” he said. “Should that translate to jail time? In my view, that’s pretty close to insane.”

There will be other repercussions for the mistake when McCrohan gets back to Australia, because she will be barred from returning to the U.S. for a decade. The couple had been planning to travel the country in a refurbished school bus, which they named the Wandering Bus. The aim of the bus project was to give a positive image of the U.S. to the world, Carter said.

Now, their website says in large text that “the wandering has been put on ICE.”

The deportation will also make their lives difficult if they decide to get married. Chauncey Carter and McCrohan have been dating for about two and a half years after meeting at a restaurant management school in Switzerland, and he said he intends to marry her even if he can’t be with her in the U.S.

“This is the woman I want to spend my life with, and if I have to, I won’t do it in this country,” he said.

Obama’s appeal of the Texas GOP anti-#immigrant lawsuit remains strong

This morning the 5th Circuit announced the three judge panel that will hear the Obama Administration’s motion to stay (lift) Judge Hanen’s order temporarily blocking DACA expansion and DAPA; and, as expected, it’s a very conservative panel.  Ian Millhiser of described the panel—which includes, Judges Jerry E. Smith (Reagan appointee), Jennifer Walker Elrod (G.W. Bush appointee) and Stephen A. Higginson (Obama appointee)—this way:

Two members of the three-judge panel that will decide whether to reinstate these programs are extraordinarily conservative judges. One of them once described himself, admittedly somewhat jokingly, as a former ‘right-wing activist.’

But here’s the good news.  These judges are not likely to decide the Obama Administration’s full appeal.  Their job is to rule on the Administration’s motion to temporarily lift Judge Hanen’s order so DACA expansion and DAPA can begin to go forward while the 5th circuit appeals court decides the full appeal of the preliminary injunction.

Importantly, the April 17 hearing is not a hearing on the appeal of Judge Hanen’s preliminary injunction.  It is a hearing on the Obama Administration’s motion to stay (lift) the injunction while the court of appeals considers the appeal.  In effect, the Obama administration is asking is that the court of appeals stop Judge Hanen’s order from taking effect until it decides the entire appeal.  If this panel does not postpone the injunction it will be disappointing for sure, but it doesn’t mean the Obama Administration will have lost the appeal.  It will just mean the panel will have decided to continue to let Judge Hanen’s temporary delay of DACA expansion and DAPA stay in place while the 5th circuit considers the full appeal of Judge Hanen’s order temporarily blocking the President’s actions on deportation.

It’s confusing.  But the upshot is that while today’s announcement may be a Monday morning bummer, it’s hardly a death knell to the Obama Administration’s appeal or the underlying case .

The appeals court has not yet scheduled oral argument on the full appeal of the preliminary injunction itself. Nor has it released the names of the three judge panel that will hear it.  That should happen near the end of May or beginning of June once the parties are finished briefing the case.

Given the fast track briefing schedule, the 5th Circuit Court of Appeals could issue a decision on the Obama Administration’s full appeal of the preliminary injunction sometime in June or July.  That means that regardless of whether or not the Court of Appeals temporarily lifts the injunction after Friday’s hearing, if the Obama Administration wins the full appeal, DACA expansion and DAPA could be back on track this summer.

Finally, regardless of the makeup of this or the panel that hears the full appeal, the law and facts are solidly on the side of the President’s immigration executive actions.  As a panel of the 5th circuit recently emphasized in Crane vs Napolitano the law of standing–which is the major issue in this appeal–is designed to keep politics out of the courtroom. And a court should be especially careful, the 5th appeals court cautioned, when it’s being asked to decide that an executive policy is unconstitutional.

Stay tuned.

The beginning of the end of the GOP lawsuit against President Obama’s #immigration executive actions

Also posted at

No, the 5th circuit court of appeals has not issued a final decision in the lawsuit brought by the State of Texas and 26 other Republican Governors and Attorneys General against DACA expansion and DAPA.  But it did issue an opinion yesterday dismissing Crane vs. Napolitano, a challenge to the Administration’s 2012 DACA program.  The Crane lawsuit was filed by a several ICE agents and the State of Mississippi.

A three judge panel of the 5th Circuit Court of Appeals, (including two (2) GOP appointees), unanimously ruled that the lawsuit should be dismissed because the ICE agents and the State of Mississippi lacked standing to sue.  The 5th circuit concluded they could not show DACA caused them “concrete and particularized” injury which is a legal requirement for standing.  And while the case did not involve the Texas challenge to DAPA and DACA expansion, yesterday’s appeals court’s decision in Craneis enormously important to the Texas lawsuit for two reasons:

First, the 5th circuit emphasized that the law of standing is designed to keep politics out of the courtroom.  A court should be especially careful, so the 5th appeals court stated, when it’s being asked to decide that an executive policy is unconstitutional:

“’The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.’ ‘In keeping with the purpose of this doctrine, ‘[o]ur standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.’”

That’s directly applicable to Judge Hanen’s decision in the Texas case because he found the plaintiff states had standing to challenge the constitutionality of the President’s executive actions on deportations.  (Coincidentally, yesterday, Judge Hanen also refused to lift the stay of his injunction.The 5th Circuit holds a hearing on that very issue next Friday, April 17th and will soon hold a hearing on the injunction itself.)

Second, the 5th Circuit’s decision in Crane severely undercuts Judge Hanen’s opinion that DACA expansion and DAPA violate the technical rule making requirements of the Administrative Procedures Act.  To get there Judge Hanen concluded that executive actions did not allow for individualized, case-by-case decisions on deferred action.  In Crane the 5th Circuit pretty much eviscerated this theory stating:

The Napolitano Directive makes it clear that the Agents shall exercise their discretion in deciding to grant deferred action, and this judgment should be exercised on a case-by-case basis:

[Our Nation’s immigration laws] are not designed to be blindly enforced without consideration given to the individual circumstances of each case.


With respect to individuals who are encountered by U.S. Immigration and Customs Enforcement (ICE) . . . [and] who meet the above criteria, ICE . . . should immediately exercise their discretion, on an individual basis . . . .

(So much for Judge Hanen’s conclusion that DAPA and DACA expansion violate the rule making requirements of the APA)

And, while DAPA and DACA expansion were not before the appeals court in Crane, the Court nevertheless noted the programs’ similar case-by-case discretionary approach to deferred action:

The 2014 supplemental directive, which also supplements DACA, reinforces this approach to the application of deferred action:

Under any of the proposals outlined above, immigration officers will be provided specific eligibility criteria for deferred action, but the ultimate judgment as to whether an immigrant is granted deferred action will be determined on a case-by-case basis.

While Crane does not control the outcome of the Texas litigation, it’s certainly a very good sign for the 5 million DREAMers and undocumented parents who may be eligible to apply for a temporary deportation reprieve under the President’s executive actions.

It also shows what can happen when Judges leave their politics at the courtroom door.


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