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.

About David Leopold
Past President American Immigration Lawyers Association (AILA), In-the-Trenches practicing immigration Attorney, Blogger, Activist, Photographer, Educator, World Traveler. All opinions are my own.

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