By Ian Millhiser
May 31, 2016
Judge Andrew Hanen wants to make America great again.
Hanen is the trial judge in a lawsuit challenging two major Obama administration immigration policies. He appears to have been handpicked to hear this case by the attorneys challenging these policies due to Hanen’s record of advocacy for harsher immigration policies. The judge not only halted the policies, he recently ordered the federal government to turn over the personal information — including home addresses — of tens of thousands of immigrants, and ordered hundreds of Justice Department lawyers who have never even appeared in his courtroom to attend remedial ethics classes.
Needless to say, this places the DOJ attorneys litigating this case in an awkward position. Lawyers are trained to be deferential almost to the point of obsequiousness towards judges, and for good reason. A judge who respects the attorneys who practice before them will be more likely to take those lawyers’ arguments seriously. A judge who despises those attorneys can make their life a living hell.
But what is a lawyer to do once it is clear that a judge already despises them? That’s the difficult question the Justice Department team trying to defend administration programs that would allow about 5 million undocumented immigrants to temporarily work and remain in the country began to answer in a motion filed in Hanen’s court on Tuesday.
Earlier this month, Hanen accused those lawyers of intentionally deceiving him about a minor issue in the case (DOJ claims that it merely misunderstood some of Hanen’s questions). After claiming that these lawyers lied to him, Hanen used that finding as the basis for an order punishing tens of thousands of people who have never appeared in his courtroom.
The motion DOJ filed on Tuesday asks Hanen to stay that order -- something Hanen is exceedingly unlikely to agree to. Nevertheless, the Justice Department must make this undoubtedly futile attempt to seek Hanen's mercy because of a federal rule which provides that "a party must ordinarily move first in the district court” for “a stay of the judgment or order of a district court pending appeal.”
The Justice Department's motion is most notable for what it does not contain. For one thing, the motion offers only a bare skeleton of the Justice Department's explanation of why Hanen was wrong to conclude that he was deceived, as well as why Hanen failed to "provide necessary procedural protections" before punishing tens of thousands of people not before his court. That's likely a sign that the Justice Department knows that fully litigating these points before Hanen is pointless, so they just need offer the roughest outline of these arguments in order to preserve them for an appeal.
Significantly, the motion also is not accompanied by a motion to remove Hanen from this case. Under federal law, a judge must remove themselves from a case when their "impartiality might reasonably be questioned" or when they have "a personal bias or prejudice concerning a party." Hanen's apparent animus towards undocumented immigrants predates this case -- he once accused the federal government of engaging in a “dangerous course of action” because it allowed an undocumented mother to be united with her child without facing criminal charges. His order to dox tens of thousands of immigrants that he does not even have jurisdiction over raises serious questions about whether he is capable of setting aside his own personal prejudices in order to adjudicate this case fairly.
It remains to be seen whether DOJ will seek to disqualify Hanen at a later date. The fact that they have not yet sought his disqualification could be a sign that they believe that it is strategic to continue to play nice even as Hanen tries to grind them into the ground, but it could also merely be strategic judgment to get Hanen's ruling on the stay motion before the Justice Department angers him even more by declaring him unfit to hear this case.
Though the Justice Department's motion seeking a stay is short, it does spend a fair amount of time emphasizing the likely impact of Hanen's decision to dox undocumented immigrants who benefit from another Obama administration program that is not before Hanen's court. This doxxing "could irrevocably breach the confidence of these individuals . . . in the privacy of such records," the Justice Department explains, and that loss of confidence could permanently hobble many unrelated federal programs.
As a declaration filed by Director of U.S. Citizenship and Immigration Services León Rodríguez explains, Hanen's doxxing order "would require an unprecedented breach of USCIS’s longstanding commitment to zealously guard the private and sensitive information of the millions of persons who provide such information for an array of immigration adjudications," and that, in turn "would have a chilling effect on the willingness of individuals to seek a wide range of immigration benefits from USCIS and to provide all information necessary for USCIS to adjudicate their petitions, applications, and requests."
Indeed, many immigration advocates fear that Hanen views such a chilling effect as a feature, and not a bug, in his order. As one advocate said shortly after the order was handed down, the judge is "asking for the personal information of young people just to whip up fear.”
It should be noted that Hanen's order does say that the immigrants' personal information will be held under seal if it is turned over to the judge, although that seal is unlikely to quell the fears of immigrants subjected to this dox attack. Hanen's order explicitly contemplates that the information could be released to state authorities, and the fact that it may be held for a while under seal is likely to be little comfort to immigrants who know that the only thing preventing that seal from being broken is the Donald Trump of the federal judiciary.
For more information, go to: www.beverlyhillsimmigrationlaw.com