Think Progress
By Ian Millhiser
May 20, 2016
A federal judge with a history of anti-immigrant sentiment ordered the federal government to turn over the names, addresses and “all available contact information” of over 100,000 immigrants living within the United States. He does so in a strange order that quotes extensively from movie scripts and that alleges a conspiracy of attorneys “somewhere in the halls of the Justice Department whose identities are unknown to this Court.”
It appears to be, as several immigration advocates noted shortly after the order was handed down, an effort to intimidate immigrants who benefit from certain Obama administration programs from participating in those programs, lest their personal information be turned over to people who wish them harm. As Greisa Martinez, Advocacy Director for United We Dream, said in a statement, the judge is “asking for the personal information of young people just to whip up fear” — fear, no doubt, of what could happen if anti-immigrant state officials got their hands on this information. Or if the information became public.
The judge is Andrew Hanen, who conservative attorneys opposed to President Obama’s immigration policies appear to have sought out specifically because of his belief that America does not treat immigrants with sufficient hostility. Texas v. United States was filed shortly after President Obama announced policy changes that would permit close to 5 million undocumented immigrants to temporarily work and remain in the country. As the name of the case suggests, the lead plaintiff is the State of Texas, yet the Texas Attorney General’s office did not file this case in Austin, the state’s capitol. Instead, they filed it over five hours away in the town of Brownsville.
At the time, only one active federal judge, Judge Hanen, sat in Brownsville, so the attorneys’ decision to file their case nearly 300 miles away meant that it was highly likely that the case would be assigned to a judge that once accused federal officials of engaging in a “dangerous course of action” because they permitted an undocumented mother to be reunited with her child without facing criminal charges. Hanen later issued a nationwide order halting the Obama administration’s new policies.
The fate of those policies is now before the Supreme Court, which appeared divided about their legality when it heard arguments in the case last April. Hanen’s attempt to dox tens of thousands of immigrants emerged from a sideshow that is only tangentially related to the core issue of whether the Obama administration’s programs are legal.
The case centers around a Department of Homeland Security directive that called for three changes to American immigration policy that are relevant to this case. The first is that it created a new program, called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which, as the name suggests, primarily benefits undocumented parents of citizens and lawful permanent residents. The second is that the directive expanded an existing program, Deferred Action for Childhood Arrivals (DACA), which primarily serves undocumented immigrants who came to the United States as children. Under this expansion, some immigrants who previously were ineligible for relief under DACA may now apply for the program.
The legality of DAPA and this expansion of DACA (but not the underlying DACA program itself) are now before the Supreme Court.
Hanen’s doxing order arises out of a third, less consequential policy change described in the DHS directive. Before the directive, DACA beneficiaries had to reapply every two years. Under the directive, they need to reapply every three years.
At an early stage in the litigation, the plaintiffs’ attorneys and Judge Hanen asked Justice Department lawyers whether aspects of the directive would be implemented prior to a January hearing date, and the DOJ attorneys responded that “I really would not expect anything between now and the date of the hearing.” The Justice Department made similar statements at later points in the case. At that time, DAPA and expanded DACA were not yet being implemented, but the shift from two years between DACA renewals to three years was already under way.
Hanen claims that the Justice Department attorneys intentionally deceived him by not mentioning the fact that the amount of time afforded to DACA beneficiaries had changed. The Justice Department claims that, at most, they misunderstood what Hanen was asking for. They believed that Hanen was only asking about the dates when DAPA and expanded DACA would be implemented, and not about the shift from two to three years. This distinction matters because, while deliberately misleading a court is a very serious ethical breach, misunderstanding a question is not.
DOJ’s Explanation
In a brief filed in Hanen’s court, the Justice Department attorneys offer their version of events. For one thing, if the government was trying to hide the date when DACA beneficiaries started receiving extensions, they did a very poor job of it. The DHS directive explicitly states that the shift from two to three years “shall apply to all first-time applications as well as all applications for renewal effective November 24, 2014,” well before the January 2015 hearing date. Expanded DACA, by contrast, would be implemented “at an unspecified time ‘no later than [90] days,'” after the issuance of the directive, and DAPA would be implemented “no later than [180] days” after the directive.
At the very least, DOJ’s brief offers a plausible narrative that does not require the reader to assume that the Obama administration chose to staff one of the most important cases of the Obama presidency with a team of idiots.
Because the date of the shift from two to three years was stated explicitly in the document at the very heart of this case, while the date when DAPA and expanded DACA would be implemented was left ambiguous, DOJ claims that, when Hanen expressed uncertainty regarding implementation dates, they thought he was only expressing uncertainty regarding dates that were actually uncertain.
Additionally, the Justice Department explains, “the crux” of the plaintiffs’ arguments “was on the effects of the expansion of the deferred action guidelines to include additional categories of aliens,” not on whether immigrants who were already eligible for deferred action would receive it for two or three years — a fact that DOJ suggests led it to believe that they were being asked about the issues that were at the heart of the case.
Similarly, DOJ made the contested statements at a time when the plaintiffs were seeking a form of temporary relief that requires them to show “irreparable impact.” As DOJ argues, “the difference between a three-year versus a two-year deferral would not be felt until at least 2016, when a two-year deferral would otherwise end.” Accordingly, “the parties would have a period of nearly two years to litigate and resolve the merits of the case (even on a non-expedited schedule) before the third year of any three-year DACA deferral could have even an arguable irreparable impact on the Plaintiffs.”
In any event, this case ultimately turns upon the specific state of mind held by certain individuals when they made certain statements, so it is difficult to verify what the Justice Department’s attorneys believed they were being asked to disclose to Judge Hanen. It’s possible that a team of federal litigators, some of whom are quite senior, collectively decided to risk their case, their careers, and their license to practice law by intentionally lying to a judge about a piece of information that was right at the judge’s fingertips.
Yet, at the very least, DOJ’s brief offers a plausible narrative that does not require the reader to assume that the Obama administration chose to staff one of the most important cases of the Obama presidency with a team of idiots.
Punishing The Innocent
But let’s assume, for the sake of argument, that Hanen is correct and that the Justice Department’s actions must be viewed in the most sinister light possible. An additional mystery is why Hanen decided to punish literally tens of thousands of individuals who are not before his court and who had nothing to do with any statements made by the particular attorneys in this case.
Hanen’s order calls for two sets of sanctions against the Justice Department. The first requires the government to turn over the personal information — including addresses — of every single one of the more than 100,000 DACA beneficiaries that received a three-year renewal or approval. Though Hanen will initially keep this information under seal, he adds that he shall “on a showing of good cause . . . release the list or a portion thereof to” state authorities in one of the 26 states that sued the administration to halt DAPA and expanded DACA.
Additionally, Hanen ordered potentially hundreds of attorneys to attend remedial courses, regardless of whether those lawyers have ever appeared in his courtroom or even set foot in the state of Texas. Under his order, every single lawyer “employed at the Justice Department in Washington, D.C. who appears, or seeks to appear, in a court (state or federal) in any of the 26 Plaintiff States” must “annually attend a legal ethics course.” The Attorney General must appoint someone to provide annual reports to Hanen for five years, which must include “the name of the lawyer, the court in which the individual appeared, the date of the appearance and the time and location of the ethics program attended.” And, in case that’s not enough, he also ordered the Attorney General herself to “report to this Court in sixty (60) days with a comprehensive plan to prevent” the alleged misconduct that Hanen believes happened in his courtroom “from ever occurring again.”
So What Now?
The Justice Department will almost certainly appeal Hanen’s order to the United States Court of Appeals for the Fifth Circuit or, if necessary, the Supreme Court. Unfortunately for DOJ, the Fifth Circuit is a conservative court and the Texas case has twice wound up in front of an especially conservative panel of Fifth Circuit judges. One of these judges has his own history of issuing questionable sanctions against the Obama administration.
Nevertheless, Hanen’s order is sufficiently unusual that it may cause even these judges to blink. Judges, after all, are lawyers. And many of them know what it is like to be on the receiving end of a judge who seems to have it in for you.
An open question is whether the Justice Department will file a motion to remove Hanen from the case. Federal law states that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned,” and appeals courts have, on rare occasions, cited this provision to remove judges from cases where their actions create an “appearance of partiality.”
Ordinarily, attorneys do not file such motions, as such motions are not usually granted and they anger the judge. In this case, however, it does not appear that the Justice Department has anything to lose.
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