Politico (Opinion)
By Josh Gerstein
May 23, 2016
Immigrant rights advocates are positioning themselves to challenge to a judge's order last week that could result in thousands of immigrants who applied for an Obama administration "deferred action" program having their personal information divulged to state authorities.
Concluding that U.S. government lawyers made "multiple misrepresentations" to the court in a case over President Barack Obama's immigration-related executive actions, U.S. District Court Judge Andrew Hanen issued a withering and unusual order last Thursday requiring annual ethics classes and other measures for certain Justice Department attorneys appearing in courts in the 26 states who pursued a lawsuit over Obama's actions.
One provision in Hanen's order instructs the Justice Department to file with the court by June 10 "all personal identifiers and locators including names, addresses, [immigration] file numbers and all available contact information" for thousands of immigrants in 26 states. The judge said he plans to keep this information under seal, but might release it to the states if they can show "good cause" for him to do so, such as some "actual or imminent damage that could be minimized or prevented" by sharing it with the states.
That portion of the judge's order alarmed immigrant advocates, according to Nina Perales of the Mexican Legal Defense and Education Fund.
"We are very concerned because we don't think the judge can properly order those names to be filed with him as part of [his] sanction power" over the conduct of attorneys, Perales said Monday. "These young people are rightly concerned that information being filed with the court could be the preparatory step to releasing the personal information to the states....States have never been entitled to this information and they have absolutely no reason to request it."
It's unclear how many immigrants' information could be conveyed to the court if the judge's order is complied with. In broad terms, it applies to a subset of about 108,000 applicants for the Deferred Action for Childhood Arrivals program who were issued three-year work permits instead of two-year permits. Hanen's order barred issuance of the three-year permits, but the Department of Homeland Security kept issuing them anyway. The judge's order doesn't cover all 108,000 people involved in the foul-up, but only those who live in the 26 states protesting Obama's actions.
Perales and other lawyers reminded Hanen in a filing on Friday that a federal appeals court ruled last year that three of their clients should be given party status in the fight between the 26 states and the federal government. That status could allow them to appeal the judges' sanctions order against the Justice Department even if Justice does not.
"It's the only way we could appeal," Perales said. "What if DOJ makes a strategic decision not to object or fight the order? .. .We also don't know what credibility DOJ has left in front of Judge Hanen. We feel it's very important we participate as parties."
Still, the three women the appeals court said should get party status are unnamed "Jane Does" who were hoping to take part in the initiative Obama announced for parents of U.S. citizens and green card holders, known as Deferred Action for Parents of Americans or "DAPA." That never took effect because Hanen blocked it last year.
However, the individuals whose information could be turned over to Hanen and possibly some states were part of the Deferred Action for Childhood Arrivals program or "DACA," which got underway in 2012. Hanen blocked an expansion of that program but did not shut down new applications under the original program criteria or renewals of work permits for the two-year duration established in 2014.
A spokesman for the Justice Department would not say Monday what the agency plans to do about Hanen's order, including the immigrant data disclosure provision, but said the issue is under internal discussion.
"We strongly disagree with the judge’s order. We’re reviewing our options for responding," spokesman Patrick Rodenbush said.
A spokeswoman for the Texas Attorney General's Office, which took the lead role against the U.S. in the case, did not immediately respond to a request for comment on its plans for the data disclosure Hanen ordered.
At a an earlier hearing in the case, a lawyer for Texas suggested the state could use the data to try to cancel or reissue drivers' licenses for immigrants who got erroneous three-year work permits and try to replace their licenses with ones set to expire at the end of the two-year window, Perales said. Some states could also try to use the data to take away in-state tuition rates at state colleges and universities, but Texas wouldn't be in a position to do that because it allows all undocumented immigrants who reside in the state to get in-state rates, the civil rights lawyer added.
The appeal of Hanen's order last year blocking the expanded executive actions is currently under review by the Supreme Court. A decision is expected by the end of June. Hanen said in his order last week that he won't "entertain" any requests for states for the applicant data until the justices have ruled in the case.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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