American Constitution Society (Op-ed)
By Shoba Sivaprasad Wadhia
May 23, 2016
On May 19, 2016, Judge Andrew Hanen issued an unusual 28-page order scolding the Department of Justice for making statements that in the view of Judge Hanen were misleading. The order alleges that Department of Justice attorneys deceived the court about its activity surrounding two deferred action programs announced by President Obama on Nov. 20, 2014. Deferred action is one form of prosecutorial discretion in immigration law that temporarily protects the government’s lowest priorities from deportation. The 2014 deferred action programs would modify the 2012 Deferred Action for Childhood Arrivals (DACA) program and establish a similar program known as Deferred Action for Parents of Americans and Lawful Permanent Residents for qualifying parents who lack a formal legal status. The allegation by Judge Hanen is that the government erroneously granted DACA renewal applications for three years pursuant to the 2014 Directive (DACA +) as opposed to the two-year period contemplated under 2012 DACA.
Much of the press coverage on Judge Hanen’s May 19 order has focused on the order’s scolding. But equally, if not more alarming, are the implications of Judge Hanen’s demand on the Department of Justice to provide a list of individuals granted DACA under the 2014 directive. According to the order: “This list should include all personal identifiers and locators names, addresses, “A” file numbers and all available contact information, together with the date the three-year renewal of approval was granted.” If the order has a legal effect, unleashing a list of names and A-numbers raises privacy concerns and has the potential to instill greater fear in a community that is already vulnerable to the delay caused by the Texas litigation and announcements by the government to use raids as a tool to detain and deport adults and children who purportedly fall within its enforcement priorities. Judge Hanen has also ordered “any attorney employed at the Justice Department in D.C. who appears, or seeks to appear in a court (state of federal) in any of the 26 Plaintiff states annually attend a legal ethics course”, believing himself that Justice attorneys have failed to comply with their ethical duties during the course of the Texas litigation.
A real conversation about the ethics of the Texas litigation should cover the distortions made by the Plaintiff states and lower courts around the history and legal foundation to implement the 2014 deferred action programs. The 123-page opinion issued by the district court on Feb. 16, 2015 and authored by Judge Hanen contained misrepresentations about immigration law and policy, some of which were memorialized in a letter signed by 104 scholars and teachers of immigration law who identified the opinion as “deeply flawed.” As one example, the letter criticizes the district court’s characterization of deferred action as lacking statutory authority and beyond the scope of prosecutorial discretion – despite the ample authority held by the Department of Homeland Security to operate a deferred action program. Subsequent to the district court opinion, oral arguments were heard by a three-judge panel at the Fifth Circuit Court of Appeals and again displayed great confusion around the terms lawful presence, deferred action, and employment authorization to name a few. As I described earlier:
Mildly frustrating were the flaws made by the state of Texas like calling DAPA a change in law and pointing to the administration for failing to abide by the congressional statute. Absent from this argument was the statutory authority for prosecutorial discretion decisions by DHS like section 103(a) of the Immigration and Nationality Act and the additional legal authorities and history for deferred action in immigration law. Likewise, Texas argued that there is “no” statute or rule that allows the government to grant lawful presence and yet there is a clear definition for (un)lawful presence in immigration law and reams of guidance documents about how this statute should be applied. Finally and consistent with how arguments have been expressed in written briefs, the state of Texas relied on the rate of denials under the 2012 DACA program to suggest that there is no discretion in the not-yet-operational DAPA program, an argument that cannot be reconciled with the fact that discretion cannot rest on the rate of denials alone, and certainly not without evidence about how the program is being processed.
Left unsaid by the May 19 order are the sharp political motivations behind the Texas litigation. As described by Anil Kalhan: “… [J]udicial truthiness has enabled the devolution of the litigation process into partisan politics by other means. The Republican plaintiffs self-consciously filed their lawsuit in Brownsville, Texas to steer its assignment to Judge Andrew S. Hanen—an outspoken critic of the Obama administration’s immigration policies.” All eyes are on the Supreme Court to determine how this story ends—at least in the short term.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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