Judge won’t back down on executive amnesty injunction ruling

‘Instead of removing individuals who are violating the INA, the new program rewards them with legal presence and a whole host of benefits’

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judge andrew hanenBROWNSVILLE, Texas – On Tuesday, April 7, U.S. District Court Judge Andrew Hanen (r), for the Southern District of Texas, denied the federal government’s (government) emergency motion to stay his Feb. 16, 2015 order of temporary injunction halting the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and the 2014 amendments to the Deferred Action for Childhood Arrivals (DACA) program established via a Nov. 20, 2014 memorandum by Department of Homeland Security (DHS) Secretary Jeh Johnson.

Just prior to the government filing its Feb. 23 emergency motion to stay the injunction, basically asking the court to reconsider its decision to issue a preliminary injunction, it filed a notice of appeal to the Fifth Circuit Court of Appeals.

The complaint, initially filed by the state of Texas, was joined by 25 other states, including Arizona (states).

In their response, after learning DHS had already begun implementing the new programs, which granted benefits to illegal aliens, the states complained that the government misled them and the court as to when and how parts of the DHS directive would be implemented.

The plaintiffs sought sanctions against the government and asked the court to strike the the government’s pleadings.

Hanen found the remedial measure taken by counsel for the government through the filing of a March 3, 2015 “advisory” was neither prompt nor fully candid, and stated, “Despite this, a sanction as severe as striking the government’s pleadings, while perhaps merited based upon the government’s misconduct, would not at this juncture be in the interests of justice or in the best interest of this country.”

Hanen stated the issues contested in this case are of national importance, and the outcome will affect millions of individuals and said, “The parties’ arguments should be decided on their relative merits according to the law, not clouded by outside allegations that may or may not bear on the ultimate issues in this lawsuit.”

While Hanen did not rule out imposing some other sanction in response to the government’s misrepresentations made to the court, he declined to strike their pleadings.

After reviewing the government’s motion and the state’s response, which were discussed during a March 19 hearing, Hanen said he remains convinced the court’s original findings and rulings issued on Feb. 16 were correct.

Hanen stated, “In fact, for many of the reasons stated below, the decisions reached previously by this court have been reinforced.”

Bringing up a town hall meeting on immigration held after the court granted the preliminary injunction, Hanen quoted an exchange between the president and an individual upset over a deportation action.

The president stated, “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.”

Jose Diaz-Balzart, the moderator, asked, “But what are the consequences? Because how do you ensure that ICE agents or border patrol won’t be deporting people like this?”

President Obama responded, “Jose, look, the bottom line is, is 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 …

“In the U.S. military, when you get an order, you’re expected to follow it. It doesn’t mean everybody follows the order. If they don’t, they’ve got a problem. And the same is going to be true with respect to the policies that we’re putting forward.”

Hanen points out the president’s message is clear in that the immigration laws those officials are charged with enforcing, are not to be enforced when those laws conflict with the 2014 DHS Directive, the criteria set out in the directive are mandatory and if officials fail to follow the specified criteria, there will be consequences.

“In summary, Hanen stated, “the Chief Executive has ordered that the laws requiring removal of illegal aliens that conflict with the 2014 DHS Directive are not to be enforced, and that anyone who attempts to do so will be punished.”

Hanen stated this is not merely ineffective enforcement but rather total non-enforcement, applicable to millions of people.

He went on to provide an example: “If one limits the directive just to putative DAPA recipients, this is an order by the president to not enforce the law as to approximately 4.5 million people – the rough equivalent of the population of the state of Louisiana, and a population larger than the populations of 25 of the 50 states. In fact, 13 of the 25 plaintiff states have populations that are less than the number of illegal immigrants estimated to receive the benefits accompanying ‘legal presence’ under the 2014 DHD Directive.”

Hanen said the president’s statements have “obvious significance to this case.”

He went on to explain how the president’s explanation of the DHS Directive concerning the applicability of the Administrative Procedures Act (APA) was also important.

Hanen said it corroborated the court’s finding that employees charged with implementing this new program are without discretion, since the criteria under the DHS Directive for both programs are fixed and binding on DHS employees.

And, according to the president, those employees who attempt to exercise discretion by varying from the criteria set forth in the directive will suffer consequences.

So, rather than a general statement of policy or general guidance to DHS employees, the directive is mandatory and easily characterized as a substantive or legislative rule under the APA, one that requires vetting under the process established by the APA.

Hanen stated, “If there were any claim that the 2014 DHS Directive does not adopt a new position inconsistent with the Immigration and Nationality Act (INA), the president’s comments also lay that argument to rest. Instead of removing individuals who are violating the INA, the new program rewards them with legal presence and a whole host of benefits. Yet, while the law-breaker is rewarded, any officer or agent who attempts to enforce the law as enacted will be made to suffer the consequences. This is a sea-change under anyone’s definition: the law-breaker receives a myriad of benefits and the law enforcement officer suffers adverse ramifications.”

He said the directive is not only contrary to existing immigration legislation but an unprecedented executive action by even the agency’s own account, as noted by the president’s remarks in a Nov. 25, 2014 press release on immigration when he announced to the nation that he “took an action to change the law.”

The court found giving removable aliens benefits, including tax and Social Security benefits, is certainly a new policy, which, at the very least should be afforded notice and comment under the APA.

The government acknowledged its strategy is to provide certain benefits as an incentive for individuals to apply for DAPA, while confirming that offering these incentives is not an act of prosecutorial discretion.

The government also argued because the court found standing as to Texas and omitted specific findings as to injuries suffered by other states, the injunction should apply only to Texas.

However, Hanen stated that argument is contrary to both the Constitution and arguments the government has recently made before other courts, in which it argued Arizona’s laws affecting illegal immigrants disrupted the comprehensive federal scheme, which requires a uniform Rule of Naturalization and uniform laws on the subject of Bankruptcies throughout the United States.

In denying the government’s request to limit the injunction to apply only to Texas, Hanen stated, “[I]f the government violates the procedural dictates of the APA, that violation affects the entire nation, not just the one state that points out the violation.”

Hanen found no pressing, emergent need for this program and said if there had been such a need, the DHS could have implemented the program at any time in the last five or 10 years, or even in the many decades preceding the 2014 DHS Directive.

In fact, he stated the government had not shown any credible reason for why the directive necessitated immediate implementation.

Because any award of monetary damages to the plaintiffs would, at least in large part, be paid for by the plaintiffs, Hanen stated, “Therefore, it is irrefutable that, even if one assumes that the states’ future harm was solely monetary, an injunction would still be necessary to prevent irreparable harm to the states.

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