Video: Judge denies WH request to lift hold on executive-amnesty program

Pretty please with sugar on it didn’t work with Judge Andrew Hanen, apparently. The federal judge who slapped a hold on Barack Obama’s executive amnesty plans refused to budge on it, telling the Department of Justice that there was no pressing need to proceed while other issues get adjudicated. Hanen also did a little more slapping with DoJ lawyers over alleged misconduct in the case:


A federal judge in Texas late Tuesday kept a temporary hold on President Barack Obama’s executive action that sought to shield millions of immigrants from deportation, rejecting a U.S. Department of Justice request that he allow the action to go ahead.

U.S. District Judge Andrew Hanen in Brownsville refused to lift the preliminary injunction he granted on Feb. 16 at the request of 26 states that oppose Obama’s action. …

In his order Tuesday denying the government’s request, Hanen said the government hasn’t “shown any credible reason for why this Directive necessitates immediate implementation.”

Hanen wasn’t finished, though. The judge issued an order demanding the production of all records surrounding an advisory issued after the initial stay that the DoJ had filed with the court. Hanen accused Justice attorneys of misleading him on the nature of the executive amnesty program and its status, and Buzzfeed’s Chris Geidner calls this second order a bigger deal than it seems:

The March advisory concerns a small, but substantial change to the previous deportation deferral program that Obama implemented in 2012, called Deferred Action for Childhood Arrivals (DACA). Although the government had not granted any deferrals to undocumented immigrants covered only by the expanded terms of the 2014 actions yet, the advisory granted three-year deferrals to those eligible under the 2012 terms of DACA. Previously, only two-year deferrals were allowed, but the 2014 order allows for three-year deferrals.

The states raised questions about whether these actions conflicted with the federal government’s previous statements in the case; the government had said that it would take no actions regarding the 2014 changes until Feb. 18. The federal government has argued that its representations to the court were only intended to mean no actions would be taken as to the expanded class of people covered by the program.

The states disagreed and asked Hanen to allow additional discovery, or evidence-gathering, about the issue.

In granting additional discovery on Tuesday night, Hanen harshly criticized the federal government’s actions — clearly siding with the states on this side-issue.


Even “harsh” may understate the language in Hanen’s order:

Clearly, if a “clarification” on any ongoing actions taken by the DHS was ever necessary, which of course it was, this was the time. Silence here, and then later during the scheduling discussion, was misleading. Whether by ignorance, omission, purposeful misdirection, or because they were misled by their clients, the attorneys for the Government misrepresented the facts. The Court, relying on counsels’ representations, not only gave the Government extra time for its briefing, but it also took February 18, 2015, as the agreed-upon date by which to rule on the motion for a temporary injunction.  …

The explanation by Defendants’ counsel for their conduct after the fact is even more troublesome for the Court. Counsel told the Court during its latest hearing that she was unaware that these 2014 DACA amendments were at issue until she read the Court’s February 16, 2015 Order of Temporary Injunction and Memorandum Opinion and Order (referred to jointly as the “February Opinion”). [Hr’g Tr. 16, Mar. 19, 2015]. Counsel then claimed that the Government took “prompt” remedial action. This assertion is belied by the facts. Even if one were to assume that counsel was unaware that the 2014 DACA amendments in their entirety were at issue until reading this Court’s February Opinion, the factual scenario still does not suggest candor on the part of the Government. The February Opinion was issued late in the evening on February 16, 2015 (based on the representation that “nothing” would happen on DAPA or revised DACA until at least February 18, 2015). As the February Opinion was finalized and filed at night, counsel could not have been expected to review it until the next day; yet, for the next two weeks, the Government did nothing to inform the Court of the 108,081 revised DACA approvals. Instead, less than a week later, on February 23, 2015, the Government filed a Motion to Stay and a Notice of Appeal. Despite having had almost a week to disclose the truth―or correct any omission, misunderstanding, confusion, or misrepresentation―the Government did not act promptly; instead it again did nothing. Surely, an advisory to this Court (or even to the Court of Appeals) could have been included in either document filed during this time period. Yet, counsel for the Government said nothing.

Mysteriously, what was included in the Government’s February 23, 2015 Motion to Stay was a request that this Court rule on the Motion “by the close of business on Wednesday, February 25 . . . .” ―in other words, within two days. [Doc. No. 150 at 7]. Had the Court complied with this request, it would have cut off the States’ right to file any kind of reply. If this Court had ruled according to the Government’s requested schedule, it would have ruled without the Court or the States knowing that the Government had granted 108,081 applications pursuant to the revised DACA despite its multiple representations to the contrary. While this Court is skeptical that the Government’s attorneys could have reasonably believed that the DACA amendments contained in the 2014 DHS Directive were not at issue prior to the injunction hearing on January 15, 2015, this Court finds it even less conceivable that the Government could have thought so after the January 15, 2015 hearing, given the interplay between the Court and counsel at that hearing. Regardless, by their own admission, the Government’s lawyers knew about it at least as of February 17, 2015. Yet, they stood silent. Even worse, they urged this Court to rule before disclosing that the Government had already issued 108,081 three-year renewals under the 2014 DACA amendments despite their statements to the contrary [italics in original].

Another week passed after the Motion to Stay was filed and still the Government stood mute. On February 24, 2015, this Court gave the States until 5:00 p.m. on March 3, 2015, to file a reply to the Motion to Stay. Still, the Government’s lawyers were silent. The States filed their response on March 3, 2015, at 4:46 p.m. CST. Finally, after waiting two weeks, and after the States had filed their reply, the Government lawyers filed their Advisory that same night at 6:57 p.m. CST. Thus, even under the most charitable interpretation of these circumstances, and based solely upon what counsel for the Government told the Court, the Government knew its representations had created “confusion,” but kept quiet about it for two weeks while simultaneously pressing this Court to rule on the merits of its motion. At the March 19, 2015 hearing, counsel for the Government repeatedly stated to the Court that they had acted “promptly” to clarify any “confusion” they may have caused. But the facts clearly show these statements to be disingenuous. The Government did anything but act “promptly” to clarify the Government-created “confusion.”


Hanen briefly discusses dismissing the case with prejudice, which would allow the states to prevail without any further legal debate, but dispenses with that option. The nation deserves to have this conflict resolved in court, Hanen decides, despite the fraud committed on the court in this instance. Instead, he granted the states extra discovery, and demanded a full accounting from the DoJ and DHS of not just what happened, but who knew about it, too.

The Fifth Circuit gets to hear an appeal on the injunction in ten days. One would presume that the appellate court will not be amused by the shenanigans perpetrated by the DoJ and DHS in Hanen’s court. The injunction might be around for a very long time as a result.

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David Strom 5:30 PM | March 04, 2024