And why he’s one of the greatest threats to DACA
There are, unfortunately, many appointed and elected officials across the U.S. who have made a career out of enacting anti-immigrant policy. But as far as activist federal judges go, perhaps none stand out like Judge Andrew Hanen of the United States District Court for the Southern District of Texas. Appointed by former President George W. Bush and confirmed by the Senate in 2002, Hanen has time and time again used his position to try and dismantle progressive immigration policies — and his allies on the xenophobic right have repeatedly looked to him for anti-immigrant rulings and injunctions.
Hanen’s rulings have more than once been described as bizarre and unreasonably harmful to immigrants. Many of his decisions have made headlines for their unusual nature, including an intrusive order for the government to turn over the names, addresses, and “all available contact information” for over 100,000 immigrants, and a decision demanding hundreds of government lawyers — most of whom had never appeared in his courtroom — to attend remedial ethics classes.
However, he is undoubtedly most well-known for his rulings on the Deferred Action on Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA) programs, where he used his power to dismantle or try to dismantle both policies. Even now, after the June 2020 Supreme Court DACA decision, Judge Hanen and his cohorts are part of continuing legal assaults against the program.
Background and early anti-immigrant opinions
It did not take long for Hanen to establish himself as a voice for the GOP’s anti-immigrant agenda. Fairly early on in the Obama administration, Hanen began demonstrating a clear contempt for Obama’s immigration policies and became notorious for using rulings to provide unusually disdainful commentary that went beyond the immediate issues at hand.
For example, in U.S. v. Nava-Martinez (2013), Hanen felt compelled to write a ten-page ruling blasting federal immigration policy and calling parts of the federal immigration apparatus “shameful”, despite the fact that his assertions were not relevant to the case. He accused Obama’s Department of Homeland Security of being complicit with drug cartels to smuggle children across the border — because DHS delivered migrant children who arrived at the border to their parents in the U.S.* But Hanen’s written opinion was scorched-earth — and foreshadowing of the way future president Donald Trump would soon talk about immigrants — comparing the parents to drug dealers and complaining about why the parents weren’t deported after reunification. In Hanen’s eyes, reuniting migrant children to their parents was:
…as logical as taking illegal drugs or weapons that it has seized from smugglers and delivering them to the criminals who initially solicited their illegal importation/exportation.
And in U.S. v. Ramirez (2014), when Ben Aris Ramirez, a migrant from El Salvador, received Convention Against Torture (CAT) protection against deportation and applied to Judge Hanen to relocate within the United States — a routine matter — Hanen issued a 24-page opinion that included sweeping anti-immigrant statements while citing little evidence:
[This] Court is happy to envision Main Street America as a melting pot of races, religions, creeds, and ethnic backgrounds…. That picture of diversity, however, [will be] much different… if the Government’s current brush strokes continue to color the canvas…. [T]he picture being painted will include a diverse variety of felons and violent criminals.
With these anti-immigrant rulings and the overtly political delivery, Hanen made a name for himself as a go-to conservative and anti-immigrant judge. Orly Taitz, the “Birther Queen” who played a key role in the questioning of Obama’s citizenship, began filing lawsuits in Hanen’s court in 2014, and her fondness for Hanen was well-known.
Hanen and DAPA
In 2012, President Barack Obama — acknowledging pressure from immigrant youth and other immigration activists — created the DACA program, which allowed young immigrants known as “Dreamers” to legally work in the U.S. while being protected from deportation. In 2014, Obama enacted a similar program, DAPA, for the immigrant parents of children who were legal permanent residents or U.S. citizens. (DAPA was announced alongside an expansion of the 2012 program, called DACA+.) The legal rationale for both programs involved the executive branch’s powers of prosecutorial discretion, i.e. the choice to not deport some immigrants if they had not committed any major crimes. Hundreds of immigration law professors and experts agreed that both programs were constitutional.
Twenty-six states, however, led by Texas and its Attorney General Ken Paxton, filed a lawsuit in the Federal District Court for the Southern District of Texas — clearly hoping to draw the now-infamous Hanen as a judge so that they could stop DAPA and DACA+ from being implemented. Their judicial strategy was organized and led by the same cast of characters that drafted and passed Arizona’s SB 1070 and other notorious anti-immigrant legislation, and Hanen played an integral part. As Professor Stephen Legomsky, a former general counsel to U.S. Citizenship and Immigration Services (USCIS), wrote:
By suing in Brownsville, Texas’s lawyers knew they were likely to land Judge Andrew Hanen, whose earlier vitriolic condemnations of President Obama’s immigration enforcement policies made him an inviting decision-maker. They also knew that the inevitable appeal would have to be filed with the Fifth Circuit, the nation’s most politically conservative federal appeals court.
Indeed, when Hanen was assigned the case, Stephen Dinan at the Washington Times noted the significance by writing that Texas and the other states “have already won the first round in court.”
Hanen issued a preliminary injunction against DAPA and DACA+ in February 2015, blocking both programs from further implementation nationwide. The ruling was considered to be extremist, activist, and an overreach for a number of reasons, including:
- Hanen struggled on the question of whether Texas even had standing, and commentators found his ruling that the state would be hurt if it had to give some undocumented immigrants driver’s licenses preposterous.
- Making the injunction nationwide harmed immigrants living far from Texas, who might have begun filing the paperwork to obtain legal status if Hanen hadn’t prevented them. As U.S. District Judge Nicholas G. Garaufis in New York wrote, “How does [a federal judge] issue a nationwide injunction if someone comes to him with a claim that affects the rights of people in [another state] who have not been before the court, when there’s been no hearing….That doesn’t sound like justice to me.”
- An identical case filed by famed anti-immigrant Sheriff Joe Arpaio in Arizona was dismissed in December 2014. U.S. District Judge Beryl Howell wrote in that opinion, “The role of the Judiciary is to resolve cases and controversies properly brought by parties with a concrete and particularized injury — not to engage in policy making better left to the political branches.” The case in Hanen’s court should have met the same fate.
- Hanen was once again abrasive and inappropriately political in the ruling. As law professor Anil Kalhan wrote, “Texas v. United States reads more like a document written to intervene in political debates than a judicial opinion carefully analyzing legal issues arising from DACA and DAPA.”
The Obama administration appealed to the Fifth Circuit, saying that they were well within the executive branch’s discretionary power to enforce existing immigration law. However, as one of the most conservative circuit courts in the nation, the court reaffirmed Judge Hanen’s decision.
The Fifth Circuit Court decision was then appealed to the U.S. Supreme Court in 2016. The case came at a time when there were only 8 Supreme Court Judges present following Justice Antonin Scalia’s death. The court did not reach a majority decision (4-4), thus, the lower courts’ decision to block DAPA and DACA+ remained.
DACA after the 2020 Supreme Court ruling
Going forward, Judge Hanen, Texas Attorney General Ken Paxton, and a lawsuit in Hanen’s U.S. District Court for the Southern District of Texas continue to be a threat to the DACA program (the original DACA program this time), even though the Supreme Court handed DACA a win in June 2020.
DACA has been on life support since the beginning of the Trump administration, and you can read a more complete summary of what’s been happening with DACA over the last three years here. In September 2017, then-Attorney General Jeff Sessions announced that the Trump administration would be ending DACA, throwing the lives of hundreds of thousands of immigrant youth into chaos and potentially exposing them to the threat of deportation.
Over the next few months, advocates and legal challenges pushed back the DACA rescission, arguing that the Trump administration had acted unlawfully in suddenly trying to end the program. Three U.S. district courts — in California, New York, and Washington, D.C. — handed down nationwide injunctions blocking the Trump administration from completely rescinding DACA. As a result, DACA recipients who already had DACA could continue to renew their paperwork (DACA papers are only valid for two years at a time), but no new applicants could seek to obtain DACA.
On May 2018, Texas, Ken Paxton, and six other states — note the severe drop-off between the number of states that had signed on to attack DAPA versus DACA — became impatient with this status quo, despite the fact that legal challenges were still pending and the whole issue seemed bound for the Supreme Court. Fewer than 700,000 immigrant youth nationwide had DACA at this point, and new applications were prohibited. Still, Texas (alongside Alabama, Arkansas, Louisiana, Nebraska, South Carolina and West Virginia) filed a new legal challenge in the Southern District of Texas, hoping to speed up the ending of DACA. And they once again drew Hanen as a judge.
Their petition was aggressive. It called for the court to “immediately rescind and cancel all DACA permits currently in existence because they are unlawful,” which might have immediately led to immigrant youth falling out of status, losing their ability to legally work overnight, and leaving them at risk of deportation. Thankfully — in a somewhat surprising decision — Hanen declined to issue a preliminary injunction as he had on DAPA, saying that with DACA, the “egg has already been scrambled” and that to “try to put it back in the shell with only a preliminary injunction record, and perhaps at great risk to many, does not make sense nor serve the best interests of this country.” However, Hanen did note that the Texas case is “likely to prevail on the merits of their argument that DACA is unlawful.”
It’s this case — Texas v. Nielsen — that is still pending in Hanen’s court, and which presents one of the greatest threats to DACA going forward. In June 2020, the Supreme Court ruled against the Trump administration’s decision to end DACA, saying that the 2017 rescission was “arbitrary and capricious”. However, the ruling left an opening for the Trump administration to try again, provided that a new rescission contain better legal reasoning (and it appears the Trump administration is currently trying to end DACA again). And, the Supreme Court ruling potentially gave the Texas case a boost. As NBC News wrote:
One question in the Texas lawsuit is whether DACA is merely an exercise of discretion in deciding how to enforce the law. The Obama administration originally described it that way…
If that’s what DACA is, then it would be harder for the states to win in court, because the executive branch has broad authority to set its own enforcement priorities. But Roberts’ majority opinion said the program is different. “DACA is not simply a nonenforcement policy,” he wrote…”It created a program for conferring affirmative immigration relief.”
For that reason, Tom Goldstein, a Washington lawyer who argues frequently before the court and publishes SCOTUSblog, said the Texas case is a far bigger threat to the program than any renewed effort by the White House to shut it down.
Hanen gave lawyers in both sides of the Texas case until July 24 — last week — to file reports on how they think the Supreme Court decision will affect Texas v. Nielsen. A timetable for resuming the case is presumed to follow. Unfortunately, unlike any future Trump attempts to end DACA, the Texas case cannot be sidestepped by an election and a change in administration. Hanen’s record and past rulings indicate that he will rule against DACA, sooner or later, once again throwing the program and the lives of its recipients into disarray. As we’ve long said on the long-term future of Dreamers, permanent legislation from Congress is needed to protect immigrant youth. And it may be needed fast, given not only the threat from the Trump administration, but from Texas and the infamous Judge Hanen as well.
* This was an allowed policy under the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, passed by the Bush administration and only applicable to parents without criminal records.
“Finding Judge Hanen: How U.S. v. Texas Began” (August 2016)
“A Coordinated Attack: Judge Hanen and the Nativist Lawsuit Against DAPA and DACA” (January 2015)