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ICYMI: Department of Justice Responds to Judge Hanen’s “Out of Bounds” Order in Immigration Case

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Today, the Department of Justice responded to an orderissued earlier this month by Federal Judge Andrew Hanen in the immigration case under consideration at the U.S. Supreme Court. In a new Medium piece, David Leopold, an immigration attorney and former president of the American Immigration Lawyers Association, analyzes the Administration’s response to Judge Hanen’s blatant, bizarre overreach.

For more on the earlier order by Judge Hanen, see “The Madness of Judge Hanen” by Kica Matos, Director of Immigrant Rights and Racial Justice at the Center for Community Change Action.

Leopold’s full piece “The Obama Administration tells Judge Hanen he’s way out of bounds” is available on Medium here and follows below:

In a motion to stay filed earlier this morning the Department of Justice forcefully responded to an order issued earlier this month by Judge Andrew Hanen who presides over the GOP’s attack on President Obama’s immigration executive actions. This is an extremely unusual case. Rarely, does a federal district court judge issue any kind of order, particularly one that is so controversial, while the underlying case is awaiting a Supreme Court ruling.

Hanen, who has established quite a record of antipathy towards the Obama administration, had found — on pretty flimsy evidence — that the DOJ lawyers had intentionally misled him. Hanen focused on the issuance of 3 year work permits to DREAMers who had applied for renewal of their employment authorizations under DACA, the 2012 executive action for undocumented immigrants who arrived in the U.S. as children. A review of the case strongly suggestes that at most there was a misunderstanding between the DOJ lawyers and the court. But Hanen managed to expand and contort the underlying circumstances to find this perceived fault with DOJ.

Because of that, Hanen ordered, among other things, that hundreds of DOJ lawyers — the vast majority of whom never even set foot in Hanen’s courtroom — attend remedial ethics classes if they were to appear in state or federal court in any of the 26 states that have sued to block Obama’s immigration executive action. Hanen also seized the opportunity to effectively punish thousands and thousands of DACA 2012 recipients by ordering the DOJ to give him their sensitive personal information — including their file numbers and addresses. It’s important to remember that none of these DREAMers are a party to the Texas litigation or made any representation whatever to Hanen about anything.


In its motion the Administration asked Hanen to stay his order pending its imminent appeal to the 5th Circuit Appeals Court.

The DOJ minced no words with Hanen rebuking him for far exceeding “the bounds of appropriate remedies” and reminding him that his “power to sanction ‘is not a broad reservoir of power, ready at an imperial hand, but a limited source; an implied power squeezed from the need to make the court function.’” The DOJ told Hanen that “The Court’s exercise of its authority…went beyond this limitation.”

As to Hanen’s command that the personal information of DACA 2012 recipients be turned over to him under seal, DOJ made two central points. First, DOJ, relying on a declaration from US Citizenship and Immigration Services Director Leon Rodriguez, pointed out that that Hanen’s order will undermine public trust, particularly in the Department of Homeland Security’s ability to maintain confidential information submitted by immigrants, which is critical to the government’s ability to administer the immigration law:

[R]equiring DHS to produce “all personal identifiers” and “all available contact information” for approximately 50,000 individuals by June 10, 2016, could undermine public trust in DHS’s commitment to protecting the confidential information contained in immigration files and will create a significant burden. With respect to public trust, even though the information is to be provided under seal, the production of sensitive personal information in such large quantities would be very likely to undermine individuals’ trust in DHS’s ability to maintain the confidentiality of personal information provided to it, a trust that is essential to its mission.

Second, DOJ argued to Hanen that his order would substantially injure innocent DACA 2012 recipients who had nothing to do with the Texas immigration lawsuit:

[T]he order risks injury to tens of thousands of third parties who were brought to this country as children, and who are not parties to this litigation, in circumstances where the States have not identified harm that would justify such an intrusion. The urgency of providing private information about these 50,000 individuals is also unexplained; the information is contained in permanent DHS files, will remain available, and can be produced at a future time if warranted.

DOJ emphasized that Hanen’s order would impede DHS’s very ability to administer and enforce the immigration law.

In addition to the injury to these persons risked by the disclosure of their sensitive personal information, requiring the United States to produce that information to the Court and potentially to the States would deter aliens from providing the Government with personal information that is critical to the administration and enforcement of immigration laws in any number of circumstances. That includes, but is not limited to, participants in 2012 DACA (a policy which is unchallenged in this litigation) by undermining public confidence in the safety of personal information provided to DHS. Second, if not stayed the May 19 Order would require both DOJ and DHS to divert financial and personnel resources from their intended public purposes, to the detriment of the public interest.

DOJ also harshly criticized Hanen’s requirement that hundreds of DOJ attorneys — most of whom have nothing to do with the Texas immigration case — attend remedial ethics seminars for the next 5 years.

The Court’s Order also exceeds its authority because compelling the Attorney General to implement a prescribed supplementary program of legal ethics instruction for over 3,000 Department Attorneys unconnected to this case, and to appoint an official to implement the Court’s order, contravenes the Constitution’s separation of powers. “[I]f any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws.” By imposing a different standard as to the qualifications that Department of Justice attorneys must meet in order to appear on behalf of the United States in state and federal courts located in the twenty-six Plaintiff States, the Government respectfully submits that the Court has interfered with the Attorney General’s executive authority both to determine who will appear on behalf of the United States in litigation, see 28 U.S.C. § 517, and to direct the attorneys under her supervision in the performance of their duties, id. § 519. We therefore submit that the Court’s May 19 Order encroaches on central prerogatives of the Executive Branch as established by the Constitution and statutes, in violation of the separation of powers.

Hanen’s order is clearly an egregious abuse of judicial authority. By issuing an order which effectively punishes thousands and thousands of undocumented youth who came forward, submitted personal information and applied for DACA 2012, he has clearly shown anti-immigrant animus. Nobody who’s paid attention to this litigation can be assured of Hanen’s impartiality. He should do the right thing and recuse himself from presiding further over the litigation.

Nor should the irony of the DOJ having to file a motion asking Hanen to operate within the bounds of his constitutional authority be lost on anyone. I discussed this earlier today with Kerry Eleveld of the Daily Kos for her piece entitled, Justice Dept. asks erratic federal judge to stay his bizarre order on Obama’s immigration actions. Eleveld reported:

Immigration attorney and advocate David Leopold noted the inherent contradiction of the original lawsuit claiming the president had exceeded his executive authority when he created programs granting deportation relief to certain undocumented immigrants.

The irony here is the DOJ pointing out in the motion that the real power grab is by this judge,” Leopold explained, “that they have to run into court to show the judge how he has exceeded his constitutional authority.

Given Hanen’s track record, I harbor no illusions that he will grant the government’s motion to stay his bizarre order. The DOJ will likely be forced to seek review in the 5th Circuit Court of Appeals, probably later this week. That’s the same court that upheld Hanen’s misguided injunction blocking DAPA and DACA+ in late 2015.

Let’s hope that that this time the appellate court does the right thing, applies the law, and vitiates Hanen’s inappropriate order.