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ICYMI: “An Undocumented Immigrant Challenges Judge Hanen’s Nationwide Hold on DAPA and DACA+”

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David Leopold Explains the Details and Implications in New Medium Piece

new Medium piece from immigration attorney David Leopold draws attention to a pressing legal question following the U.S. Supreme Court’s 4–4 tie in the U.S. vs. Texas immigration case: does Judge Andrew Hanen’s nationwide hold apply outside of the 5th circuit?

Leopold highlights the challenge filed recently by Martin Jonathan Batalla Vidal, a long-time resident of New York City and DACA beneficiary who has been harmed by Judge Hanen’s injunction against three year work permits.  Vidal has asked the U.S. District Court for the Eastern District of New York to declare that Hanen’s “nationwide” injunction against DAPA and DACA+ should not apply to immigrants who live outside the 5th circuit – as Leopold writes, “in effect asking the court to issue an injunction against Hanen’s injunction.”

See below for David Leopold’s full Medium piece, titled, “An undocumented immigrant challenges Judge Hanen’s nationwide hold on DAPA and DACA+” – pasted below and available online here

In late June 2016, the U.S. Supreme Court issued a split decision in U.S. vs. Texas, the Republican challenge to President Obama’s executive actions on deportation. The Court’s non-decision froze in place a controversial order issued by U.S. District Judge Andrew Hanen of Brownsville, Texas which temporarily blocked an estimated 5 million undocumented parents and DREAMers from registering for temporary relief from deportation, undergoing background checks, and obtaining work authorization. The anti-immigrant Republicans who brought the lawsuit against the Obama Administration’s policies hand-picked Hanen’s court to file, knowing of his animus towards both the President and immigrants. They got what they wanted.

Hanen’s order also held up DACA+ which would expand the deportation deferral period of DACA 2012 — the earlier immigration executive action — from 2 to 3 years. While the Supreme Court’s 4–4 split in the Texas immigration case has no precedential value outside of Texas, Mississippi, and Louisiana — the states which make up the 5th circuit — it allowed Hanen’s temporary nationwide injunction against President Obama’s immigration executive actions to stand.

Or did it? That’s the question a Federal District Court Judge in New York is now considering.

It’s a legitimate question. As I’ve pointed out both before and after the Supreme Court issued its decision, the 4–4 tie raises significant questions as to whether Hanen’s hold applies outside of the 5th circuit. As Noah Feldman, professor of constitutional and international law at Harvard University, explained earlier this year shortly after Justice Scalia died:

“The 5th Circuit opinion won’t be binding precedent on other courts or future presidents. The long-term effect on executive action relating to immigration won’t be significant.

“In practice, Obama’s plan might not be implemented. But even that’s not absolutely certain, at least outside Texas. It was very unusual for the 5th Circuit to issue an injunction binding the Obama administration nationally.

“There’s a legitimate technical question about whether the national injunction should remain in place after the Supreme Court has heard the case. It would take five votes for Supreme Court to issue a national injunction itself — votes that certainly won’t exist. Therefore it’s at least conceivable that the plan could go into place outside the 5th Circuit.”

Conceivable and hopefully possible soon.

Martin Jonathan Batalla Vidal is an undocumented immigrant and long-term resident of New York, where he’s lived since his arrival from Mexico nearly 20 years ago. Vidal makes his home in Queens, and, like many other young aspiring Americans, he studies hard to finish his education — he’d like to become a medical assistant — and helps support his family.

In November 2014, Vidal filed an application for Deferred Action under DACA 2012; the deportation deferral program enacted by the Obama administration in 2012 which offers qualified immigrant youth a temporary deportation reprieve and a work permit. In early 2015, based on DACA+, which expanded the deportation deferral period of DACA 2012 from two to three years, Vidal was granted a three-year work permit.

Then, 2,000 miles away, in a federal courthouse in Brownsville, Texas, Judge Andrew Hanen issued an order blocking DAPA and DACA+. Consequently, the U.S. Department of Homeland Security abruptly revoked Vidal’s 3-year work permit and replaced it with a 2 year card.

Vidal was not party to the Texas immigration case. Judge Hanen had no personal jurisdiction over him, nor did he ever set foot in Hanen’s courtroom.

So Vidal has asked the U.S. District Court for the Eastern District of New York to declare that Hanen’s “nationwide” injunction against DAPA and DACA+ should not apply to immigrants who live outside the 5th circuit. Vidal asked the court to enjoin the DHS from revoking his 3 year work permit; in effect asking the court to issue an injunction against Hanen’s injunction.

At a scheduling hearing held last week before U.S. District Judge Nicholas G. Garaufis, the U.S. Department of Justice, which opposes Vidal’s case, argued that the federal government was in an “untenable” position because, although it’s fighting vigorously in support of DAPA and DACA+, its revocation of Vidal’s 3 year work permit was necessary to conform with Hanen’s injunction. Mr. Kirschner, the DOJ lawyer:

“We are subject to an injunction right now. And there’s no way for us, based on plaintiff’s complaint, to be subject to the injunction that we are subject to in the Southern District of Texas and the injunction that they are asking this court to issue. These are completely conflicting injunctions and that we are left in the untenable position to be left with conflicting injunctions.”

Judge Garaufis, while sympathetic to the government’s awkward situation, was much more concerned about how Judge Hanen, sitting in a courtroom thousands of miles away, could issue a preliminary injunction which affects the rights of an immigrant in New York State. Judge Garaufis:

“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. There was no hearing in Texas. [Judge Hanen] did it all in three weeks on papers and that was it. Why should a judge in California — let’s keep Texas out of this for a minute — why should a judge in California in the Ninth Circuit be constrained in adjudicating the individual rights of a resident of let’s say the Northern District of California because Judge Garaufis in the Eastern District of New York decided to impose some gargantuan preliminary injunction? That doesn’t sound like justice to me.”

Addressing Mr. Kirschner, the DOJ lawyer, Judge Garaufis continued:

“I understand. I know you have a problem. Understood. But then, again, I have a problem which is the rights of this individual, all right, and whoever else comes along.

“But right now the question is [Mr. Vidal] has brought this problem to me and, as sympathetic as I am to the government’s predicament, [Mr. Vidal] has brought the issue to the court and I should be dealing with the issue if I can. Maybe I can’t, and we’re going to find out if I should. That’s all.”

Judge Garaufis went on, seeming to directly address the brazen unfairness of Judge Hanen issuing an order purporting to affect the rights of millions of people who’ve never set foot in his Brownsville, Texas courtroom:

“So I understand your problem. I sympathize with your problem, but I do not sympathize with the idea that I am hamstrung in dealing with an issue involving individual rights and including the right to go make a living and have a life as an immigrant in the United States. So I don’t know what’s going on out there to Texas on the border but I know what’s going on in New York. And I’m very concerned about it and I have absolutely no intention of simply marching behind in the parade that’s going on out there in Texas, if this person has rights here.”

Hanen may be the master of a courtroom in Brownsville, Texas, but the swing of his gavel may not carry much weight in the Eastern District of New York.

To be sure, it’s not at all clear at this point whether or not Judge Garaufis will let DAPA and DACA+ move forward in New York or whether he’ll even hear the case. But what is obvious is that the Supreme Court’s failure to decide U.S. vs. Texas raises serious questions as to the nationwide scope of Hanen’s order blocking DAPA and DACA+. Regardless of what Judge Garaufis decides in Vidal’s case, there may be other challenges to the nationwide scope of Hanen’s order. One can easily imagine, for example, California Attorney General Kamala Harris asking a U.S. District Court in California to allow DAPA and DACA+ to go forward in her state. In an amicus brief filed earlier this year in the Texas Immigration case, the State of California made a powerful case about the harm done to the state by Hanen’s order blocking DAPA:

“As a result, California’s economic growth has depended to a significant degree on undocumented workers. California’s agriculture and extraction industries employ 3.6 immigrants for every one native worker, compared to a national industry average of 1.5 immigrants per native worker.17 Undocumented immigrants, representing just 7% of the State’s population, make up 34% of its farm workers, 22% of its production workers, and 21% of its construction workers according to one estimate. Other estimates place these figures even higher: the proportion of California farm workers who are undocumented, for instance, may be closer to 60%. Today, the undocumented workforce alone contributes $130 billion to California’s gross domestic product (GDP) — an amount larger than the entire respective GDPs of 19 other States.”

Advocates and Attorneys General in other states that didn’t join the Texas lawsuit will be watching what happens in New York closely. Hopefully, Chief Justice John Roberts is paying attention to Vidal’s case, too. He, more than anyone else, should be concerned about the potential for judicial chaos in the aftermath of his Court’s failure to decide U.S. vs. Texas. As I’ve written before, Roberts considers himself a stickler for standing in the federal courts. But, the Supreme Court’s even split in the U.S. vs. Texas immigration case raised serious questions as to whether Roberts’ principles are trumped by politics. The Obama Administration has filed a motion for reargument of U.S. vs. Texas once a ninth justice is confirmed by the U.S. Senate. The motion remains pending, offering Roberts an opportunity to be true to his principles and keep politics out of the Courtroom.”