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Immigration lawsuit update

Another hearing is scheduled.


The judge who blocked President Barack Obama’s executive action on immigration has ordered the Justice Department to answer allegations that the government misled him about part of the plan.

U.S. District Judge Andrew Hanen ordered Monday that the lawyers for the federal government appear in his court March 19 in Brownsville. The hearing is in response to a filing last week in which the government acknowledged three-year deportation reprieves were granted before Hanen’s Feb. 16 injunction, which temporarily halted Obama’s action, sparing from deportation as many as 5 million people in the U.S. illegally.

The Justice Department said in court documents that federal officials had given 100,000 people three-year reprieves from deportation and granted them work permits under the 2012 Deferred Action for Childhood Arrivals program, known as DACA, which was not halted by Hanen’s injunction. But the 2012 program guidelines provided just two-year deportation reprieves and work permits.

Obama’s new immigration action would expand that to three years, and Justice Department attorneys had previously said federal officials wouldn’t accept requests under an expansion of DACA until Feb. 18.

Some more background on the allegations.

In their advisory, attorneys for the Obama administration said that the change from two to three years “applied not only to individuals eligible for DACA under the newly expanded guidelines, but also (as of November 24, 2014) to individuals already eligible for DACA under the original 2012 guidelines.” Hanen did not halt the 2012 provision.

The White House’s attorneys say they immediately took steps to stop the implementation of the president’s planned executive action after Hanen’s ruling. And they also stopped the three-year grants. But they also conceded that USCIS’s actions caused confusion.

“Defendants nevertheless recognize that their identification of February 18, 2015, as the date by which USCIS planned to accept requests for deferred action under the new and expanded DACA eligibility guidelines, and their identification of March 4, 2015, as the earliest date by which USCIS would make final decisions on such expanded DACA requests, may have led to confusion about when USCIS had begun providing three-year terms of deferred action to individuals already eligible for deferred action under 2012 DACA,” they state.

But they also say they don’t understand why the three-year permits for people who qualified under the original program, which was not stopped, should be revoked.

“The fact that pre-injunction grants of deferred action were issued for increments of three, rather than two, years does not have any present impact on the recipients’ ability to remain in the country and work,” the White House’s attorneys said, according to court documents.

I don’t trust either Ken Paxton or Judge Hanen, but that doesn’t mean there isn’t anything to this. I guess we’ll know more on March 19.

In the meantime, while Judge Hanen considers the Obama Administration’s request to stay his ruling on the injunction, some other parties prepare their own brief to get the injunction lifted for themselves.

In the next few days, approximately a dozen states will call on an appeals court to lift an injunction — imposed by a conservative Texas judge — on President Obama’s executive actions shielding millions from deportation, arguing that they support those actions and see them as being in their economic interest, I’m told.

The move could precipitate an argument among the states over Obama’s policies, and will raise a question: If some states have successfully gotten the courts to block Obama’s actions nationwide, what should happen if other states want those actions to proceed? The bid by these states also could make it more likely that the courts lift the injunction and allow his deportation relief to move forward, at least in some states, while the legal battle over them plays out.


The Texas judge obviously imposed the injunction nationwide anyway. But the way in which he did so provides an opening for these appealing states: If the basis for the injunction is the harm Obama’s actions allegedly do to Texas and the states on the lawsuit, then what about the appealing states’ claims of harm to them from the injunction? Thus, the latter states will argue that, at a minimum, the 5th Circuit should lift the injunction for them, because they stand to suffer economic harm if the injunction proceeds. They will also argue that Texas is the only state that has demonstrated it will suffer harm, so the injunction nationwide — and on them — is inappropriate.

“Our fallback position is, don’t force us to live under an injunction we don’t want, based on other states’ inaccurate claims that they will suffer,” Noah Purcell, the solicitor general for Washington state, tells me.

This action was foreseen in a Bloomberg News piece from right after the initial ruling. The prospect of California asserting a states’ rights argument against Texas just made my Irony-o-Meter melt down, but it seems to me they have a pretty good case. We’ll see what the Fifth Circuit makes of it. Think Progress, which suggests Judge Hanen is stalling things to delay any appeals to the Fifth Circuit, and Daily Kos have more.

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