Brownsville Courtroom No Fun for DOJ Defending Immigration Reforms

Miriam Rozen, Texas Lawyer August 21, 2015


U.S. District Judge Andrew Hanen of BrownsvilleEsmer Olvera

U.S. District Judge Andrew S. Hanen in Brownsville stopped short of ordering the federal government to unwind work permits it issued to 108,000 immigrants under an immigration reform program.

But Hanen, who presides in an immigration case that pits Texas and 25 other states against the Obama administration, may still do exactly that next month.

At an Aug. 19 hearing in his courtroom, Hanen asked both sides in the dispute to submit by Sept. 4 briefs arguing how he should address his concerns about the previously undocumented immigrants, whom the federal government issued permits to stay in this country. He also wanted them to address his concerns about the government's errors in reporting the steps it took to comply with an injunction Hanen issued in February barring the issuance of the permits.

In the long-running contentious litigation, which began in December 2014, Texas and the other plaintiff states sued the federal government after the Obama administration proposed expanding programs allowing undocumented immigrants who came to the U.S. as children to remain in the country. Texas and the other states sued, seeking to stop the federal government from launching the program. In their lawsuit, Texas and the other states said that the cost of the program will impose a burden on the states.

About 2,500 work permits, part of the Obama administration's proposed immigration reforms, violated an injunction that Hanen issued in February, the judge previously ruled. In response to that ruling, the federal government lawyers have attempted to identify the immigrants who received the post-injunction permits and retrieve the authorizations.

Texas and the other states, however, have labeled the federal government's injunction-compliance efforts as insufficient and inadequately executed.

Texas and the other states requested personally identifiable information regarding another 108,000 immigrants who received permits before Hanen issued his injunction. And Texas and the other plaintiff states have proposed unwinding the 108,000 pre-injunction permits issued to resolve "pending discovery surrounding the government's misrepresentations," according to Cynthia Meyer, a spokeswoman for the Texas attorney general.

At the end of the Aug. 19 hearing, Hanen asked for the briefs from both sides to address questions about what sanctions he should issue to the government for previously failing to comply with his injunction.

"The court remains concern[ed] about the individuals that still possess credentials issued in violation of the court's injunction. Counsel for the government needs to be prepared to discuss the reasons that these individuals are not in compliance, the steps the government has taken and will continue to take to achieve complete compliance, and the timetable to achieve that goal in the very near future. The court does not consider mere substantial compliance, after an order has been in place for six months, to be acceptable and neither should counsel," Hanen wrote in an order scheduling the hearing.

At the hearing, government lawyers repeatedly apologized to Hanen for mistakenly issuing after his injunction some 2,500 work permits and then making misleading statements about it, according to news accounts of the proceedings.

"We apologize for those miscommunications and regret them," one of the government lawyers told Hanen, according to the reports. "They were inadvertent and unintended."

"But they were repeated," Hanen reportedly said.

After the hearing, Meyer of Texas' Office of the Attorney General emailed a statement, which said: "We expect the Obama administration to follow the court's order and correct the errors it has made in unlawfully issuing expanded work permits under executive amnesty."

Also after the hearing, a U.S. Department of Justice official, who declined to be named, emailed a statement, which said: "The judge seemed satisfied with [the Department of Homeland Security's] efforts to remedy the post-injunction mailings/issuances of three- year employee authorization document (EAD) cards," or the 2,500 permits.

The DOJ official's statement also noted that Hanen expected the government lawyers to notify him about a remaining 11 of the 2,500 post-injunction permits that had not yet been retrieved.

On May 26, the U.S. Court of Appeals for the Fifth Circuit denied the Obama administration's request to stay Hanen's injunction.

Pending before the Fifth Circuit is an appeal by the Obama administration, asking to overturn Hanen's injunction.

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