by LANA SHADWICK8 Apr 2015115

Judge Andrew Hanen has issued a scathing written rebuke directed at government lawyers and the Department of Homeland Security (DHS) for their misrepresentations made in the case filed against President Obama’s executive amnesty plan. He has ordered the Government to produce related documents by April 21st. He also warned the government against destroying any of this evidence.

Hanen is the federal district judge in Brownsville, Texas, who denied the U.S. Government’s request to remove the block of Obama’s amnesty plan on Tuesday.

Texas and 25 other states (Plaintiff “States”) filed a motion asking for early discovery asserting that federal lawyers and officials of the DHS made misrepresentations to the Court. These misrepresentations related to Obama Administration executive actions extending from two to three years, the period of work permits and quasi-legal status granted to individuals under the President’s 2012 Deferred Action for Childhood Arrivals program (DACA).

The subject of the motion was a pleading filed with the court on March 3rd entitled “Defendant’s Advisory.” In it, the United States Government wrote that it took certain actions prior to the Court’s injunction:

Defendants file this Advisory to inform the Court of certain actions that U.S. Citizenship and Immigration Services (USCIS) took pursuant to the November 20, 2014 deferred action memorandum at issue in this case before the Court issued its preliminary injunction on February 16, 2015. Defendants do not believe that the preliminary injunction requires them to take any affirmative steps concerning those pre-injunction actions, but Defendants nevertheless wish to ensure that the Court is fully aware of those actions.

Out of an abundance of caution, however, Defendants wish to bring one issue to the Court’s attention. Specifically, between November 24, 2014 and the issuance of the Court’s Order, USCIS granted three-year periods of deferred action to approximately 100,000 individuals who had requested deferred action under the original 2012 DACA guidelines (and were otherwise determined to warrant such relief), including the issuance of three-year EADs for those 2012 DACA recipients who were eligible for renewal. These pre-injunction grants of three year periods of deferred action to those already eligible for 2012 DACA were consistent with the terms of the November Guidance.

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.

The Court placed this language in the Advisory in his order and highlighted it (italicized above).

Judge Hanen wrote, in a fifteen page document attached below, “The only way to interpret this Advisory is that, despite the Government’s multiple assurances that no action would be taken prior to February 18, 2015, in reality, between November 24, 2014, and February 16, 2015, the DHS granted approximately 100,000 applications pursuant to the revised DACA, the terms of which were established in the 2014 DHS Directive that is the subject of this suit.”

The judge wrote “the Court is extremely troubled by the multiple representations made by the Government’s counsel―both in writing and orally―that no action would be taken pursuant to the 2014 DHS Directive until February 18, 2015.” He stated it was clear “that the States were seeking to enjoin ‘the series of executive actions that were taken on November 20, 2014,’ which would obviously include the revision to DACA increasing DACA’s term from two to three years, effective November 24, 2015 (as expressly provided for in the 2014 DHS Directive).”

He found that “Whether by ignorance, omission, purposeful misdirection, or because they were misled by their clients, the attorneys for the Government misrepresented the facts.”

The Court found “The explanation by Defendants’ counsel for their conduct after the fact is even more troublesome for the Court.” The judge noted defense counsel told the Court that she was unaware that the 2014 DACA amendments were at issue until she read the Court’s February 16, 2015 orders and opinion.

The Government told the Court it took “‘prompt’ remedial action” but Judge Hanen opined “This assertion is belied by the facts.”
The Court also noted that the Government had almost a week to inform the Court of 108,081 revised DACA approvals, “Yet, counsel for the Government said nothing.” He also noted that because of the Government’s misrepresentations, the State’s legal counsel agreed to a schedule more favorable to the Government, and the Court granted the Government’s request and additional time to file responses.

Judge Hanen warned the Government writing “This Court expects all parties, including the Government of the United States, to act in a forthright manner and not hide behind deceptive representations and half-truths.”

The Court cited specific rules governing lawyers’ conduct regarding making misrepresentations, half-truths, omissions, and failing to correct misstatements. He said that while the Government’s misconduct could be used to strike the Government’s pleadings, he would refrain to do so because:

the issues at stake here have national significance and deserve to be fully considered on the merits by the Fifth Circuit Court of Appeals and, in all probability, the Supreme Court of the United States. If this Court were to strike the Government’s pleadings at this juncture, the case would be over. The Plaintiffs would prevail by default. The Court finds at the present time that the ends of justice would not be served by striking pleadings in this case. Such a ruling would not only penalize those with an interest in the outcome, but would more importantly penalize the country, which needs and deserves a resolution on the merits.

Although the Court did not strike the Government’s pleadings, the Court partially granted the State’s requested discovery and ordered the Government to file: “any and all drafts” of the Advisory; the metadata showing when each draft was written and/or edited or revised; a list of each person who knew about the Advisory, or the DHS activity discussed in the Advisory; anyone who reviewed the Advisory and the date and time individuals were apprised of its contents, or of the DHS activity. He also warned the Government against destroying or erasing any of this evidence. Judge Hanen held that any document claimed to be privileged could be reviewed in camera (“in chambers”).

This article has been updated.
Lana Shadwick is a contributing writer and legal analyst for Breitbart Texas. Follow her on Twitter @LanaShadwick2


Hanen Ruling