Under our Federal system of justice, an order entered by one of the thousands of U.S. District Judges in one Court anywhere in the country can affect comings and goings everywhere else in the country as well. One District Judge reportedly has ruled that the Administration’s procedural changes in immigration procedures may proceed. Another District Judge ruled that the changes may not proceed. This is about the District Judge’s order enjoining the changes in immigration procedure so that the changes may not proceed.
Judge Andrew S. Hanen from Waco, Texas was first nominated for the Federal bench in 1992 by President George H.W. Bush, also from Texas. He could not be confirmed by the Senate at that time.
President George W. Bush, also from Texas, provided a second chance and re-nominated him. Judge Hanen was confirmed as a Federal Judge in South Texas.
Although Judge Hanen’s Court operates in Brownsville, Texas, he has reportedly reached out to issue opinions on a wide range of national issues since he was confirmed. “For the last 12 years, the problems that have occupied not only the Rio Grande Valley, but the wider nation –- drug trafficking, political corruption, border disputes and now, immigration -- have been center stage in his South Texas courtroom.” Hilary Hylton, “Texas Judge at Center of Obama Case No Stranger to Border Fights” (Time.com, Feb. 18, 2015).
His docket has “the most unresolved cases” in the Southern District of Texas. See id.
The erection of a border fence has been delayed by Judge Hanen’s many rulings. See id.
Judge Hanen has issued many opinions in particular in cases involving undocumented immigrants. On December 13, 2013, for example, Judge Hanen wrote an opinion in the case of an “admitted human trafficker”. It seems that an undocumented mother paid the trafficker to have her child smuggled into South Texas, in fact, into Brownsville, Texas where Judge Hanen’s Court sits.
The trafficker was arrested and charged. Neither the mother nor the child was arrested, and neither the mother nor the child was before the Court. Nothing changed as a result of this opinion. Rather, the Department of Homeland Security had already taken the child to her mother.
Faced with this situation, in which the Federal Government previously reunited a child with her mother before Judge Hanen wrote an opinion about it, Judge Hanen’s opinion is revealing, not only for the words Judge Hanen chose to write but for the circumstances under which he wrote them. Judge Hanen had already sentenced Nava-Martinez, the admitted human trafficker. He wrote in his order that he deliberately waited until after sentencing to write this order about the actions of the Federal Government in taking the child to her mother:
The DHS, instead of enforcing our border security laws, actually assisted the criminal conspiracy in achieving its goals.
Order entered December 13, 2013, at p. 2, in USA v. Mirtha Veronica Nava-Martinez (S.D. Tex. CR No. B-13-441-1). Download USA v. Mirtha Veronica Nava-Martinez Order 12.13.13 (S.D. Tex.).
In August, 2014, Judge Hanen wrote an opinion in another matter involving an undocumented immigrant and seemingly questionable jurisdiction. At least, that is the way the matter appears from press reports; the undersigned's research has not yet found the opinion itself. The immigrant in that case had already served his sentence and was previously brought before an immigration judge who released him apparently because the immigration judge had no authority to hold him. The individual has a past criminal record. The judge also apparently had no authority to deport him. This caught the attention of Judge Hanen who reportedly wrote an opinion that this ruling was “an open invitation to the most dangerous criminals in society”. See Molly Hennessy-Fiske, “U.S. Judge Andrew Hanen Has History of Opposing Obama Immigration Policies,” (L.A.Times Online at latimes.com, February 17, 2015).
In January, 2015, Judge Hanen reportedly cited personal experience as the justification for retaining jurisdiction over another lawsuit concerning undocumented immigrants. He said (or ruled) at a Hearing apparently concerning venue or jurisdiction in a lawsuit filed by “26 states attorneys general,” that his Court was an appropriate forum to resolve such issues since he, and others in Brownsville, Texas, know all about undocumented immigrants from their personal experience. See Hilary Hylton, “Texas Judge at Center of Obama Case No Stranger to Border Fights” (Time.com, February 18, 2015).
In an order he dated February 16, 2015, Judge Hanen granted the “26 states attorneys general’s” request for a preliminary injunction. I wondered about that date. February 16 was the President’s Day Federal Holiday in 2015. I thought that all the Federal Courts were closed that day. Is an order entered by a Federal Judge when the Court is closed for a Federal Holiday, even valid?
In his President’s Day opinion, Judge Hanen addressed procedures adopted by the DHS which would provide relief from deportation to the undocumented parents of children born in the United States, and also allow them to apply for work permits. Another procedure, called “deferred action” would provide similar deportation relief to undocumented persons who were brought to the United States as children and who applied for the relief. These people too could also apply for two-year work permits. These changes in procedures reportedly affect 4 to 5 Million people in the United States. See, e.g., Fred Barbash, "Federal Judge in Texas Blocks Obama Immigration Orders" (Washington Post Online, Feb. 17, 2015); Kirk Semple, “Immigrants’ Advocates Vow ‘to Continue the Fight’ After a Plan is Halted” p. A19, col. 1 (New York Times Nat’l ed., Thursday, Feb. 19, 2015), rewritten in part for online posting by the Times.
Although press reports characterized Judge Hanen’s President’s Day Order as a ruling against executive orders allowing undocumented immigration, Judge Hanen himself wrote that the suing States have standing to sue because at some future date they might pay benefits to undocumented immigrants who might apply for benefits in the future. In so ruling, Judge Hanen’s order seems to be at odds with apparently unanimous authority to the contrary. This ruling concerning the possibility of future applications for public benefits seems analogous to the possibility of future applications for health insurance benefits under health insurance policies which do not yet exist.
In any event, the ruling was not about border security, as reported in many press accounts, because most of the suing States have no borders with Mexico or with Canada, the only foreign countries through which undocumented immigrants could enter this country, including for example Alabama, Arkansas, Georgia, Idaho, Indiana, Kansas, Louisiana, Mississippi, Nebraska, North Carolina, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, and West Virginia.
Judge Hanen ruled exclusively on the basis of the Administrative Procedure Act, and said so in his opinion. He ruled that the DHS had to provide a 90-day period for comment on what were effectively rules changes, as required by the APA.
He also found room in the 123 pages of his opinion to observe that the DHS was not merely changing its deportation procedures to reflect its “prosecutorial discretion,” but that the Federal Government was thereby “abdicating” enforcement of the law of deportation which the current Congress has “mandated.” Accordingly, Judge Hanen entered his temporary injunction against these procedures although he was careful to write on the last page of his opinion that his ruling on deportation does not override DHS’s prosecutorial discretion, regardless of what else he wrote in that opinion.
The Obama Administration has chosen to obey the President’s Day Order and throughout the United States the DHS has suspended the procedures which Judge Ralph S. Hanen in South Texas found offensive to the Administrative Procedure Act. Also, the Obama Administration has appealed Judge Hanen’s order. See Michael D. Shear and Julia Preston, “Administration to Try to Block Ruling That Postpones Immigration Actions” p. A13, col. 1 (New York Times Nat’l ed., Saturday, Feb. 21, 2015).
Please Read The Disclaimer. ©2015 by Dennis J. Wall. All rights reserved. No claim to Original U.S. Government Works.
