· Late Monday night, February 16, Judge Andrew Hanen issued a temporary injunction against the implementation of the Obama Administration’s executive actions on prosecutorial discretion in immigration, known as DAPA and expanded DACA.
· There is nothing surprising in the fact of the injunction. What is surprising, given this judge, is the narrowness of the ruling.
· Judge Hanen’s prior statements show that he was pre-disposed against favorable exercises of prosecutorial discretion in the immigration context.
· The judge adopts fairly extreme rhetoric betraying his pre-disposition to rule against the government: He cites the government’s “failure to secure the borders” and then adopts the plaintiffs’ assertion of purported costs to the states without any evidence in the record. He even cited that the states will take on the cost of educating “illegal alien children” disregarding the Supreme Court’s Plyler v. Doe decision that providing education for all children is constitutionally required.
· The TX judge’s decision disregarded information submitted by the government and amici (including AILA) as to the widespread economic and social benefits that the expanded DACA and DAPA programs would provide. Judge Hanen gave credence only to the alleged and unsubstantiated costs and harms to the states.
· Throughout his findings of APA violations, the judge ignores the fact of an existing rule that covers DACA and DAPA: 8 CFR section 274a.12(c)(14), which provides for work authorization for “[a]n alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment.”
· Authority on prosecutorial discretion remains. Importantly the court affirmed the executive branch’s prosecutorial discretion. pp 69 and 83
· His injunction is not based on constitutional grounds; it is based on procedure, finding flaws under the Administrative Procedure Act. It is almost as if he was desperate for a way to block these initiatives and grasped any straw he could.
What Happens Now
· AILA fully expects the federal government to immediately appeal this ruling and to request a stay of the injunction throughout the appeal process so that the initiatives aren’t stalled.
· AILA is confident the federal government will ultimately prevail and that DAPA and expanded DACA will be fully implemented.
· In the meantime, AILA recommends that individuals who are potentially eligible for expanded DACA or DAPA begin preparing to apply: they should begin gathering the necessary documentation and seek good counsel to give themselves the best chance for success and to avoid potential problems. Importantly, they must be wary of ‘notarios’ who offer legal advice without a license that is unethical and fraudulent.
· Also important to note is that those who were granted DACA already are in no way affected by this ruling so they should apply for their DACA renewal as planned. This ruling only delays the start of DAPA and the expansion of DACA.
· Lawsuits against similar executive actions on immigration have failed in the past. A similarly politically motivated lawsuit was thrown out in December when Sheriff Joe Arpaio argued that Obama’s announcements were unconstitutional.
· In 2012 Mississippi challenged the legality of the DACA program in a case similar to the 26-state lawsuit, but the case was dismissed because the judge found the perceived economic hardship the state claimed was purely speculative. In fact, studies have shown that the deferred action initiatives are not just the morally right thing to do but economically beneficial to our country.