Immigration Tag

Late last month, immigration lawyers from the DoJ had the uncomfortable task of standing before a federal judge in Texas and explaining to the court why important information about the Administration's deferred action program was kept out of sight. They had good reason to---at least from their perspective. After President Obama announced his Executive Amnesty program on November 20 of last year, federal officials granted more than 100,000 applications for deferred action. However, in a hearing before U.S. District Judge Andrew Hanen, DoJ lawyers assured the court that the Administration had done nothing to begin implementation of the President's deferred action plan. Oops. Hanan, not at all inclined to grant the administration any favors, blocked the program from moving forward last February, and has now denied requests made by the DoJ to allow the President's immigration plan to proceed even as it is still being challenged in court.

Back in February, a federal judge in Texas enjoined the Obama Administration from rolling out its immigration overhaul via executive action. In the injunction, the court said that the Administration could not claim prosecutorial discretion (as it applies to illegal aliens covered under the proposed amnesty) because their plan confers benefits on those aliens not currently available under law. Instead, the court said that the Administration was effectively changing the law. Earlier this month, the same court that issued the injunction demanded that DoJ attorneys respond to allegations that the Administration was going ahead with its plans by granting expanded DACA benefits to more than 100,000 illegal aliens. Administration lawyers had asked the court to reconsider its decision to enjoin the executive amnesty, but the court refused to do so pending a hearing on the DACA issue. That hearing happened this past week, and by all accounts, U.S. District Judge Andrew Hanen---the same judge who handled the injunction---was not amused by what he heard (emphasis mine):

U.S. District Judge Andrew S. Hanen, visibly annoyed, confronted a U.S. deputy assistant attorney general over previous government assurances on the timing of the program. He asked why he shouldn’t grant a discovery request for internal federal immigration documents — a request filed Thursday by 26 states that are suing over Obama’s executive actions on immigration. At a one-hour hearing in Brownsville, Hanen gave the Justice Department 48 hours to file a motion in response. He said he would then rule promptly on whether to require the government to produce documents concerning applications under Obama’s deferred action program. The judge said that if he decided to impose sanctions, “the taxpayers of the [26] states would end up paying their own damages.” Hanen’s barbed comments left little doubt that he sympathized with lawyers for the 26 states, who said they suffered “irreparable harm” when federal officials granted more than 100,000 applications for deferred action after Obama announced the program Nov. 20. He said government lawyers had assured him that “nothing was happening” regarding the applications.

The U.S. government just filed a Motion for an Emergency Stay in the 5th Circuit Court of Appeals, allowing Obama's immigration executive action to proceed. A full copy of the motion (without Exhibits) is embedded at the bottom of this post. Here's the opening paragraph of the Motion:

The Federal Government seeks an immediate stay pending appeal of a nationwide preliminary injunction against the Department of Homeland Security (DHS). The Secretary of Homeland Security (Secretary) seeks to effectively prioritize the removal of aliens who have recently crossed the border, committed crimes, or threaten public safety and national security by, inter alia, establishing guidelines for considering requests for temporarily deferring removal of other aliens who pose no such threats and have longstanding and close family ties to the United States. The preliminary injunction restrains the exercise of that prosecutorial discretion, a quintessentially executive function that is traditionally unreviewable. In so doing, it undermines the Secretary’s authority to enforce the Nation’s immigration laws by disrupting the Secretary’s comprehensive effort to effectively allocate limited enforcement resources.

This takes place against the backdrop of the District Court scheduling a hearing on March 19 into whether the feds lied about implementation of the immigration executive action, and possibly were in violation of the District Court's injunction. That meant that the District Court injunction was in effect at least until March 19, and likely beyond.

House Republicans came out swinging, passed a killer DHS appropriations bill -- one that hammered much needed immigration enforcement, and acted as though they were ready for an immigration battle royal. For one brief, joyous moment, it seemed as though conservatives finally had the Congress they'd long desired. Boy was that short-lived. What began as a bill that held sought to beef up immigration enforcement (an area where this administration has been far too lax), ended as a 'clean' funding bill with no strings attached. Despite holding majorities in both houses, Republicans received nothing they wanted. Friday morning, Boehner said he would, "not be blackmailed by Senate Democrats." Senate Democrats perpetually filibustered the House bill, disallowing debate. By Friday afternoon, Senate Republicans had split the funding bill in two -- one, a 'clean' funding bill, and the other, a bill that addressed the president's executive amnesty and other enforcement related items. The 'clean' funding bill passed in the Senate. The House tried again, but Senate Democrats refused to go to conference to discuss differences in the House and Senate bills, and so the House found itself in a nasty predicament. By passing a 'clean' funding bill, Senate Republicans gave the White House and Democrats exactly what they wanted, leaving House Republicans without any leverage, any backup plan, and absolutely no way around a 'clean' funding bill. Yet in spite of the Senate sell out, there appeared to be hope. As late as Monday evening, prior to the House's passage of Tuesday's 'clean' funding bill, Speaker Boehner and House leadership were promising to hold the line and fight. What went so horribly wrong?

Which means Congress gets to have this same fight all over again next week. Joy. The Senate passed a clean funding bill late yesterday afternoon, placing efforts to combat President Obama's executive overreach in a separate piece of legislation. Last night it looked as though a DHS shutdown was imminent. Democratic lawmakers in the House were actively whipping votes against the three week stopgap appropriations bill, resulting in the bill's failure---even though the White House indicated President Obama would've signed the bill to prevent an agency shutdown. The Washington Post reported (emphasis added):

The House passed a measure earlier Friday afternoon to go to conference with the Senate to hash out the differences between their long-term bills. No Democrats voted for it. Senate Democrats oppose a conference. Senate Democratic aides acknowledged that the bill would probably have passed their chamber if it had cleared the House.

Just two hours before the shutdown deadline, Democratic hold outs caved and agreed to pass a temporary funding bill that will only fund the agency for one week. According to USA Today:

House Minority Leader Nancy Pelosi, D-Calif., rallied Democrats to support the one-week extension before funding expired. She said that voting for the seven-day measure would put Democrats on a path toward possible passage next week of a $40 billion spending bill that would fund the agency through the end of September.

Yesterday the U.S. government filed an Emergency motion to stay the U.S. District Court's temporary injunction putting Obama's immigration executive action on hold. In its Emergency Motion, the Feds threatened that if U.S. District Court Judge Andrew S. Hanen did not grant the stay by the close of business on Wednesday, February 25, the Feds would seek an emergency stay from the 5th Circuit Court of Appeals. The plaintiff States argued that that was too short of a time for them to respond, considering the Feds took a week to bring the Emergency motion. Judge Hanen just ruled that the States had until Monday, March 2, to respond. (Order below). [Update: Changed to March 3 - see Amended Order below.] Will the Feds now run to the Appeals Court? Or wait until Judge Hanen rules next week? Normally, a litigant has to request relief from the trial court first.  I'm not sure, as I write, whether a modest delay in the trial court would cause the 5th Circuit to refuse to hear an emergency motion until the trial court rules. As of this writing, there has been no stay motion filed in the 5th Circuit according to the electronic docket.)

The federal government has filed in U.S. District Court an Emergency Expedited Motion for a Stay of the Temporary Injunction putting a stop to Obama's executive immigration action. The successful plaintiff states have filed a letter opposing expedited treatment. If the District Court denies the stay, or does not rule by the close of business on Wednesday, February 26, the feds will go to the 5th Circuit Court of Appeals seeking emergency relief. Both documents are embedded below. Discussion and analysis to follow. Here's part of the Intro to the government's motion and brief:

A stay pending appeal is necessary to ensure that the Department of Homeland Security (“DHS” or “Department”) is able to most effectively protect national security, public safety, and the integrity of the border. Specifically, the Deferred Action Guidance enjoined by this Court is an integral part of the Department’s comprehensive effort to set and effectuate immigration enforcement priorities that focus on the removal of threats to public safety, national security risks, and recent border crossers, thereby best securing the Homeland in the face of limited resources. Absent a stay, DHS will sustain irreparable harm—harm that would not be cured, even if Defendants ultimately prevail on that appeal....

Well, that was predictable. Yesterday, Judicial Watch revealed that in spite of an injunction barring implementation, the Obama Administration is preparing for a full-scale rollout of Obama's controversial plans for immigration executive amnesty. Nobody expected the Administration to take the injunction lying down---amnesty's best chance for survival is a friendly judge---so the continued preparation was less of a scandal and more of continuing proof of Obama's confidence in his ability to shove these terrible policies down our throats, one way or another. Similarly, yesterday's announcement that the White House will ask for an emergency order authorizing the amnesty programs' rollout was no shock. More via Politico:

With pressure building from immigrant rights activists for swift action to overturn the injunction a federal judge in Texas issued Monday night, White House press secretary Josh Earnest told reporters that the administration decided to seek a stay that could lift the order. The action could buy time as an appeal Obama promised plays out. At a daily briefing, Earnest said Department of Justice lawyers will file legal papers by “Monday at the latest.” But pending further legal developments, the Department of Homeland Security’s plans to start taking applications this week for an expanded program for immigrants who arrived in the U.S. illegally as children remain suspended indefinitely. “Once we have taken some additional steps through this legal process, we may be in a position to give you an update,” Earnest added.

Earlier this week a federal court in Texas issued a temporary injunctive order preventing implementation of Obama's immigration executive action. Following the order, the Obama Administration made it appear as though they were prepared to put their agenda on hold and take the fight over executive power to the courts. I say "appear" because, in spite of the injunction, DHS is still making moves to award multi-million dollar contracts to the firms tasked with handling the processing of millions of illegal immigrants' requests for amnesty. An anonymous source has described the deal as being rushed through at a "full throttle pace," and a Request for Proposal filed by the USCIS details how the agency expects to pull off its latest bait-and-switch. Judicial Watch has the details:

The RFP estimates that the population of potential requesters for the president’s deferred action will be “approximately four million people” and that USCIS anticipates the initial filing of “approximately five to six million forms” related to the amnesty order which also covers the illegal immigrant parents of U.S. citizens and lawful residents. The work is to begin in mid-March, the document reveals, and the contractor will operate out of a new center in Arlington, Virginia because there is no current facility with available space or staff to accommodate the “additional volume of work.” The center will be dedicated to processing deferred action for illegal immigrant parents of citizens, employment authorization and correspondence management. The pricing spreadsheets are astounding and list tens of thousands of work hours—for tasks such as program management, file operations and maintenance as well as Freedom of Information Act (FOIA) scanning—that will undoubtedly end up costing American taxpayers enormous sums. The contractor that lands this monstrous government deal must also be able to respond on short notice to growth in volume due to urgent events and requirements. “The growth is more than normal overtime and cannot be completed with overtime,” the government documents state.