A federal judge issued an order rebuking DOJ lawyers for misleading him over Obama administration immigration actions.
DOJ lawyers misled a federal judge in a stunning breach of ethics. In December 2014, 26 states challenged the legality of President Obama’s executive action on immigration. Led by Texas, the states sought to immediately halt the federal government’s plans to defer the deportations of millions of aliens. Relax, the Justice Department told Judge Andrew Hanen in Brownsville, Texas. We won’t implement this program till February, the government assured the states. On that representation, Texas did not seek a temporary restraining order, and the court allowed the proceedings to stretch into February. Except it wasn’t true. By February, the Department of Homeland Security (DHS) had already granted relief to 100,000 aliens. Even worse, the Justice Department lawyers who repeatedly assured the court that nothing would be done until February knew that DHS was already granting such extraordinary relief.
In an unprecedented order, Judge Hanen has now placed the Justice Department under his supervision to ensure that they act ethically. Texas had charged that DHS’s executive actions were in bad faith; now, Judge Hanen has charged that the Justice Department’s defense of those actions was also in “bad faith.” The Obama administration is certain to appeal this rebuke of its stunning actions. Even if the remedy should ultimately be modified, the undisputed facts, as Judge Hanen methodically demonstrated, show that their “conduct is certainly not worthy of any department whose name includes the word ‘Justice.’” President Obama’s November 2014 executive action had two components. The first element, known as DAPA (“Deferred Action for Parents of Americans”), would have deferred the deportation of up to 4 million aliens who are the parents of U.S. citizens or of lawful permanent residents. The second element expanded President Obama’s 2012 executive action, known as DACA (“Deferred Action for Childhood Arrivals”). The original policy granted “deferred action” status for a two-year period, and the expanded policy would now grant this status for three years. In December 2014, Texas and 26 other states challenged the entirety of the November executive action — both DAPA and expanded DACA.
During a December 19 conference call, Texas requested an emergency hearing to ensure that the government would not start granting deferred-action status to aliens before the court could review the policy. Andrew Oldham, who represented Texas, worried that there would be “curve balls or surprises” unless they proceeded immediately. Judge Hanen asked the Justice Department lawyer, “Do you anticipate that happening?” The government lawyer replied, without any equivocations, “No, I do not, your Honor.” He explained that the government would begin accepting requests in “mid February.” But that was not accurate. Based on the government’s own admissions, Judge Hanen concluded, “at the very time counsel told the Court and opposing counsel that no action was taking place, over 100,000 three-year deferred action renewals were being processed.” This “was not a curve ball,” Hanen wrote, “but a spitball.” The misrepresentations continued. In January 2015, as 100,000 renewals were being granted under the expanded DACA, the Justice Department told the court, quite clearly, that “no applications for the . . . revised DACA would be accepted until the 18th of February, and that no action would be taken on any of those applications until March the 4th.” It gets worse.
On February 16 — two days before the government’s purported deadline — Judge Hanen ordered the government to put the entire executive action on hold. One week later, the government asked Judge Hanen to stay, or put on hold, his order, so it could file an appeal. The government repeated in its motion that it would start to receive applications on February 18, but could no longer do so because of the injunction. “Their motion was certainly calculated,” Judge Hanen observed, “to give the impression that nothing was happening.” But plenty was happening. It gets even worse. Remarkably, even after the court’s order, DHS continued to grant relief under the expanded DACA program. The government did not confess this error until two weeks later on March 3, 2015. “What counsel did,” Judge Hanen wrote, “borders on the incredible.” The government misled the court about its conduct before February 18, and continued to conceal its actions after the injunction was issued.
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