Federal Judge Issues Stinging Order on Obama Administration's Conduct in DACA Litigation

By Jon Feere, May 23, 2016

Judge Andrew S. Hanen of Federal District Court in Brownsville, Texas, the court that ordered an injunction on President Obama's controversial illegal alien amnesties, issued a scathing order directed at the Obama administration's Department of Justice (DOJ) about their conduct during court proceedings last year. The underlying case, United States v. Texas, is currently before the Supreme Court. But Judge Hanen's focus in this order is on DOJ attorneys making "statements that clearly did not match the facts" about the Deferred Action for Childhood Arrivals (DACA) program and the fact that the "attorneys effectively misled" the 26 plaintiff states involved in the litigation while violating "virtually every interpretation of candor" expected by a court.

Hanen explains that "these misrepresentations may have caused more damage in the intervening time period and may cause additional damage in the future". One key issue is that the "misrepresentations ... misdirected the Court as to the timeline involved in the implementation" of DAPA and the extended version of DACA, which grants illegal aliens a three-year reprieve from deportation instead of the previous two-year reprieve.

Recall that the court had put the program on hold in February 2015 before the program was to go into effect, according to the Obama administration's own guidelines. It turned out, however, that the administration had already issued extended DACA benefits (work permits, Social Security accounts, etc.) to around 100,000 illegal aliens. By not abiding by their own timeline, the White House effectively avoided litigation earlier than it might have and also effectively delayed the court's order stopping the program. Hanen explains that the government failed legal and ethical standards by not informing the court.

Hanen notes that he originally decided to postpone any ruling on this matter until the case was remanded back to his court for a full hearing on the merits. But he notes that the case has been expanded as it has worked its way through the court system, the latest development being the Supreme Court's inquiry into whether the White House failed to meet the constitutional requirement set in the Take Care clause. The judge concluded that it is possible the Supreme Court may rule in a way that would not result in the case being sent back to his court, so he decided to address the misrepresentation issue now.

Hanen opens by noting that his court "and opposing counsel were misled both in writing and in open court on multiple occasions as to when" the White House would begin to implement Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and the extended version of DACA (which changed some requirements to make the amnesty available to more people).

Hanen writes that after reviewing the filings in the case one thing became "indisputably clear: the Justice Department lawyers knew the true facts and misrepresented those facts to the citizens of the 26 Plaintiff States, their lawyers and this Court on multiple occasions." Hanen rejects the government's defense that the attorneys "either 'lost focus on the fact' or that somehow 'the fact receded in memory or awareness'." He notes that the government brief admits that its lawyers, including the ones who appeared before him, "knew that the Defendants were granting three-year DACA renewals using the three-year period" and that "the Government's lawyers chose not to tell the Plaintiff States or the Court."

Hanen calls the decision to hide the information from the court "unethical" and notes that it "is certainly not worthy of any department whose name includes the word 'Justice'."

Hanen explains: "Regardless of how one spins the facts prior to the injunction, no one after the injunction could conceivably think that the three-year extensions were not a matter of contention and were not now enjoined. Yet counsel, who knew of the DHS activity, were not only silent, but their motion was certainly calculated to give the impression that nothing was happening or had happened pursuant to the 2014 DHS Directive — when, in fact, by that time over 100,000 applications had already been granted."

The order is worth reading in full as it includes citations from the court transcripts detailing the way in which the Obama administration misled the court and the states, as well as Hanen's takedown of the administration's defenses.

Hanen ultimately decides that because there is "certainly no indication that counsel will not repeat this conduct" and because "there seems to be a lack of knowledge about or adherence to the duties of professional responsibility in the halls of the Justice Department" and because "there remains a distinct possibility that the Plaintiff States are being damaged and/or will suffer future damages due to these misrepresentations", the appropriate remedy is (1) the government must provide a list to the plaintiff states of all names of illegal aliens who received DACA benefits contrary to the lawyers' multiple representations, including identification info like addresses and alien numbers, and (2) "any attorney employed at the Justice Department in Washington, D.C., who appears, or seeks to appear, in a court (state or federal) in any of the 26 Plaintiff States annually attend a legal ethics course."

Hanen explains that "the Attorney General [Loretta Lynch] is hereby ordered to report to this Court in sixty (60) days with a comprehensive plan to prevent this unethical conduct from ever occurring again."