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“Ignoring Basic Principles Of Government”: Texas Judge’s Immigration Ruling Is Full Of Legal Holes

U.S. District Judge Andrew S. Hanen’s decision to block the Obama plan to defer deportation for about 5 million immigrants here illegally ignores a basic principle of government: For better or worse, the executive branch of government always has discretion as to whether and how to enforce the law.

The judge’s lengthy opinion is wrong as a matter of law and, worse, is based on xenophobia and stereotypes about immigrants. It is very likely to be overturned by the U.S. 5th Circuit Court of Appeals, and, if necessary, the Supreme Court.

Every president must set enforcement priorities on immigration, choosing whom to prosecute or whom to deport. No administration brings prosecutions against all who violate the law. Resources make that impossible, and there are laws on the books that should not be enforced.

Nor has any administration, Democratic or Republican, sought to deport every person who is illegally in the United States. For humanitarian reasons or because of foreign policy considerations or for lack of resources, the government often chooses not to bring deportation actions. In fact, as recently as three years ago, the Supreme Court in United States vs. Arizona recognized that an inherent part of executive control over foreign policy is the ability of the president to choose whether to bring deportation proceedings.

That is exactly what President Obama’s executive orders on immigration have done. He has announced that the federal government will not seek to deport 600,000 young people who were illegally brought to the U.S. as children, or the undocumented parents of U.S. citizens and permanent residents who have resided in the country for at least five years. Millions of parents would be able to remain with their children because of this order and not need to live every day in fear of deportation.

The judge’s order makes several basic legal mistakes. For example, the law is clear that a federal court has jurisdiction to hear a matter only if the federal court’s decision would solve the problem. If the court’s decision would have no effect, it would be nothing but an advisory opinion, which is prohibited by the Constitution. Thus, the Supreme Court long has held that a party has standing to sue in federal court only if a favorable decision would “redress” its injury.

The lawsuit in Hanen’s court was brought by state governments that object to the Obama orders, claiming injury by the presence of immigrants here illegally. But the federal government deports only about 400,000 such immigrants a year. It is entirely speculative that stopping the executive orders would have any effect on the states that brought the suit. In fact, it is unclear what the judge’s order will mean. He cannot force the Department of Homeland Security to deport anyone.

The central argument in Hanen’s ruling is that the executive branch must promulgate a formal rule to defer deportation of these individuals. But the federal government constantly sets enforcement priorities without a formal rule. The Justice Department’s policies to not prosecute possession of small amounts of marijuana or credit card fraud below a designated dollar level, for example, were not adopted by formal rules.

In fact, recent presidents, including Republican ones, have deferred deportations without formal rules. In 1987, in response to political turmoil in El Salvador and Nicaragua, the Reagan administration took executive action to stop deportations for 200,000 Nicaraguan exiles. In 1990, President George H.W. Bush, post-Tiananmen, stopped deportations of Chinese students. He kept hundreds of Kuwaiti citizens who were illegally in the United States from being deported after Saddam Hussein invaded their nation. In 2001, President George W. Bush limited deportation of Salvadoran citizens at the request of El Salvador’s president, and ordered that deportation decisions include consideration of factors such as whether a mother was nursing or whether the person in question was a U.S. military veteran.

Judge Hanen, appointed to the federal bench by George W. Bush, has the reputation of being especially conservative on immigration issues. That tone underlies his opinion, especially as he spoke of immigrants being “terrorists” and “criminals.” What he misses, though, is that the point of Obama’s executive orders was to set enforcement priorities to focus deportations on terrorists and criminals and not on breaking up families.

It is not surprising that a conservative Republican judge would try to stop the Obama immigration policy. But it is just the first word and one unlikely to be sustained on appeal.

 

By: Erwin Chemerinsky, Dean of the UC Irvine School of Law; Samuel Kleiner, a Fellow at the Yale Law Information Society Project; The Los Angeles Times; The National Memo, february 20, 2015

February 23, 2015 Posted by | Deportation, Executive Orders, Immigration | , , , , , , , | Leave a comment

“A Long History Of Pleasing Conservatives”: Meet Conservatives’ New Favorite Judge

Few outside of a tiny Texas border town knew who Federal District Court Judge Andrew Hanen was until Monday night when he became a right-wing hero.

But this isn’t the first rodeo the judge who delayed implementation of the Obama Administration’s executive order on immigration.

Hanen, a federal district court judge in Brownville, Texas, has a long history of taking a conservative approach to immigration issues in his courtroom, which is located just over a mile from the Mexican border.

The once obscure justice, whose only other previous claim to fame was serving as the President of the Houston Bar Association 15 years, has now made himself a right wing celebrity.

But his ruling on Monday is by far the most consequential that the George W. Bush appointee has ever issued.

He first gained notice for his willingness to entertain the arguments of landowners on the Mexican border who opposed the construction of a fence on their land by the federal government.

The Texas Observer described him in 2010 as “the only federal judge in the nation who forced Homeland Security to acknowledge landowners’ constitutional protections. In case after case, Hanen refused to rubber-stamp the condemnations and ruled that the government would have to provide ‘fair compensation’ for the land it was taking.”

But Hanen became a darling of immigration hawks in a 2013 order in which he vented against a decision made by the DHS not to deport a woman in the country illegally who had paid for her daughter to be smuggled into the United States.

While the smuggler was sentenced to jail, the government allowed the woman and her daughter to remain in the country under a 1997 settlement agreement.

Hanen was not pleased.

In an order he attacked the DHS’s “apparent policy … of completing the criminal mission of individuals who are violating the border security of the United States” and compared the action to “taking illegal drugs or weapons seized from smugglers and delivering them to the criminals who initially solicited their illegal importation/exportation.”

Hanan’s order may not have been binding but it certainly electrified many conservatives as one of the most powerful statements from a federal judge on the issue.

On Monday he made good for conservatives again.

Hanan ruled in favor of 25 states that sued the federal government to stop the implementation of a 2014 executive order to allow millions of undocumented immigrants to apply for “deferred action” from the Department of Homeland Security (DHS). This executive order enabled the undocumented immigrants to work legally and avoid deportation for several years—a move many Republicans have decried as “executive amnesty.”

Hanen didn’t reach a final decision but instead issued a preliminary injunction, which keeps DHS from enforcing the executive order until a final decision is issued.

His injunction though is not expected to last.

The federal government is expected to appeal to the 5th Circuit Court of Appeals in New Orleans and is considered likely to get Hanen’s ruling overturned in that venue.

However, in the mean time, the decision to delay the executive order has major political ramifications in Washington DC where a potential partial government shutdown is looming over this issue.

But no matter what happens in this standoff, there is one clear winner: Judge Hanen.

Immigration reform is likely to remain a quagmire and Congress will continue to be dysfunctional. But, at least, Hanen will increase his Q-rating and become the most consequential federal judge ever to sit in the Brownsville Division of the Southern District of Texas.

 

By: Ben Jacobs, The Daily Beast, February 17, 2015

February 18, 2015 Posted by | Conservatives, Deportation, Immigration | , , , , , , , | 1 Comment

“Drag-Racing Off A Political Cliff”: Republicans Attack Immigrants While Putting America In Danger

The House of Representatives’ Department of Homeland Security (DHS) funding bill, which is really a law seeking the mass deportations of undocumented people, including children, died on the Senate floor, victim of arithmetic certainty.

Mathematical reality seems to be a challenge to the GOP House majority. While most Americans have heard about the 60-vote rule in the U.S. Senate that impacts most legislation — the cloture/filibuster, as it is commonly known — House Republicans insist in passing bills that cannot make that threshold, and are subsequently dismayed that their legislation dies an ignominious death.

Yet once again, and this would now seem to be par for the course for Speaker John Boehner’s (R-Ohio) House, Republicans have passed a bill that, with zero support of Senate Democrats, failed to meet the basic 60-vote threshold — three times.

It has been clear for some time that Democrats will not support the liquidation of President Obama’s executive actions on immigration. Moreover, should such a bill pass by some deus ex machina event, the president would veto it.

So why insist on passing a bill that cannot become law? One must assume that the potency of a quixotic quest to achieve the impossible is irresistible to many members of the Republican caucus in the House. Majority Whip Steve Scalise (R-La.) seemed to insist that two plus two does not equal four when he told The Hill that “There’s not a Plan B, because this is the plan.”

In other words, after the mass deportation bill crashed and burned in the Senate, the House has no other plan, no other path forward to fund America’s shield from terrorism, Homeland Security.

Showing the triumph of ideology over logic, The Hill further reports that Rep. John Fleming (R-La.) said before the Senate vote that: “[M]any of us agree that we should stand behind the one bill that we sent over there. Most of us feel that way. … Anything less than that, we’re not going to get any better result anyway. So why not just go for what’s really right?”

Of course, the obvious “better result” would be not to put America’s security at risk, and instead pass a clean DHS funding bill that would keep the nation safe. Immigration can always be tackled as a separate issue by the Republican-controlled Congress.

In fact, Rep. Jeff Denham (R-Calif.) recently told me on my radio show that the House leadership has given immigration-reform Republicans encouragement to develop a set of sweeping immigration reform bills. So at least in the pro-arithmetic wing of the Republican Caucus, there is a reality-based path forward to deal with immigration without the perennial government shutdown threat — implicit in Scalise’s “not a Plan B” comment — that has become Republicans’ go-to tactic for forcing through their agenda when they fail to muster the votes necessary to pass legislation in both chambers.

It would be refreshing to see the big House Republican majority have as much passion for governing as they do for deportation. As Americans look at our society, polling clearly suggests that bread-and-butter issues dominate the agenda of the people. The economy, of course, and education, healthcare and the sense of economic insecurity that hangs like a shadow over most American families are the issues that should be tackled by a giant majority with ambitions to govern for more than two years.

I have yet to see one poll in which Americans rank mass deportations of undocumented immigrants as a top priority. Moreover, it’s hard to imagine that Americans favor such deportations over the continued funding and smooth operation of the country’s principal anti-terrorist agency, DHS.

Ironically, the party that has claimed the mantle of being the true fighters against a global jihadist threat is willing to drag-race off a political cliff to deport people rather than fund Homeland Security.

This is a choice that has both practical and symbolic resonance. The practical impact is obvious: Even one day, contrary to Rep. Mario Diaz-Balart’s (R-Fla.) jaunty declaration otherwise, when DHS is not funded is one day too many. Republicans willfully weakening America’s national security would be irresponsible, bordering on seditious.

And the political and symbolic effects would also be notable. Will Americans easily forget that Republicans bet with their safety, indeed the safety of the nation, for the unachievable policy goals of deporting millions of people?

Perhaps we’re seeing here the inherent weakness of a Republican majority so divided among ideologies and passions that it is literally incapable of governing for the benefit of the nation.

At the very least, we are witness to the fact that even GOP leaders such as Rep. Scalise are a little weak on the universal truths of basic arithmetic.

 

By: Fernando Espuelas, Univision America Host; THe Blog, The Huffington Post, February 6, 2015

February 8, 2015 Posted by | Deportation, Immigration Reform, National Security | , , , , , , , | Leave a comment

“Compassionate Paleolibertarianism”: Rand Paul Offers Free Eye Exam With Deportation

Not long ago, Rand Paul appeared at a fund-raiser for full-time immigration hawk and occasional racist Steve King, where he found himself uncomfortably close to a young Mexican immigrant, causing him to panic and flee. Now Paul tells Breitbart News he supports the House bill that would end President Obama’s policy of granting relief from deportation to undocumented immigrants who were brought here as children.

As Sam Stein points out, Paul has been telling Republicans they need to reach out to nonwhite voters and show them they care. In an odd bit of timing, Paul’s endorsement of draconian immigration policy coincides with his trip to Guatemala to perform free eye surgery. It was just Rand Paul and some Guatemalans who need medical care. Plus a wee entourage consisting of “three television cameras, three photographers, six reporters, a political aide, two press secretaries, [and] conservative activist David Bossie.” Basically, your standard medical crew, in other words. You could risk getting medical treatment without the director of such films as Battle for America (starring Dick Morris) standing by, but why risk it?

One might detect a dissonance between Paul’s warm-and-fuzzy medical mission and his hard-line stance toward Dreamers. But it actually fits together quite sensibly. The 2016 hopeful opposes universal health insurance, and he wants to deport half a million people who grew up in America. But Rand Paul will personally provide every deported immigrant with a free eye exam. Call it compassionate paleolibertarianism.

 

By: Jonathan Chait, Daily Intelligencer, New York Magazine, August 22, 2014

August 25, 2014 Posted by | Deportation, Immigrants, Rand Paul | , , , , , , , | Leave a comment

“Losing Their Minds”: Why The Republican Freak-Out Over Obama’s Immigration Order Is Both Dumb And Inhumane

Like it or not, these are the facts: There are 11.7 million undocumented immigrants living in United States. The U.S. Immigrant and Customs Enforcement only has the capacity to remove about 400,000 per year. That’s less than 4 percent of the total undocumented population.

Keep these facts in mind as President Obama prepares to announce an executive action to protect certain classes of undocumented immigrants — and as Republicans lose their minds over it. Obama’s expected move isn’t a sinister example of “domestic Caesarism,” as Ross Douthat would have it, or “stealth amnesty,” in the words of Reihan Salam. It is an eminently reasonable response in the face of congressional inaction, while the conservative opposition puts them on the wrong side of both basic humanitarian instincts and public welfare.

The executive action is expected to expand deferred action to more undocumented immigrants. Deferred action provides an assurance to certain immigrants that they won’t be pursued for deportation. With it comes work permits, so those who won’t be deported can pursue legitimate work.

The legal basis for deferred action is grounded in prosecutorial discretion — the authority of law enforcement agencies to determine how and when to enforce the law. Such discretion is necessary given scarce agency resources. It’s why police and prosecutors devote most of their time to pursuing serious offenses rather than going after every crime on the books. It would be a waste of resources to charge and punish jaywalkers or adulterers, for instance.

Given these constraints, officials have prioritized certain classes of immigrants for removal. ICE specifically targets three categories of undocumented immigrants: those who present national security or public safety risks; those who have recently entered; and those who have reentered after being removed.

These targets guide immigration enforcement actions. In 2013, there were 368,644 removals. Ninety-eight percent met one of ICE’s three priorities. Of these, 235,093 were removed while trying to enter at the border. Among the 133,551 removed while living inside the United States, 82 percent had a previous criminal conviction.

Just as there are removal targets at the top of ICE’s list, there are non-targets at the bottom. These are classes of undocumented immigrants that agents opt to ignore. These categories, outlined in the 2011 Morton Memo, include U.S. military veterans, minors, elderly persons, and pregnant women, among others.

This list broadly tracks the immigrants that we may see benefit from expanded deferred action under Obama’s executive order. As Eric Posner argues, Obama’s order would in many respects do little more than bless preexisting policy. But it would also give some legal guarantee to peaceable immigrants at the distant, unreachable bottom of ICE’s priority list, allowing them access to aboveboard work in the process.

Conservatives will undoubtedly seethe over Obama’s unilateral action. But once they exhaust their procedural objections, any substantive opposition to the policy itself is either cruel or dangerous.

On the one hand, conservatives could object to a codification of ICE’s existing practices. Under this argument, it’s not selective enforcement of the law that’s the problem, but explicitly telling immigrants who arrived in the country illegally that they’re in the clear. Keeping the law hazy would subject law-abiding immigrants to an illusory fear, supposedly discouraging migrant flows.

This is a deeply inhumane tactic. Their preference would be for millions of immigrants to needlessly live with the specter of deportation hanging over their heads. This would condemn them to living in the shadows and working in tenuous, often-exploitative conditions — even though immigration officials have no interest in deporting them.

The other objection — rejecting prosecutorial discretion outright — isn’t any more heartening. This would involve ICE pursuing every undocumented immigrant with equal zeal.

This would be a policy that jeopardizes national security and public safety. Short of expanding enforcement capacity by a factor of 30, time spent expelling military veterans or parents would allow more gang members and felons to slip through the cracks of strained budgets. As John Sandweg, former Homeland Security general counsel, said, “If we eliminated all priorities, and treat [all undocumented immigrants] equally, you are going to make the country less safe, and make the border less secure.”

When he announces his executive action, Obama should remind the country that prosecutorial discretion in immigration keeps us safe. Deferred action is a fairly minor step to provide some peace of mind to those that our immigration system already doesn’t care about deporting, making it easier for them to live freely and work productively. If conservatives still object, it will be clear that they remain far from being fit to step in and lead as moral and protective stewards for our country.

 

By: Joel Dodge, Member of the Boston University School of Law’s Class of 2014; The Week, August 12, 2014

August 18, 2014 Posted by | Deportation, Immigration, Republicans | , , , , , , | Leave a comment

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