No surprise from 5th Circuit on immigration, but Judge Hanen’s reliance on “sublime intelligences” exposed

May 27, 2015

Yesterday, in a 2/1 split decision, a three judge motions panel of the 5th circuit appeals court refused to lift the injunction placed on President Obama’s immigration executive actions last February by Texas Judge Andrew Hanen. Hanen’s order temporarily blocked the implementation of DACA expansion and DAPA, which offer an estimated 5 million undocumented DREAMers and parents a chance to apply for a brief temporary reprieve from deportation. The Obama administration had asked the 5th circuit panel to temporarily lift the injunction while the court heard the full appeal of Hanen’s ruling.

Yesterday’s refusal to lift the injunction comes as no surprise. The 5th Circuit Appeals court is considered by many to be the most conservative federal appeals court in the county and the two Republican appointed judges who declined to lift the stay, Jerry E. Smith and Jennifer Walker Elrod, are among the most conservative judges on the court. In a very narrowly tailored opinion they reasoned that the State of Texas would be harmed as a result of increased driver’s license costs due to DAPA and that the executive actions likely violate the technical rule making requirements of the Administrative Procedures Act.

But the real news yesterday was the powerful, well-reasoned dissent of Judge Higginson, an Obama appointee, who reminded his colleagues in no uncertain terms that Texas’ complaint against President Obama’s deferred action programs should be thrown out of court. “I would hold,” Higgenson wrote, “that Supreme Court and Fifth Circuit caselaw forecloses plaintiffs’ arguments challenging in court this internal executive enforcement guideline.”

Higgenson didn’t stop there. Using respectful, even deferential, language, he took aim not at his colleagues, but at Judge Hanen, the Brownsville Texas judge who’d entered the injunction at the request of the Republican Governors and Attorneys General who’d filed the case in his courtroom. With the deft use of genteel prose Higginson hammered Hanen hard, all but calling him out for playing fast and loose with the law and facts—something Professor Anil Kalhan has termed Hanen’s “Judicial Truthiness.”

In a particularly biting rebuke to Hanen’s claim that Obama’s November 20, 2014 deferred action memorandum constitutes a refusal to enforce the immigration law, Higginson wrote that Hanen’s “twofold extrapolation—focusing not on [the deferred action guidance] itself set against current law, but instead on an embellishment of it set against a perceived imperative to remove all illegal immigrants—rests on sublime intelligences.”

Wow. That’s some strong stuff (and I had to look up the meaning of “sublime intelligences,” which is apparently a reference to a godly force). You rarely see language like that from one Judge describing the work of another Judge.

Unfortunately, Jerry Smith and Jennifer Elrod, the two judges who refused to lift the injunction, took the same confusing and circuitous route Hanen did to get to where they got. That path required them to give short shrift to what Higginson described as “the four corners” of the deferred action guidance, coupled with inappropriate speculation and guesswork—speculation and guesswork which is necessary to success of the Texas litigation because, as Higginson observed, the executive actions on deportations have “yet to go into effect, and no evidentiary hearing was held, the record is underdeveloped and contains considerable conjecture, and conjecture is guided by feeling.”

As for the contention that the deferred action guidance does not permit case-by-case discretionary determinations by immigration agents and therefore runs afoul of the rule making requirements of the Administrative Procedures Act—a claim which is central to Hanen’s and the 5th circuit panel’s opinion—Higginson all but implored his GOP appointed colleagues to actually read the guidance—something which objective judges are supposed to do. He painstakingly summarized the language of the deferred action memorandum which repeatedly reminds immigration officers that Obama’s executive action is not an edict, but policy guidance which leaves the final enforcement decision to their discretion. “No fewer than ten times”, Higginson wrote,

[T]he November 20, memorandum instructs immigration officers that: (1) “DHS must exercise prosecutorial discretion in the enforcement of the law”; (2) “[immigration laws] are not designed to be blindly enforced without consideration given to the individual circumstances of each case”; (3) “[d]eferred action is a form of prosecutorial discretion by which the Secretary deprioritizes an individual’s case for humanitarian reasons, administrative convenience, or in the interest of the Department’s overall enforcement mission”; (4) “deferred action is legally available so long as it is granted on a case-by-case, and it may be terminated at any time at the agency’s discretion”, (5) “[c]ase-by-case exercises of deferred action for children and long-standing members of the American society who are not enforcement priorities are in the Nation’s security and economic interests and make common sense”; (6) “this Department’s limited enforcement resources…must continue to be focused on those who represent threats to national security”; (7) “USCIS [should] establish a process, similar to DACA [2012], for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis”; (8) “ICE is further instructed to review pending removal cases…and to refer [certain] individuals to USCIS for case-by-case determinations”; (9) “immigration officers will be provided with specific eligibility criteria for deferred action, but the ultimate judgement as to whether an immigrant is granted deferred action will be determined ton a case-by-case basis”; and (10) “[i]t remains within the authority of the Executive Branch…to set forth policy for the exercise of prosecutorial discretion and deferred action…This memorandum is an exercise of that authority.”

Had Smith and Elrod focused on what the DACA expansion and DAPA guidance actually says—not what the GOP governors and attorneys general who brought the Texas lawsuit say it says—yesterday’s decision would have likely gone the other way and lifted Hanen’s injunction. As Higginson reminded his two colleagues, seemingly out of frustration, the deferred action guidance is founded on well settled, long-standing principles of prosecutorial discretion which are firmly rooted in the law. “On this record,” Higginson wrote, “as well as focusing below on the four corners off the November 20 [DACA expansion and DAPA guidance], I would say DHS is adhering to law, not derogating from it.”

When the 5th Circuit appeals court hears the full appeal on July 6 it will, of course, have to carefully consider the opinion of Judges Smith and Elrod. But the appeals court will also have to take into account Judge Higgenson’s authoritative dissent which instructs the court—and the public at large—in a clear, well-reasoned voice, that the GOP Texas lawsuit against DACA expansion and DAPA is nothing more than a partisan attack masquerading as a lawsuit. As Higginson wrote, “[t]he political nature of this dispute is clear from the names on the briefs…”

Importantly, Judge Higginson is not alone in his view that lawsuits attacking executive actions on deportations have no place in court. In April another panel of the Fifth Circuit Court of Appeals upheld a decision from a lower court that ruled Mississippi lacked standing to challenge President Obama’s 2012 immigration executive action to protect DREAMers. And in December of 2014, U.S. District Court Judge Beryl Howell “wasted little time dismissing a lawsuit brought by Maricopa County, Ariz., Sheriff Joe Arpaio against President Barack Obama’s November executive action.” The D.C. Court of Appeals has already heard arguments on that decision and is expected to issue a decision shortly.

No question, yesterday’s panel decision is a setback for mixed immigration status American families across the U.S. who fear losing a loved one to deportation. But it’s a delay, not the death knell for DACA expansion and DAPA.

And it’s certainly not last word on President Obama’s executive actions on deportations.