5th Circuit to hear immigration orders appeal on April 17


What bothers me most about the political reporting in Arizona is not so much what they do report, but the editorial discretion made in all the news that they do not report. It reminds me of a poster that was popular back in the 1970s that said: “I must be a mushroom, because they keep me in the dark and feed me bullshit.”

Case in point, the Arizona news media  are happy to report about “the 26 states,” including Arizona, that sued the Obama Administration over executive orders for immigration, and  Judge Andrew Hanen’s denial of the Obama Administration’s request to lift his stay order in his court, Request to lift hold of Obama immigration action denied:

ImmigrantsA federal judge in Texas has kept in place a temporary hold on President Barack Obama’s executive action that sought to shield millions of immigrants from deportation, rejecting a U.S. Department of Justice request that he allow the action to go ahead.

U.S. District Judge Andrew Hanen in Brownsville refused late Tuesday night to lift the preliminary injunction he granted on Feb. 16 at the request of 26 states that oppose Obama’s action.

Hanen’s latest ruling upholds the status quo — that the Obama administration is temporarily barred from implementing the policies that would allow as many as 5 million people in the U.S. illegally to remain.

[Hanen] wrote Tuesday that while the federal government had been “misleading” on the subject, he would not immediately apply sanctions against the government, saying to do so would not be “in the interests of justice or in the best interest of this country” because the issue was of national importance and the outcome will affect millions of people.

“The parties’ arguments should be decided on their relative merits according to the law, not clouded by outside allegations that may or may not bear on the ultimate issues in this lawsuit,” Hanen wrote.

In a separate order Hanen, told the government it has until April 21 to file to the court and plaintiffs detailed information about its March advisory about the 108,000 three-year reprieves.

The order asks the government to produce “any and all drafts” of the advisory, including information on when each draft was written, edited or revised. Hanen also asked for a list of each person who knew about the advisory.

While this report makes a passing reference to the appeal filed by the Obama Administration to the 5th Circuit Court of Appeals, it provides no relevant information about that case, which is where the real legal action now lies. I assume that this is due to editorial discretion — it doe not fit the media narrative that editors want to spin around this story, so they fail to provide the public with this relevant information.

Unfortunately for them, there are people who do know what is going on in this case, and there is something called the Internet. As Paul Harvey used to say, “And now for the rest of the story.

The 5th Circuit U.S. Court of Appeals has scheduled two hours of oral argument in New Orleans on April 17. The session is aimed not at the legal merits of the ruling U.S. District Court Judge Andrew Hanen issued last month, but on whether to grant the federal government’s motion to put that order on hold while the appeal of his decision goes forward. Appeals court sets arguments in Obama immigration suit:

Legal experts described as extraordinary the appeals court’s decision to hold a public session focusing on a stay.

“That’s extremely rare,” said University of Richmond Law Professor Carl Tobias. “Those are almost always addressed just on the papers and very quickly….I guess they just see this as such a huge issue between states and administration they’re giving it full-dress treatment.”

The appeals court also granted the federal government’s motion for an expedited appeal in the case that pits the administration against 26 states challenging the legality of Obama’s immigration actions. The 5th Circuit set a briefing schedule for the so-called merits appeal that runs through mid-May, pointing to possible oral arguments on that question later that month or in June.

On Tuesday, a three-judge panel of the 5th Circuit U.S. Court of Appeals unanimously ruled that several immigration agents and the state of Mississippi lacked legal standing to sue over Obama’s 2012 Deferred Action for Childhood Arrivals program because evidence that the agents or the state would be harmed by the effort was too speculative. Appeals court sides with Obama on immigration action:

“Neither Mississippi nor the Agents have alleged a sufficiently concrete and particularized injury that would give Plaintiffs standing to challenge DACA,” Judge W. Eugene Davis wrote in an opinion joined by Judges Carolyn King and Priscilla Owen.

* * *

Rulings of one three-judge panel on legal issues are binding on other panels of the appeals court, including one expected to hear arguments on the Obama administration’s request to stay Hanen’s injunction against the second wave of Obama immigration actions.

However, the panel assigned to that case could conclude that the facts are different because Texas and other states presented different evidence of the costs they would incur if Obama’s expanded immigration action went into effect. The main evidence was that issuing drivers licenses to those granted deferred action would increase state expenses because the charge for licenses doesn’t cover all related expenses.

Ian Milhiser at Think Progress reports, Federal Appeals Court Hints That It May Reinstate President Obama’s New Immigration Programs:

On Tuesday, the federal appeals court that oversees Texas handed down a decision which offers a ray of hope to immigrants who should be eligible for relief under the expanded DACA program or under DAPA. Though the United States Court of Appeals for the Fifth Circuit’s decision does not speak directly to the legality of the new immigration policies, it drops several hints that the panel of judges who decided this case will see both expanded DACA and DAPA differently than Judge Andrew Hanen, the Republican judge who suspended these programs.

Hanen’s opinion halting the new policies is very long and it relies on a number of legal conclusions that can charitably be described as controversial. For starters, the lawsuit challenging DAPA and expanded DACA was brought by a coalition of states led by officials who oppose President Obama’s policies. As in any federal case, these states are not permitted to bring a lawsuit unless they can show that they have actually been injured in some way by the actions they are challenging. Hanen’s opinion concludes that one of these states, the state of Texas, would be injured by DAPA and expanded DACA because the programs will cause more undocumented immigrants to apply for driver’s licenses in Texas, thereby imposing costs on the state.

The decision that the Fifth Circuit handed down on Tuesday in a case called Crane v. Johnson, also includes a state plaintiff — the state of Mississippi. It challenges the existing DACA program, which allows many undocumented immigrants who came to the United States when they were young to remain in the country. Though Mississippi’s claims that it will suffer financial injury if more immigrants are permitted to remain in the country are more speculative than Texas’s — and the Fifth Circuit lays out several reasons why Mississippi’s arguments for standing are especially weak — the Crane opinion also emphasizes the fact that the federal government has broad discretion to halt deportation proceedings against a particular immigrant. Federal immigration law, the Fifth Circuit explains, “only directs the Agents to detain an alien for the purpose of placing that alien in removal proceedings. It does not limit the authority of [federal officials] to determine whether to pursue the removal of the immigrant.”

This distinction matters because, if the federal government has discretion to halt deportation proceedings at any time, that means that there is no guarantee that a court order forcing immigration officials to detain certain immigrants will actually save the states money — as federal officials may decide at any time to “terminate removal proceedings after their initiation and release the immigrant back into” the state where the undocumented immigrant took up residence.

Indeed, the Crane opinion is peppered with language emphasizing the broad scope of executive branch officials’ discretion in matters relating to immigration. Quoting a seminal Supreme Court opinion, Crane explains that “a principal feature of the removal system is the broad discretion exercised by immigration officials.” The Fifth Circuit also emphasizes that “the concerns justifying criminal prosecutorial discretion are ‘greatly magnified in the deportation context.’”

Hanen’s opinion, by contrast, claims that this discretion dries up when the executive branch applies it broadly to a pre-defined class of immigrants. But DACA (the program at issue in Crane), DAPA and expanded DACA (the programs at issue in Hanen’s opinion) all apply broadly in this same way. It would be very strange for the Fifth Circuit panel to emphasize the broad scope of federal discretion if they believed it did not apply in cases such as these two.

Finally, Hanen rests what is probably the most important part of his opinion in his belief that DAPA and expanded DACA do not actually give low-level immigration officials discretion to decide who is eligible for relief — rather, he claims that they establish a blanket class of immigrants who, in practice, will automatically receive such relief. The Crane opinion, however, repeatedly emphasizes the fact that DACA, which is designed similarly to the programs at issue in Hanen’s case, only permits relief to be granted “on a case-by-case basis.” Contrary to Hanen’s position, the federal government “does not guarantee that relief will be granted in all cases.” These assertions cut against one of Hanen’s core allegations against the DAPA and expanded DACA programs.

So what then does this mean? First of all, it should be noted that, while the Crane opinion gives immigrants a reason to be hopeful, it does not give them anything approaching certainty. Much of the language in Crane is helpful to the federal government’s positions, but it could be distinguished by a Fifth Circuit panel that was already inclined to rule against the new immigration policies. Indeed, Judge Priscilla Owen, the most conservative member of the panel in Crane, authored a one-paragraph concurring opinion that appears designed to leave a window open for a later decision concluding that Texas does have standing to pursue its lawsuit.

The second takeaway is that how the Fifth Circuit interprets Crane is likely to hinge on which panel considers the appeal from Judge Hanen’s decision. The Fifth Circuit is a very conservative court, so there are many judges who are probably inclined to rule against the Obama administration that could be assigned to hear Hanen’s case (though there are few, if any, judges who have publicly expressed more animus towards Obama’s immigration policies than Hanen). Nevertheless, the panel in Crane, which consists of a Carter appointee, a Reagan appointee, and a very conservative Bush II appointee, is probably typically of the sort of panel that the Fifth Circuit typical produces.

In a conversation with this reporter on Twitter, ACLU immigration attorney Justin Cox explained that it is possible that the Fifth Circuit will assign Hanen’s case to the same panel that also decided Crane, as the two cases present related issues. Cox was careful to emphasize that it is not at all certain that the court will do so, but if it does, then much of the language in Crane takes on added significance, since it was written and agreed to by judges who are now actively pondering what to do with Hanen’s decision.

Coincidentally, the decision in Crane was handed down the same day that Hanen issued an order denying the Obama administration’s request to stay his orders halting DAPA and expanded DACA. [But which decision did the Arizona political media decide to report, and to not report?]

Hanen begins his analysis by accusing the Justice Department of misconduct for failing to disclose a change in the administration’s immigration policy that it is unlikely that Hanen even had authority to consider at this early stage of the litigation because it will have no practical effect for nearly two years. If Hanen’s order dripped with any more acid, it would literally burn the reader’s fingers.

Ironically, however, the fact that Hanen actually issued this order may prove to be a positive development for the Obama administration. Hanen was never going to grant a motion seeking to reinstate Obama’s new immigration policies, but he has sat on DOJ’s request for such an order for weeks. Because the Federal Rules of Appellate Procedure typically require a party seeking a stay to first make that request to the trial judge who initially heard the case before seeking the stay from an appeals court, Hanen’s refusal to resolve the administration’s request one way or another could have prevented the Fifth Circuit from issuing the stay itself. Now that Hanen has given the administration his answer, however, this potential obstacle to a Fifth Circuit decision reinstating the new immigration policies has been removed.

Additionally, should the Justice Department decide that Hanen’s conduct in this case has been so egregious that it warrants a request that he be removed from the case due to bias, the substance of Hanen’s order denying the stay request is likely to bolster such a request.

14 states and the District of Columbia have filed an amicus brief with the 5th Circuit in support of the president’s executive actions on immigration. These states are California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maryland, Massachusetts, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington state and the District of Columbia.

181 Democratic members of the House of Representatives filed an an amicus brief on Monday telling the 5th Circuit appeals court that the executive branch has the authority to make the policy changes that President Barack Obama announced in November. Democrats File Court Brief Backing Obama Immigration Orders:

Also Monday, a group of former members of Congress filed an amicus brief in support of the Obama administration’s actions.

In the brief, the former lawmakers said the president’s discretion is important “because, as they well know, the exercise of that discretion is often critical to the effective enforcement of the nation’s laws.”

Locally, Coconino and Santa Cruz counties joined dozens of local governments in an amicus brief urging immediate implementation of President Barack Obama’s executive orders on immigration – orders the state of Arizona is suing to block. Coconino, Santa Cruz counties join suit backing Obama’s immigration actions.

The information that the Arizona political media is failing to report puts this story in a whole different light, now doesn’t it? The media narrative that “26 states” including Arizona and rogue Republican Judge Hanen are standing up to the big bad Obama Administration that the Arizona political media media are spinning is not at all accurate, and is misleading. You can draw your own conclusion as to whether it is purposeful, or just poor reporting.


  1. Remember in march 2006 the media couldn’t care less about the plight of immigrants and dreamers until 30,000 demonstrators shutdown the east side of phoenix on 16th street. That is why I wrote my screenplay on the plight of undocumented children to get attention so a movie can be made to show america what is happening. You can read it at my web site: thealamoisavenged.com Publicity is the answer!

  2. Pima county, and the state of Arizona desperately need large newspapers and TV news that are NEWSpapers and NEWS outlets rather than outlets of the Republican Party.

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