Skip to Content

DOJ Must Explain 3-Year Deportation Delays, Judge Says

9 Mar

Law360, New York (March 09, 2015, 8:50 PM ET) — A Texas federal judge has ordered the U.S. Department of Justice to explain its recent revelations that 100,000 people had already been granted three years of deferred deportation under the president’s executive immigration actions before the policy was blocked, saying he would not rule on any other motions until a hearing is held.

U.S. District Judge Andrew S. Hanen, who is overseeing a suit by a group of 26 states challenging the president’s November executive actions on immigration, set a hearing for March 19 after the states on Thursday filed a motion for discovery that sought to investigate claims made by the DOJ in a Feb. 3 advisory to the court.

That advisory said that between Nov. 24 and Feb. 16 — when the president’s immigration policies were halted — U.S. Citizenship and Immigration Services granted three-year periods of delayed deportation to about 100,000 people who were already eligible for relief under the guidelines established by the 2012 Deferred Action for Childhood Arrivals program, which isn’t being challenged in the states’ case.

“In addition to being prepared to respond to the states’ motion, the defendants shall be prepared to fully explain to this court all of the matters addressed in and circumstances surrounding the defendants’ advisory,” Judge Hanen said. “Due to the seriousness of the matters discussed therein, the court will not rule on any other pending motions until it is clear that these matters, if true, do not impact the pending matters or any rulings previously made by this court.”

In Thursday’s discovery motion, the states expressed surprise over the revelations, claiming the government said on several occasions that USCIS wouldn’t consider such deferred action requests until at least Feb. 18, 2015. The motion called for a limited early discovery period in order to find out the extent of the government’s actions and their compliance with Judge Hanen’s Feb. 16 preliminary injunction.

In a supplement to the motion filed Friday, the states also included a transcript of a Dec. 19 telephone conference between counsel for both parties and the court in which DOJ lawyer Kyle R. Freeny is quoted to have said the government wouldn’t begin accepting requests for deferred action until mid-February.

But even after that, “we wouldn’t anticipate any decisions on those [requests] for some time thereafter,” the supplement quoted Freeny as saying.

The states’ supplement said that nowhere in those discussions did the federal government inform the court that they were planning to consider DACA requests under a 2014 guidance expanding DACA.

“As plaintiffs explained in their motion, the [federal government’s] conduct is difficult to square with their prior representations to the court,” the supplement said.

The government’s advisory, which it said was filed “out of an abundance of caution,” had noted that the mid-February date for when the government would begin considering deferred action requests applied only to those who had just become eligible under the new and expanded DACA eligibility guidelines.

Regarding the 100,000 people given three-year deportation relief under the 2012 DACA before the injunction, the DOJ said in its advisory that it doesn’t believe those benefits need to be revoked. DOJ further assured the court that all implementation of the expanded DACA program and a new deferred deportation program for certain immigrant parents called DAPA have been halted.

“Defendants nevertheless recognize that their identification of Feb. 18 as the date by which USCIS planned to accept requests for deferred action under the new and expanded DACA eligibility guidelines, and their identification of March 4 as the earliest date by which USCIS would make final decisions on such expanded DACA requests, may have led to confusion about when USCIS had begun providing three-year terms of deferred action to individuals already eligible for deferred action under 2012 DACA,” the advisory said.

A representative for both parties was not immediately available for comment late Monday.

Texas and numerous other states filed their Dec. 3 lawsuit against President Barack Obama’s proposed expansion of DACA through November’s executive actions. The actions would lengthen DACA to three years and created the Deferred Action for Parents of Americans and Lawful Permanent Residents.

Judge Hanen preliminary injunction ultimately hit the brakes on the proposed immigration actions.

The fight over Obama’s immigration policies also recently led to a showdown in Congress over U.S. Department of Homeland Security funding this winter, thanks to legislative riders that would block funds for the new deportation policies.

The U.S. House of Representatives finally agreed to pass the Senate’s “clean” $39.7 billion DHS funding bill on Tuesday, ending a weekslong standoff over a contentious immigration-related amendment that had been attached to the bill. The legislation was signed into law by Obama on Wednesday afternoon.

Most of the plaintiff states are represented by their attorneys general. Indiana is represented by Joseph C. Chapelle and Peter J. Rusthoven of Barnes & Thornburg LLP. Mississippi Gov. Phil Bryant is represented by his deputy counsel, Drew Snyder. North Carolina Gov. Pat McCrory is represented by his general counsel, Robert C. Stephens. Idaho Gov. C.L. “Butch” Otter is represented by his legal counsel Tom Perry and associate counsel Cally Younger.

The federal government is represented by Kyle R. Freeny and Adam D. Kirschner of the U.S. Department of Justice and Daniel D. Hu of the Southern District of Texas.

The case is Texas et al. v. U.S. et al., case number 1:14-cv-00254, in the U.S. District Court for the Southern District of Texas.