Texas' 'Stealth' Request for Clawback of Immigrants' Permits

Texas Lawyer ^ | 9/18/2015 | Miriam Rozen

[Elderberry]

In immigration litigation pitting Texas and 25 other plaintiff states against the Obama administration, a friend of the court brief filed on Sept. 16 opposes the states' request for sanctions imposed on the federal government. The brief labels Texas and the other states' request as nothing more than a "stealth" attempt to get 108,000 work permits that the federal government issued to immigrants "clawed back."

The friends of the court who filed the brief are identified only as Jane Doe 1, 2 and 3. They are represented by O'Melveny & Myers, DLA Piper and the Mexican American Legal Defense and Educational Fund.

Previously, the U.S. Department of Justice filed a memorandum arguing that U.S. District Judge Andrew S. Hanen should not impose punitive sanctions against the federal government, as the plaintiff states had requested.

The punitive sanctions would not be justified as a response to their previous "unintentional miscommunication" to Hanen about the federal government's flawed efforts to comply with an injunction he issued in February, the DOJ lawyers argued.

In the long-running contentious litigation, which began in December 2014, Texas and the other plaintiff states sued the federal government after the Obama administration proposed expanding programs allowing undocumented immigrants who came to the U.S. as children to remain in the country. Those plans called for the federal government to issue temporary work permits to some of those immigrants.

Texas and the other states sued seeking to stop the federal government from launching the programs. Texas and the other states allege that the cost of the programs will impose a burden on the states.

With his February injunction, Hanen barred the federal government from issuing the temporary work permits.

Weeks after Hanen issued the injunction, however, the DOJ lawyers informed him that the federal government had issued some 108,000 such permits prior to his injunction ruling. The DOJ lawyers also told Hanen the federal government had mistakenly issued 2,600 permits after his injunction ruling.

At an Aug. 19 hearing, Hanen asked the DOJ lawyers to address his concerns and evaluate possible sanctions related to the federal government's errors in reporting the steps it took to comply with the February injunction.

At the same hearing, Texas and the other states proposed that Hanen take steps in response to the federal government's reporting errors. Texas and the other states argued that the federal government's compliance with the February injunction was insufficient and inadequately executed. Texas and the other states also requested personally identifiable information about some 108,000 immigrants who received work permits before Hanen issued his February injunction. The states proposed unwinding those 108,000 permits and converting them from three-year work permits to two-year ones, according to the DOJ.

The Jane Does who filed the amicus brief, write that they "take no position in this brief on whether misrepresentations occurred or whether any other sanctions would be appropriate."

But they argue that Texas and the other plaintiffs ask for relief that should not be granted.

"First, the states are actually requesting a new or expanded preliminary injunction, one that falls outside the bounds of the court's sanctions power," the friend of the court brief states.

"Although Texas and the other states originally sought a full clawback of the 108,000 [work permits] at the Aug. 19 hearing, they cloak that request in their more recent written request. Instead, likely recognizing that the injunction standard disfavors their request for a clawback, and perhaps desiring to appear more reasonable, they now 'at minimum' request that the [federal government's immigration] records and databases be updated," the friend of the court brief states. But it adds: "This is nothing more than a stealth request for a full clawback."

In response to the amicus filing, Cynthia Meyer, a spokeswoman for the attorney general of Texas, whose office represents the state in the litigation, said in an emailed statement: "As the Obama Administration has admitted, these three year work permits were issued prematurely and in direct contradiction to what was presented to a federal judge. They should have never been issued in the first place and should be rescinded."

[BenLurkin]

Good for Texas!

[HiTech RedNeck]

so where can i donate some claws from my cats to this clawback?

[itsahoot]

Having to say your sorry when it actually means FU.

Great expectations of Judge Hannon were overrated.

[Jane Long]

Of possible interest ping.

[Hostage]

Thanks for the ping.

It puts Judge Hanen in a precarious situation as he keeps an eye on the higher courts and how they might be viewing his actions.

So far Judge Hanen has been doing a stellar job and I believe he will continue to do what’s best to stop what is really the threat behind all this.

I believe he can get several months over hearings, arguments and deliberations with this clawback issue, And we remember that the clock is a very big part of the overall strategy in this.

[veracious]

Hurrah Texas!