DOJ Wants to Hide the Names of Illegal Aliens Granted Amnesty, by Hans von Spakovsky / @HvonSpakovsky /
June 02, 2016 / 374 comments
The Justice Department is resisting
a judge’s order to provide ethics training for its lawyers and is objecting to
turning over to the court the names of illegal aliens who were granted what
amounts to administrative amnesty (“deferrals”) in stark violation of an
injunction issued by the court.
On May 19, Judge Andrew Hanen of the
of the Southern District of Texas issued
an order imposing sanctions on the Justice Department and its lawyers for
unethical conduct, which included repeatedly lying to him in court.
U.S. v. Texas is the immigration
lawsuit filed by 26 states against the Obama administration over its plan to
provide deferrals, work permits, and other government benefits to almost
5 million illegal aliens. Hanen issued a preliminary injunction in
February 2015 preventing implementation of the plan. His decision was upheld by the 5th
Circuit Court of Appeals and the case is currently before the U.S. Supreme
Court.
But Hanen issued his sanction order
because of the misbehavior of Justice Department lawyers when the case was
before him. He severely rebuked the DOJ for claiming that the president’s plan
was not being implemented prior to his issuing his injunction order when the
government knew that it was being implemented—to the tune of over 100,000
aliens. When he found out, he ordered the government to reverse its behavior
and void these deferrals.
Amongst the sanctions Hanen ordered
on May 19 was yearly ethics training for five years for every DOJ lawyer
stationed in Washington who appear in any of the courts of the states who filed
the lawsuit. He also ordered the Department of Homeland Security to provide him
(under seal) with a list of all of the aliens who had been given benefits under
the amnesty plan in violation of his injunction.
However, on May 31, the Justice
Department filed a motion
with Hanen asking him to stay (or suspend) his sanctions order while DOJ
appeals his decision to the 5th Circuit. The Justice Department claims in its
brief that with regards to the required ethics training, Hanen’s determination
that the DOJ’s lawyers engaged in “intentional misrepresentation” was reached
“without proper procedural protections” and that there was not “sufficient”
evidence of the misrepresentations.
Given the extensive evidence that
Hanen cited in his order of the misrepresentations made by the government
lawyers, as well as the extensive opportunity he gave the DOJ to present
its side in the briefs it filed with the court, the claim that the
DOJ was somehow unfairly judged or unable to present its defense is extremely
dubious.
The DOJ also claims that the
“sanctions imposed exceed the court’s authority.” Given the severity of the
violations of the code of professional conduct that govern lawyers, including
government lawyers, this is another problematic claim by the department.
Given that the judge could have
imposed even more severe sanctions, such as dismissing the defensive pleadings
filed by the government (which would have caused them to lose the case) or
making the government pay the attorneys’ fees of the states, the sanctions
imposed seem almost mild.
Of course, they are highly
embarrassing given what they reflect about the behavior of DOJ lawyers.
But according to the Justice Department, Hanen is interfering “with the
attorney general’s executive authority” in imposing ethics training and the
other requirements that Hanen laid out, such as filing a comprehensive plan
within 60 days “to prevent this unethical conduct from ever occurring again.”
Apparently, that is too much to ask of the attorney general.
The strangest claim made by the
Justice Department is that Hanen’s order to produce a state-by-state list of
all of the illegal aliens unlawfully granted deferrals would “breach the
confidence of these individuals (and of others who submit information to USCIS)
in the privacy of such records.”
An affidavit filed by León
Rodriguez, the director of U.S. Citizenship and Immigration Services at the
Department of Homeland Security, claims this would violate the internal privacy
policy of DHS even though he admits the federal Privacy Act “does not apply to
non-U.S. persons.”
Not only does the Privacy Act not
apply to “non-U.S. persons” (Illegal aliens), but federal law (8 U.S.C. §1373) specifically
requires the federal government to provide “citizenship or immigration status”
information on any individual in response “to an inquiry by a federal, state,
or local government agency.” And this requirement applies “notwithstanding any
other provision of federal, state, or local law.”
Thus, states are statutorily entitled
to this information and the DOJ’s claim that it is confidential has no
basis in the law whatsoever. Of course, this very inconvenient federal
provision is not mentioned in the Justice Department’s brief.
This action by the Justice
Department makes it clear it intends to appeal Hanen’s sanctions order.
Whether he will grant the requested stay is unknown, but he had ordered
a hearing on the DOJ’s request for June 7.
So far in this litigation, the
Justice Department and the Obama administration have had a steadily losing
hand. We will have to see if that continues.
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