Judge Hanen and the Nativist Lawsuit Against Immigration Executive Action

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One day after Republicans in the U.S. House voted to end Obama’s executive action on immigration – and the President’s previous moves to prevent the deportation of DREAMers – we saw the first hearing in the 26 states’ lawsuit against that executive action on immigration. This lawsuit is another attempt by anti-immigrant elected officials, namely Republican Governors and Attorneys General, to block Obama’s executive action, thus putting parents of U.S. citizen children and DREAMers in peril of deportation.

The case, spearheaded by Greg Abbott, was heard by federal judge Andrew Hanen in Brownsville, TX on Thursday, January 15.  While there’s been much attention surrounding the legal substance (or lack there of) of the lawsuit, less attention has been paid to the man behind the gavel and how he came to preside over the case.

In a new report, America’s Voice Education Fund describes the nativist origins of the 25 state lawsuit and Judge Hanen’s questionable foray in to the world of immigration politics. 

First, and this shouldn’t be a surprise, but the lawsuit was hatched from the extremely anti-immigrant restrictionist movement.  It is widely believed that the Texas lawsuit was authored by Kris Kobach, the notorious anti-immigrant lawyer and Kansas Secretary of State who authored Arizona’s SB 1070 and advised Mitt Romney to run on the platform of “self-deportation.”  We saw how well that worked. But, Republicans leaders still look to Kobach for immigration strategy.

A Washington Post article published shortly after the President’s announcement noted Kobach was already drafting a lawsuit and that Texas was interested in being a plaintiff. On December 3, Kobach said to “watch the news in the next month or so and you’ll see the cases being filed […] the pieces are being put into place to bring litigation against the Obama administration in various courts around the country.”  While Kobach is not a named counsel in the litigation, the case is part of the  core strategy of nativist groups he has worked with—such as the Immigration Reform Law Institute. 

Republicans complain a lot about activist judges, but, they have their own: Judge Hanen Is the Ideal Judge for Immigration Nativists: The Judge has a history of opining well beyond the scope of his jurisdiction, and an anti-immigration bent.  Clearly, the plaintiffs filed their suit in Brownsville for one reason—a friendly judge. The Washington Times’ Stephen Dinan recently declared, ‘the states challenging President Obama’s deportation amnesty have already won the first round in court’ when reporting that Judge Hanen was assigned the case.  At Daily Kos, Kerry Eleved post on the case was titled: Texas judge hearing case on Obama’s immigration actions may as well be Ted Cruz. That sums it up. 

In one case, after a defendant pled guilty and the “outcome was no longer a pending question,” Judge Hanen felt “compelled” to write a 4-page opinion criticizing federal immigration policy, without ordering anything involving the defendant.  In another case, when a Salvadoran criminal defendant who received Convention Against Torture (CAT) protection against deportation applied to Judge Hanen to relocate within the United States, a routine matter, Judge Hanen issued a 24-page opinion criticizing the US’ implementation of CAT, while conceding he had “no jurisdiction” over the policy (Source: U.S. v. Ramirez, No. 07-cr-041, 2014 WL 3843853 (S.D.Tex. Aug. 1, 2014)).

This lawsuit is a political charade aimed at attacking immigrants – again. Immediately after it was filed, the lawsuit received wide criticism.  David Leopold, former President of the American Immigration Lawyers Association, said the legal complaint “reads more like a factually challenged press release than a well-reasoned legal complaint.” Lynne H. Rambo, Professor of Law, Texas A&M University School of Law recently wrote that the states bringing this lawsuit have larger obstacles to clear before the judge should even address the merits.  Namely, they do not have “standing” to proceed in federal court.

Even some Attorneys General criticized their own states’ Governors for getting involved in this frivolous lawsuit. Mississippi Attorney General Jim Hood described the lawsuit as “governor-driven litigation which involves policy and drags us into litigation we might not initiate on our own.” And North Carolina Attorney General Roy Cooper said, “I am concerned that a partisan lawsuit adds to the divisiveness that has prevented meaningful immigration reform in the first place.”   A dozen states and numerous law enforcement leaders have filed “friend of the court” briefs in the Texas case outlining their vociferous opposition.

When ruling on another immigration case, Hanen wrote, “This Court takes no position on the topic of immigration reform, nor should one read this opinion as commentary on that issue. That is subject laced with controversy and is a matter of much political debate which is not the province of the judicial branch.” Hanen should heed that advice with the Texas case, as it it is an attempt by Republican officials to achieve a political decision from the Courts.  We aren’t expecting any ruling until January 30, 2015 at the earliest. And, whatever happens, we’ll be fighting to insure implementation of Obama’s executive action – in the courts or in Congress.


The full report, “A Coordinated Attack: Judge Hanen and the Nativist Lawsuit Against DAPA and DACA.”

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