- The Washington Times - Thursday, March 5, 2015

President Obama’s lawyers misled a federal judge when they said they weren’t approving any applications under his expanded deportation amnesty, Texas charged in new court papers Thursday that said the breach is serious enough that the court should allow legal discovery to get to the bottom of the matter.

The administration admitted to Judge Andrew S. Hanen earlier this week that it had approved about 100,000 amnesty applications under the expanded policy, which Mr. Obama announced Nov. 20, but which was halted by a judge on Feb. 16.

Texas and 25 other states, who are challenging the amnesty, said the approvals were a stunning revelation that seemed to contradict what the Obama lawyers had said in conference calls and court papers in December and January when they signaled that no applications would be accepted under the expanded amnesty until Feb. 18, and none would be approved until early March.

“This newly disclosed conduct is difficult to square with defendants’ prior representation to the court that ‘nothing is going to happen’ until weeks after the preliminary-injunction hearing,” Texas said in its filing Thursday.

Texas said it’s unclear yet whether the federal government’s actions are a breach of the law or the court’s orders, and said that’s why Judge Hanen should allow discovery in the case, which would give the challengers a chance to pry loose information about the amnesty from the Homeland Security Department, which has been stingy in releasing details.

The Justice Department, which is defending the deportation amnesty in court, didn’t respond to a request for comment Thursday.


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But on Tuesday department lawyers informed Judge Hanen they may have left him with a wrong impression when they said they hadn’t carried out any of the president’s new policies.

Mr. Obama’s Nov. 20 announcement offered a number of different benefits to illegal immigrants, including expanding eligibility for his 2012 amnesty for Dreamers and boosting the amount of time he was granting an amnesty form deportation and permits for legal work from two years to three years.

While the administration hadn’t begun collecting applications under the expanded eligibility, it had awarded tens of thousands of three-year permits to applicants who had qualified as Dreamers under the original rules from 2012, administration lawyers told the court.

USCIS has told immigrant rights activists it has stopped and is only granting two-year renewals now, in a tacit admission that it believes Judge Hanen’s injunction affects all parts of Mr. Obama’s November announcement.

Judge Hanen ruled last month that the administration likely broke federal law in announcing such a major change to immigration policy without following the usual public comment rules. Texas had argued Mr. Obama’s moves were not only illegal but unconstitutional, though Judge Hanen said he didn’t have to decide the bigger constitutional questions once he ruled the plan was likely illegal.

The Obama administration has appealed the judge’s ruling and on Wednesday it said if Judge Hanen doesn’t grant a stay of his injunction by next Monday, they will go to the appeals court for that, too.

The filing marks an escalation by the administration, and signals now that congressional Republicans are no longer standing in his way by threatening to withhold funding, Mr. Obama is eager to overcome the court hurdles too.

Paul Virtue, a former lawyer at the Immigration and Naturalization Service, said he doubts the appeals court will grant the stay.

“Stays are normally only granted to maintain the status quo, so DOJ faces a significant challenge convincing the court to allow the administration to move forward with a program that is not currently in place,” Mr. Virtue said.

The administration argues that the longer it cannot carry out its amnesty, the more immigration agents are having to spend time focusing on illegal immigrants whom Mr. Obama has no intention of deporting.

The question over whether the three-year approvals would have to be revoked is still open.

Justice Department lawyers said they didn’t think they should have to revoke anything, since Judge Hanen’s injunction only applied moving forward.

“It is defendants’ understanding that the preliminary injunction does not require them to take affirmative steps to alter the status quo as it existed before the court’s order,” the administration told Judge Hanen. “For this reason, defendants do not understand the order to require defendants to take affirmative steps to revoke three-year periods of deferred action and work authorization.”

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