In a 123-page memorandum decision, Judge Andrew S. Hanen of the US District Court for the Southern District of Texas, Brownsville Division, who has a history of issuing anti-immigrant decisions, according to a report by America's Voice referred to below, has issued a temporary injunction against implementation of President Obama's announced executive action directing DHS to grant temporary relief from deportation, along with work permission to an estimated 4 million unauthorized immigrants now in the United States.

The preliminary injunction was issued late in the day on February 15, 2015. See Texas v. US, Case number 1:14 civ-00254

In his ruling, Judge Hanen made three main findings. First, he found that the 26 states which are plaintiffs in the lawsuit have standing to bring the lawsuit because of economic harm that they would suffer if the president's program, known as DAPA, were allowed to go into effect. This harm, as described by the Court, would consist of increased costs in providing drivers licenses and educational benefits to the immigrants affected, among other things.

Judge Hanen, however, rejected some of the states' more speculative claims of possible harm from DAPA, such as "encouraging illegal immigration" or creating a "humanitarian crisis on the US border".

The judge also determined that the projected harm to the states would be irrevocable, even if they were ultimately to win their case. It would, he ruled, be impractical or impossible for the states to revoke or undo the effects of licenses granted or other benefits which they would be required to issue to the affected immigrants under the DAPA program.

Most important of all, Judge Hanen ruled that the states had a high likelihood of success of prevailing on the merits of the case after a full hearing. This was not because of their claim that the executive branch exceeded its Constitutional authority in promulgating DAPA, which the Court said it was not necessary to rule on at this stage.

Thus, this decision does not give any support to one of the most often repeated claims by immigration opponents, namely that the president is "trashing" the Constitution by granting relief from deportation without Congressional approval. Judge Hanen specifically left this issue open.

In contrast, his ruling was based entirely on statutory grounds, namely that DAPA was "rule-making" within the meaning of the Administrative Procedure Act (APA) and was therefore issued in violation of the procedural requirements of that statute, as well as being contrary to the Immigration and Nationality Act (INA).

Judge Hanen stated (Memorandum, p. 111):

"The DAPA program clearly represents a substantive change in immigration policy. It is a program instituted to give a certain newly-adopted class of 4.3 million illegal immigrants not only legal presence in the United States, but also the right to work legally and the right to receive a myriad of government benefits to which they would otherwise not be entitled. It does more than supplement the statute; if anything, it contradicts the INA. It is, in effect, a new law." (Citations omitted, emphasis added).

The full decision is available at

http://www.scribd.com/doc/255994067/...-United-States

The decision made clear that the existing DACA program, which was not made part of the lawsuit and was therefore not before the Court, is not affected by the preliminary injunction. However, expanding the DACA program is affected by this ruling.

The decision also states that it is not intended to affect the executive branch's existing authority to use prosecutorial discretion in connection with deportation.

The White House has announced that the grant of a preliminary injunction will be appealed to the Fifth Circuit Court of Appeals.

It is also worth noting that Judge Hanen's record of previous decisions is not exactly consistent with that of a judge who is free from anti-immigrant bias, at least according to a January, 2015 report by America's Voice entitled: A Coordinated Attack: Judge Hanen and the Nativist Lawsuit against DAPA and DACA.

This report may tell us a good deal more about the judge's motives for granting the injunction than the decision itself does.

My colleague Nolan Rappaport has kindly provided me with a different link to the decision: Thank you, Nolan!

http://pdfserver.amlaw.com/nlj/texas...n_20150216.pdf

Here is a link to the America's Voice report:

http://americas.voice.org/research/n...cutive-action/
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Roger Algase is a New YorK lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing employment-based and family-based immigration law for more than 30 years.

Roger's practice is concentrated in H-1B specialty occupation and O-1 extraordinary ability work permits, J-1 training visas, and green cards through labor certification (PERM), extraordinary ability (EB-1) and opposite sex or same sex marriage. His email address is algaselex@gmail.com