The Obama administration's hesitant and confused reaction to Texas Federal District Judge Andrew Hanen's February 16 ruling which put a hold on the president's executive action program to grant work permission and temporary relief from deportation to up to 4 million mainly Latino immigrants indicates that the decision may have been totally unexpected and that there was no Plan B in place to deal with it.

Oh, yes, the administration is going to appeal. But when? And how?

How long will it take for the appeals documents and briefs to be ready to file with the Fifth Circuit Court of Appeals (reputed to be the most conservative federal court of appeals in the country, with Republican-appointed judges outnumbering Democratic-appointed ones by a 2 to one margin)?

If the injunction against DAPA and expansion of DACA is not promptly vacated by the Fifth Circuit, is the administration ready to go to the Supreme Court without delay, so that no more people who present no danger to America will have their families broken up and otherwise suffer the irrevocable harm of deportation while the lawsuit is pending?

Is a Plan B being prepared to salvage at least some of the DAPA program within the limits of Judge Hanen's decision? If not, why not?

As America's Voice shows in a January, 2015 report and in a statement released on February 17, right after the decision came down, the decision should not have come as a surprise to anyone.

See America's Voice: A Coordinated Attack: Judge Hanen and the Nativist Lawsuit Against DACA and DACA

See also:

This comment will look at some of Judge Hanen's previous immigration-related decisions to see why his court was cherry-picked for this lawsuit in an egregious example of forum shopping by the some of the most extreme immigration opponents in America, including - no surprise - Kris Kobach, the notorious Kansas Secretary of State whose main activity is preparing anti-immigrant laws and lawsuits nationwide.

A forthcoming comment will take a closer look at Judge Hanen's DAPA and DACA expansion injunction decision itself, pointing out parts of it that make his anti-immigrant bias and lack of qualifications for rendering a fair decision clear beyond any possible doubt. My forthcoming comment will also suggest ways in which the administration might be able to shield at least some of the intended DAPA and expanded DACA beneficiaries from deportation without violating Judge Hanen's injunction.

First, let us look at Judge Hanen's immigration decision-making history. According to the above America's Voice report, this history includes the following (see the report for the case citations - they will not be repeated here):

1) In one case, he criticized the federal government for not bringing criminal charges against an undocumented immigrant mother whom DHS allowed to be reunited with her child by following a law allowing such reunification that was passed under the administration of George W. Bush (the same president who appointed Judge Hanen to his current position on the federal bench).

2) After a defendant pled guilty and the outcome of the case was no longer in doubt, Hanen wrote a 4-page opinion criticizing federal immigration policy, even though this had nothing to do with the defendant.

3) The judge accused the DHS of engaging in criminal conduct as an agency by allegedly hindering law enforcement officers from doing their job.

4) In another case, the judge accused DHS of "completing the criminal mission" of human traffickers "who are violating the border security of the United States".

5) In other cases, Judge Hanen criticized DHS for following procedures which benefit certain immigrants and are permitted or mandated by duly enacted laws of this country, including the 2008 TVPRA amendments, and the Convention Against Torture, which the judge called "incredible" and "bordering on the absurd".

In another case (again, according to America's Voice), Judge Hanen wrote that this

"Court is happy to envision Main Street America as a melting pot of races, religions, creeds and ethnic backgrounds...That picture of diversity, however, [will be] much different...if the government's current brush strokes continue to color the canvas...[T]he picture being painted will include a diverse variety of felons and violent criminals."

The above are only a few of Judge Hanen's anti-immigrant comments which go beyond extremism, as reported by America's Voice. One commentator has reportedly stated that bringing an immigration case before Judge Hanen would be like bringing it before Senator Ted Cruz himself.

My reaction would be that even Senator Cruz might be less extreme in his language concerning immigration than Judge Hanen has shown himself to be.
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. His email address is