A federal appeals court handed down a very brief, two paragraph order on Monday that represents good news for the tens of thousands of immigrants currently subject to a campaign of intimidation from a trial judge.
On the surface, the order appears to offer little guidance on how the court will handle Judge Andrew Hanen, who attempted to dox about 50,000 people in an ostensible effort to punish a handful of lawyers in the Department of Justice. But it does reveal the names of the three appellate judges who are reviewing Hanen’s attempt to dox these immigrants.
In short, the immigrants targeted by Hanen now find themselves in much gentler hands.
Last month, Hanen issued an unusual order claiming that Justice Department attorneys intentionally deceived him about a minor issue in a case challenging several Obama administration immigration policies. The order, which quoted movie scripts at length, claimed that a conspiracy of lawyers “whose identities are unknown to this Court” arose “somewhere in the halls of the Justice Department.”
DOJ, for its part, denies that its attorneys intentionally misled Hanen, claiming instead that they misunderstood what Hanen was asking for in some of his questions.
Yet if Hanen’s allegations against the Justice Department attorneys are, at best, questionable, his response to their alleged deception is nothing short of bizarre. Hanen ordered hundreds of Justice Department attorneys who have never appeared in his courtroom to attend remedial ethics classes. And he ordered the federal government to turn over the personal information — including addresses — of tens of thousands of immigrants.
Though this personal information will ostensibly be filed under seal, Hanen’s order indicates that he could turn it over to state officials who oppose the Obama administration’s immigration policies as too lenient. In some states, this personal information could also become disclosable under public records laws to anti-immigrant groups or other individuals who wish harm to the targets of Hanen’s dox attack.
Thus far, the Justice Department has had disastrous luck when it sought relief from Hanen’s decisions in the Fifth Circuit. DOJ twice asked the appeals court for relief from Hanen’s orders suspending the major changes to the nation’s immigration policies, and both requests were heard by three-judge panels that included Judges Jerry Smith and Jennifer Elrod, two especially conservative judges.
The Appeals Court Panel Considering Obama’s Immigration Policies Is Stacked With Right-Wing JudgesJustice by CREDIT: The United States Court of Appeals for the Fifth Circuit is a severely conservative court. Among…thinkprogress.orgMonday’s Fifth Circuit order concerns a fairly uninteresting scheduling matter, but it also identifies the three judges considering whether Hanen’s doxxing order is permissible: Judges Eugene Davis, Edith Jones, and Catharina Haynes.
No one who hopes the Fifth Circuit will invalidate Hanen’s actions should do back flips after reading these three names. All three of these judges are Republican appointees, and Judge Jones, in particular, has a reputation for an especially caustic brand of conservationism.
Davis and Haynes, however, both have relatively moderate records on immigration — and both are far less likely to act as a rubber stamp for Hanen’s orders than Smith, Jones or Elrod. In 2013, for example, the full Fifth Circuit handed down a fractured decision in Villas at Parkside Partners v. City of Farmers Branch, with a majority of the court voting to strike down a local ordinance that effectively made it a crime for undocumented immigrants to rent a home. Davis and Haynes both joined an opinion by Judge Stephen Higginson, an Obama appointee, which held that “the Ordinance’s criminal offense and penalty provisions and its state judicial review process conflict with federal law” and therefore cannot take effect. (Smith, Jones, and Elrod were all in dissent.)
Additionally, Judge Davis wrote the Fifth Circuit’s opinion in Crane v. Johnson, which included a great deal of language that seemed to undermine Hanen’s previous immigration orders. Among other things, Davis emphasized the Obama administration’s broad discretion in matters related to immigration — “a principal feature of the removal system is the broad discretion exercised by immigration officials” — in his Crane opinion.
So, although the panel assigned to consider Hanen’s doxxing order is hardly an array of liberal Democrats, it does include two judges who’ve sided with undocumented immigrants in the past. For immigrants, Davis and Haynes are much better draws than Smith and Elrod.
In an unexpected development, Judge Hanen stayed his doxxing order on Tuesday. According to a press release from MALDEF, a Latino civil rights organization, “Judge Hanen agreed to stay his order requiring the information be turned over. Therefore, no information will be turned over until at least August 22, when Hanen will again consider the matter.”
Although this stay grants temporary relief from Hanen’s doxxing order, the order itself will remain in effect unless it is withdrawn by Hanen or struck by the Fifth Circuit. It’s not immediately clear whether Hanen also stayed the requirement that Justice Department attorneys attend ethics courses.
Hanen’s order is available here. It stays his previous order sanctioning the Justice Department pending the outcome of an August 22nd hearing. The order also provides that the Justice Department has “until July 31, 2016 to file any submission they wish as to an appropriate sanction for the misrepresentations which were the subject of this Court’s May 19, 2016 order and/or any evidence they may have concerning the misrepresentations discussed in that order. “
Though this order is terse, it appears to concede arguments raised by the Justice Department in response to Hanen’s original sanctions order that the judge failed to afford adequate procedural protections to DOJ before issuing a sweeping sanctions order.