A federal judge threatened Thursday to sanction the Justice Department if he finds that government lawyers misled him about the rollout of President Obama’s plan to shield up to 5 million people from deportation.
U.S. District Judge Andrew S. Hanen, visibly annoyed, confronted a U.S. deputy assistant attorney general over previous government assurances on the timing of the program.
He asked why he shouldn’t grant a discovery request for internal federal immigration documents — a request filed Thursday by 26 states that are suing over Obama’s executive actions on immigration.
Hanen ordered a freeze on the Obama plan on Feb. 16 in response to the lawsuit, which accuses the administration of overstepping the president’s authority.
At a one-hour hearing in Brownsville, Hanen gave the Justice Department 48 hours to file a motion in response. He said he would then rule promptly on whether to require the government to produce documents concerning applications under Obama’s deferred action program.
The judge said that if he decided to impose sanctions, “the taxpayers of the  states would end up paying their own damages.”
Hanen’s barbed comments left little doubt that he sympathized with lawyers for the 26 states, who said they suffered “irreparable harm” when federal officials granted more than 100,000 applications for deferred action after Obama announced the program Nov. 20. He said government lawyers had assured him that “nothing was happening” regarding the applications.
The outcome of the hearing further delayed the administration’s attempts to resolve the court case and proceed with the immigration program during his last two years in office. The program, one of the president’s signature initiatives, is opposed by Republicans, who control legislatures in most of the 26 states suing, led by Texas.
Hanen said Justice Department lawyers had assured him at a previous hearing that the administration had not begun implementing the deferred-action plan, designed to protect qualified immigrants from deportation for three years.
“Like the judge, the states thought nothing was happening,” Hanen said with exasperation. “Like an idiot, I believed that.”
Deputy Asst. U.S. Atty. Gen. Kathleen R. Hartnett told the judge: “I would like to apologize for any confusion.” She added moments later: “We had no intent to withhold any of this material from the court.”
Hartnett said lawyers immediately notified the court when they realized “we may have inadvertently caused confusion.” Hanen corrected her, asking, “So you waited three weeks to tell me you were doing it?”
Hartnett said there had been confusion within the federal government over applications under Deferred Action for Childhood Arrivals, or DACA, instituted in 2012, and Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, announced in November.
The DAPA executive action included expanded deferred action for qualified DACA applicants, from a two-year reprieve to three years. Government lawyers believed original applications under DACA were not covered by the lawsuit, Hartnett told the judge.
More than 94,000 of the 108,000 applications for three-year reprieves granted since November were originally submitted before Obama’s Nov. 20 executive action, she said.
But the judge appeared unconvinced, saying the three-year reprieves were covered by the lawsuit.
When Hanen asked Hartnett whether American taxpayers would ultimately pay for any sanctions imposed on the Justice Department, she offered a noncommittal response.
“Answer my question,” the judge demanded.
“Ultimately, yes,” Hartnett responded.
Angela Colmenero, a lawyer for Texas and 25 other states, said she understood “that this is a big, complex federal program.” But she said the states needed to rely on “additional documents and not just the words” of Justice Department lawyers.
Colmenero said the department did not inform the court of the 108,000 approvals until 15 days after Hanen issued an injunction halting the immigration program. “The plaintiffs were more than surprised by this disclosure,” she said.
Granting the deferred action applications made it less likely that undocumented immigrants would leave the U.S. while encouraging other immigrants to enter the illegally, Colmenero said. Now that the applications have been granted, she said, it is “virtually impossible to unscramble the egg.’’
Hanen asked Hartnett bluntly whether Homeland Security Secretary Jeh Johnson or other senior officials could be trusted on the immigration plan.
“I can trust what Secretary Johnson says … what President Obama says?” the judge asked.
“Yes, your honor, of course,” Hartnett replied.
Obama’s plan would grant three years’ protection from deportation to up to 5 million people living in the U.S. illegally. The largest part, DAPA, would offer three-year work permits to parents of citizens and other legal residents. It would not be open to recent arrivals or to people with serious criminal records.
DAPA would affect more than 4 million people who have lived in the United States for at least five years and are the parents of U.S. citizens or legal permanent residents.
Obama said in November that he would issue the same protections to a group of immigrants who came here as young people, an expansion of 2012’s DACA program. About 300,000 more people would qualify under the expanded eligibility rules. That program, the president said, was simply an extension of his authority to prioritize immigration enforcement; the administration says there is no practical way to deport all 11 million people living in the U.S. illegally.
The Department of Homeland Security later announced it would begin accepting applications from people eligible for the expanded DACA reprieve starting Feb. 18. However, the department also said the change from two years of protection to three years would take effect before that.
Hanen, referring to his issuing of the injunction on Feb. 16, told Hartnett: “I was trying to meet the deadline you set.”
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