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Judge Andrew S. Hanen
Judge Andrew S. Hanen

By Felicia J. Persaud

News Americas, NEW YORK, NY, Fri. Mar. 2015: How can 104 legal scholars and immigration law instructors be wrong and one judge be right?

This is the question that has left many who have followed the President Barack Obama’s executive action on immigration and Conservative U.S. District Judge Andrew Hanen’s attempt to block that order, scratching their heads.

On Friday, March 13, 2015, a group of 104 legal scholars insisted Texas Judge Hanen’s ruling is “deeply flawed.” Of course they have made this conclusion based on the law and not personal prejudice.

Which begs the question – is Hanen following the law or is he simply letting bias muddle his ruling that now has left some 5 million non-criminal, deserving undocumented immigrants in limbo?

Hanen had previously ruled that the Obama administration had likely failed to comply with procedures governing how federal agencies can establish regulations. He also used the President’s order to voice his disdain over the porous borders, claiming “the court finds that the government’s failure to secure the border has exacerbated illegal immigration into this country.”

Yet the 104 law scholars argue wisely that there is strong legal authority for deferred action in general, and for the Deferred Action for Childhood Arrivals (DACA) and the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) programs particularly, as forms of deferred action, which is recognized in US law as a form of prosecutorial discretion.

They also say the U.S. immigration system has more than 20 forms of prosecutorial discretion that is used by the Department of Homeland Security and Judge Hanen has confused deferred action with work authorization while mistakenly suggested that a person cannot obtain lawful presence through programs like DACA and DAPA.

“He wrongfully conflates lawful status and lawful presence,” write the scholars.

The scholars’ statement came a day after the Department of Justice request to the 5th Circuit Court of Appeals to speed up a review of Hanen’s ruling blocking the Deferred Action for Childhood Arrivals (DACA) and the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) programs was denied.

The Appeals court now says it will consider both the emergency motion to unblock the programs, and a request for an expedited appeal on March 23rd even as Hanen himself decided not to rule on an emergency motion blocking the immigration actions pending appeal until at least March 19th. He says he must first hold a hearing to resolve a dispute between the parties on a related issue.​

And so the delay and rule tactics enter the courts. Reminds you of anything? Perhaps the way the Republican Congress operates when it comes to any measure the President recommends or supports?

The reality is that politics has no place in the courts. The law is clearly on the side of the President and the administration. Kudos to Washington State and 13 others who have filed a brief in support of the government, arguing that their residents “should not have to live under an improper injunction based on harms other states incorrectly claim they will suffer.”

The disdain and disrespect must be highlighted especially since the lives of so many depend on it. Let’s take the fight all the way to the Supreme Court if we must. The President not Hanen is on the right side of history.

The writer is CMO of Hard Beat Communications, which owns the brands News Americas Now, CaribPR Wire and Invest Caribbean Now.





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