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Johnson, immigration brass ordered to Texas court

A federal judge up in arms about non-compliance with a court order blocking President Barack Obama's recent executive actions on immigration is demanding that Homeland Security Secretary Jeh Johnson and four other top immigration enforcement officials appear in a Brownsville, Texas, courtroom next month to explain why they should not be held in contempt of court.

U.S. District Court Judge Andrew Hanen issued an order Tuesday afternoon requring the five officials to show up for a hearing Aug. 19. However, the judge also said he would cancel the session if he's "satisifed" with the government's actions to limit or revoke 2,000 three-year work permits it issued to illegal immigrants after Hanen issued an injunction that limited new permits to a two-year duration.

"This Court has expressed its willingness to believe that these actions were accidental and not done purposefully to violate this Court's order. Nevertheless, it is shocked and surprised at the cavalier attitude the Government has taken with regard to its 'efforts' to rectify this situation," Hanen wrote.

"The Government has conceded that it has directly violated this Court's Order in [the government's] May 7, 2015 advisory, yet, as of today, two months have passed since the Advisory and it has not remediated its own violative behavior. That is unacceptable and, as far as the Government's attorneys are concerned, completely unprofessional," the judge added in his order (posted here). "Neither side should interpret this Court's personal preference to not sanction lawyers or parties as an indication that it will merely acquiesce to a party's unlawful conduct."

Spokespeople for the Homeland Security Department and the White House had no comment Tuesday on the order, which applies to Johnson as well as Citizenship and Immigration Services Director Leon Rodriguez., Immigration and Customs Enforcement Director Sarah Saldana, Border Patrol Deputy Chief Ronald Vitiello and Customs and Border Patrol Director Gil Kerlikowske.

Homeland Security spokeswoman Marsha Catron confirmed Wednesday that the agency is aware of Hanen's order. "DHS has received the District Court order and is currently reviewing it with the Department of Justice," she said. A Justice Department spokesman declined to comment.

The Obama administration has run into a series of problems in the immigration lawsuit beyond the policy and political headaches caused by Hanen's February injunction. Hanen's move halted Obama's moves to expand a program to grant quasi-legal status and work permits to more illegal immigrants who arrived in the U.S. as children and to create a similar new program for illegal immigrants who are parents of U.S. citizens or green card holders.

Hanen and the 26 states suing to block Obama's actions have accused the administration of misleading the court about the fact that about 100,000 immigrants were given three-year work permits under the actions Obama announced in November. The judge said he was under the impression none of Obama's changes to the deferred action program had been implemented when legal arguments played out on the issue earlier this year. Justice Department lawyers have said there was no intent to mislead but that they regret any confusion.

There was some mention in court filings of the issuance of three-year permits in court papers, but the judge said oral comments by the government's lawyers led him to believe the change to three-year permits had not taken place.

After clarifying that point in March, the Justice Department came forward in May to disclose the 2,000 issuances after Hanen's order. Government lawyers said DHS's inspector general is investigating why the three-year permits were issued despite the court injunction.

A federal appeals court panel is scheduled to hear arguments Friday on whether Hanen's injunction should be overturned.

Hanen is an appointee of President George W. Bush.

(hat tip: Josh Blackman, representing an amicus in the case)

UPDATE (Wednesday, 10:46 A.M.): This post has been updated with Catron's comment.