SAN ANTONIO (AP) — A federal judge’s ruling last month blocking President Barack Obama’s immigration executive action lays bare a pervasive practice in federal district courts: venue shopping.

It is a game of odds in which lawyers pick a court to file their case where a judge or case law is likely to be more favorable. Law experts say venue shopping is commonplace in politically-sensitive cases as a way to advance a case toward the ultimate goal of a hearing before the U.S. Supreme Court.

“Everybody does this to the extent they can,” said Stephen Yale-Loehr, an immigration professor at Cornell Law School in Ithaca, New York.

When lawyers for Texas filed suit in Brownsville to block the president’s executive action on immigration, they knew they had a 50 percent chance the case would be given to U.S. District Judge Andrew Hanen, an appointee of George W. Bush who had previously spoken scathingly of Obama’s immigration policies.

Hanen, who was assigned the case through an automated system, is one of only two judges in that division of the Southern District of Texas, so he hears half of all civil cases. The other is U.S. District Judge Hilda Tagle, an appointee of Democratic President Bill Clinton. Not all district courts have just two judges.

“They knew they would strike gold if they got in front of Judge Hanen,” said Kica Matos, spokeswoman for Fair Immigration Reform Movement, a national advocacy organization for immigrants. “This is a judge who has gone out of his way to express his anti-immigrant sentiments.”

On Feb. 16, Texas Governor Greg Abbott and 25 other states opposed to Obama’s action got exactly what they wanted. Hanen issued a preliminary injunction halting the orders, which would have spared as many as 5 million people who are in the U.S. illegally from deportation.

Venue selection has long been used by the American Civil Liberties Union and the National Association for the Advancement of Colored People in cases seeking wide-ranging reforms, said Georgene Vairo, a professor of law at Loyola Law School in Los Angeles. More recently the tactic has been adopted by conservative groups, she said.

It was probably a factor in the mammoth job discrimination suit filed against Wal-Mart by 1.5 million women claiming unfair pay and promotion practices, Vairo said. That case was pursued in the California courts, where it would be heard by the liberal-leaning 9th Circuit on appeal. The 9th Circuit ruled in favor of the women, though the Supreme Court in 2011 did not.

“We are not supposed to talk about judges being political,” Vairo said. “But in a close case it’s likely to make a difference, so they head count, they look at the decisions, they think about all these things before they decide where to file.”

Ahmed Taha, a professor of law at Pepperdine University in California, said he has documented venue shopping.

In a 2010 paper, Taha said he found that when the portion of judges appointed by Republican presidents increases by 25 percent in courts, prisoners’ rights filings and job discrimination suits drop by about 11 percent, and product-related injury cases by 23 percent, on average. This shows that lawyers in these cases feel their chances are worse with courts leaning conservative, he said.

When filing a case, lawyers must show that a venue is “proper,” or that the case has some relationship to where it has been filed. President Obama’s wide-ranging actions on immigration meant that any suit attempting to block them could be filed wherever immigrants who stood to benefit lived. Almost any court in Texas would have sufficed.

Abbott, who was Texas attorney general before being elected governor in November, led the lawsuit. His spokeswoman Amelia Chasse said in a statement that the suit was “appropriately filed” in Brownsville, calling the city the “epicenter” of the recent immigration crises.

The Justice Department is appealing Hanen’s decision to the 5th U.S. Circuit Court in New Orleans. The 5th Circuit also is considered conservative-leaning, and it hears all Texas appeals. There are currently 15 judges and 8 senior judges in the 5th circuit, and a panel of three will be selected through an automated system to hear the case .

It is impossible to predict the outcome of the appeal just based on the general leaning of the court, said Yale-Loehr, the immigration law professor.

“It really depends on which particular judges in the 5th circuit would get, for example, the stay request,” Yale-Loehr said.

Lance Wells, an immigration and criminal attorney in Phoenix, Arizona, said he doesn’t view venue shopping as manipulating the system or that the lawyers for Texas did anything wrong in filing in Brownsville.

“I don’t like the outcome from my personal perspective,” he said. “But I think it was a smart move.”

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It’s hard not to see that the anti-immigration wing of the Republican Party is ascendant right now. GOP leaders in Congress have spent the last two months trying—and failing—to roll back protections for millions of undocumented immigrants, children included. The chances for major legislation in the next two years are pretty much nil.

Yet with conservatives still reeling from their defeat in a battle over immigration policy and security funding earlier this week, a right-leaning policy group is releasing a new report aimed at nudging the GOP back toward the center. The study, which the American Action Forum plans to publish later on Friday, tests a rather straightforward proposition frequently offered by opponents of comprehensive immigration reform: How much would it cost to “immediately and fully enforce current law”—that is, to deport all undocumented immigrants while preventing another wave of people from entering illegally?

The answer, researchers found, is quite a lot, both to taxpayers and the economy more broadly. Removing all 11.2 million undocumented immigrants, both forcibly and through Mitt Romney’s infamous “self-deportation” policy, would take about 20 years and cost the government between $400 billion and $600 billion. The impact on the economy would be even larger, according to the study: Real GDP would drop by nearly $1.6 trillion and the policy would shave 5.7 percent off economic growth. Researchers Laura Collins and Ben Gitis also write that their estimates are conservative, since they do not include, for example, the cost of constructing new courts, prisons, and other buildings that might be needed to process and detain millions of immigrants.

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The study does not envision a new policy of mass deportation, with ICE agents rounding up immigrants in vans or going door-to-door to find them. Rather, researchers used the government’s own statement that it currently has the capacity to deport up to 400,000 immigrants annually (330,651 were removed in 2013) and asked what would happen if it actually did that, every year until the 11 million are gone. They also estimate that after the government announces a new policy of full enforcement, about 20 percent of the 11 million would leave voluntarily, leaving just about nine million that would need to be forcibly removed. “It still would be, I think, a shocking sight to the American people, to have the detentions, the deportations, the detention centers, the need for the administrative end of this,” said Douglas Holtz-Eakin, the group’s president. “If you were to do it faster and have vans sweeping in, I think that would have the untenable feel of the police state to the American people. We didn’t look at that.”

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The American Action Forum is not some fringe group; it is well-entrenched in the establishment camp. Holtz-Eakin is a leading Republican economist who advised John McCain’s presidential campaign in 2008. In 2013, he released a paper arguing that comprehensive reform would boost economic growth and reduce long-term deficits by $2.5 trillion. The group’s board includes Michael Chertoff, the former homeland security secretary who helped lead President George W. Bush’s immigration-reform push in 2006 and 2007. It also includes Elaine Chao, labor secretary in the Bush administration and the wife of Senate Majority Leader Mitch McConnell.

The latest study doesn’t take an explicit policy position, and Holtz-Eakin said its release was not deliberately timed to the resolution earlier this week of the DHS funding fight, when Republicans abandoned—for the moment—their effort to repeal the unilateral immigration actions President Obama took late last year. Since the group had already examined the policy implications of reforms that offered legal status to undocumented immigrants, he said he thought, “Well, what are the other possibilities? And the only well-defined thing is to enforce current law.”

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Yet opponents of comprehensive reform and a so-called “amnesty” program say that’s not quite true. While “enforce the law” is an oft-repeated demand from the right, one prominent immigration foe, Roy Beck of Numbers USA, told me that he doesn’t support the policy that American Action Forum examined. “We’re opposed to enforcing the laws as they currently exist. The law is not adequate,” he said. Beck said the government is spending money on border security inefficiently and that he supported legislation approved last week by the House Judiciary Committee that would stiffen penalties for employers who hire undocumented immigrants.

Beck and others in his camp believe that once a new employment verification system is in place, jobs for undocumented immigrants would disappear, and many of them would leave the country on their own. New laws granting legal status to those who remained could then be considered, but only after the new border and enforcement laws have been implemented. “This is not about deportations,” Beck said. “It’s not about fines and locking people up. It’s totally passive toward illegal aliens.”

Confident that his side was once again winning the political fight on immigration, Beck didn’t have much to say about American Action Forum’s findings. “They’re swimming upstream,” he said of the advocates. He’s probably right. There seems to be little appetite among Republicans for the kind of legislation the Senate passed in 2013. Still, with this report Holtz-Eakin and his allies are trying to regain some of the momentum they lost in the last six months, making the case for immigration reform as a conservative cause. “It’s a reminder that immigration reform is a lot of things, but it’s a great economic policy opportunity,” he said. “We’re pro-growth conservatives. We should view immigration from that lens.”

This article was originally published at http://www.theatlantic.com/politics/archive/2015/03/the-conservative-case-against-enforcing-immigration-laws/387004/?UTM_SOURCE=yahoo

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By Julia Edwards

WASHINGTON (Reuters) – The Obama administration asked a federal judge in Texas to decide by Monday whether he will put on hold his prior decision to block the White House’s executive orders on immigration, or at least limit the impact to Texas.

U.S. District Judge Andrew Hanen in Brownsville, a city along the border with Mexico, issued a temporary court order last month halting President Barack Obama’s orders that would have shielded millions of illegal immigrants from deportation.

The administration asked Hanen for a stay on his order last month and late on Wednesday requested a decision by Monday.

Hanen on Thursday declined to comment while the case is ongoing.

Hanen, who had previously criticized U.S. immigration enforcement as too lax, based his ruling on an administrative law question, faulting Obama for not giving public notice of his plans. He also cited ways that Texas would be harmed by the action but used no other states as examples.

Anne O’Connell, a professor at University of California Berkeley School of Law, said it is doubtful that Hanen will grant even the partial stay, but said the administration’s move appears designed to force Hanen to defend his argument.

“If all the harm is about Texas, it does seem like a bit of overreaching by the judge to keep the preliminary injunction in place everywhere,” O’Connell said.

The case in Texas is the latest in a series of challenges to Obama’s immigration action.

Hanen’s decision on Feb. 17 was an initial victory for 26 states that brought the case alleging Obama had exceeded his powers with executive orders that would let up to 4.7 million illegal immigrants stay without threat of deportation.

Obama’s orders bypassed Congress, which has not been able to agree on immigration reform.

On Feb. 23, the U.S. Justice Department requested an emergency stay of Hanen’s decision.

It also directly appealed to Hanen, asking that he at the very least limit his decision to Texas, because Hanen has not pointed to any specific harm the president’s immigration action would cause beyond that state.

If Hanen does not issue a full stay by Monday, the Justice Department will take its request to the 5th U.S. Circuit Court of Appeals in New Orleans, according to the court filing released late Wednesday. It was unclear whether they will do so if Hanen grants the partial stay.

A stay would reverse, or partially reverse, the injunction and allow eligible immigrants to apply for benefits, including work permits, while the appeals process plays out in higher courts over the next several months.

Marielena Hincapie, executive director of the National Immigration Law Center, an immigration advocacy organization based in Los Angeles, said a stay that excludes Texas would be better than no stay at all.

Obama and White House Counsel Neil Eggleston last week briefed Hincapie and other immigration advocates on their legal strategy.

“We are definitely worried for immigrants in Texas,” Hincapie said. “We want everybody across the country to be able to benefit.”

(Reporting by Julia Edwards; Editing by Karey Van Hall and Kevin Drawbaugh)

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The recommendation, handed down by the President’s Task Force on 21st Century Policing in an interim report on Monday, pertains to FBI’s National Crime Information Center (NCIC) database.

NCIC is used by local law enforcement officers during traffic stops and other encounters with the public. The database, developed in 1967, allows officers to find out if the individuals are wanted for crimes in other jurisdictions.

An immigrant violator database was added to NCIC in 2002. That particular database tells officers if a person has an outstanding removal order, whether the person failed to complete a special post-9/11 registration requirement or whether the individual was previously deported with a felony conviction.

If NCIC returns a positive hit for an immigration violation, local law enforcement officers are supposed to contact U.S. Immigration and Customs Enforcement (ICE). Some cities have policies requiring officers to do this, while others have policies against it.

Despite the usefulness of the tool in tracking immigration violators and possible terrorists, the Obama-appointed task force is suggesting it be put on ice.

The task force’s recommendation is based on testimony provided by an immigration activist at a recent listening tour.

Javier Valdez, of Make the Road New York, testified in front of the task force last month arguing that the database “exacerbated the fear that immigrant communities feel towards local police and remains a significant impediment to effective community policing.”

Valdez asserted in his testimony that Bush adopted the policy “without lawful authority” and “began entering civil immigration information regarding thousands of non-citizen [sic] into the NCIC database.”

Because of this strategy, “local officers now routinely make civil immigration arrests when they encounter individuals whose names produce hits in the NCIC database,” Valdez asserted.

He also argued that the number of people incorrectly identified as immigration violators is “extremely high,” citing a study that purportedly found that the error rate on immigration entries was 40 percent.

The task force’s new recommendation is part of a larger immigration strategy — one embraced by the Obama administration — of taking immigration enforcement out of the hands of local and state law enforcement agencies.

One of the task force’s recommendations is that the Department of Homeland Security terminate its policy of allowing local law enforcement to detain immigration status violators.

Another recommendation is that “law enforcement agencies should ensure reasonable and equitable language access for all persons who have encounters with police or who enter the criminal justice system.”

Most of the task force’s policy recommendations pertain to how police officers interact with the communities they serve. Obama set up the task force in the wake of several police-involved deaths last year.

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