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Judge orders DHS to explain misleading statements in Trusted Traveler case

Jul. 30—WASHINGTON — A federal judge wants the Trump administration to explain the misleading statements it made in court as it tried to defend its decision to bar New Yorkers from federal Trusted Traveler programs such as Nexus and Global Entry.

The U.S. Department of Homeland Security reversed that decision a week ago, saying New Yorkers could again apply for those programs. Separately, but on the same day, the federal lawyer who had been defending the New York Trusted Traveler ban told a federal judge that her office had been misled about the rationale for barring New Yorkers from those programs in the first place.

Calling that revelation “deeply troubling,” U.S. District Court Judge Jesse M. Furman on Wednesday ordered the Department of Homeland Security to explain all its misleading statements in the case — including who exactly misled the agency’s federal lawyers and how.

“For the sake of ensuring an accurate record and to help the court in deciding how to proceed down the line … it is necessary for defendants to make a comprehensive record of any and all ‘inaccurate’ or ‘misleading’ statements in their prior submissions,” Furman wrote.

The judge ordered that comprehensive record to be compiled by Aug. 12, and signaled that this may just be the first step in a larger investigation into how a federal agency came to make misleading statements in court.

“The Court has inherent authority to conduct an independent inquiry into the matter,” Furman noted.

The judge made his comments in an order in New York State’s longstanding lawsuit against the Trump administration in the matter.

State Attorney General Letitia James sued Chad Wolf, the acting DHS secretary, shortly after his department blocked New Yorkers from applying for Trusted Traveler programs in February.

Wolf said at the time that the action came because New York, in a unique move, passed a “Green Light law” that allows undocumented immigrants to get driver’s licenses and bars federal officials from accessing state driving records.

But in a remarkable reversal, federal lawyers acknowledged last week that there was nothing unique about the New York law — and that Homeland Security officials had misinformed them on that point.

Audrey Strauss, the acting U.S. attorney for the Southern District of New York, made that admission. On Tuesday, she filed court papers saying the Trump administration had given New York, as well as plaintiffs in a parallel lawsuit, the relief they had been seeking.

“Because that relief ‘is no longer needed,’ … these cases should be dismissed as moot,” Strauss wrote.

James vehemently disagreed, saying the case should be allowed to proceed.

“Even though DHS is now begrudgingly allowing New Yorkers back into Global Entry and other Trusted Traveler Programs, the agency is offering no assurance they will not reimpose its ban, once again, if this lawsuit is dismissed,” James said Wednesday. “We will continue to defend New York’s sovereign rights and will fight to protect our state’s residents because we won’t allow the president to bully New Yorkers and use our state as a political punching bag.”

In a court filing Tuesday, James said the court ought to figure out why DHS officials misled federal lawyers into arguing that the Green Light law was unique.

Beyond that, “following entry of judgment, plaintiffs intend to seek their attorneys’ fees and costs in this litigation,” James added.

In response to those letters, Furman issued that order Wednesday calling on the Trump administration to explain how it had filed misleading information with the court. Furman’s order also:

— Set out a schedule by which the Trump administration must explain why it thinks the James lawsuit should be declared moot, along with a timetable for James’ response.

— Said that if the lawsuit is not ruled to be moot, the court will treat James’ arguments in the case as unopposed, given that the Trump administration has now said in court papers that its original decision to bar New Yorkers from Trusted Traveler programs “is not legally supportable.”

— Said the court would decide who will pay New York’s legal fees if the two sides in the case can’t come to an agreement on the issue. ___

 

This article is written by Jerry Zremski from The Buffalo News and was legally licensed via the Tribune Content Agency through the Industry Dive publisher network. Please direct all licensing questions to legal@industrydive.com.

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