Bloggings on Immigration Law

by Roger Algase

Some Further Thoughts From A Devil's Advocate About Crane v. Napolitano, Continued

In my August 29 blogging, I began my discusssion of the central allegation in the complaint in Crane v. Napolitano, the lawsuit recently filed by a group of ICE agents who are charging ICE Director John Morton and DHS Secretary Janet Napolitano with illegally ordering them not to arrest specified DREAMERs or put them into removal proceedings.

The statute involved is 8 U.S.C. Section 1225(a) and (b) (INA Section 235(a) and (b)), which, on its face, requires immigration officers to take into custody and put into removal proceedings anyone who is in the US without having been inspected by an immigration officer (EWI). See paragraphs 55 through 59 of the complaint.

The complaint alleges that the Prosecutorial Discretion memo issued by John Morton on June 17, 2011 and the Deferred Action memo issued by Janet Napolitano on August 15, 2012 (which, by its own terms, relies on the Morton Prosecutorial Discretion memo for its legal justification), violate the above statute by allegedly directing ICE officers to i) exercise discretion not to put certain "low priority" EWI people into removal proceedings (Morton memo) ; and, ii) identifying a described class of DREAMERs as people who (again in the exercise of discretion) are to be exempted from being placed in removal proceedings through "Deferred Action".

The issue, therefore, is whether ICE officers have discretion to refuse to put people into removal proceedings who would otherwise have to be put into these proceedings according to the statute. Normally, if one wishes to argue that a certain statute does not apply in a given situation, there are three ways to do so.

One is to argue that the statute in question on its face does not apply to the facts at hand. Another is to argue that even though the statute does apply, there is nothing in the fact pattern that is inconsistent with the statute. The third is to argue that even if the facts at hand appear to violate the statute, there is some higher principle of law (such as the Constitution) which renders the statute invalid or inapplicable.

In their August 27 ID Article They Still Have Their DREAM: Law Suit Against Dreamers Will Go Nowhere Cyrus D. Mehta and Gary Endelman in effect argue that the above statute, despite its plain language, does not prevent ICE officers from using their discretion not to put a defined class of people, i.e. certain EWI DREAMERs, into removal proceedings.

First, the above authors point out that not every DREAMER is EWI and that the above statute only applies to EWI immigrants.This is a valid point, but it does not help the overwhelming majority of DREAMERs, not many of whom originally entered the US after proper inspection with valid visas which they later overstayed.

The authors next, instead of arguing against the validity or applicability of the statute itself, seek to attack it indirectly by stating that, in effect, there is a general principle of law in favor of deferred action. They write:

"Deferred action is neither recent nor radical. Widows of US citizens have been granted the benefit. Battered immigrants have also known its sheltering arms."

This is an amazing argument. As shown by their links in support the above quoted passage, both widows of US citizens and battered immigrants are eligible for deferred action protecting them from removal by statute. Where is the statute granting DREAMERs (at least the great majority of EWI ones) exemption from being put into removal proceedings?

Ah, yes, the DREAM Act itself grants this protection. But there is one problem. One does not have to be Kris Kobach in order to point out that the DREAM Act failed to pass Congress. Nor did Kobach fail to mention this in the complaint.

The Mehta-Endelman article also cites INA Section 103(a)(1), which charges the DHS Secretary with the "administration and enforcement" of the Act, as authority for deciding whether or not to remove an alien. But the issue, according to the complaint, is not whether or the DHS Secretary can decide whether or not remove a person, but the narrower one of whether she can make that decision without putting the person into removal proceedings first. Based on the statute, Kobach may have a serious argument. To be continued.

About The Author

Roger Algase is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years

The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.
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