Appeal Does Matter and Politics Makes Strange Bedfellows

by Lory D. Rosenberg

Appeal Does Matter And Politics Makes Strange Bedfellows by Lory D. Rosenberg, IDEAS Consultation and Coaching LLC

On Tuesday, April 23, 2013, Judge Reed O'Connor* of the Texas District Court for the Dallas District entered an interim ruling and order in Crane v. Napolitano, a lawsuit brought by the ICE officer's union President Christopher Crane and other named individuals against DHS.* The lawsuit is an effort to frustrate DHS's implementation of the Deferred Action for Childhood Arrivals (DACA) initiative and exercise of prosecutorial discretion, and to subject those eligible for DACA to detention and removal proceedings.* Apparently, DHS has been defending the lawsuit on jurisdictional grounds, contending that it is nothing more than a federal employment dispute.

The Court's April 23 decision postpones issuing a Preliminary Injunction. Rather, the Judge orders further briefing on the issues, commenting that DOJ has not presented it's interpretation of* INA section 235(b)(2)(A), entitled "Inspection of Other Aliens," the statute being held up by the ICE plaintiffs – and apparently accepted by the Judge -- as requiring mandatory enforcement and precluding the exercise of prosecutorial discretion by DHS. Not so. *In this battle, I stand with DHS leadership, albeit on the basis of arguments I developed and offer herein.*

Having read through the decision of the court, and looked at the statute closely, I do not see how the interpretation accepted by the Judge can be applied to detain or place anyone eligible for DACA in removal proceedings under the statute being cited – at least for long.* This is because the statutory section includes an exception at INA § 235(b)(2)(B)(ii), expressly providing that it is inapplicable to a person to whom INA § 235(b)(1) applies. *

In turn, INA § 235(b)(1)(A)(iii) exempts from the description of persons who shall be removed* a person who establishes "to the satisfaction of* an immigration officer, that . . .[s/he] has been physically present in the United States continuously for the 2-year period immediately prior to" the officer's determination of inadmissibility under INA § 235(b)(1)(A).* Id. Thus, any putative detainee being targeted by ICE officers must be allowed an opportunity to demonstrate that s/he has accumulated more than 2 years continuous physical presence in the U.S., and therefore is not properly included in the group to whom the INA 235(b)(2)(A) applies. See § INA 235(b)(2)(B)(ii).*

Indeed, to qualify for DACA, an applicant must show that s/he has continuously resided in the United States for at least five years preceding the date of *Secretary Napolitano's June 15, 2012 Directive and was present in the United States on the date of the Directive. *Accordingly, every DACA applicant necessarily must establish more than a 2 year period of physical presence in the U.S., *simultaneously satisfying the affirmative showing* of status required under subclause (II) of *INA § 235(b)(1)(A)(iii). **

Therefore, none of the ICE plaintiffs are being diverted or prevented, as they claim, from acting in compliance with their sworn duty to detain and place in removal proceedings the "Other Aliens" whom they determine are seeking admission and not clearly and beyond a doubt entitled to be admitted. *See *INA § 235(b)(2)(A).*

The somewhat remarkable, and I would argue, unfounded conclusions reached by the Judge in the absence of *an argument on the merits from DOJ, stimulated my curiosity and impromptu examination of Section 235 of the INA.* In my view, the operational consequences addressed by the District Court are not supported by the statutory scheme itself. **

Although INA § 235(a)(1) provides that anyone present in the U.S. who has not been not admitted "shall" be deemed an*"applicant for admission," INA § 235(b)(1)(A)(i)*specifies that the treatment of *such applicants applies to arriving aliens*or*those described in clause (iii).* DACA applicants are not included in either of these subcategories.*

In fact, the provision for "Application To Certain Other Aliens" described in clause (iii) subclause (I) permits the Attorney General General, in his sole and unreviewable discretion, to designate any or all of those noncitizens in subclause*(II)*for treatment under clause (i) or (ii) of INA§* 235(b)(1)(A).* As mentioned previously, subclause (II)*covers a noncitizen who has not been admitted or paroled and who has*not affirmatively shown*to the satisfaction of the officer, continuous physical presence for the 2 year period prior to the officer's determination of inadmissibility. *Western Hemisphere (Cuban) entrants from countries with which the U.S. has no diplomatic relations who arrive* by aircraft at a port of entry are not subject to the terms of the mandate to remove in INA §*235(b)(1)(A). *

To my knowledge, no Attorney General* has designated that the "applicant for admission" status is to be extended to someone physically present in the United States for more than 2 years. Thus, unless the Attorney General orders that persons determined to have accumulated* more than 2 years physical presence be treated as arriving aliens notwithstanding the determination, *once the determination has been made, such individuals arguably are not subject to INA Section 235, period.

Furthermore, any noncitizen who is treated as being subject to inspection as an "applicant for admission" under*INA § 235(b)(1) may express an intent to apply for asylum or a fear of persecution under subparagraph (A)(ii)*of *INA §*235(b)(1) and will be referred for a credible fear hearing.* In the event of mass detentions of* individuals deemed to be applicants for admission, a greatly increased number of such referrals certainly would clog the DHS system with respect to the processing of credible fear interviews.* EOIR would experience a similar impact with respect to review of credible fear determinations being sought before Immigration Judges.

As for INA§*235(b)(2), as noted above, subparagraph (B)(ii) excepts those to whom paragraph (1) applies. Notably, it is paragraph (b)(2)(A) that contains the language providing that a person seeking admission who is not *"clearly and beyond a doubt entitled to be admitted...shall be detained for a proceeding under section 240."(emphasis added). *The dispute in the litigation over the interpretation of "shall" in this paragraph really is a straw man, because the paragraph simply is inapplicable to any qualified DACA applicant or beneficiary.

I agree that yes, the fact that a person with more than 2 years physical presence is not subject to treatment as an "applicant for admission" does not necessarily exempt that person altogether from being served with an NTA and placed in removal proceedings pursuant to the statute. *However, the argument being made by the ICE officers and their attorney Kris Kobach is that INA §*235(b)(2)(A) applies and is mandatory. Therefore, the argument goes, there is no discretion not to detain such individuals and *to refrain from placing them in removal proceedings. That is incorrect.*

INA §*235(b)(2)(A) does mandate that the persons to whom it applies "shall" be detained and processed for removal. *But, as I have demonstrated, that section does not apply to DACA applicants or beneficiaries.*

In contrast, the DACA program is based on the legitimate discretionary choice being made by Secretary Janet Napolitano and Deputy John Morton*not*to detain and place them in removal proceedings and to defer any such removal as a matter of prosecutorial discretion. * The ICE officers may not like that choice, but if *INA §* 235(b)(2)(A) does not apply, they cannot complain that they are being forced to act contrary to the statute and in violation of the oath they took to enforce the INA as they are claiming in their lawsuit. *Moreover, as the District Court itself notes, even if an injunction were to issue, DHS would not be stripped of its authority and prosecutorial discretion under other sections of the INA to terminate removal proceedings or take other actions to prevent DACA applicants and status holders from facing removal.*

Finally, it is true that the lawsuit appears to be limited to the District Court for the particular Texas district in which it was filed. And the DOJ appears to be focused on arguing that it is in actuality an employment dispute over which the District Court has no jurisdiction.* While I understand that DOJ may be pursuing a strategy of challenging jurisdiction on the basis that the plaintiffs complaint is nothing more than a federal employment dispute, it seems imperative that a comprehensive interpretation of the statute and authoritative argument – contrary to that being pushed by the plaintiffs – be provided to the District Court. [1]

The arguments I am making haven't been made, but they are ones that might be made if the DOJ decides to engage the plaintiffs directly and defeat their efforts to frustrate the DACA program on it's merits. *And if that were to happen, I believe the plaintiff's position would be exposed as a bogus effort to achieve the ICE officers' and their attorney Kris Kobach's nativist and restrictionist goals. *

[1] I wonder whether interested citizens and/or DACA beneficiaries have standing to present a motion to intervene, or at least file an amicus brief on behalf of DHS defendants?

About The Author

Lory D. Rosenberg is an award-winning attorney and owner of IDEAS Consultation & Coaching, LLC, a unique immigration law consulting and mentoring practice providing high-achieving immigration lawyers, leaders and businesses with comprehensive analysis, strategy, expert opinion, and collaboration, so they can successfully obtain visa approvals and lawful permanent residence, defend against removal, and win appeals for their clients despite complex and challenging circumstances.  Ms. Rosenberg is a national speaker and former adjunct professor, who served from 1995-2002 as an appellate immigration judge on the Board of Immigration Appeals. She is co-author of the leading treatise, Immigration Law and Crimes, was a featured columnist for Benders Immigration Bulletin (2002-2007, and has extensive experience as a legal analyst, practitioner, writer, trainer, non-profit director, litigator, policy advocate, and decision-maker involving immigration law and policy. Her website is

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