There are many news reports about the preliminary decision issued by Judge Reed O’Connor in the Northern District of Texas in a lawsuit brought by ICE agents challenging the Obama administration’s administrative DREAM provisions which direct Homeland Security not to commence removal proceedings as to people who meet the criteria.
The news accounts tend to overstate the breadth of the opinion. The ruling related only to the initiation of removal proceedings, and would not require any particular prosecutorial diligence once initiated, since that issue was not before the Court. Thus, assuming the Judge finalizes the ruling, the Obama administration would be required to commence removal proceedings, but absent further challenges, could allow Obama to delay actual deportations.
The Judge reserved decision on the issue of whether injunctive relief was the proper remedy, and requested further briefing.
The Judge explained the nature of the DREAM directive:
To qualify for deferred action under the Directive, the alien must satisfy the following criteria:
- came to the United States under the age of sixteen;
- has continuously resided in the United States for at least five years preceding the date of [the Directive] and is present in the United States on the date of [the Directive];
- is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
- has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or
- otherwise poses a threat to national security or public safety; and
- is not above the age of thirty. [at 4]
The Court noted that several ICE Deportation Officers challenged the Directive as contrary to law:
Several ICE Deportation Officers and Immigration Enforcement Agents filed this lawsuit on August 23, 2012, to challenge the constitutional and statutory validity of the Directive and the Morton Memorandum. See generally Pls.’ Compl., ECF No. 1; Pls.’ Am. Compl., ECF No. 15. Plaintiffs assert that the Directive violates (1) federal statutes requiring the initiation of removals; (2) federal law by conferring a non-statutory form of benefit—deferred action—to more than 1.7 million aliens, rather than a form of relief or benefit that federal law permits on such a large scale; (3) the constitutional allocation of legislative power to Congress; (4) the Article II, Section 3, constitutional obligation of the Executive to take care that the laws are faithfully executed; and (5) the Administrative Procedure Act through conferral of a benefit without regulatory implementation. Pls.’ Am. Compl. ¶¶ 67–80, 92–116, ECF No. 15. Plaintiffs challenge the portions of the Directive and Morton Memorandum that require ICE officers to exercise prosecutorial discretion and defer action against aliens who satisfy the Directive’s criteria. [at 5-6]
On the merits, the Court sided with the ICE Officers, finding the statutory language was clear and left the administration no prosecutorial discretion when it came to commencing removal proceedings:
If Congress intended to limit the application of Section 1225(b)(2)(A) to aliens coming or attempting to come into the United States at a port of entry, it would have used the term “arriving alien” or “alien arriving in the United States” instead of the term “seeking admission.” Because Congress has not done so, the Court rejects Defendants’ proposed interpretation of Section 1225(b)(2)(A) and finds that Section 1225(b)(2)(A) applies to “applicants for admission”—that is, aliens who have not lawfully entered the United States
after inspection and authorization by an immigration officer—whether they are arriving in the United States at a port of entry or are encountered by immigration officers elsewhere in the United States. [at 14]
While DHS and ICE generally have the discretion to determine when to initiate removal proceedings, the Supreme Court has noted that “Congress may limit an agency’s exercise of enforcement power if it wishes, either by setting substantive priorities, or by otherwise circumscribing an agency’s power to discriminate among issues or cases it will pursue.” Heckler, 470 U.S. at 833. The Court finds that Congress, by using the mandatory term “shall” in Section 1225(b)(2)(A), has circumscribed ICE’s power to exercise discretion when
determining against which “applicants for admission” it will initiate removal proceedings. See 8 U.S.C. § 1225(b)(2)(A). 17 [at 17]
But, the Court noted that the case presented only the issue of commencing removal proceedings, and that the issue of following up on those proceedings was not before the Court:
Because Congress has the power to legislate in the area of immigration law and has expressed its intent to require the initiation of removal proceedings against aliens when the requirements of Section 1225(b)(2)(A) are satisfied, the Court finds that DHS does not have discretion to refuse to initiate removal proceedings when the requirements of Section 1225(b)(2)(A) are satisfied. However, DHS’s ability to exercise its discretion at later stages in the removal process by, for example, cancelling the Notice to Appear or moving to dismiss the removal proceedings, is not at issue in the present case, and nothing in this Order limits DHS’s discretion at later stages of the removal process…. Through the exercise of discretion at these later stages in the removal proceedings, DHS appears capable of prioritizing its removal objectives and
conserving its limited resources.[at 24]
The Court did not finalize its decision, however, because of the issue of whether injunctive relief was available to the ICE Officers, or whether they had to follow an administrative remedy:
As explained below, the Court cannot determine the threshold issue of whether “there is no other adequate remedy in a court” at this time …. Defendants contend that this Court lacks jurisdiction over Plaintiffs’ claims because Plaintiffs have essentially alleged federal employment disputes that may proceed only under the Civil Service Reform Act (“CSRA”)… The CSRA issue could affect the Court’s determination of whether “there is no other adequate remedy in a court” so that relief is available under the APA, whether there is a threat of irreparable harm in the absence of preliminary relief, thus making a preliminary injunction appropriate, and whether the Court has jurisdiction to hear this case at all. While ordinarily the issue would be waived, because the CSRA could potentially affect jurisdiction the Court finds it necessary to address the issue and require additional briefing from the parties. [at 35-37]
Take the decision as a sweeping rejection of the Obama administrations disregard for the law. But whether the ruling, once finalized, actually results in deportations remains to be seen.