crimmigration.com

The intersection of criminal law and immigration law

  • Home
  • About César
  • Articles
  • Books
  • Book Tour
  • Talks & Media

US Dist Ct: ICE agents have standing to pursue challenge to prosecutorial discretion policy


A U.S. District Court announced that several ICE agents challenging the Obama Administration’s prosecutorial discretion and deferred action policy initiatives may take their claims to trial. Crane v. Napolitano, No. 3:12-cv-03247-O, slip op. (N. Dist. Tex. Jan. 24, 2012) (O’Connor, J.). The court concluded that the agents have standing to pursue their claim that they may suffer adverse employment consequences as a result of doing what the INA, the federal statute that governs immigration law, requires of them.


The ICE agents’ single surviving claim is that Secretary Napolitano’s deferred action guidance and the Morton Memos detailing the agency’s prosecutorial discretion policy require that they violate a section of the INA, INA § 235(b)(2)(A), that requires them to initiate removal proceedings against people who are not clearly entitled to enter or be present in the United States. Crane, No. 3:12-cv-03247-O, slip op. at 19. The PD and deferred action policies, in contrast, indicate that removal proceedings shouldn’t be initiated against people who meet the criteria specified by Secretary Napolitano and Director Morton, respectively. It’s possible, therefore, that doing what the INA mandates may necessarily require violating the PD and deferred action guidance. According to the court, there is “no question” that they have standing to pursue this claim because they may face adverse employment consequences as a result of initiating removal proceedings against someone who meets the PD criteria. Crane, No. 3:12-cv-03247-O, slip op. at 21.


Importantly, because the court was addressing a motion to dismiss it was required to assume that the agents’ allegations were true—that is, that they would actually violate the PD and deferred action policies by complying with the INA. The court is not bound to actually find that this is true at trial when the parties fully present their claims. As a result, it’s possible that the government will argue at trial that complying with the PD and deferred action policies doesn’t require violating the statute. If the court agrees, then the agents’ would lose.


After this ruling, the agents and their co-defendant the State of Mississippi have lost all other claims. The court concluded that the agents’ lack standing to pursue their claims that the agency’s policies require them to violate their oath to uphold the Constitution and other U.S. laws, Crane, No. 3:12-cv-03247-O, slip op. at 13; that compliance imposes a burden on them, Crane, No. 3:12-cv-03247-O, slip op. at 16; and that they are injured by the agency’s willingness to issue employment authorization to individuals who received a favorable exercise of PD, including deferred action, Crane, No. 3:12-cv-03247-O, slip op. at 25. None of these provisions injure the agents, the court concluded.


Likewise, Mississippi lacks standing to pursue its claim of fiscal injury due to the cost of unauthorized individuals residing in the state who are allowed to remain pursuant to favorable exercises of DA. Crane, No. 3:12-cv-03247-O, slip op. at 28. The “alleged injury of increased fiscal costs…is insufficiently concrete” for standing, the court decided. Crane, No. 3:12-cv-03247-O, slip op. at 29. Rather, their claim is merely conjectural and speculative. Crane, No. 3:12-cv-03247-O, slip op. at 29.


The ICE agents’ union has been tenaciously opposed to the Obama Administration’s prosecutorial discretion guidelines so I wouldn’t be surprised to see them appeal the claims that they lost to the Fifth Circuit. It’s also possible that the Administration will appeal the one claim that the agents won.


For some reason, these agents seem to believe that PD didn’t exist before the Obama Administration arrived on the scene. That, of course, is not true. PD is a core feature of every type of law enforcement, including criminal prosecution. No prosecutorial agency—including the very well funded DHS—has enough resources to pursue every claimed violation of law. All that the Obama Administration has done is articulate how field officers should go about deciding which cases to pursue and which to let slide.


It’s worth remembering that the federal government spends more on immigration law enforcement than all other types of law enforcement combined—$18 billion versus $14.4 billion according to the Migration Policy Institute. The prosecutorial net is far bigger now than it’s ever been, and it’s bigger than the federal government’s prosecutorial net for all other federal laws. Still, that’s apparently not enough for the ICE agents challenging the administration’s attempt to concretize and publicize how it will administer its longstanding expectation that it will use its resources in a targeted fashion.

  • Share via Facebook
  • Share via LinkedIn
  • Share via Twitter
  • Share via Email

Share this:

  • Twitter
  • Facebook

Posted by César on January 29, 2013 on 9:00 am 15 Comments
Filed Under: deferred action, jurisdiction, Prosecutorial discretion, U.S. District Courts

Comments

  1. payday loans says

    May 8, 2013 at 9:05 pm

    payday loans

    I’m a extended time ago I study your blog and it has extended been stating that you’re an incredible writer

    Reply
  2. OaklEy Big TacO SunglaSSES says

    May 15, 2013 at 9:21 am

    OaklEy Big TacO SunglaSSES

    Have a excellent day!I’m very happy when see your post.I quite agree with your standpoint.I will continue to attention on your blog.I sure that the future I will see more about your splendid views.

    Reply
  3. Gucci Handbags says

    May 22, 2013 at 9:03 pm

    Gucci Handbags

    Maybe you enjoy to study and possess hardly any requirement for marketing and advertising a small business,Burberry Factory. No matter, no matter what Private label rights Ebooks may benefit you.

    Reply
  4. Replica Oakley Sunglasses says

    May 31, 2013 at 1:22 am

    Replica Oakley Sunglasses

    Hi there everybody, I be familiar with YouTube video includes less bytes of memory due to that its quality is poor, except this YouTube video has fantastic picture features.

    Reply
  5. Fake Oakley Radar Path says

    June 29, 2013 at 11:50 pm

    Fake Oakley Radar Path

    Hi there i am kavin, its my first time to commenting anyplace, when i read this paragraph i thought i could also create comment due to this sensible paragraph.

    Reply
  6. Replica Oakley X Squared says

    July 3, 2013 at 4:40 am

    Replica Oakley X Squared

    I don抰 waste my free time in watching video clips but I be fond of to read posts on net and take updated from most up-to-date technologies.

    Reply
  7. Fake Oakley Mens says

    July 9, 2013 at 9:08 am

    Fake Oakley Mens

    Your way of telling all in this piece of writing is genuinely good, all be able to simply be aware of it, Thanks a lot.

    Reply
  8. Cheap Oakley Sunglasses says

    July 12, 2013 at 8:50 pm

    Cheap Oakley Sunglasses

    This is my first time visit at here and i am truly happy to read everthing at alone place.

    Reply
  9. Oakley Sunglasses Outlet says

    July 14, 2013 at 3:33 am

    Oakley Sunglasses Outlet

    My family every time say that I am wasting my time here at net, except I know I am getting know-how everyday by reading such nice posts.

    Reply
  10. Cheap Oakley Radarlock Sunglasses says

    July 18, 2013 at 2:58 am

    Cheap Oakley Radarlock Sunglasses

    What a lovely story! The tale in this YouTube video that is posted here is genuinely a nice one with having pleasant picture quality.

    Reply
  11. Fake Oakley Fuel Cell says

    July 21, 2013 at 7:12 pm

    Fake Oakley Fuel Cell

    I got so bored at the moment afternoon, but while I watched this YouTube humorous clip at this web site I turn out to be fresh and cheerful as well.

    Reply
  12. cheap oakleys says

    July 22, 2013 at 4:18 pm

    cheap oakleys

    crImmigration.com: US Dist Ct: ICE agents have standing to pursue challenge to prosecutorial discretion policy

    Reply
  13. fake oakley sunglasses says

    July 25, 2013 at 9:17 pm

    fake oakley sunglasses

    crImmigration.com: US Dist Ct: ICE agents have standing to pursue challenge to prosecutorial discretion policy

    Reply
  14. fashion blog says

    August 3, 2013 at 7:46 am

    fashion blog

    Ahaa, its fastidious conversation regarding this paragraph at this place at this blog, I have read all that, so now me also commenting here.

    Reply
  15. pure garcinia cambogia says

    March 31, 2014 at 12:29 am

    pure garcinia cambogia

    crImmigration.com: US Dist Ct: ICE agents have standing to pursue challenge to prosecutorial discretion policy

    Reply

Leave a Comment Cancel reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Subscribe


Recent Posts

  • Biden’s Migration Policy Options
  • Migrating to Prison, one year later
  • With Biden returning to White House, private prison stock falls
  • New York Review of Books
  • Justice Dept pushes Supreme Court to Imperil Families
  • Fund Immigrant Defense, Promote Justice

Search

Social Media

Blawg 100 Honoree

The information contained on these pages must not be considered legal advice and does not create an attorney-client relationship. This work by www.crImmigration.com is licensed under a Creative Commons Attribution 4.0 International License.