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.