crimmigration.com

The intersection of criminal law and immigration law

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

US Dist Ct: ICE agents’ lawsuit against prosecutorial discretion survives

In a decision about a politically contentious lawsuit, a federal district court struck a blow at the Department of Homeland Security’s use of prosecutorial discretion to manage its removal work. Crane v. Napolitano, No. 3:12-cv-03247-O, slip op. (N.D. Tex. April 23, 2013) (O’Connor, J.). The court strongly suggested that it will uphold the bulk of the claims brought against DHS by the ICE union challenging ICE’s prosecutorial discretion memoranda and the specific prosecutorial discretion initiative known as Deferred Action Against Childhood Arrivals (DACA).

As I detailed before, the agents essentially contend that the prosecutorial discretion policies enunciated by ICE require them to violate the Immigration and Nationality Act. Their claim is grounded on the fact that the INA uses the term “shall” in key provisions announcing which individuals are subject to removal, and that the PD policies preclude them from putting those people into removal. If they follow the statute, they add, they face disciplinary action by department superiors for going against the department’s PD policies. Crane, No. 3:12-cv-03247-O, slip op. at 2-3. The court had previously concluded that the agents had standing to sue DHS.

The district court essentially adopted the agents’ position. The agents’ claim preliminarily focuses on the language of INA § 235(a), 8 U.S.C. § 1225(a). In its entirety, it provides:

“An alien present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters) shall be deemed for purposes of this chapter an applicant for admission.”

This provision, the court first concluded, applies to individuals “whether they are arriving in the United States at a port of entry or are encountered by immigration officers elsewhere in the United States.” Crane, No. 3:12-cv-03247-O, slip op. at 14.

More importantly, the court then turned to the provision at the heart of the agents’ claim, INA § 235(b)(2)(A), 8 U.S.C. § 1225(b)(2)(A). In pertinent part, this provision states:

“in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 240.”

The court concluded that this provision requires that immigration agents initiate removal proceedings against anyone who meets the specified criteria: an “alien seeking admission [who] is not clearly and beyond a doubt entitled to be admitted.” Crane, No. 3:12-cv-03247-O, slip op. at 15. This despite the fact that the court acknowledges the Supreme Court’s repeated assertions that prosecutorial discretion exists in immigration law. Crane, No. 3:12-cv-03247-O, slip op. at 16-17. The district court nonetheless concluded 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.” Crane, No. 3:12-cv-03247-O, slip op. at 17.

According to the court, DHS can only exercise prosecutorial discretion as to how to proceed in removal proceedings against individuals who are covered by § 235(b)(2)(A), the court added. For example, they could choose between removal proceedings under INA § 240 (the standard removal process before an immigration judge) or expedited removal under INA § 235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i). Crane, No. 3:12-cv-03247-O, slip op. at 19. Alternatively, DHS could exercise discretion after removal proceedings are initiated by, for example, cancelling a notice to appear or dismissing removal proceedings. Crane, No. 3:12-cv-03247-O, slip op. at 24. “[N]othing 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.” Crane, No. 3:12-cv-03247-O, slip op. at 24 (internal citations omitted).

Importantly, the court did not grant a preliminary injunction, as the agents asked, because of an outstanding jurisdictional issue related to the Civil Service Reform Act. Crane, No. 3:12-cv-03247-O, slip op. at 36-37. The court ordered additional briefing on that issue due by May 6, with a decision on the preliminary injunction expected after that. Despite this lingering issue, the court’s order strongly suggests that it has bought the agents’ arguments about the merits of their claim. If the court ultimately concludes that it has jurisdiction and enters an order consistent with this explanation, it threatens to take the punch out of ICE’s recent PD initiatives and will undoubtedly be appealed to the Fifth Circuit.

David Martin (UVA Law), a former general counsel for the INS and former deputy general counsel for DHS, explained why the reasoning adopted by the district is wrong in Yale Law Journal Online essay.

Update: The district court dismissed the ICE agents’ claim on July 31, 2013.

Update on April 7, 2015: On appeal to the U.S. Court of Appeals for the Fifth Circuit, the appellate court affirmed the district court’s decision of July 31, 2013 dismissing the lawsuit (now joined by the State of Mississippi). That decision is available here.

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

Share this:

  • Twitter
  • Facebook

Posted by César on April 25, 2013 on 9:00 am 28 Comments
Filed Under: deferred action, jurisdiction, Prosecutorial discretion, U.S. District Courts

Comments

  1. grdh-dendro.co says

    April 30, 2013 at 8:25 am

    ????? ??????????? ?? ???, ?? ??????? ???. ??????? ????

    Reply
  2. www.tropicabois.com says

    April 30, 2013 at 9:14 am

    http://www.tropicabois.com

    Ivy Black

    Reply
  3. FreudianSlip says

    April 30, 2013 at 8:54 pm

    Just found your website, thanks for keeping us informed. More Americans need to understand how legislation is written with wiggle room to abuse and misuse the intent of the law. And then we have federal agencies and law enforcement who refuse to honor the law.

    Reply
  4. jordan 6 says

    May 2, 2013 at 11:52 pm

    jordan 6

    Air Jordan Mars,Nike Air Jordan Mars,Air Jordan Mars Sale

    Reply
  5. chemise ralph lauren says

    May 15, 2013 at 4:24 am

    chemise ralph lauren

    ? Le Comandante a pris chemise ralph lauren sur le siège qui lui est dévolu aux c?tés de son frère Raul, Ce cas de figure ne semble provoquer en fait ?quune érosion maillot de foot overblog à droite. Marie-Arlette Carlotti et Samia Ghali remporterait chacune 43% des suffrages si elles se retrouvaient au second tour face à Jean-Claude Gaudin, Le Hamas a aussi accusé Isra?l dêtre responsable de la mort du détenu à cause des conditions ou acheter maillot de foot dans les prisons, fribourg bayern munich la revue Nature Climate Change.

    Reply
  6. OaklEy DiSpatcH says

    May 24, 2013 at 11:47 am

    OaklEy DiSpatcH

    A dulcet article will broaden one’s horizon because the article is true, make us electronicy and laugh. When I catched sight of this article, I consider I can gains these.

    Reply
  7. Oakley Jawbone says

    May 26, 2013 at 8:48 am

    Oakley Jawbone

    Yes you are correct, genuinely Personal home page is a open source and its assist we can get free from any community or web page since it takes place here at this website.

    Reply
  8. Cheap Oakley M Frame says

    June 29, 2013 at 8:19 am

    Cheap Oakley M Frame

    What’s up my mates, how is everything? Here it is in fact good YouTube videos collection. i enjoyed a lot.

    Reply
  9. fake Oakley Gascan says

    July 3, 2013 at 5:50 am

    fake Oakley Gascan

    Really film is the presentation of some one feelings; it offers the lesson to the people.

    Reply
  10. Fake Oakley Oil Rig says

    July 3, 2013 at 8:28 am

    Fake Oakley Oil Rig

    When I saw this web site having awesome featured YouTube video lessons, I decided to watch out these all video clips.

    Reply
  11. OakLey FueL CeLL SungLasses says

    July 7, 2013 at 3:35 am

    OakLey FueL CeLL SungLasses

    Oh! Wow its in fact a comic and jockey YouTube video posted at this point. thanks for sharing it.

    Reply
  12. Oakley Pit Boss says

    July 10, 2013 at 2:37 am

    Oakley Pit Boss

    Its definitely brilliant YouTube video in terms of features, in fact nice, its quality is in fact appreciable.

    Reply
  13. Foakleys says

    July 14, 2013 at 3:21 am

    Foakleys

    I every time used to study paragraph in news papers but now as I am a user of internet therefore from now I am using net for articles or reviews, thanks to web.

    Reply
  14. Cheap Oakley Radarlock says

    July 14, 2013 at 7:29 am

    Cheap Oakley Radarlock

    For newest news you have to pay a quick visit world-wide-web and on the web I found this site as a most excellent web page for newest updates.

    Reply
  15. Womens Oakley Sunglasses says

    July 16, 2013 at 5:10 am

    Womens Oakley Sunglasses

    Can you tell us more about this? I’d like to find out more details.

    Reply
  16. Fitflops sale says

    July 18, 2013 at 11:45 pm

    Fitflops sale

    This post will help the internet visitors for building up new website or even a weblog from start to end.

    Reply
  17. Oakley Outlet says

    July 22, 2013 at 4:15 pm

    Oakley Outlet

    crImmigration.com: US Dist Ct: ICE agents’ lawsuit against prosecutorial discretion survives

    Reply
  18. Fake Oakleys says

    July 22, 2013 at 5:19 pm

    Fake Oakleys

    crImmigration.com: US Dist Ct: ICE agents’ lawsuit against prosecutorial discretion survives

    Reply
  19. Cheap Oakley Sunglasses says

    July 26, 2013 at 6:55 am

    Cheap Oakley Sunglasses

    crImmigration.com: US Dist Ct: ICE agents’ lawsuit against prosecutorial discretion survives

    Reply
  20. Fake Oakley Sunglasses says

    July 26, 2013 at 12:57 pm

    Fake Oakley Sunglasses

    crImmigration.com: US Dist Ct: ICE agents’ lawsuit against prosecutorial discretion survives

    Reply
  21. Oakley Sunglasses Outlet says

    July 26, 2013 at 1:53 pm

    Oakley Sunglasses Outlet

    crImmigration.com: US Dist Ct: ICE agents’ lawsuit against prosecutorial discretion survives

    Reply
  22. Fake Oakleys says

    July 27, 2013 at 6:14 am

    Fake Oakleys

    crImmigration.com: US Dist Ct: ICE agents’ lawsuit against prosecutorial discretion survives

    Reply
  23. Cheap Oakley Sunglasses says

    July 28, 2013 at 10:36 pm

    Cheap Oakley Sunglasses

    crImmigration.com: US Dist Ct: ICE agents’ lawsuit against prosecutorial discretion survives

    Reply
  24. fake Oakley Antix says

    July 30, 2013 at 7:33 pm

    fake Oakley Antix

    crImmigration.com: US Dist Ct: ICE agents’ lawsuit against prosecutorial discretion survives

    Reply
  25. oakley outlet says

    August 2, 2013 at 3:58 am

    oakley outlet

    crImmigration.com: US Dist Ct: ICE agents’ lawsuit against prosecutorial discretion survives

    Reply
  26. r4i sdhc 3ds says

    March 8, 2014 at 1:18 am

    r4i sdhc 3ds

    Individually i consider such as the writer offers considerable understanding with this matter. Quite very good publish. I discovered your website excellent for my individual specifications

    Reply
  27. ballon de foot pas cher says

    March 12, 2014 at 7:36 pm

    ballon de foot pas cher

    Recently, I didnt give heaps of thought to help leaving observations on internet web page webpage posts and provide put feedback even much considerably less. Looking through in your superb article, will allow me to do sometimes

    Reply
  28. garcinia cambogia extract says

    March 28, 2014 at 4:42 pm

    garcinia cambogia extract

    crImmigration.com: US Dist Ct: ICE agents’ lawsuit against prosecutorial discretion survives

    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

  • Mistakes aren’t reviewable, Supreme Court says
  • ICE prosecutorial discretion guidance
  • Supreme Court again considers ICE’s detention powers
  • Troubled contractor gets $180 million to hold young migrants
  • Chronicling Arizona’s Immigration Politics
  • Tracking ICE Surveillance

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.