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The intersection of criminal law and immigration law

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.

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