Amnesty Confusion in the Courts

An uncertain legal future for Obama's executive actions on immigration.

Two big amnesty decisions came down in the courts last week: The refusal by Texas district court judge Andrew Hanen to stay his injunction order against DAPA and DACA and the Fifth Circuit Court of Appeal’s decision to dismiss 12 ICE agents’ case against DACA only. Interestingly, both courts came to completely opposing views on the issue of whether or not ICE agents have discretion in instituting deportation proceedings against amnesty-eligible aliens. Because the Fifth Circuit is the appellate court for Texas’s four district courts, this conflict will be closely watched by immigration enforcement advocates and open-borders globalists alike.

On Monday, in a rather uncommitted analysis, a three-judge panel in the Fifth Circuit (one Carter-appointee, one Reagan-appointee, and one George W. Bush appointee) found that agent-plaintiffs actually do have discretion in granting deferred action to illegal aliens who satisfy DACA’s broad criteria. They concluded in their ruling that the agents’ claim that they’d face sanctions for failing to make such grants, couldn’t be supported. Of course, the judges failed to provide any examples of such exercised discretion on the part of agents and their conclusion goes completely against what President Obama himself has said, namely that “If somebody’s working for ICE … and they don’t follow the policy, there’s going to be consequences to it.”

On Tuesday, Judge Hanen’s analysis was far more thorough. After noting the above threat from Obama, he summed up his approach to the discretion issue by stating: “the chief Executive has ordered that the laws requiring removal of illegal immigrants that conflict with [DAPA] are not to be enforced, and that anyone who attempts to do so will be punished.” In other words, no discretion or case-by-case analysis is being or will be applied by agents to amnesty-beneficiaries and Obama’s twin-programs, which apply to 1.8 and 4.1 million, respectively, are simply blanket grants of mass amnesty—The Immigration Reform Law Institute, whom I work for, filed a friend-of-the-court brief in that case in support of Texas.

That DACA (and the new DAPA program) provides ICE agents with any discretion in granting amnesty to apprehended illegal aliens was hammered by South Texas College of Law professor Josh Blackman in a recent law review article. Taking a close look at DHS’s operational instructions for the program, Blackman makes short shrift of any arguments that Obama’s programs do not actually tie agents’ hands in enforcing our immigration laws.

Analysing former DHS Secretary Janet Napolitano’s initial memo on DACA, Blackman finds that while she directs Citizenship and Immigration Services (USCIS) to “establish a… process for exercising prosecutorial discretion…by deferring action against individuals who meet the above criteria”, it is the Secretary, not USCIS agents, who controls this criteria. Only the Secretary’s discretion, in other words, determines who’s granted deferred action. As the memo states, “[b]y this memorandum, I am setting forth how, in the exercise of our prosecutorial discretion, DHS should enforce the Nation’s immigration laws.”

Moreover, Blackman finds that only when the DHS Secretary’s own guidelines are not met are denials actually allowed e.g. illegal aliens failing to meet DACA’s criteria. “Standard denial templates”, which agents are mandated to use in their adjudications, list eight possible reasons for denial which are to be ticked by officers where appropriate. None of the check boxes, however, are labelled “other”, which Blackman says would be a “logical choice” if each applicant was to be truly analysed on a case-by-case basis according to an agent’s individualized judgment.

Blackman cites other DACA guidelines which read, “[a]lthough discretion to defer removal is applied on a case-by-case basis, discretion is to be applied consistently.” “Consistent discretion”, he writes, is nonsensical and makes the directive “oxymoronic.”

This diminished capacity for officer discretion is reinforced in the new “Lean & Light” standard of review promulgated under DACA. No longer can agents conduct full investigations or deny applications on their own, Blackman finds. As the guidelines read, if an application is found to have “discrepancies [that] still don’t add up” and the “DACA requestor’s attempts to explain fail”, the officer is not to deny the request, but “refer the case to the [Center for Fraud Detection Operations] for further research.” Further, an “officer must obtain supervisory review before entering the final determination” of a denial. By this shift in authority, Blackman concludes, “[o]fficers should take the hint that the answer should never be ‘deny’” and that individualized denials shall not be used.

The Fifth Circuit which rejected the ICE agents’ suit against DACA this week is the same court Texas’s DAPA-challenge will end up after it’s appealed from Judge Hanen’s district court. That circuit court has 17 judges, 12 of whom are considered reliably conservative, and it’s generally considered to be one of the more conservative circuit courts in the country. As the cases are allotted to judges on a lottery system, how the pieces will fall when Texas’s case comes up is anyone’s guess. It’s hoped, however, that the three-judge panel that receives the case will take a hard look at what discretion actually means in practice versus what it means according to Obama’s lawyers.

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