Federal court to decide legality of DACA

‘The DACA Directive is not only illegal, it is also dangerous’
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DALLAS – On Monday, April 8, U.S. District Judge Reed O’Conner listened to nearly six hours of testimony in Crane v. Napolitano.

kris kobachThe legal challenge was filed on Aug. 23, 2012 by Attorney Kris Kobach (l) on behalf of Christopher Crane and nine other Immigration and Customs Enforcement (ICE) agents against Department of Homeland Security (DHS) Secretary Janet Napolitano, ICE Director John Morton and U.S. Citizenship and Immigration Services Director Alejandro Mayorkas, in response to Napolitano’s Directive entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” implementing President Obama’s Deferred Action for Childhood Arrivals (DACA) program.

The Directive instructs ICE officers to refrain from placing certain illegal aliens in removal proceedings and to take actions to facilitate the granting of deferred action to aliens who are unlawfully present in the United States.

The Directive also directs DHS personnel to grant employment authorization to certain beneficiaries of DACA.

The lawsuit seeks to prevent law enforcement officers from being forced to either violate federal law if they comply with the unlawful Directive or risk adverse employment action if they disobey the unlawful orders of the DHS Secretary.

It also seeks to preserve the balance of legislative and executive powers established by the U.S. Constitution.

The complaint asserts the Directive commands ICE officers to violate federal law and their oaths to uphold and support federal law, while it violates the Administrative Procedure Act and unconstitutionally usurps and encroaches upon the legislative powers of Congress, as defined in Article I of the U.S. Constitution.

The Directive also violates the obligation of the executive branch to faithfully execute the law, as required by Article II, Section 3 of the U.S. Constitution.

Plaintiffs brought the civil action to seek injunctive relief preventing the implementation of what Kobach states is an unlawful and unconstitutional Directive.

The orders plaintiffs received from their supervisors in the field are that an alien only needs to claim he is covered by the Directive in order to be released and offered the benefits of the Directive and ICE agents are prohibited from demanding that an alien provide proof that he meets the Directive’s criteria.

According to 8 U.S.C. § 1225(a)(1), “an alien present in the United States who has not been admitted …  shall be deemed for purposes of this chapter an applicant for admission.”

This designation triggers 8 U.S.C. § 1225(a)(3), which requires that all applicants for admission “shall be inspected by immigration officers.” This in turn triggers 8 U.S.C. § 1225(b)(2)(A), which mandates “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 1229a of this title.” The proceedings under 8 U.S.C. § 1229(a) are removal proceedings in U.S. immigration courts.

The complaint states the Directive orders plaintiffs to violate the above-listed provisions of federal law by declining to place certain aliens into removal proceedings, when federal law clearly requires they do so.

Plaintiffs filed a supplemental brief in support of their application for a preliminary injunction in January just days after United States Customs and Immigration Services (USCIS) updated its “Frequently Asked Questions” (FAQ) webpage relating to the DACA process under the Directive.
According to the supplemental brief, the answers to three new FAQ indicate USCIS views an individual who is granted deferred action under the Directive as “authorized by the DHS to be present in the United States” and therefore “lawfully present.”

It states, “This information is relevant to the plaintiffs’ claim that the defendants are unlawfully using “prosecutorial discretion” to confer a benefit.

Not only does it exercise prosecutorial discretion to decline to place an alien into removal proceedings, it also confers an extremely significant legal benefit, which gives the alien more favorable treatment when seeking admission to the United States.

The brief goes on to state, “This information is also relevant to the claim that the defendants are unconstitutionally attempting to exercise legislative powers” and “violating the Administrative Procedure Act.”

The complaint points out Napolitano’s authority does not authorize her to order her subordinate officers or employees to confer a substantive benefit on aliens not authorized by federal law.
Although the DREAM Act would have established similar provisions as the DACA program, Kobach notes the DREAM Act has never been passed by both houses of Congress and signed into law by the President.

And, the fact that the DREAM Act has been proposed in Congress two dozen times, has been voted on by the U.S. House of Representatives and by the U.S. Senate, is a clear indication Congress understands federal legislation would be required to achieve these objectives.

Stating the application of “deferred action” to approximately 15 percent of aliens who are present without authorization is a legislative act of amnesty, and granting of a legislative benefit, is an act that otherwise exceeds Napolitano’s authority as a principal officer under the Constitution by usurping legislative authority.

Because the Directive is a legislative act implemented by the defendants through executive action, it violates Article I, section 1, of the U.S. Constitution.

Although O’Connor did not indicate when he might rule, Kobach told Sonoran News, “The hearing went very well. The DACA Directive is not only illegal, it is also dangerous. The ICE agent plaintiffs that were put on the stand made clear that the DACA Directive has forced them to release large numbers of criminal aliens onto the streets. It is commonplace for ICE to apprehend illegal aliens in county jails after the aliens have been arrested for various crimes.

Before the DACA Directive, ICE would have removed those illegal alien criminals from the United States. But now, under Obama’s Directive, if an illegal alien claims he is eligible for the Directive, the ICE agents have to take his word for it and turn him loose on the streets.”

Kobach is the Kansas Secretary of State and a law professor at the University of Missouri, Kansas City, specializing in constitutional law, election law, legislation, and immigration law.

Long a crusader in the fight against illegal immigration, Kobach has testified before Congress on 10 occasions, has been a regular guest on the O’Reilly Factor and has defended cities and states, including Arizona, that fight illegal immigration against ACLU lawsuits.

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