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Lory D. Rosenberg on Appeal Matters

Appeal Does Matter And Politics Makes Strange Bedfellows by Lory D. Rosenberg, IDEAS Consultation and Coaching LLC

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On Tuesday, April 23, 2013, Judge
Reed O'Connor  of the Texas District
Court for the Dallas District entered an interim ruling and order in Crane v. Napolitano, a lawsuit brought
by the ICE officer's union President Christopher Crane and other named
individuals against DHS.  The lawsuit is
an effort to frustrate DHS's implementation of the Deferred Action for
Childhood Arrivals (DACA) initiative and exercise of prosecutorial
discretion, and to subject those eligible for DACA to detention and removal
proceedings.  Apparently, DHS has been
defending the lawsuit on jurisdictional grounds, contending that it is nothing
more than a federal employment dispute.


The Court's April 23 decision postpones issuing a
Preliminary Injunction. Rather, the Judge orders further briefing on the
issues, commenting that DOJ has not presented it's interpretation of  INA section 235(b)(2)(A), entitled
"Inspection of Other Aliens," the statute being held up by the ICE
plaintiffs - and apparently accepted by the Judge -- as requiring mandatory
enforcement and precluding the exercise of prosecutorial discretion by DHS. Not
so.  In this battle, I stand with DHS
leadership, albeit on the basis of arguments I developed and offer herein. 


Having read through the decision of the court, and looked
at the statute closely, I do not see how the interpretation accepted by the
Judge can be applied to detain or place anyone eligible for DACA in removal
proceedings under the statute being cited - at least for long.  This is because the statutory section
includes an exception at INA § 235(b)(2)(B)(ii),
expressly providing that it is inapplicable to a person to whom INA § 235(b)(1) applies.  


In turn, INA § 235(b)(1)(A)(iii)
exempts from the description of persons who shall be removed  a person who establishes "to the
satisfaction of  an immigration officer,
that . . .[s/he] has been physically present in the United States continuously for the
2-year period immediately prior to" the officer's determination of
inadmissibility under INA § 235(b)(1)(A).  Id. Thus, any putative detainee being
targeted by ICE officers must be allowed an opportunity to demonstrate that
s/he has accumulated more than 2 years continuous physical presence in the U.S.,
and therefore is not properly included in the group to whom the INA 235(b)(2)(A)
applies. See § INA 235(b)(2)(B)(ii). 


Indeed, to qualify for DACA,
an applicant must show that s/he has continuously resided in the United
States for at least five years preceding the date of  Secretary Napolitano's June 15, 2012 Directive
and was present in the United States on the date of the Directive.  Accordingly, every
DACA applicant necessarily must establish more than a 2 year period of physical
presence in the U.S.,  simultaneously satisfying
the affirmative showing  of status required
under subclause (II) of  INA § 235(b)(1)(A)(iii).   


Therefore, none of the ICE plaintiffs are being diverted
or prevented, as they claim, from acting in compliance with their sworn duty to
detain and place in removal proceedings the "Other Aliens" whom they
determine are seeking admission and not clearly and beyond a doubt entitled to
be admitted.  See  INA § 235(b)(2)(A). 


The somewhat remarkable, and I would argue, unfounded
conclusions reached by the Judge in the absence of  an argument on the merits from DOJ, stimulated
my curiosity and impromptu examination of Section 235 of the INA.  In my view, the operational consequences addressed
by the District Court are not supported by the statutory scheme itself.   


Although INA § 235(a)(1) provides that anyone present in
the U.S.
who has not been not admitted "shall" be deemed an "applicant for admission," INA § 235(b)(1)(A)(i) specifies that the treatment
of  such applicants applies to arriving aliens or those described in clause (iii).  DACA applicants are not included in either of
these subcategories. 


In fact, the provision for "Application To Certain
Other Aliens" described in clause (iii) subclause (I) permits the Attorney
General General, in his sole and unreviewable discretion, to designate any or
all of those noncitizens in subclause (II) for
treatment under clause (i) or (ii) of INA§ 
235(b)(1)(A).  As mentioned previously, subclause
(II) covers a noncitizen who has
not been admitted or paroled and who
has not affirmatively shown to
the satisfaction of the officer, continuous physical presence for the 2 year
period prior to the officer's determination of inadmissibility.  Western
Hemisphere (Cuban) entrants from countries with which the U.S. has no
diplomatic relations who arrive  by
aircraft at a port of entry are not subject to the terms of the mandate to
remove in INA § 235(b)(1)(A).  


To my knowledge, no Attorney General  has designated that the "applicant for
admission" status is to be extended to someone physically present in the United States
for more than 2 years. Thus, unless the Attorney
General orders that persons determined to have accumulated  more than 2 years physical presence be
treated as arriving aliens notwithstanding the determination,  once the determination has been made, such
individuals arguably are not subject to INA Section 235, period.


Furthermore, any noncitizen who is treated as being
subject to inspection as an "applicant for admission" under INA § 235(b)(1) may express an intent to apply for asylum or a
fear of persecution under subparagraph (A)(ii) of  INA § 235(b)(1) and
will be referred for a credible fear hearing. 
In the event of mass detentions of 
individuals deemed to be applicants for admission, a greatly increased
number of such referrals certainly would clog the DHS system with respect to the
processing of credible fear interviews. 
EOIR would experience a similar impact with respect to review of
credible fear determinations being sought before Immigration Judges.


As for INA§ 235(b)(2), as noted above, subparagraph
(B)(ii) excepts those to whom paragraph (1) applies. Notably, it is paragraph
(b)(2)(A) that contains the language providing that a person seeking admission
who is not  "clearly and beyond a doubt entitled to be admitted...shall be detained for a proceeding under
section 240
."(emphasis added).  The dispute in the
litigation over the interpretation of "shall" in this paragraph really
is a straw man, because the paragraph simply is inapplicable to any qualified
DACA applicant or beneficiary.


I agree that yes, the fact that a person with more than 2
years physical presence is not subject to treatment as an "applicant for
admission" does not necessarily exempt that person altogether from being
served with an NTA and placed in removal proceedings pursuant to the statute.
 However, the argument being made by the ICE officers and their attorney Kris
Kobach is that INA § 235(b)(2)(A) applies and is mandatory. Therefore, the
argument goes, there is no discretion not
to detain such individuals and  to
refrain from placing them in removal proceedings. That is incorrect. 


INA § 235(b)(2)(A) does mandate that the persons to whom it
applies "shall" be detained and processed for removal.  But, as
I have demonstrated, that section does not apply to DACA applicants or
beneficiaries. 


In
contrast, the DACA program is based on the legitimate discretionary choice
being made by Secretary Janet Napolitano and Deputy John Morton not to detain and place them in removal
proceedings and to defer any such removal as a matter of prosecutorial
discretion.   The ICE officers may not like that choice, but if  INA §  235(b)(2)(A) does not apply, they cannot complain that
they are being forced to act contrary to the statute and in violation of the
oath they took to enforce the INA as they are claiming in their lawsuit.
 Moreover, as the District Court itself notes, even if an injunction were
to issue, DHS would not be stripped of its authority and prosecutorial discretion
under other sections of the INA to terminate removal proceedings or take other
actions to prevent DACA applicants and status holders from facing removal. 


Finally,
it is true that the lawsuit appears to be limited to the District Court for the
particular Texas
district in which it was filed. And the DOJ appears to be focused on arguing
that it is in actuality an employment dispute over which the District Court has
no jurisdiction.  While I understand
that DOJ may be pursuing a strategy of challenging jurisdiction on the basis
that the plaintiffs complaint is nothing more than a federal employment
dispute, it seems imperative that a comprehensive interpretation of the statute
and authoritative argument - contrary to that being pushed by the plaintiffs -
be provided to the District Court. [1]


The
arguments I am making haven't been made, but they are ones that might be made
if the DOJ decides to engage the plaintiffs directly and defeat their efforts
to frustrate the DACA program on it's merits.  And if that were to happen,
I believe the plaintiff's position would be exposed as a bogus effort to
achieve the ICE officers' and their attorney Kris Kobach's nativist and
restrictionist goals.  







[1] I wonder whether interested citizens and/or DACA
beneficiaries have standing to present a motion to intervene, or at least file
an amicus brief on behalf of DHS defendants?



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