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Are There Limits To Executive Discretion Regarding Deportation? By Roger Algase

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In my July 1 post, I showed that, based on a recent (December 27, 2013) Congressional Research Service study and numerous judicial and agency decisions cited in that study, the executive branch has very broad discretionary powers over immigration law enforcement in general, including deportation. As the study points out, this broad discretion was underscored by the US Supreme Court in Arizona v. US, 132 S. Ct at 2498 (2012), in which the majority opinion specifically listed human concerns and equities in individual cases as factors which the executive could consider in deciding whether or not to deport someone.

This post and subsequent ones will continue this discussion by examining the question whether there are Constitutional, statutory, or other limits on executive power over deportation which would prevent administrative granting of relief from removal to certain people, or classes of people.

An instructive decision in this regard, which is among those cited in the above Congressional Research Service study, is that in the case ofTexas v. US, 106 F. 3rd, 661 (5th Circuit, 1997). In that case, the state of Texas sued the federal government for reimbursement of expenses incurred by reason of the federal government's violation of the Constitution and immigration laws by allegedly failing to control illegal immigration.

The Constitutional claim was based on the naturalization clause, Article 1, section 8, Clause 4 which provides that Congress "shall have Power...to establish a Uniform Rule of Naturalization."

The 5th Circuit held that this clause gave Congress a broad "discretionary authority subject to limited judicial review." The Court added:

"We are not aware of and have difficulty conceiving of any judicially discoverable standards for determining whether immigration control efforts by Congress are Constitutionally adequate...Courts must give special deference to congressional and executive branch policy choices pertaining to immigration." [Citation omitted.]

With regard to the allegation concerning the federal government's failure to control immigration, the complaint relied on INA Section 103 (8 U. S. C. Section 1103), which gives the Attorney General (now Department of Homeland Security) authority to control immigration. However, as the Court pointed out, that section placed no substantive limits on the Attorney General's discretion to enforce the INA.

The Court also held:

"The State's allegation that defendants have failed to enforce the immigration laws and refuse to pay the costs resulting therefrom is not subject to judicial review. An agency's decision not to take enforcement actions is unreviewable under the Administrative Procedure Act because a court has no workable standard against which to judge the agency's exercise of discretion.
[Citation omitted.]

The Court went on to say:

We reject out-of-hand-the State's contention that the federal defendant's alleged systematic failure to control immigration is so extreme as to constitute a reviewable abdication of duty. The State does not contend that the federal defendants are doing nothing to enforce the immigration laws or that they have consciously decided to abdicate their enforcement responsibilities. Real or perceived inadequate enforcement does not constitute a reviewable abdication of duty."
[Emphasis added.]

The above decision indicates that the power of the courts to review decisions of the executive branch concerning how to enforce the immigration laws is so limited as to be virtually non-existent, unless the alleged failure to enforce is so extreme as to amount to an abdication of duty. This would appear to be an impossibly high standard to meet for House Speaker Boehner or anyone else who might be considering suing the Obama administration to stop it from granting almost any type of relief from deportation short of a total moratorium.





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Updated 07-02-2014 at 12:23 PM by ImmigrationLawBlogs

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