In an unusual twist, a federal appellate court this week pressed the Obama administration on whether the government will follow its own highly publicized policy of using discretion when reviewing deportation cases.
The 9th U.S. Circuit Court of Appeals, in a 2-1 ruling Monday involving five immigration cases, ordered the government to decide by March 19 if it intends to follow two memos released last year by U.S. Immigration and Customs Enforcement.
In a critical dissent, Judge Diarmuid F. O’Scannlain wrote that the court overreached its boundaries and the constitutional separation of powers with its “audacious ruling.”
"The majority … needlessly catapults this court into the realm of decisionmaking from which it is constitutionally walled off," O’Scannlain wrote.
Rather than citing law, Judges William C. Canby and Raymond C. Fisher referred in their order to ICE Director John Morton’s memos from June and November of last year.
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The directives outlined the factors to weigh in deciding whether to pursue deportation, such as immigration history, U.S. family ties, military service, criminal history and length of time in the country, among other criteria.
The five cases involve seven immigrants previously ordered deported but who appealed those decisions. None appears to have a criminal conviction, and all but one have U.S. citizen children, according to the order.
In immigration courts, attorneys for ICE, an agency of the Department of Homeland Security, argue for deportation before Justice Department immigration judges. In federal district and circuit courts, Justice Department attorneys typically handle immigration cases.
An ICE memo wouldn’t typically apply to the Justice Department, said Kevin Johnson, dean of the UC Davis School of Law. He said the judges may might asking an astute but basic question: "Is the right hand talking to the left?”
“I’ve never seen anything quite like it before, although I can understand why they are doing it,” Johnson said. “They could be wondering, ‘Do we need to decide these cases they’re not going to deport anyway?’ If not, they can save everyone some work.”
Justice Department spokesman Charles Miller said in an e-mail that the department is studying the opinions. He had no comment on the cases.
But U.S. Rep. Lamar Smith, R-Texas, chairman of the House Judiciary Committee, said that with its ruling, the court has veered into the executive branch's sole domain.
“The Ninth Circuit should decide cases under our nation’s laws, not under the Obama administration’s policies that ignore the law and intent of Congress," Smith said in a statement.
The memos are just two in a string of internal directives issued by the Obama administration that have received public attention. With Congress unwilling to take up the debate on legislative reform of the nation’s immigration laws, the Obama administration has explored various administrative remedies, such as revamped immigration lockups that are less punitive, other detention reforms and prosecutorial discretion. Conservatives have argued that the administration has attempted "backdoor amnesty."
Last month, ICE completed two pilot programs that reviewed deportation cases in Denver and Baltimore. Meanwhile, the rate of deportations has dropped to a record low, and the long-standing backlog of removal cases before the immigration courts, while still growing, has slowed, according to the Transactional Records Access Clearinghouse, a research group based at Syracuse University.
This week, ICE also announced that it had appointed a public advocate to engage with the public, including immigrants facing deportation and advocacy groups.
"We want the public to know that they have a representative at this agency whose sole duty is to ensure their voice is heard and their interests are recognized," ICE's Morton said in a statement.
The new position raised eyebrows among some law enforcement agents.
"A public advocate? For lawbreakers?" said Shawn Moran, vice president of the National Border Patrol Council, the agents' union. "What's next, asking the DEA to give a public advocate to drug dealers and arguing that they're just unlicensed pharmacists?"