DALLAS (CN) - A federal judge said he is inclined to block the Obama administration from refusing to deport younger illegal aliens, but he called for more information before doing so.
U.S. District Judge Reed O'Connor is considering the enjoining the Deferred Action for Childhood Arrivals amid claims from 10 Homeland Security agents who claim that the law forces them to break the law by not beginning removal proceedings against certain illegal aliens.
Though O'Connor wants additional briefings before entering such relief, he said the "plaintiffs are likely to succeed on the merits of their claim" that the directive and related provisions are illegal under federal law.
The agents said they are commanded to "violate their oaths to uphold and support federal law, violates the Administrative Procedure Act, unconstitutionally usurps and encroaches upon the legislative powers of Congress, as defined in Article I of the United States Constitution, and violates the obligation of the executive branch to faithfully execute the law, as required by Article II, Section 3, of the United States Constitution," according to the complaint.
Judge O'Connor said the government is likely mistaken in arguing that, under federal law, an alien is to be detained only when he is seeking admission to the country, as opposed to those who are already present and "merely encounter an immigration officer" in the course of the officer carrying out his duties.
"The court finds that the phrase 'alien seeking admission' in section 1225(b)(2)(A) is not limited to aliens arriving in the United States at a port of entry," the opinion states.
If Congress wanted to limit the application of the law to aliens coming into the country at a port of entry, it would have used the terms "arriving alien" or "alien arriving in the United States at a port of entry" instead of the broader term "seeking admission," O'Connor wrote.
"Because Congress has not done so, the court rejects defendants' proposed interpretation of section 1225(b)(2)(A) and finds that section 1225(b)(2)(A) applies to 'applications for admission' - that is, aliens who have not lawfully entered the United States after inspection and authorization by an immigration officer - whether they are arriving in the United States at a port of entry or are encountered by immigration officers elsewhere in the United States," he added.
The statute makes it mandatory for immigration officers to initial removal proceedings whenever they encounter an "applicant for admission" who "is not clearly and beyond a doubt entitled to be admitted."
Though the government's limited financial resources have traditionally afforded it discretion in how to prioritize enforcement of immigration law, Congress removed such discretion in determining which immigrants to deport by using of the mandatory term "shall" in the statute, according to the ruling.
"The court does not find defendants' cited cases where the word 'shall' left room for discretion controlling," O'Connor wrote. "In the present case, Directive-eligible aliens would fall under section 1225(b)(2)(A)'s instruction that immigration officers 'shall' initiate removal proceedings under Section 1229a. Even if Directive-elivible aliens were encountered upon arrival in the United States (perhaps after a friend departure from the county) so that Section 1225(b)(1)(A)i's expedited removal proceedings would also apply, the government's discretion could only be exercised to determine where to proceed under Section 1225(b)(1)(A)(i)'s expedited removal proceedings or the removal proceedings under Section 12291." (Parentheses in original.)
Nothing suggests the defendants have discretion to refrain from initiating removal proceedings at all, O'Connor wrote.
The judge disagreed with the U.S. government's argument that the court lacks jurisdiction over the suit because this is essentially a federal employment dispute that can only proceed under the Civil Service Reform Act.
"This is an inadequate way to address the court's jurisdiction," O'Connor wrote. "The court previously criticized the defendants' failure to adequately raise the issue of whether the CRSA precludes this court's jurisdiction in its order granting in part and denying in part defendants' motion to dismiss. Presenting piecemeal arguments in a footnote in the motion to dismiss, in their reply brief, in the opposition to plaintiffs' application for preliminary injunction, and then entirely new arguments at an evidentiary hearing is an inappropriate way to challenge jurisdiction."
To qualify for suspension of deportation and a work permit under the directive, an undocumented alien must have been younger than 16 when he entered the United States, must have had five continuous years of residence in the country before June 15, must be in school or have graduated from high school or be an honorably discharged veteran, have a clean criminal history and be younger than 31.
The Homeland Security agents who filed suit said they began implementing the directive on Aug. 15, including accepting applications and distributing benefits of deferred action and employment authorization.
"The orders in the field that have been given to plaintiffs by their supervisors are that an alien only needs to claim that he is covered by the sirective in order to be released and offered the benefits of the directive," the complaint stated. "ICE agents are prohibited from demanding that an alien provide proof that he meets the Directive's criteria."
ICE and DHS allegedly estimate that 1.76 million undocumented people are eligible for benefits under the directive, in a total U.S. population estimated at 11.5 million undocumented immigrants, as of January 2011.
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