Kansas Secretary of State Kris Kobach could well be called the Todd Akin of immigration. His rigid hardline stance on unauthorized immigration is just as uncompromising and intolerant of exceptions as is Akin's opposition to abortion under any and all circumstances.
However, just as Akin refuses to give up his battle for election to the US Senate despite calls from even the most far right Republicans to withdraw, Kobach is keeping up his Quixotic battle to deport every last one of the estimated 11 million immigrants in the US without authorization, despite having suffered major defeats in both the US Supreme Court and the 11th Circuit Court of Appeals with regard to the Arizona and Alabama immigration laws with which he is so closely identified.
In his latest move, Kobach is representing a group of ICE agents who, on August 23, filed suit in the US District Court for the Northern District of Texas seeking to block implementation of DHS Secretary Janet Napolitano's implementation of President Obama's "Deferred Action" program for DREAMERS which was announced on August 15.
The lawsuit (Crane v. Napolitano) was obviously not filed in the Northern District of Texas at random. That court is within the jusrisdiction of the Fifth Circuit Court of Appeals, regarded as one of the most conservative Court of Appeals in the federal court system.
As mentioned in my blogging in the August 20 issue of ID, the legal rationale for Deferred Action is based on ICE Director John Morton's "Prosecutorial Discretion" memo of June 17, 2011. Based in my premiminary and tentative reading of the complaint in this latest action, it does not attack the legal basis for the Morton Prosecutorial Discretion memo directly.
Such an attack would be difficult to sustain, becasuse in its decision striking down much of the Arizona immigration law, the US Supreme Court specifically cited the Morton memo as an example of legitimate exercise of federal authority over immigration which preempted any contradictory state legislation (specifically, Section 6 of Arizona's SB 1070 law).
However, the complaint filed by the ICE agents argues that Prosecutorial Discretion can only come into play after a deportation proceeding has already been started by issuance of a Notice to Appear, or after the person who is allegedly in the US without permission has already been detained (or released after having been detained) See 8 U.S.C. Section 1225(a), 8 U.S.C. Section 1225(b) and 8 U.S.C. Section 1226(a).
Therefore, according to the complaint, the DHS has no authority to grant Deferred Action to someone who has not yet been put into removal proceedings. The lawsuit also alleges that USCIS has no authority to issue employment authorization as contemplated in the Deferred Action program.
I will follow this lawsuit in detail and discuss future developments.
Roger Algase is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years