Activist judge? The lawsuit currently before Hanen challenges the policy President Obama announced in November to defer deportation proceedings against approximately 4.9 million undocumented immigrants, most of whom are parents of U.S. citizens or legal permanent residents. Deportation is a civil proceeding, not a criminal proceeding, and the scope of prosecutorial discretion is arguably less broad in civil cases. As the Supreme Court explained in Heckler v. Chaney, an agency’s decision not to take enforcement action . . . is only presumptively unreviewable; the presumption may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers. Nevertheless, the substantive statutes laying out the executive branch’s role in deportation proceedings gives that branch considerable discretion to decide when to act and when not to act. According to the Supreme Court’s 2012 decision in Arizona v. United States, a principal feature of the removal system is the broad discretion exercised by immigration officials. Indeed, [f]ederal officials . . . must decide whether it makes sense to pursue removal at all. There’s also another, more basic reason why the federal government cannot take action against every undocumented immigrant in the United States. According to the Department of Justice, there are approximately 11.3 million undocumented aliens in the country, but the federal government only has the resources to remove fewer than 400,000 such aliens each year. Thus, it would be impossible for the government to remove more than a fraction of the undocumented population. The question before Judge Hanen essentially boils down to whether the government can be thoughtful about who it deports — prioritizing particularly dangerous individuals and deprioritizing the law-abiding parents of citizens, for example — or whether the government must randomly deport the first 400,000 immigrants the government happens to discover.
Posted on: Thu, 15 Jan 2015 01:22:41 +0000
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