SAN FRANCISCO – A federal appeals court has put the Obama administration's new immigration directive to the test by halting the deportation of seven immigrants alleged to be in the country illegally.
In a 2-1 ruling on Monday, the 9th U.S. Circuit Court of Appeals demanded the Obama administration explain whether the immigrants can avoid deportation because of two memos released last year by U.S. Immigration and Customs Enforcement director John Morton urging prosecutors to use "discretion" when deciding whether to pursue immigration cases.
Morton's initial memo in June said prosecutors should take into account such factors as U.S. military service, criminal records, family ties and length of stay in the country when deciding whether to start formal deportation proceedings against undocumented immigrants. He issued another in November explaining further how to implement the guidelines.
Since then, though, immigration advocates and lawyers have been complaining that prosecutors have been too slow to call off deportation proceedings of immigrants meeting the criteria. The advocates view the appeals court's rulings as a call to action.
"There is a real concern that the (June) memo is not being utilized to its full extent," said Laura Lichter, the next president of the American Immigration Lawyers Association. "It sounded great at the time, but we are waiting for real progress."
The court ordered the Obama administration to make a prosecution decision on seven people in five cases by March 19. The immigrants involved all appeared to have clean criminal records and appeared to meet the criteria of the memos, the appeals court judges concluded. The same three-judge panel had previously upheld deportation orders of all seven of the immigrants before Judges William Canby Jr. and Raymond Fisher agreed to reconsider the cases Monday in light of the new memos.
The identical two-paragraph order halting deportation proceedings in the five cases prompted a blistering dissent from Judge Diarmuid F. O'Scannlain and charges of "judicial activism" from a prominent Republican congressman.
"The Ninth Circuit's decision to put five deportation cases on hold is an overreach of judicial authority and shows the inherent danger in the Obama administration's backdoor amnesty policies," said Rep. Lamar Smith, a Texas Republican who chairs the House's Judiciary Committee. "The Ninth Circuit has a history of legislating from the bench and now they have turned the Obama administration's prosecutorial discretion guidelines into an excuse for their judicial activism."
O'Scannlain chided Judges Canby and Fisher for issuing an order he called an "audacious ruling" and said the judges lacked the authority to make such demands of prosecutors.
"The memoranda cited by the majority offer only internal guidance within the executive branch and squarely disclaim any suggestion that they might create any rights or benefits enforceable by the judiciary," O'Scannlain wrote.
The American Immigration Lawyers Association says a survey it conducted in November showed that ICE's 28 offices were applying the new guidelines in varying degrees, causing confusion for immigrants, their attorneys and even prosecutors handling the cases. The Association claimed that many of the offices weren't using the guidelines at all.
The Obama administration says it wants to focus deportation proceedings on gang members, criminals and others thought to be more dangerous than pregnant woman, students and long-time residents with no criminal history.
ICE officials declined comment, other than to say Wednesday that "the agency is currently working with the Department of Justice to draft an appropriate response, which will be filed in due course with the court."