Published February 10, 2012
WASHINGTON – A federal appeals court's decision to delay the deportation of seven illegal immigrants until the Obama administration re-evaluates their cases could encourage thousands of other illegal immigrants to seek similar rulings and could open the door to uncomfortable questions about the estimated 12 million illegal immigrants in the U.S, experts said.
The seven people whose deportations the 9th U.S. Circuit Court of Appeals halted have no criminal records, but they were ordered deported before the administration announced a new discretion policy last summer.
Last year, Immigration and Customs Enforcement decided to review about 300,000 pending deportation cases and put immigrants with criminal records or who pose a threat to national security at the front of the line for deportation. The rest would be allowed to stay indefinitely.
Daniel Kowalski, an immigration lawyer in Austin, Texas, said the ruling from the San Francisco-based court will likely lead to a surge of appeals by immigrants who believe they fit the criteria for discretion.
"I think it's going to push advocates, such as myself, to ask all the other circuits to do the same thing," Kowalski said.
It will also push the administration to make a public decision about how to deal with a large group of illegal immigrants, Kowalski added.
Officials with ICE and the Department of Justice have said they are reviewing the ruling. The court gave the government until March 19 to make a decision.
When the more lenient policy was announced in June, ICE Director John Morton issued a six-page memo detailing the policy and the circumstances under which immigration authorities could opt to allow an immigrant to stay. The factors included how long the person had been in the United States, the person's criminal history or if the person is a student.
The memo and a subsequent announcement by Homeland Security Secretary Janet Napolitano that the government would review roughly 300,000 active and pending cases involving people not detained by immigration authorities did not address most people appealing deportation orders or those held in immigration jails.
All told, immigration authorities say there are as many as 1.6 million deportation cases in the court system. Besides the 300,000 cases being reviewed, the total includes a mix of cases where final deportation has been ordered, many that are not considered active on the immigration court docket, and those for immigration fugitives.
The discretion policy has been widely criticized by administration critics, including House Republicans who argue that such changes by President Barack Obama circumvent Congress and offer "back-door amnesty" to an untold number of illegal immigrants.
House Judiciary Committee Chairman Lamar Smith said Monday's ruling was "an overreach of judicial authority."
"The Ninth Circuit's overreach of judicial power shows the inherent danger of the Obama administration's lax deportation policies," the Texas Republican said. "Courts are supposed to make decisions based on the law of the land, not under the administration's policies that defy the law and intent of Congress. But since the Obama administration has made it clear that it doesn't prioritize the deportation of millions of illegal immigrants, the door is now wide open to judicial activism."
In a dissent of the ruling, Judge Diarmuid F. O'Scannlain wrote that the court had "only the slimmest authority even to review the exercise of prosecutorial discretion ... we certainly lack authority to demand a pre-emptive peek into whether and when (and no doubt, before long, why) the executive branch will exercise such discretion."
When Napolitano announced the deportation case reviews, she said it was an effort to ease the backlog of pending cases and focus the department's limited resources on deporting criminals and others who posed a risk to the country. She and Morton said at the time that some people without criminal records, including those who had repeatedly violated immigration laws or who were considered immigration fugitives, could still face deportation.
Napolitano and others in the administration have denied critics' assertions that the plan is a form of amnesty, insisting instead it is a smart use of limited resources.
With immigration a contentious issue in the run-up to the November elections, any decision by the Obama administration is certain to be viewed through a political lens.
"It's totally a political minefield," said Laura Foote Reiff, a Washington-area immigration lawyer. She added that additional appeals are likely to force the administration to address broader immigration issues that have lingered as comprehensive immigration reform has failed to gain bipartisan support, including which illegal immigrants, if any, should be allowed to stay in the United States.
"They (the administration) don't want to be put in this position, but now they are, and they should stand up and do the right thing," Reiff said.
Laura Richter, a Colorado immigration lawyer and president-elect of American Immigration Lawyers Association, cautioned that the ruling is no guarantee other appeals courts will rule the same way or that the government will opt to use discretion in appealed cases.
"The point of prosecutorial discretion is it is up to the discretion of the prosecutors and historically in immigration law anything that is discretionary has been relatively immune from judicial review," Richter said.
Alicia A. Caldwell can be reached at www.twitter.com/acaldwellap