Immigration Victory for Biden Administration

Several justices, including Elena Kagan, pointed out during the oral arguments.

and they've been thwarted. So we're talking about twenty twenty one, twenty twenty two, and now halfway through twenty twenty three, and finally the Bide administration is going to be able to have these prosecutorial discretion priorities so that it's no longer a decision as to the discretion of the local ICE office in your area to decide whether they are going to put you in removal proceedings or not, but instead you'll be able to follow this particular memo and

be able to say the ICE, I'm not within the prosecutorial enforcement priority, so mycations taken off the docket, and I shouldn't be deported and you should focus on these larger national security or criminal priorities that are in your memo.

national security threats, and recent border arrival. And hence, if you find somebody who's been here ten twenty years, don't place that person into removal proceedings, don't arrest them, and if they happened to already be in removal proceedings, cancel them so that you can not take up that court plot with this kind of case you should be taking it with a criminal state. The Trump administration came in and canceled that and said everybody is equally an enforcement priority.

There isn't one person who should be focusing on more than another. Because the theory was if anybody thought they were not a priority, that would mean that they would have impunity to live in the United States without fear of deportation, and they didn't want that. They wanted anybody who didn't have status in the United States to theoretically

think that they could be deported at any time. Now, as a reality where these priorities implemented, still in a de facto manner, they probably were, and so you did probably still see more focus on criminal cases than on

national security cases and on recent border arrivals. But nevertheless, there was a specific memo in the Trump administration saying we are not going to prioritize any specific group at the expense of another group, meaning any group was equally high as a priority, and so if you find anyone

who could be deported, tried to deport that. So then the Binding administration comes in and issue a memo very similar to the Obama memo saying again, focus on recent border crossers, focus on national security threats, focus on criminals, and the State of Texas says that's not legal. You've got to focus on everybody like Trump was doing. We

want to enjoin this, and that's where the Supreme Court. Ultimately, after the peral government lost in the district court often the Fit Circuit finally said that the State of Texas does not have standing to sue to say you're not sufficiently enforcing immigration law.

there would be other groups that would be prioritized. They preferred the situation under President Trump where everyone was technically subject to deportation, and that threat, that sort of enforcement by deterrence threat is a high priority for the immigration enforcement hawks of which the state of Sextus is and other states are where they believe that at the end of the day, that kind of nervousness needs to be in the immigrant community. And so that's what they were suing to reimpose.

have a right to sue. Meaning right now, I may not like something I watch on TV where one character defeats another character, but I can't go to a court to sue because that really doesn't affect me. And if you take that concept out to this issue of state, what the Court is saying with regard to states is that even though there are many circumstances where a states consumed in this particular circumstance where a state is trying to sue the federal government saying we d not believe

you are sufficiently enforcing the law. That is not a claim that in the hundreds of years of history of the United States, is one that any state has ever

had the ability to win. And in fact, the two or three cases that have been decided in this realm generally where people say, hey, the federal government isn't sufficiently enforcing the law have all been denied for lack of fancing, Meaning it's very hard for anybody to see the federal government saying, I think that your enforcement is too lacked. I think the court should get involved in making the

enforcement stronger. And at underlying logical common sense reasons is what is a court supposed to do if they agree and if the PLANETI wins, are they supposed to start saying, Hey, there's Steve on twenty fourth Johnson Street, go arrest him, and if you don't, we're going to hold you in consensive court. Here's Bobby, I'm thirty one Honey Lane. We're gonna arrestue if you don't go arrest Bobby. It's impossible, and courts are not law enforcement agencies, and how can

this possibly be enforced by the court. And hence the court said, this is the traditional kind of case where there's no standing.

going to get extended this doctrine. What Justice kevinah who wrote the majority decision, said is no, if you advocate your enforcement, maybe come back and let's see and we can have a decision on whether you've got standing. But here there is no dispute that there is enforcement go out on and the issue is just whether it's enough enforcement.

And because they say the last thirty years they fight of presidential administrations of both parties have said there's too many people who are here without status, had too few enforcement resources, so we can't enforce them for everybody. So we might as well make memos that talk about who's

a priority and who isn't. That that is permissible because there is enforcement going on, as opposed to some future hypothetical scenario where if there was some sort of jubilee year where the government said we're not going to enforce laws on anybody for any reason. Both do whatever you want. So that might be able to be challenged in that future hypothetical case.

at it. The cases that were cited in this Supreme Court case of the United States versus Texas, were they exact same cases that were cited by the federal government with regard to DOCTA, meaning that they believe on the federal government end that the two parts the docas be we're not going to deport you parts, but also that we're going to give you a work permit part are both flip sides of the same coin of prosecutorial discretion, meaning that once the government decides that they're not going

to deport you because you're such a low priority like one of these DOCA children, then what are you supposed to do when the child turns sixteen? Are you supposed to just let them be homeless and diable are the living or are you supposed to let them work so that the work is not separated from the decision to refrain from deportation. Whereas Justice Kindana appeared to say in his decision, well, we'll get back to DACA when we

get to it. He didn't talk about DOCCA, but he said if we're talking about not just enforcement but enforcement plus benefits, that's not what we're talking about in this case. So he leaves the door open for a DOCCA challenge and says enforcement plus benefits may be different than just enforcement, and so it's going to come down to that question.

What does the government. What does the Supreme Court think about the government's argument that giving someone you're not deporting the ability to legally work, is that part of the same prosecutorial discretion decision that's not reviewable or is that a new thing that thus makes it reviewable.

If you could actually show a human being who is being coerced by the government in some way, fine, there would be standing. But here, because there isn't anything, there is no standing. And then, of course, even if you win, what do you win. How do you get a court to become an enforcement body. That's where the courts say, we can't do that. We're Article three. Enforcement happened with Article two as that's the executive and you can't turn

courts into enforcement agency. That's really the big mental block here that the justice is pad is what was the court supposed to do? Even in Texas one and nobody had a good answer to that.

deport the person. And even though they ruled that person could be deported, and the point was, you start to see Justice Gorsage really taking a hard line on deporting people. I find that to be a very interesting trend. He's basically saying, look, the government has to have very clear guidance before they can support people. And that's a very interesting thing. You've done that in a couple of cases last terments, now this case. So that's one interesting trend.

And so the second interesting trend you're seeing is Roberts and Katana on the issue of challenges the government authority to make immigration memos need to have a more expansive view of the federal government's ability to operate in this state, the administrative state's ability to operate in the state. And so that I also find very interesting. And even Justice Cony Barrett on this same front, even though she wasn't on the majority opinion, she found a different concurring opinion

on a different part of standing. I do think that both in the Remain in Mexico case and in this Prosecutorial Discretion case, that block of Justices Kavanaugh, Coony, Barrens, and Roberts seems to be saying, look, the states are going too far when they want to have say in the way immigration laws being enforced. They just have to

stop doing that. And now we have multiple decisions saying that Remain in Mexico and now the Prosecutorial Discretion case, And so I think now we're returning sort of back to the future, back to the eighteen eighties original purist prudence here, which is that looks when the federal government is acting in a way that's consistent with the congressional

grant of authority to the federal government. There's not really anything for the court to do here, and that's what we're seeing in the last couple of years.

So the first things is one about inducing people to either come to the United States illegally or stay in the United States illegally, and so that's been illegal for about one hundred years, and there's been several iterations of the statutes, the most recent one being in the fifties about whether you could make it illegal to induce people to either stay in the United States or to come

to the United States. And so there was this creative theory that because the word was called induced, that induces speech, and that you would be violating the First Amendment to criminalize people for essentially saying, Grandma, please don't leave the United States, I know you're here unlawfully. Now, that's not

what was happening in this case. In this case, there was an actual criminal, a person who committed two million dollars worth of fraud, inducing people to engage in a fake adoption scheme in order to get citizenship, which none

of that works. And so, but that person was saying, because this statute permits the criminalization of someone telling their grandmother, grandma, please say don't go home, even though you're an illegal status, that that meant that the whole statute needed to be struck down under the person thatment ground, by the way,

the place that was ever prosecuted. And what the court found was that that kind of conduct grandma police say was not actually written into the statute, and that the conduct of inducement actually had to be the intentional encouragement and facilitation of an illegal act, meaning, Hey, here's how you get a fake ID years, how you get face paperwork, here is how you cross the border illegally, go over there,

go do you know that kind of thing? It couldn't just be Grandma police say in America, I will miss you. Because that's not actually facilitating in any way of the illegal act. So the court limited the way it's going to be read to say you actually had that conduct talking about facilitating the illegal acts. The speech hustle involves that,

and if it didn't, you couldn't criminalize it. So that was that first case, and then in the second case, there was a dispute about people who are being deported for committing obstruction of justice. The question was whether you could be deported for committing obstruction of justice if there wasn't upending investigation. And so there were two kinds of cases.

One where the person was trying to stop people from even speaking to the tops on a domestic violence case, and by doing that that would mean an investigation would never be launched, so it was pre investigation type obstruction. And in the second one, it was after the fact, meaning that everything ended, and then it charged the person or being an accessory to a crime after the fact. So one was pre investigation obstruction and one was post

investigation obstruction. And so the question was could you be deported under the obstruction of justice ground of deportation if there wasn't upending investigation, And here six justices, all the conservative justices, said yes, you could be deported in this situation because in the end, the best time to obstruct justice is before an investigation. That's when you would benefit most. So, of course Congress meant all aspects of obstruction of justice.

You didn't need an active, pending investigation in order to be deported for obstruction of justice. So in those two cases they rule against the immigrants in the cases, neither of those are very large cases of applicability.

the law with regard to prosecutorial discussion. This is how we're going to enforce it. With regard to obstruction of justice. This is how we're going to enforce it with regards to inducements of someone staying here illegally or coming here illegally. The government's being given different widely in all of sometimes out foreign national sometimes it hurts foreign nationals, but the corn seems to be giving different every single time to the federal government's enforcement priorities here.