Federal judge: Obama/DHS can't let DREAM-eligible illegals stay if the law says they should be deported

Via Ace, this is just one district court’s decision and it’s not a final decision. It’s a preliminary ruling on an injunction, with the feds entitled to file additional arguments before the injunction is granted and then appeals inevitably to follow. Even so, it’s news. Remember O’s big election-year immigration pander, declaring that he was going to exercise his “discretion” as chief executive not to deport young illegals who would have qualified for amnesty under the DREAM Act that’s never passed Congress? That was his way of trying to consolidate the Latino vote before November. More importantly, it was a precedent for what he might do if the Gang of Eight bill collapses and immigration reform falls apart in the Senate this summer. If he could grant de facto unilateral amnesty to DREAMers by simply choosing not to deport them, couldn’t he do the same with broader classes of illegals? If he can, it’s major leverage over Republicans who oppose immigration reform but tremble at the thought of Obama trying to mobilize Latinos next year with some grand pander.

The court’s verdict: Nope, Obama and DHS can’t choose not to deport people if federal law says deportation is required.

Announced by Obama and Homeland Security Secretary Janet Napolitano last year, the directive gives agents the ability to defer action on people unlawfully in the U.S. if they came to the country under the age of 16, are in school or have obtained a high school diploma, haven’t been convicted of a felony, significant misdemeanor or multiple misdemeanors, and aren’t a threat to public safety or national security.

“The court finds that DHS does not have discretion to refuse to initiate removal proceedings” when the requirements for deportation under a federal statute are met, O’Connor said today in a 38-page decision, referring to the Department of Homeland Security…

The case was filed by attorney Kris Kobach, who also serves as Kansas Secretary of State and is a national Republican Party adviser. Lead plaintiff Christopher L. Crane is president of the National Immigration and Customs Enforcement Council, a 7,600- member federal immigration agents’ union.

“Officers are applying the directive to people detained in jails, not kids in school,” Crane testified at the April 8 hearing. “It is now the story in the jails for aliens to use to avoid arrest and deportation.”

Senate Republicans pushed Napolitano about this during her testimony yesterday, with Jeff Sessions noting that he’s never heard of a union suing an agency because the agency refuses to let them do their job under the law. Napolitano’s reply, essentially: I make the law.

“There are tensions with union leadership, unfortunately, but here’s what I expect as a former federal prosecutor and attorney general, and that is that law enforcement agents will enforce the law in accord with the guidance they’re given from their superiors,” Napolitano said. “That’s what we ask of ICE, that’s what we ask of Border Patrol, that’s what we ask throughout the Department and I believe that would be consistent with all law enforcement. Agents don’t set the enforcement priorities. Those are set by their superiors and they are asked then to obey that guidance in accord with the law.”

Is that right? Is deporting DREAMers simply a low “priority” for ICE, or is there a de facto “no deportation” rule in place, regardless of whether the agency has resources in place to deport some? They’re two different things, and the distinction will be important if/when O tries to declare a broader amnesty this year or next.

In other immigration news, if you enjoyed the pro-immigration-reform ad in last night’s QOTD from, ahem, “Americans for a Conservative Direction,” here’s something else from the group via Erick Erickson to give you an idea of the “conservative direction” they’re headed in. These are the people who want the Gang of Eight bill, with its phony border security, to pass.

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