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IMMIGRATION JULY 07, 2023 | The Indian Eye 38
While Supreme Court Holds That States Have No
Standing to Challenge Federal Immigration Enforcement
Priorities in United States v. Texas, How Does This Bode
for DACA and Other Immigration Policies?
CYRUS D. MEHTA Federal courts have not tradi- noncitizens for whom de- cited in the majority opinion, Executive Branch’s arrest or
tionally entertained that kind tention was required, which “a private citizen lacks a ju- prosecution priorities and the
n United States v. Tex- of lawsuit; indeed, the States would subject the citizens of dicially cognizable interest in Executive Branch’s provision
as, the Supreme Court cite no precedent for a law- these states to crime commit- the prosecution or nonprose- of legal benefits or legal sta-
Iin an 8-1 majority opin- suit like this.” ted by noncitizens who should cution of another.” Similarly, tus could lead to a different
ion rendered a blow to Texas Originally laid out in the be in detention, and force a state government like the standing analysis.” One won-
and Louisiana in holding that 2021 Mayorkas Memo, this the state to spend resourc- private citizen in this case ders whether this would give
they had no standing to chal- list of enforcement priorities es providing education and cannot bring such a lawsuit. Judge Hanen some leeway in
lenge the Biden administra- would have allowed ICE to medical care to noncitizens In another case Heckler v. distinguishing this case from
tion on federal immigration focus its efforts on the ap- who should be detained.. The Chaney, 470 US 821 (1983), United States v. Texas. Still,
policy on enforcement prior- prehension and removal of question turned on whether the Court recognized that the DACA is also part of enforce-
ities. Writing for the majority, noncitizens who pose a threat the Biden administration’s government has to balance ment priorities as the admin-
Justice Kavanaugh said, “The to “national security, public enforcement priorities in the several factors such as re- istration has decided to defer
States have brought an ex- safety, and border security”. Mayorkas Memo contradict- source constraints and chang- the removal of youths who
traordinarily unusual lawsuit. The attorneys general of Tex- ed two statutory provisions ing public safety and public fell out of status for no fault
They want a federal court to as and Louisiana swiftly chal- – 8 U.S.C. § 1226(c) and 8 welfare needs, and that such of their own. The final rule’s
order the Executive Branch lenged these enforcement U.S.C. § 1231(a). 8 U.S.C. § a complicated balancing pro- definition of “lawful pres-
to alter its arrest policies priorities, arguing that ICE 1231(a) pertains to the de- cess leaves the courts without ence” is also a significant pro-
so as to make more arrests. would be allowed to overlook tention and removal of those meaningful standards for as- vision. The final rule points to
who have been ordered sessing those policies. 8 CFR § 1.3(a)(4)(vi), which
removed. § 1226(c) lays The Court recognized defines “an alien who is law-
out a list of noncitizens that the Executive Branch fully present in the United
who “shall” be taken into exercises absolute discre- States” as “an alien who be-
custody by the Attorney tion to prosecute a case, and longs to one of the following
General, including those this discretion extends to the classes of aliens permitted to
who have committed immigration context. The remain in the United States
certain criminal offens- Court previously in Arizona because DHS has decided for
es. Trump appointed v. United States, 567 U.S. 387 humanitarian or other public
Judge Tipton readily (2012) declared that the Ex- policy reasons not to initiate
agreed by vacating the ecutive Branch retains discre- removal proceedings or en-
Mayorkas Memo. tion over whether to remove force departure” including
Justice Kavanaugh a noncitizen from the United “aliens currently in deferred
held that in order to get States. Indeed, prosecutori- action status”. As this provi-
standing the plaintiff al discretion is so inevitable sion makes clear, all recipi-
states must show that in immigration enforcement ents of deferred action, not
the alleged injury must that even after the Mayorkas DACA recipients alone, are
be legally and judicial- Memo was set aside, ICE has considered lawfully present
ly cognizable and that continued to exercise dis- for certain purposes. Law-
the dispute must also cretion by moving to dismiss ful presence does not confer
be redressable in feder- thousands of removal cases in any immigration status in the
al court. As Kavanaugh immigration courts but with- United States, a distinction
m of explains, the plaintiff out referring to the priorities that has long been misunder-
CYRUS D. MEHTA & PARTNERS PLLC states “have not cited in the Mayorkas Memo. stood. In a 2017 decision that
any precedent, history,
This decision bodes well upheld a challenge to DAPA
or tradition of courts or- for the other cases where Tex- by the state of Texas, the
dering the Executive as and other states have chal- Fifth Circuit viewed a grant
Branch to change its lenged federal immigration of deferred action as some-
arrest of or prosecution policy, although with respect thing akin to an immigra-
policies so that the Ex- to the Deferred Action for tion status. Judge Hanen in
ecutive Branch makes Childhood Arrivals (DACA) 2021, too, seemed to conflate
more arrests of initiates program, Kavanaugh’s opin- lawful presence with a legal
more prosecutions.” In ion states that “a challenge immigration status. Rather,
2 6th Floor Linda R.S. v. Richard to an Executive Branch pol- lawful presence renders indi-
D., 410 U.S. 614 (1973), icy that involves both the viduals who have been grant-
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