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IMMIGRATION DECEMBER 16, 2022 | The Indian Eye 40

Immigration Enforcement and Prosecutorial

Discretion Go Hand in Hand:

Will the Supreme Court Upset this Balance?

BY CYRUS D. MEHTA and KAIT- noncitizens for whom de- with Justice Alito even suggest- agency can elect not to place credence to this argument, stat-
LYN BOX* tention was required, which ing that the government’s rea- a noncitizen in removal pro- ing: “So the government says we
would subject the citizens of soning demonstrates a “special ceedings at all, or to terminate don’t have the money to comply.
n Tuesday, November these states to crime commit- hostility” to the states’ standing. removal proceedings that have Then — then what do you do?”
29th, the Supreme
The arguments then turned
OCourt heard oral ar- ted by noncitizens who should to the crux of the case – wheth- already commenced. If the gov- If the Supreme Court rules in
be in detention, and force the
favor of Texas, the government
ernment must arrest and detain
guments in US v. Texas, which state to spend resources pro- er the Biden administration’s all noncitizens, and especially will never be able to detain all
involves a challenge to the viding education and medical enforcement priorities contra- those who fall within § 1226(c)’s noncitizens subject to 8 U.S.C. §
Biden administration’s Immi- care to noncitizens who should dict two statutory provisions – 8 scope, the earlier provision af- 1226(c) and 8 U.S.C. § 1231(a).
gration and Customs Enforce- be detained. In previous U.S.C. § 1226(c) and 8 U.S.C. fording it discretion to detain The Supreme Court will lose
ment (ICE) enforcement pri- blogs, we have discussed the § 1231(a). 8 U.S.C. § 1231(a) those same noncitizens pending credibility if it issues a ruling that
orities. Originally laid out in procedural history of the case. pertains to the detention and the commencement of removal it and the government knows
the 2021 Mayorkas Memo, The Court first addressed removal of those who have been proceedings makes little sense. will never be followed. Prose-
this list of enforcement prior- the issue of whether the states ordered removed. § 1226(c) lays Statutes should be construed cutorial discretion and enforce-
ities would have allowed ICE have standing to challenge the out a list of noncitizens who so that, on the whole, no clause, ment go hand in hand. In order
to focus its efforts on the ap- enforcement priorities. Gener- “shall” be taken into custody by sentence, or word is rendered for enforcement to be rendered
prehension and removal of al Elizabeth Prelogar, Solicitor the Attorney General, including “superfluous, void, or insignif- effective, the government focus-
noncitizens who pose a threat General of the United States those who have committed cer- icant” (TRW Inc. v. Andrews, es its efforts and resources on
to “national security, public asserted that states should not tain criminal offenses. 534 U.S. 19, 31 (2001) (quoting those who it believes should be
safety, and border security”. have standing to challenge any The “shall” language of § Duncan v. Walker, 533 U.S. 167, prosecuted. Even on a highway
The attorneys general of Tex- federal policy that “imposes 1226(c) was a point of partic- 174 (2001)), and no provision with a speed limit of 55 miles per
as and Louisiana swiftly chal- even one dollar of indirect harms ular contention for the Court. “entirely redundant.” (Kungys hour, state troopers enforce the
lenged these enforcement on their own taxing or spend- Justice Kavanaugh, in particu- v. United States, 485 U.S. 759, speed limit on those who bla-
priorities, arguing that ICE ing”. The conservate majority lar, argued that this language is 778 (1988)). The same should be tantly and dangerously violate
would be allowed to overlook
was unmoved by this argument, mandatory, requiring the Court true for regulatory provisions. the limit as opposed to every
to take into custody noncit- See Baude v. United States, 955 car on the highway that may be
izens who fall within one of F.3d 1290, 1305 (Fed. Cir. 2020) going slightly over the 55 miles
the categories enumerated (applying this canon of interpre- per hour speed limit. Moreover,
in the statutory provision. tation to a regulation); U.S. v. in criminal law enforcement, the
Chief Justice Roberts, too, CITGO Petroleum Corp., 801 police cannot apprehend every
seemed to agree that “shall F.3d 477, 485 (5th Cir. 2015) violator of the law and no court
means shall”, leaving little (same). has forced them to. Why should
room for the executive to Moreover, Justice Kavana- immigration enforcement be
exercise discretion in immi- ugh’s interpretation of 8 U.S.C. viewed any differently? Indeed,
gration enforcement. This § 1226(c) contradicts established since a violation of immigration
interpretation, however, case law, namely Reno v. ADC, law is a civil rather than a crim-
is entirely out of step with which held that discretion ap- inal violation, more prosecutori-
the usual interpretation of plies at every stage of removal al discretion ought to be accord-
the statute and could have proceedings. Justice Sotomayor ed and other factors considered,
disastrous consequences if pointed out this conflict, noting such as the noncitizen’s family
implemented. that the Court’s holding in Reno members who may become des-
A first problem with affords the executive the discre- titute if the noncitizen who pro-
Justice Kavanaugh’s inter- tion to choose when and if to ini- vides for them is detained.
pretation of the language tiate removal proceedings, and As immigration law is civil,
of § 1226(c) is that it fails to when to terminate them. If dis- its violators have not committed
read the statutory language cretion applies throughout the crimes. Those who have already
in the context of the earli- process, it follows that the exec- been convicted of crimes have
m of er provision at § 1226(a). § utive can choose which nonciti- served their sentence under the
CYRUS D. MEHTA & PARTNERS PLLC 1226(a) states that the non- zens to target for enforcement in penal system and can be fur-
citizens “may” be arrested the first place. ther detained under 8 U.S.C.

and detained pending a If the government cannot § 1226(c) only because they are
decision on whether to put choose which noncitizens to tar- noncitizens. The purpose of this

  them in removal proceed- get for removal, perverse practi- detention is to deport them rath-
   
­
€
‚   ings. This language is plain- cal consequences will result, as er than to further punish them.
ly permissive and affords well. General Prelogar argued They are deserving of prosecu-
the agency the discretion that the government simply torial discretion, which perme-
to decline to detain a non- lacks the resources to target ev- ates immigration policy in every
citizen who is in removal ery removable noncitizen. Jus- aspect. The newly promulgated
2 6th Floor

    proceedings. Indeed, the tice Kavanaugh appeared to give provision at 8 CFR §236.21(c)

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