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IMMIGRATION DECEMBER 16, 2022 | The Indian Eye 41

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(1) aptly describes the basis for DACA: ous crime. The equities of an individual tive Branch to ensure that enforcement will remain in place even though May-
If the Supreme Court allows Texas case may turn on many factors, including policies are consistent with this Nation’s orkas’ priorities will not explicitly be ap-
and Louisiana to prevail, DACA, which whether the alien has children born in the foreign policy with respect to these and plied. This guidance states that “OPLA
is already in legal jeopardy, will be the United States, long ties to the commu- other realities. attorneys… may – consistent with long-
next major immigration policy involving nity, or a record of distinguished military As esteemed colleague Shoba Siv- standing practice – exercise their inherent
prosecutorial discretion to fall. If a state service. Some discretionary decisions aprasad Wadhia noted in her article prosecutorial discretion on a case-by-case
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hostile to immigrants does not like non- involve policy choices that bear on this for the American Constitution Society, basis during the course of their review
citizens who have been paroled into the Nation’s international relations. Return- “prosecutorial discretion is inevitable, so and handling of cases.” Nonetheless, the
US because they have been victims of war, ing an alien to his own country may be it does not stop functioning with litiga- majority’s reading of § 1226(c) carries
then this state too can sue in federal court deemed inappropriate even where he has tion”. Earlier in the case’s history, Judge worrying implications for how discretion
to dismantle a worthwhile humanitarian committed a removable offense or fails to Drew Tipton of the Southern District of in removal proceedings will be interpret-
policy that may have foreign policy impli- meet the criteria for admission. The for- Texas had issued a decision precluding ed, and applied, going forward.
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cations that are broader than a state’s nar- eign state may be mired in civil war, com- the enforcement priorities in the May-
row agenda. The Supreme Court should plicit in political persecution, or enduring orkas Memo from going into effect. The (This blog is for informational purposes
not allow one state to derail a national conditions that create a real risk that the Supreme Court refused to stay Tipton’s and should not be viewed as a substitute
immigration policy. The trend that we alien or his family will be harmed upon injunction, but the ICE OPLA nonethe- for legal advice).
are seeing goes well beyond preemption return. The dynamic nature of relations less provided guidance on prosecutorial *Kaitlyn Box is a Senior Associate at
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of state law that may conflict with federal with other countries requires the Execu- discretion indicating that the doctrine Cyrus D. Mehta & Partners PLLC.
law. This is a case of a state blatantly chal- _________________________________________________________________________________________________________
lenging a federal immigration policy rath- Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta &
er than the federal government seeking Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Com-
to preempt a conflicting state law. Even mittee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary
so, it is hoped that the Supreme Court Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member
will be guided by its own affirmation of of Volunteers for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the
prosecutorial discretion in the leading Board of Trustees of the American Immigration Council and former chair of the Committee on Immigration and Nationality
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preemption case of Arizona v. USA: Law of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including
Discretion in the enforcement of on ethics, and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and
immigration law embraces immediate Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law
human concerns. Unauthorized workers and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the
trying to support their families, for ex- immigration field. He has also received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among
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ample, likely pose less danger than alien the most highly regarded lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked
smugglers or aliens who commit a seri- in Chambers USA and Chambers Global 2019 in immigration law, among other rankings.

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