A Defense of Immigration-Enforcement Discretion

This law review article by University of Virginia law professor David A. Martin, an expert on immigration law, systematically debunks the legal arguments of Kris Kobach, the author of Arizona SB 1070 who in 2012 filed a lawsuit on behalf of 10 immigration agents seeking to halt the Deferred Action for Childhood Arrivals (DACA) program.

Martin argues that Kobach's lawsuit relies on the legal argument that federal law requires the initiation of removal proceedings against any immigrant who has never been "admitted" to the United States. In other words, federal agents have no discretion to defer removal or otherwise choose not to enforce the law against a particular immigrant. Under this theory, Kobach contends that the DACA program—which defers enforcement action against qualified applicants for a two-year period—forces immigration officials either to violate their oaths to uphold the Constitution or face disciplinary action for disregarding their superiors' DACA instructions.  

Martin points out that Kobach's argument does not cover the full range of DACA applicants because his legal analysis only applies to those who have never been "admitted" to the United States, i.e. those who came into the country without going through an official port of entry. Moreover, even as applied to immigrants who have never been "admitted," Kobach's theory ignores the context in which the relevant legal provisions were enacted. Additionally, Martin notes that Kobach's argument would undermine the legality of administrative practices that have existed since at least the passage of the Immigration and Nationality Act of 1952. --Summary adapted from Immigration Impact.

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