Kansas Secretary of State and SB 1070 architect Kris Kobach spoke to Janet Mefferd today about a new lawsuit contesting the recent executive order blocking deportation of some younger undocumented immigrants. According to the executive order, young undocumented immigrants who were brought to the U.S. as children can apply for “deferred action,” giving them protection from deportation, as long as they have no criminal background and either have served in the military or received a high school diploma or GED. Kobach told Mefferd that the “shocking” decision has no precedent.
However, this is not the first time prosecutorial discretion has been used in immigration cases. As the Immigration Policy Center notes, the U.S. Citizenship and Immigration Services “exercised its prosecutorial discretion when it adopted a new policy establishing a procedure for surviving spouses and children of deceased U.S. citizens, who were no longer eligible to apply for permanent residence, to apply for deferred action.” Justice Anthony Kennedy in the majority opinion in Arizona v. United States (2012) also affirmed the right of the federal government to exercise such discretion:
“A principal feature of the removal system is the broad discretion exercised by immigration officials,” wrote Justice Anthony Kennedy, the author of the opinion. “Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all.”
“Discretion in the enforcement of immigration law em¬braces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who com¬mit a serious crime,” Kennedy’s majority decision continued. “The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service.”
Later in the interview, Kobach suggested that undocumented immigrants who came to the U.S. on no fault of their own should leave the U.S. and return to their country of origin once they become adults and even falsely claimed that immigrants who commit crimes in the U.S. are eligible for deferred action.
Kobach: This order by Napolitano orders the ICE agents to break the law, regardless of what federal law says, we’re telling you to let them go. So it’s a clear violation of federal law, also it’s a usurpation of the legislative power of Congress. The DREAM Act has been proposed in Congress 24 times in the last 11 years, it never passed and yet this administration thinks it can just circumvent Congress and that violates our constitutional separation of powers.
Mefferd: Boy, because one of the things you state in the lawsuit is the directive commands ICE officers to violate their oaths to uphold and support federal law. In other words, Obama by issuing this executive order somehow thinks he can just make people do things but these ICE agents feel, actually it’s not just a feeling it’s actually what the truth is, they have an obligation to uphold federal law and he’s undermining it.
Kobach: That’s absolutely right. I think we have to just step back here and think how shocking this is. Prior to the Obama administration, if you asked me ‘could you give me an example of where a president has ordered federal law enforcement agents either to break the law or to look the other way when the law is being broken’ I would say no, I don’t think I can give you examples.
Kobach: Under our laws and under the laws of most countries in the world once you hit the age of 18 you can no longer blame your parents for your situation. So if you are in this country 13 years after you turned 18, you’ve been illegal all that time and you’ve been responsible for your own behavior. To say that you are somehow inculpable or just a victim of circumstance is just ridiculous. These cases are not you know college valedictorians and top of their class, these are people of all different stripes who are committing crimes some very serious crimes, some not committing crimes, but the bottom line is they are in the country illegally as adults and the President is trying to claim that they somehow have a moral right or a legal right to stay and they do not.