Law & the Courts

The Corner

The Border Patrol Continues to Act as if a Federal Judge Hadn’t Just Blocked Obama’s Amnesty

While a federal judge’s injunction has halted the implementation of President Obama’s sweeping executive actions from November, it appears U.S. Customs and Border Protection never got the news. According to CBP Commissioner Gil Kerlikowske, the relaxed border enforcement guidelines that accompanied Obama’s executive actions should continue apace, unaffected by the judge’s ruling.

In an email sent to CBP agents on Wednesday and later obtained by NRO, Kerlikowske conceded that the federal judge’s action meant agents “should not consider” Obama’s new and expanded deferred action guidelines when processing illegal immigrants. But border protection and enforcement are apparently a different matter.

Kerlikowske’s email expressed the belief that the judge’s decision has no impact on the border enforcement and protection directives issued at the same time as Obama’s executive actions by Homeland Security Secretary Jeh Johnson, and that those directives remain in force.

The November memo outlining Johnson’s directives required agents to exercise widespread discretion and restraint in a large number of their duties:

[P]rosecutorial discretion should apply not only to the decision to issue, serve, file, or cancel a Notice to Appear, but also to a broad range of other discretionary enforcement decisions, including deciding: whom to stop, question, and arrest; whom to detain or release; whether to settle, dismiss, appeal, or join in a motion on a case; and whether to grant deferred action, parole, or a stay of removal instead of pursuing removal in a case.

Kerlikowske appears to believe that the relaxed protection and enforcement standards are unaffected by the judge’s injunction.

“The Court, however, did not enjoin the Secretary’s overall prioritization of DHS enforcement resources or the existing 2012 DACA policy,” he writes in the email. “Officers and agents should continue to process individuals consistent with the enforcement priorities announced by the Secretary in his memorandum of November 20, 2014, entitled [sic] Policies for the Apprehension, Detention and Removal of Undocumented Immigrants.”

Because Border Patrol is following Johnson’s directives, agents are still adhering to the controversial expansion of prosecutorial discretion at the border. And, as Patrick Brennan previously noted, the federal judge’s ruling did not block other actions Obama has taken to change immigration policy.

The DHS-funding bill that passed the House earlier this year would do more than the injunction to defang Obama’s executive actions on immigration. But Senate Democrats have thus far prevented that bill from reaching the president’s desk, and are using a filibuster to threaten a DHS shutdown at the end of February.

Earlier this week, Alabama senator Jeff Sessions, the Republican chairman of the Subcommittee on Immigration and the National Interest, warned his colleagues about how relying on the courts to stop executive amnesty could be a potentially ruinous decision.

“We cannot and must not establish the precedent that we will fund illegal actions on the hope that another branch of government will intervene and strike down that illegal action at some later point,” Sessions said in a statement. “President Obama has already shut down the Department of Homeland Security by ordering tens of thousands of immigration officers and agents to violate our laws and their oaths, sabotaging immigration enforcement and border control. Republicans are trying every day to restore Homeland Security — only a Democrat filibuster stands in the way.”

Regardless of whether Republicans’ DHS-funding bill reaches the president’s desk, Obama will not allow his signature accomplishment on immigration to go down without a fight. Border Patrol’s action makes clear that if Republicans want to completely quash Obama’s executive actions, they will need to pursue both legislative and judicial remedies.

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