Obama Non-Deportation Policy Case - Crane V Napolitano - Motion To Intervene National Immigrant Justice Center

Case 3:12-cv-03247-O Document 69 Filed 05/22/13
Page 1 of 6 PageID 1230
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CHRISTOPHER L. CRANE, et. al.,
Plaintiffs,
v.
JANET NAPOLITANO, in her official
capacity as Secretary of Homeland
Security, et. al.,
Defendants.
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Civil Action 3:12-cv-03247-O
MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE

The National Immigrant Justice Center (NIJC) respectfully seeks leave to file the
accompanying brief as amicus curiae in support of Defendants. In compliance with Local Rule
7.2, the Brief Amicus Curiae of National Immigrant Justice Center in Support of Defendants,
attached as Exhibit A, outlines NIJCs interest in the outcome of this litigation. A Proposed
Order is attached.
NIJC is an immigration-focused organization with substantial interest in this Courts
resolution of this case. NIJC is a non-profit organization accredited by the Board of Immigration
Appeals since 1980 to provide immigration assistance. NIJC provides legal education and
representation to low-income immigrants, asylum seekers, and refugees, including survivors of
domestic violence, victims of crimes, detained immigrant adults and children, and victims of
human trafficking, as well as immigrant families and other non-citizens facing removal and
family separation.
Many of NIJCs clients are eligible for asylum, temporary protected status, protection
under the Violence Against Women Act, or protection as a victim of human trafficking and other
specified offenses. The Courts tentative interpretation of 8 U.S.C. 1225(b)(2)(A) would affect
the availability of these forms of relief.
No statute, rule, or controlling case defines a federal district courts power to grant or
deny leave to file an amicus brief. United States ex rel. Gudur v. Deloitte Consulting LLP, 512
F. Supp. 2d 920, 927 (S.D. Tex. 2007). Federal Rule of Appellate Procedure 29 sets forth
standards for filing an amicus brief in the United States Courts of Appeals, and in the absence of
controlling authority, district courts commonly refer to Rule 29 for guidance. Id.
[P]articipation as an amicus to brief and argue as a friend of the court was, and continues to be,
a privilege within the sound discretion of the courts. United States v. Michigan, 940 F.2d 143,
165 (6th Cir. 1991) (internal citations omitted) (quoting N. Sec. Co. v. United States, 191 U.S.
555 (1903)). See also Gudur, 512 F.Supp. 2d at 927. The classic role of amicus curiae [is to]
assist[] in a case of general public interest, supplementing the efforts of counsel, and drawing
the courts attention to law that escaped consideration. Miller-Wohl Co. v. Commr of Labor
& Indus., State of Mont., 694 F.2d 203, 204 (9th Cir. 1982) (emphasis added). Factors
considered in a Courts determination include whether the proffered information is: relevant to
the disposition of the case, timely, useful, or otherwise necessary to the administration of justice.
See Neonatology Assocs., P.A. v. Commr, 293 F.3d 128, 129 (3d Cir. 2002); Michigan, 940
F.2d at 165; Gudar, 512 F.Supp.2d at 927.
In Neonatology, Judge Alito, writing for the Third Circuit, granted leave to file an
amicus brief where the brief alerted the court to possible implications of the appeal.
Neonatology, 293 F.3d at 133. NIJC seeks leave to file the attached Brief to alert the Court to
implications of the Courts decision that have not been previously addressed by the parties
briefing. Specifically, NIJC seeks to highlight that Plaintiffs reading of 1225(b)(2)(A) would
de facto eliminate the ability of the Department of Homeland Security (DHS) to grant asylum,
temporary protected status, and protection under the Violence Against Women Act, and even its
DLI-6441922v6
authority to parole individuals into the United States. NIJCs brief explains that Congress
authorized DHS to grant the above described relief to inadmissible non-citizens; Plaintiffs
strained interpretation of 1225(b)(2)(A) is inconsistent with the statute.
Further, the Court lacks jurisdiction to review the exercise of prosecutorial discretion
pursuant to 8 U.S.C. 1252(g). The parties have not drawn the Courts attention to statutory and
legislative authority limiting the Courts jurisdiction over prosecutorial discretion decisions. The
Court, however, has an independent duty to assure itself of jurisdiction. As the Court noted,
Mem. Op. Order 37, April 23, 2013, ECF No. 58, a federal courts subject matter jurisdiction
cannot be waived. See Fed. R. Civ. P. 12(h)(3); Coury v. Prot, 85 F.3d 244, 248 (5th Cir. 1996)
(citing City of Indianapolis v. Chase Natl Bank, 314 U.S. 63, 76 (1941)). The attached brief
would aid the Court in such a determination.
NIJCs motion is not untimely. NIJC seeks leave to file the instant brief prior to the entry
of any preliminary injunction in this case and before any responses to Proposed DefendantIntervenors Motion to Intervene as Defendants or, in the Alternative, Motion for Leave to
Participate as Amici Curiae. The brief is being filed at the first possible point after NIJC became
aware of this case, and shortly after NIJC obtained pro bono counsel (retainer executed May 20,
2013).
The brief that NIJC seeks leave to file does not overlap in any way with the Motion to
Intervene as Defendants or, in the Alternative, Motion for Leave to Participate as Amici Curiae,
filed by Pamela Resndiz, Carolina Canizalez, and the University Leadership Initiative
(represented by the Mexican American Legal Defense and Education Fund). NIJC has diligently
sought to discover whether any other person or organization is or will be seeking leave to appear
amicus curiae before the Court. After having exercised due diligence in that regard, NIJC is
unaware of any other group or person intending to seek leave to appear as amicus curiae from
the Court.
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For the reasons stated above, NIJC respectfully requests that its Motion for Leave be
granted and that the Brief Amicus Curiae of National Immigrant Justice Center in Support of
Defendants (attached as Exhibit A) be filed instanter.
Respectfully submitted,
/s/ Brian J. Murray

Brian J. Murray
Illinois State Bar No: 6272767
JONES DAY
77 West Wacker Drive
Suite 3500
Chicago, Illinois 60601
Telephone: (312) 782-3939
Dionna J.A. Little
Texas State Bar No. 24070154
JONES DAY
2727 North Harwood Street
Dallas, TX 75201-1515
Telephone: 214-969-3741
Facsimile: 214- 969-5100
Attorneys for Amicus Curiae.
DLI-6441922v6
CERTIFICATE OF CONFERENCE
Undersigned counsel spoke with counsel for Plaintiffs and Defendants on May 21, 2013.
Counsel for Plaintiffs oppose this motion. Counsel for Defendants take no position and Counsel
for Intervenor-Defendants consent to this motion.
/s/ Dionna J.A. Little
Dionna J.A. Little
DLI-6441922v6
_________________
CERTIFICATE OF SERVICE
The undersigned certifies that, on this 22nd day of May, 2013, a true and correct copy of
the foregoing was filed with the Clerk of the Court using the CM/ECF system, which will
automatically send e-mail notification upon the following counsel of record:
Peter Michael Jung
Strasburger & Price, LLP
PO Box 50100
901 Main St Ste 4400
Dallas, TX 75250-0100
(214) 651-4724
Fax: 214/651-4330
Email: michael.jung@strasburger.com
Kris W Kobach
Kobach Law LLC
4701 N 130th St
Kansas City, KS 66109
(913) 638-5567
Fax: 816/235-5276
Email: kkobach@gmail.com
Adam David Kirschner
United States Department of Justice
Civil Division
20 Massachusetts Ave
Suite 7126
Washington, DC 20530
(202) 353-9265
Fax: 202/616-8470
Email: adam.kirschner@usdoj.gov
Bradley Heath Cohen

US Department of Justice Civil Division
Federal Programs Branch
20 Massachusetts Ave NW
Room 7338
(202) 305-9855
Fax: 202/616-8202
Email: bradley.cohen@usdoj.gov
Nina Perales
Mexican American Legal Defense
& Educational Fund Inc
110 Broadway
Suite 300
San Antonio, TX 78205
(210) 224-5476
Fax: 210/224-5382
Email: nperales@maldef.org

Dionna J.A. Little
DLI-6441922v6
Case 3:12-cv-03247-O Document 69-1 Filed 05/22/13
EXHIBIT A

DALLAS DIVISION
Plaintiffs,
v.
Security, et. al.,
Defendants.
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BRIEF AMICUS CURIAE OF NATIONAL IMMIGRANT

JUSTICE CENTER IN SUPPORT OF DEFENDANTS
DLI-6442105v8
TABLE OF CONTENTS
Page
INTRODUCTION ......................................................................................................................... 1
I.
INTEREST OF AMICUS CURIAE .................................................................................. 2
II.
THE FLAWS IN PLAINTIFFS INTERPRETATION OF 1225(B)(2)(A) ARE

EVIDENCED BY ITS INCOMPATIBILITY WITH VARIOUS STATUTES
AND PROVISIONS .......................................................................................................... 2
III.
A.
Asylum ................................................................................................................... 4
B.
Temporary Protected Status ................................................................................... 5
C.
Violence Against Women Act ............................................................................... 6
D.
Victims of Trafficking and Victims of Crime........................................................ 6
E.
Authority to Parole................................................................................................. 7
THE INA FORBIDS CHALLENGES TO PROSECUTORIAL DISCRETION

DECISIONS ....................................................................................................................... 9
CONCLUSION ............................................................................................................................ 12
DLI-6442105v8
-i-
TABLE OF AUTHORITIES
Page
CASES
Alvidres-Reyes v. Reno,
180 F.3d 199 (5th Cir. 1999) ...................................................................................................11
Amrollah v. Napolitano,
710 F.3d 568 (5th Cir. 2013) .....................................................................................................4
Castillo-Enriquez v. Holder,
690 F.3d 667 (5th Cir. 2012) .....................................................................................................5
Chapinski v. Ziglar,
278 F.3d 718 (7th Cir. 2002) ...................................................................................................11
Clark v. Martinez,
543 U.S. 371 (2005) ...................................................................................................................3
Garcia-Mir v. Smith,
766 F.2d 1478 (11th Cir. 1985) .................................................................................................7
Gisbert v. U.S. Atty. Gen.,
988 F.2d 1437 (5th Cir. 1993) ...................................................................................................7
Johns v. Department of Justice,
653 F.2d 884 (5th Cir. 1981) ...................................................................................................10
Leng May Ma v. Barber,
357 U.S. 185 (1958) ...............................................................................................................7, 8
Momin v. Gonzales,
447 F.3d 447 (5th Cir. 2006) .....................................................................................................8
Reno v. American-Arab Anti-Discrimination Committee,
525 U.S. 471 (1999) .............................................................................................................9, 10
Robinson v. Shell Oil Co.,
519 U.S. 337 (1997) ...................................................................................................................3
Soon Bok Yoon v. INS,
538 F.2d 1211 (5th Cir. 1976) .................................................................................................10
Suter v. Artist M.,
503 U.S. 347 (1992) ...........................................................................................................11, 12
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Toro v. Secretary, U.S. Dept. of Homeland Sec.,

707 F.3d 1224 (11th Cir. 2013) .................................................................................................6
White v. I.N.S.,
75 F.3d 213 (5th Cir. 1996) .......................................................................................................9
STATUTES
8 U.S.C. 1154(a) ..............................................................................................................................6
8 U.S.C. 1158(a)(1) .......................................................................................................................4
8 U.S.C. 1158(a)(2) .......................................................................................................................4
8 U.S.C. 1158(b)(1)(A) .................................................................................................................4
8 U.S.C. 1182(a) ...........................................................................................................................7
8 U.S.C. 1182(d)(5)(A) .............................................................................................................7, 8
8 U.S.C. 1225(b) .......................................................................................................................7, 8
8 U.S.C. 1225(b)(2)(A) ....................................................................................................... passim
8 U.S.C. 1227(d)(2) ......................................................................................................................7
8 U.S.C. 1252(g) ...................................................................................................................10, 11
8 U.S.C. 1254a(a)(1)(A) ...............................................................................................................5
8 U.S.C. 1254a(b)(1) .....................................................................................................................5
8 U.S.C. 1254a(c)(2)(A) ...............................................................................................................5
22 U.S.C. 7105(c)(3).................................................................................................................6, 7
OTHER AUTHORITIES
8 C.F.R. 204.1(e)...........................................................................................................................6
8 C.F.R. 204.2(e)...........................................................................................................................6
8 C.F.R. 208.2(b) ..........................................................................................................................4
8 C.F.R. 214.11, 214.14 ..............................................................................................................7
8 C.F.R. 214.11(j)(4), (m)(2) ........................................................................................................7
8 C.F.R. 244.6 ...............................................................................................................................5
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8 C.F.R. 274a(12)(c)(14) ............................................................................................................10

David A. Martin, A Defense of Immigration-Enforcement Discretion: The Legal and
Policy Flaws in Kris Kobachs Latest Crusade, 122 Yale L.J. .................................................8
http://yalelawjournal.org/2012/12/20/martin.html. ..........................................................................8
INS Mem. HQ/ADN/70/6.1P (Sept. 8, 2000) ..................................................................................6
U.S. CUSTOMS & BORDER PROT., INSPECTORS FIELD MANUAL,
16.1(c)(2)(A)(2/10/2006), available at http://www.visaserveblog.com/tp090109080449/post120221102209/U.S.CustomsandBorderProtection%28CBP%29Inspector%27sFieldM
anual. ..........................................................................................................................................8
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DLI-6442105v8

DALLAS DIVISION
Plaintiffs,
v.
Security, et. al.,
Defendants.
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BRIEF AMICUS CURIAE OF NATIONAL IMMIGRANT

JUSTICE CENTER IN SUPPORT OF DEFENDANTS
INTRODUCTION
Plaintiffs ask the Court to enjoin the federal governments exercise of prosecutorial
discretion on the grounds that 8 U.S.C. 1225(b)(2)(A) requires immigration agents to place
non-citizens into removal proceedings whenever they discover that an individual appears to be
inadmissible. The National Immigrant Justice Center (NIJC or Amicus) writes separately to
draw to the Courts attention that Plaintiffs reading of 1225(b)(2)(A) would eliminate the
ability of the Department of Homeland Security (DHS) to grant asylum, temporary protected
status, and protection under the Violence Against Women Act. The fact that Congress
authorized DHS to grant such relief to inadmissible non-citizens precludes Plaintiffs strained
interpretation of 1225(b)(2)(A).
Amicus also submits that at least in the absence of the kind of statutory mandate
theorized by Plaintiffs federal courts cannot review the exercise of prosecutorial discretion.
The action should therefore be dismissed.
DLI-6442105v8
I.
Interest of Amicus Curiae

NIJC is an immigration-focused organization with substantial interest in this Courts
resolution of this case. NIJC is a non-profit organization accredited by the Board of Immigration
Appeals since 1980 to provide immigration assistance. NIJC provides legal education and
representation to low-income immigrants, asylum seekers, and refugees, including survivors of
domestic violence, victims of crimes, detained immigrant adults and children, and victims of
human trafficking, as well as immigrant families and other non-citizens facing removal and
family separation. NIJC provides such legal services to more than 10,000 non-citizens each
year. NIJC also promotes respect for human rights and access to justice for immigrants,
refugees, and asylum seekers through advocacy for policy reform, impact litigation, and public
education.
Many individuals assisted by NIJC are eligible for asylum, temporary protected status,
protection under the Violence Against Women Act, or protections for victims of human
trafficking and other specified offenses. As described in detail below, the Plaintiffs proposed
interpretation of 8 U.S.C. 1225(b)(2)(A) is inconsistent with the ability of the Department of
Homeland Security (DHS) to grant these forms of relief.
II.
The Flaws in Plaintiffs Interpretation of 1225(b)(2)(A) are Evidenced By Its

Incompatibility With Various Statutes and Provisions.
Plaintiffs contend that 8 U.S.C. 1225(b)(2)(A) requires that individuals be placed into
removal proceedings if inadmissible. Am. Compl. 67-73. While Plaintiffs only apply this
theory to preclude two specific deferred action policies, the proposed interpretation has
implications far beyond those two policies. Amicus believes that the parties briefing has not
adequately addressed those significant implications.
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Plaintiffs contend that in 1225(b)(2)(A), Congress has expressly limited the discretion
of Defendants to not initiate removal proceedings. Am. Compl. 71. Plaintiffs argue that the
statute requires that [i]f an illegal alien is encountered by DHS, an inspection must occur, and if
that illegal alien is not entitled to be admitted to the United States, he or she must be placed in
removal proceedings. Any subsequent relief, whether it be through asylum, cancellation of
removal, or withdrawal of removal, must be authorized by federal statute. Brief in Support of
Plaintiffs Application for Preliminary Injunction at 6 (hereinafter Plaintiffs PI Brief) (emphasis
added). In other words, Plaintiffs claim that Congress does not authorize DHS to grant relief
(such as asylum) upon application; at least, not until after the noncitizen has been placed in
removal proceedings.
Other portions of the Immigration and Nationality Act (INA), however, show that
Plaintiffs reading of this provision is incorrect. A statute must be read and interpreted as a
whole. Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). In addition, a statute must be
interpreted consistently. Clark v. Martinez, 543 U.S. 371, 378 (2005). To give [the] same
words a different meaning for each category would be to invent a statute rather than interpret
one. Id.
Congress has authorized DHS to grant various forms of relief notwithstanding a noncitizens inadmissibility. Specifically, Congress has provided for DHS to grant relief such as
asylum, temporary protected status, protection under the Violence Against Women Act, and
protections for victims of human trafficking and other specified offenses as explained in greater
detail below. All forms of relief are currently available prior to the initiation of removal
proceedings. Plaintiffs interpretation, if true, would cripple these programs by eliminating
DHSs ability to use discretion in determining whether to provide these forms of relief prior to
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the initiation of removal proceedings. Because Plaintiffs interpretation cannot be squared with
clear Congressional authority on prosecutorial discretion in regards to the previously mentioned
forms of relief, it must be incorrect.
A.
Asylum
Congress allows, with very limited exceptions, every noncitizen who is physically
present in the United States . . . [to] apply for asylum. 8 U.S.C. 1158(a)(1). The exceptions to
eligibility to file for asylum are set forth at 8 U.S.C. 1158(a)(2) and include individuals who
could be removed to a safe third country; those who fail to apply within one year; and
individuals who previously applied for asylum. Id. 1158(a)(2)(A), (B), (C). By separate
provision, eligibility to be granted asylum is barred for people who persecuted others, those who
committed a particularly serious crime, and terrorists. Id. 1158(b)(2)(A). Congress very
emphatically does not preclude people from applying for asylum simply because they are
inadmissible, or because they are, in Plaintiffs lexicon, illegal aliens. See, e.g., Amrollah v.
Napolitano, 710 F.3d 568 (5th Cir. 2013) (non-citizen granted asylum despite illegal entry).
Congress specifically permits both the Immigration Courts (which represent the Attorney
General) and DHS to grant asylum, in accordance with the requirements and procedures
established by the Secretary of Homeland Security or the Attorney General. 8 U.S.C.
1158(b)(1)(A). Immigration Courts have jurisdiction to consider asylum applications only
after removal proceedings have commenced. 8 C.F.R. 208.2(b). Longstanding regulations
permit individuals (including inadmissible individuals) to apply for asylum with DHSs
Asylum Office before removal proceedings have commenced. See id. 208.2(a) (granting
authority to grant asylum to the Office of International Affairs, except for individuals placed into
removal proceedings).
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Under the Plaintiffs interpretation, a DHS officer interviewing an inadmissible asylum

applicant would have no authority to grant asylum. Rather, the DHS officer would be required to
immediately place the individual into removal proceedings before any relief could be granted.
Cf. Plaintiffs PI Brief at 7. The already over-burdened immigration courts would thus be the
only authority permitted to grant asylum for many individuals.
B.
Temporary Protected Status
Temporary Protected Status (TPS) may be granted to nationals of particular countries

where an ongoing armed conflict or environmental disaster would pose a serious threat to such
individuals. 8 U.S.C. 1254a(b)(1). Eligibility for TPS does not require admissibility; rather,
many grounds of inadmissibility may be waived. Id. 1254a(c)(2)(A). Additionally, TPS may
be extended year after year. Id. 1254a(d)(2). Congress forbids individuals granted TPS from
being detained or removed from the United States. Id. 1254a(d)(4); Id. 1254a(a)(1)(A).
Individuals granted TPS may also be granted work authorization. Id. 1254a(a)(1)(B).
By regulation, individuals eligible for TPS may apply for TPS benefits with DHS.
8 C.F.R. 244.6. An individual placed into removal proceedings may renew the TPS application
with the Immigration Court or the Board of Immigration Appeals. Id. 244.11; see also
Castillo-Enriquez v. Holder, 690 F.3d 667, 668 (5th Cir. 2012). Under Plaintiffs interpretation
of 1225(b)(2)(A), agents of DHS would be obligated to detain TPS applicants who are
inadmissible, notwithstanding the statutory authority allowing the DHS agent to waive that
inadmissibility. 8 U.S.C. 1254a(c)(2)(A). Under Plaintiffs argument, DHS agents would be
obligated to place TPS applicants into removal proceedings, even though 8 U.S.C.
1254a(a)(1)(A) prohibits the removal of individuals who have been granted TPS. Additionally,
DHS agents would be obligated to detain individuals who have received TPS benefits, directly
contradicting Congressional intent. Id. 1254a(d)(4).
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C.
Violence Against Women Act
Under the Violence Against Women Act (VAWA), a noncitizen spouse1 subjected to
battery or extreme mental cruelty by a spouse who is a U.S. citizen or lawful permanent resident
is authorized to seek legal status through a self-petition without the support of their abusive
spouse. VAWA self-petitions are handled by a specially-trained unit within DHS. 8 C.F.R.
204.1(e); Id. 204.2(c)(1); Toro v. Secretary, U.S. Dept. of Homeland Sec., 707 F.3d 1224
(11th Cir. 2013). A similar process exists for children abused by a parent who is a U.S. citizen
or a permanent resident. 8 C.F.R. 204.2(e). Individuals granted benefits under VAWA are
also considered for deferred action. Cronin, Acting Executive Associate Commissioner, Office
of Programs, INS Mem. HQ/ADN/70/6.1P (Sept. 8, 2000), reprinted in 77 Int. Rel. 143233
(Oct. 2, 2000).
Under the Plaintiffs interpretation of 1225(b)(2)(A), however, a DHS officer
adjudicating a self-petition filed by a VAWA self-petitioner would be obliged to initiate removal
proceedings in any case where the self-petitioner revealed themselves to be inadmissible. Thus,
DHS could not grant deferred action to VAWA self-petitioners prior to the initiation of removal
proceedings, contrary to Congressional intent. See 8 U.S.C. 1154(a)(1)(D)(i)(II), (IV) (making
any battered spouse or child eligible for deferred action and work authorization).
D.
Victims of Trafficking and Victims of Crime
Victims of severe forms of human trafficking and other specified crimes, including
domestic violence, kidnapping, peonage, and slave trade offenses, may obtain temporary
protection from removal to facilitate testimony against the malefactors and to protect these
victims. 22 U.S.C. 7105(c)(3). Congress authorizes such individuals to apply for, inter alia,
1 The
statute also authorizes eligibility for individuals whose marriages were not legally binding
due to bigamy of the abusive spouse. 8 U.S.C. 1154(a)(1)(A)(i)(iii)(II)(aa)(BB).
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deferred action. 8 U.S.C. 1227(d)(2). Such individuals are eligible to obtain temporary stays
in the United States, and, occasionally, permanent resident status, under provisions that permit
waiver of most forms of inadmissibility. See 22 U.S.C. 7105(c)(3); 8 C.F.R. 214.11,
214.14. Plaintiffs interpretation would require a DHS agent who encounters a victim of severe
human trafficking or of the listed crimes to detain that individual and to place him or her into
removal proceedings prior to granting any relief, despite regulations clearly to the contrary. Cf.,
e.g., 8 C.F.R. 214.11(j)(4), (m)(2).
E.
Authority to Parole
Indeed, Plaintiffs argument does not even leave room for the Secretarys broad parole
authority granted by 8 U.S.C. 1182(d)(5)(A). The parole statute permits DHS to allow
physical entry to a noncitizen at its discretion, even if the noncitizen is not admissible under
8 U.S.C. 1182(a). 8 U.S.C. 1182(d)(5)(A) (The Secretary of DHS can in his discretion
parole into the United States temporarily only on a case-by-case basis for urgent humanitarian
reasons or significant public benefit any alien applying for admission to the United States, but
such parole of such alien shall not be regarded as an admission of the alien.). Paroled aliens are
legally considered to be detained at the border and hence as never having effected entry into this
country. Gisbert v. U.S. Atty. Gen., 988 F.2d 1437, 1441 (5th Cir. 1993); Garcia-Mir v. Smith,
766 F.2d 1478, 1484 (11th Cir. 1985); Leng May Ma v. Barber, 357 U.S. 185 (1958).
Paroled noncitizens are covered under 8 U.S.C. 1225(b)(2). As the Court notes,
8 U.S.C. 1225(b)(1)(A)(iii) specifically applies only to noncitizens who ha[ve] not been
admitted or paroled. Memorandum and Order at 13. Therefore, a noncitizen paroled under
1182(d)(5)(A) would not be covered by 1225(b)(1). However, 8 U.S.C. 1225(b)(2)
unlike 8 U.S.C. 1225(b)(1)(A)(iii) applies to other aliens and contains no exclusion for
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individuals paroled under 1182(d)(5)(A). It appears clear that paroled noncitizens would be
included within 8 U.S.C. 1225(b)(2).
Plaintiffs interpretation of 8 U.S.C. 1225(b)(2) would thus create a conflict with the
parole provisions of 1182(d)(5)(A). As dictated by statute, individuals paroled by DHS fall
within the purview of 1225(b)(2). According to Plaintiffs interpretation, 1225(b)(2) would
require DHS agents to initiate detention and removal proceedings for all inadmissible
individuals. A grant of parole, by definition, defers a decision on detention and removal. Momin
v. Gonzales, 447 F.3d 447 (5th Cir. 2006), vacated due to superseding regulations at 462 F.3d
497 (5th Cir. 2006) (Parole allows an alien physically to enter the United States but does not
affect the alien's status within the immigration framework.); see also Leng May Ma, 357 U.S.
at 190. Therefore, any interpretation of 1225(b)(2), which mandates institution of detention
and removal proceedings for all inadmissible individuals, would conflict directly with the INAs
parole provisions, basically eliminating DHS parole authority.2 Again, the conflict exists only
because of the strained interpretation advanced by Plaintiffs. Interpreted properly, 1225(b)(2)
does not mandate detention or removal proceedings; and no conflict exists.
In sum, Plaintiffs argument would directly contradict Congressional intent by leaving a
division of DHS, the United States Citizenship and Immigration Services (USCIS) Asylum
For instance, the DHS Inspectors Field Manual recognizes one use of parole for an
[e]mergency worker responding to a natural disaster. U.S. CUSTOMS & BORDER
PROT., INSPECTORS FIELD MANUAL, 16.1(c)(2)(A)(2/10/2006), available at
http://www.visaserveblog.com/tp-090109080449/post120221102209/U.S.CustomsandBorderProtection%28CBP%29Inspector%27sFieldManual.
Under Plaintiffs theory, a European search-and-rescue team or a squad of Canadian electric
power technicians would be allowed to proceed to their duty stations in the aftermath of an
earthquake or hurricane only after the insult of detention and the filing of formal immigration
charges. David A. Martin, A Defense of Immigration-Enforcement Discretion: The Legal
and Policy Flaws in Kris Kobachs Latest Crusade, 122 Yale L.J. Online 176, 181 (2012),
http://yalelawjournal.org/2012/12/20/martin.html.
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Office, unable to adjudicate asylum claims; by leaving the USCIS Service Centers unable to
adjudicate hundreds of thousands of TPS applications; by leaving the specially-trained USCIS
agents tasked with adjudicating battered spouse and human trafficking petitions unauthorized to
adjudicate those claims and grant relief; and by effectively eliminating DHS parole authority.
Such an interpretation is inconsistent with the textual structure of the INA, and its plain
meaning. See White v. I.N.S., 75 F.3d 213, 215 (5th Cir. 1996). Because the rules of statutory
construction require the Court to read this provision in light of the entire relevant statute, and
because 1225(b)(2)(A) cannot be read to mandate the initiation of removal proceedings
whenever a DHS agent encounters someone inadmissible and still provide the above forms of
relief, Plaintiffs argument necessarily fails.
III.
The INA Forbids Challenges to Prosecutorial Discretion Decisions

Once Plaintiffs argument that the statute forbids DHS from exercising prosecutorial
discretion in this context is rejected, Plaintiffs argument boils down to a disagreement with
whether DHSs exercise of its discretion is wise and consistent with the INA when read in its
entirety. This argument, whatever its merits, is not cognizable in federal court. The INA bars
actions that challenge the exercise of prosecutorial discretion; and such actions were precluded
even before the INA explicitly barred them.
Immigration officers have an undisputed authority to decline to commence removal
proceedings. The Supreme Court has stated that, the INS may decline to institute proceedings,
terminate proceedings, or decline to execute a final order of deportation. [a] case may be
selected for deferred action treatment at any stage of the administrative process. Reno v.
American-Arab Anti-Discrimination Committee, 525 U.S. 471, 484 (1999) (internal citations
omitted). The Supreme Court has recognized deferred action as a lawful exercise of executive
discretion and has acknowledged that this discretion developed without express statutory
9
DLI-6442105v8
authorization. Id. at 484-86. Accordingly, executive administrators have exercised their

discretion to grant deferred action for two main purposes: first, to allocate more efficiently
resources as a matter of administrative convenience; and second, where humanitarian
considerations make removable unconscionable. 8 C.F.R. 274a(12)(c)(14); see also Soon Bok
Yoon v. INS, 538 F.2d 1211 (5th Cir. 1976).3.
In 1996, Congress enacted a series of jurisdiction-stripping provisions, including 8 U.S.C.
1252(g), which preclude jurisdiction over a claim by or on behalf of any alien arising from the
decision or action by the Attorney General to commence proceedings, adjudicate cases, or
execute removal orders against any alien under this Act. 8 U.S.C. 1252(g).
The Supreme Court interpreted 1252(g) as removing decisions about deferred action
from federal judicial review. Reno v. American-Arab Anti-Discrimination Committee, 525 U.S.
471, 483-85 (1999). Although the statute refers specifically to claims filed by aliens, the Courts
reasoning can be applied more broadly. The Court held that section 1252(g) seem[ed] clearly
designed to give some measure of protection to discretionary determinations, providing that if
they are reviewable at all, they at least [would] not be made the bases for separate rounds of
judicial intervention outside the streamlined process that Congress has designed. Id. at 485.
Similarly, the Fifth Circuit has long held that prosecutorial discretion decisions in
immigration are not subject to judicial review. Johns v. Department of Justice, 653 F.2d 884,
893 (5th Cir. 1981) (the District Director had discretion to commence a deportation
proceeding or not to do so. That discretion is, like prosecutorial discretion, immune from review
in the courts.) (citations omitted). In Alvidres-Reyes v. Reno, 180 F.3d 199, 205 (5th Cir. 1999),
the Fifth Circuit considered a challenge to the decision of the Attorney General not to institute
3 The DACA Memorandum cites these two purposes.

10
DLI-6442105v8
removal proceedings and noted that the plaintiffs suit necessarily calls for judicial intervention
to reverse the Attorney Generals exercise of her discretion to not commence proceedings.
Applying Reno v. AADC, the Fifth Circuit held that jurisdiction was precluded over such
decisions holding that the exercise of discretion:
to decide or act to commence proceedings always has been considered inherently
to include the ability to choose not to do so.[T]he INS may decline to institute
proceedings, terminate proceedings, or decline to execute a final order of
deportation. [J]udicial intervention in cases in which the Attorney General has
exercised her discretion not to commence proceedings or adjudicate cases would
interfere with her discretionary determinations and lead to the deconstruction,
fragmentation, and hence prolongation of removal proceedings at which the
Supreme Court concluded that 1252(g) is directed.
Alvidres-Reyes, 180 F.3d at 205 (internal citations omitted). See also, Chapinski v. Ziglar, 278
F.3d 718 (7th Cir. 2002) (explaining that where judicial review of a decision to commence
proceedings is barred, it follows that section 1252(g) also precludes judicial review of the
Attorney General's decision not to commence removal proceedings.).
Plaintiffs challenge falls squarely within these jurisdictional prohibitions. If the INA
does not permit non-citizens and their family members, who are directly impacted by the
exercise of executive discretion, to challenge the exercise of discretion, it is hardly plausible that
the INA would not permit immigration agents to challenge the same executive discretion
decisions of their superiors. Plaintiffs have the burden to demonstrate that Congress intended to
make a private remedy available to immigration agents who disagree with discretionary
decisions made by their superiors. Suter v. Artist M., 503 U.S. 347, 363-64 (1992). Plaintiffs
have not met this burden. The INA does not suggest that Congress intended to create the private
remedy sought by the plaintiffs, but, rather, shows that Congress meant to restrict judicial review
in this context. Suter, 503 U.S. at 364. Thus, the Court has no jurisdiction to entertain Plaintiffs
arguments regarding the exercise of prosecutorial discretion.
11
DLI-6442105v8
Because jurisdiction is precluded over the exercise of prosecutorial discretion, neither

mandamus nor the Administrative Procedures Act provides any means by which to challenge the
Governments exercise of prosecutorial discretion in this case.
CONCLUSION
For the reasons described above, Amicus respectfully submits that the Plaintiffs
arguments are wrong as a matter of law, and the federal courts lack jurisdiction over the issues
presented. The case should be dismissed.
Respectfully submitted,
_/s/ Brian J. Murray__________________

Brian J. Murray
Illinois State Bar No: 6272767
JONES DAY
77 West Wacker Drive
Suite 3500
Chicago, Illinois 60601
Telephone: (312) 782-3939
Dionna J.A. Little
Texas State Bar No. 24070154
JONES DAY
2727 North Harwood Street
Dallas, TX 75201-1515
Telephone: 214-969-3741
Facsimile: 214- 969-5100
Attorneys for Amicus Curiae.
12
DLI-6442105v8
CERTIFICATE OF SERVICE
The undersigned certifies that, on this 22nd day of May, 2013, a true and correct copy of
the foregoing was filed with the Clerk of the Court using the CM/ECF system, which will
automatically send e-mail notification upon the following counsel of record:
Bradley Heath Cohen
US Department of Justice Civil Division
Federal Programs Branch
20 Massachusetts Ave NW
Room 7338
(202) 305-9855
Fax: 202/616-8202
Email: bradley.cohen@usdoj.gov
Peter Michael Jung

Strasburger & Price, LLP
PO Box 50100
901 Main St Ste 4400
Dallas, TX 75250-0100
(214) 651-4724
Fax: 214/651-4330
Email: michael.jung@strasburger.com
Kris W Kobach
Kobach Law LLC
4701 N 130th St
Kansas City, KS 66109
(913) 638-5567
Fax: 816/235-5276
Email: kkobach@gmail.com
Nina Perales
Mexican American Legal Defense
& Educational Fund Inc
110 Broadway
Suite 300
San Antonio, TX 78205
(210) 224-5476
Fax: 210/224-5382
Email: nperales@maldef.org
Adam David Kirschner

United States Department of Justice
Civil Division
20 Massachusetts Ave
Suite 7126
(202) 353-9265
Fax: 202/616-8470
Email: adam.kirschner@usdoj.gov

Dionna J.A. Little
13
DLI-6442105v8

DALLAS DIVISION
)
)
)
)
)
)
)
)
)
)
)

Plaintiffs,
v.
Security, et. al.,
Defendants.
ORDER
Having considered the National Immigrant Justice Centers Motion for Leave to File
Brief of Amicus Curiae and brief in support, the Court finds that the Motion for Leave to File
Brief of Amicus Curiae is GRANTED. It is therefore ORDERED that the tendered amicus brief
be filed on this the ____ day of ______, 2013.
____________________________________
Reed O Connor
UNITED STATES DISTRICT JUDGE
DLI-6442974v1

Obama Non-Deportation Policy Case - Crane V Napolitano - Motion To Intervene National Immigrant Justice Center

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Case 3:12-cv-03247-O Document 69 Filed 05/22/13

Page 1 of 6 PageID 1230

IN THE UNITED STATES DISTRICT COURT

Civil Action 3:12-cv-03247-O

MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE

Case 3:12-cv-03247-O Document 69 Filed 05/22/13

Page 2 of 6 PageID 1231

Case 3:12-cv-03247-O Document 69 Filed 05/22/13

Page 3 of 6 PageID 1232

Case 3:12-cv-03247-O Document 69 Filed 05/22/13

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/s/ Brian J. Murray

Case 3:12-cv-03247-O Document 69 Filed 05/22/13

Page 5 of 6 PageID 1234

Case 3:12-cv-03247-O Document 69 Filed 05/22/13

Page 6 of 6 PageID 1235

Bradley Heath Cohen

/s/ Dionna J.A. Little

Case 3:12-cv-03247-O Document 69-1 Filed 05/22/13

Page 1 of 19 PageID 1236

Case 3:12-cv-03247-O Document 69-1 Filed 05/22/13

Page 2 of 19 PageID 1237

IN THE UNITED STATES DISTRICT COURT

Civil Action 3:12-cv-03247-O

BRIEF AMICUS CURIAE OF NATIONAL IMMIGRANT

Case 3:12-cv-03247-O Document 69-1 Filed 05/22/13

Page 3 of 19 PageID 1238

INTEREST OF AMICUS CURIAE .................................................................................. 2

THE FLAWS IN PLAINTIFFS INTERPRETATION OF 1225(B)(2)(A) ARE

Temporary Protected Status ................................................................................... 5

Violence Against Women Act ............................................................................... 6

Victims of Trafficking and Victims of Crime........................................................ 6

THE INA FORBIDS CHALLENGES TO PROSECUTORIAL DISCRETION

Case 3:12-cv-03247-O Document 69-1 Filed 05/22/13

Page 4 of 19 PageID 1239

Case 3:12-cv-03247-O Document 69-1 Filed 05/22/13

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Toro v. Secretary, U.S. Dept. of Homeland Sec.,

Case 3:12-cv-03247-O Document 69-1 Filed 05/22/13

Page 6 of 19 PageID 1241

8 C.F.R. 274a(12)(c)(14) ............................................................................................................10

Case 3:12-cv-03247-O Document 69-1 Filed 05/22/13

Page 7 of 19 PageID 1242

IN THE UNITED STATES DISTRICT COURT

Civil Action 3:12-cv-03247-O

BRIEF AMICUS CURIAE OF NATIONAL IMMIGRANT

Case 3:12-cv-03247-O Document 69-1 Filed 05/22/13

Page 8 of 19 PageID 1243

Interest of Amicus Curiae

The Flaws in Plaintiffs Interpretation of 1225(b)(2)(A) are Evidenced By Its

Case 3:12-cv-03247-O Document 69-1 Filed 05/22/13

Page 9 of 19 PageID 1244

Case 3:12-cv-03247-O Document 69-1 Filed 05/22/13

Page 10 of 19 PageID 1245

Case 3:12-cv-03247-O Document 69-1 Filed 05/22/13

Page 11 of 19 PageID 1246

Under the Plaintiffs interpretation, a DHS officer interviewing an inadmissible asylum

Temporary Protected Status

Temporary Protected Status (TPS) may be granted to nationals of particular countries

Case 3:12-cv-03247-O Document 69-1 Filed 05/22/13

Page 12 of 19 PageID 1247

Violence Against Women Act

Victims of Trafficking and Victims of Crime