Despite Congress’ rejection of the DREAM Act, in June 2012, Homeland Security (“DHS”) Secretary Janet Napolitano directed her agency to circumvent Congress and administratively implement the DREAM Act. (Napolitano Directive). On the same day, Immigration and Customs Enforcement (“ICE”) Director John Morton issued a memorandum directing all ICE employees to implement Napolitano’s Deferred Action for Childhood Arrivals (“DACA”) program by refraining from arresting or placing illegal aliens who meet the DACA criteria into removal proceedings. (Morton Directive).

Shortly thereafter, ten ICE Agents filed suit against Napolitano, Morton, and United States Citizenship and Immigration Services (“USCIS”) Director Alejandro Mayorkas (collectively “the Defendants”) claiming Napolitano and Morton’s directives order them to violate federal law. (Amended Complaint). Specifically, the agents assert that federal law requires them to arrest or place in removal proceedings every illegal alien they encounter who is not clearly and beyond a doubt entitled to be admitted to the United States, including DACA eligible persons. (See 8 U.S.C. 1225) This past week, a federal court in Texas agreed.

United States District Judge Reed O’Connor affirmed that Congress has plenary power to set immigration law and by adopting [relevant federal statute] expressed its intent that the government initiate removal proceedings against all illegal aliens, including DACA eligible persons. (Memorandum Opinion & Order). Consequently, Napolitano does not have the discretion to refuse to initiate removal proceedings, nor can she or Morton instruct their agents to do the same. (Id.)

While a victory for true immigration reformers, the court’s ruling is not final. The court has asked for additional briefing by May 6 on a technical jurisdictional issue before relief can be granted in the Plaintiffs’ favor.