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Potential Limits on the Exercise of Discretion
jae wook LEE  (Homepage)
2016-07-05 19:51:41, 조회 : 387, 추천 : 104
Potential Limits on the Exercise of Discretion

While prosecutorial discretion is broad,

1) it is not “unfettered,”77 and
2) particular exercises
        a) of discretion

  could potentially be checked
        a) by the Constitution, statute, or agency directives.78

In practice, however,

persons
        a) who are neither
                i) aliens nor
                ii) otherwise subject to the requirements
                        A) of the INA

1) could lack standing
        a) to challenge alleged abuses of prosecutorial discretion
                i) in the immigration context.

Standing is generally limited to persons
        a) who allege a “personal injury
                i) fairly traceable to the defendant’s allegedly unlawful conduct and
                ii) likely to be redressed
                        A) by the requested relief.”79

Those
        a) whose sole injury is the government’s alleged failure
                i) to follow the law

1) will generally be found
        a) to lack standing
2) because this injury is not
        a) personal and
        b) particularized.80





69 See, e.g., Applicability of Prosecutorial Discretion Memoranda to Certain Family Relationships, supra note 11 (“This and other memoranda related to prosecutorial discretion are designed to ensure that agency resources are focused on
our enforcement priorities, including individuals who pose a threat to public safety, are recent border crossers, or
repeatedly violate our immigration laws.”); Civil Immigration Enforcement, supra note 8, at 1 (“ICE ... only has resources to remove approximately 400,000 aliens per year, less than 4 percent of the estimated illegal alien population of the United States.”); Prosecutorial Discretion, supra note 68 (noting demands created by the establishment of DHS and the increasing number of immigration cases being litigated in federal courts).
70 See, e.g., 2011 DHS Guidance, supra note 9, at 4 (noting that factors to consider include the alien’s length of presence in the United States; the circumstances of the alien’s arrival in the United States; the alien’s pursuit of education in the United States; the alien’s ties and contributions to the community; whether the alien or the alien’s spouse is pregnant or nursing, or suffers from a severe mental or physical illness; and conditions in the alien’s home country); Prosecutorial Discretion, supra note 68 (aliens who are immediate relatives of members of the U.S. military; aliens who have citizen children with serious medical conditions or disabilities; aliens who are undergoing treatment for a potentially life-threatening illness).
71 See, e.g., 2011 DHS Guidance, supra note 9, at 2.
72 See, e.g., 2002 INS Guidance, supra note 2, at 4.
73 See, e.g., id. at 6.
74 See, e.g., 2011 DHS Guidance, supra note 9, at 3. One particular area where such policies have shifted over time is whether immigration attorneys have the authority to cancel Notices to Appear issued by immigration officers.
75 2011 DHS Guidance, supra note 9, at 4. See also Civil Immigration Enforcement, supra note 8, at 4.
76 2011 DHS Guidance, supra note 9, at 5; Prosecutorial and Custody Detention, supra note 2; 2002 INS Guidance,
supra note 2, at 11.
77 United States v. Batchelder, 442 U.S. 114, 125 (1979).
78 See, e.g., Nader v. Saxbe, 497 F.2d 676, 679 (D.C. Cir. 1974) (“It would seem to follow that the exercise of prosecutorial discretion, like the exercise of Executive discretion generally, is subject to statutory and constitutional limits enforceable through judicial review.”).
79 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006) (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)). The requirements as to injury, causation, and redressibility refer to Article III standing. Some courts have also found that (continued...)



Even government
        a) officers and
        b) employees,
                i) who have taken an oath
                        A) to uphold the law,

1) will generally be found
        a) to lack standing
2) so long as their only asserted injury is
        a) being forced to violate their oaths
                i) by implementing an allegedly unlawful
                        A) policy or
                        B) practice.81

Instead,

they must allege some
        a) separate and
        b) concrete
                i) adverse consequence
                        A) that would flow
                                I) from violating their oath, and

1) courts have reached differing conclusions as to
        a) whether the possibility
                i) of being disciplined
                        A) for obeying—
                                I) or refusing to obey—
                                II) allegedly unlawful orders

          suffices for purposes of standing, or
        b) whether such injury is “entirely speculative.”82

Courts have imposed these limitations,
        a) in part, on the grounds that
                i) recognizing standing
                        A) in such cases

                  would allow persons
                        A) to sue
                                I) “merely ... to ensure
                                        (a) [that federal] law conforms to [their] opinion
                                                (i) of what federal law requires,” and
                ii) such personal opinions could change
                        A) at any time.83

In addition,

even where standing
        a) to challenge particular exercises
                i) of prosecutorial discretion

  exists,

1) plaintiffs could potentially have difficulty
        a) obtaining relief
2) given that
        a) actions
                i) by Congress or the President
                ii) in the immigration context

          are generally subject to a “narrow standard of review,”84
        b) particularly in cases
                i) where such decisions implicate
                        A) foreign affairs or
                        B) national security.

For example,

in its recent decision
        a) in Arizona v. United States,

a majority of the Supreme Court noted that
        a) “[s]ome discretionary decisions involve policy choices
                i) that bear on this Nation’s international relations”
        
1) when explaining the basis
        a) for the “broad discretion”
                i) immigration officers have
                ii) in determining
                        A) whether to remove unauthorized aliens.85






(...continued)
plaintiffs challenging certain actions in the immigration context lack prudential standing to enforce the INA. See, e.g., Fed’n for Am. Immigration Reform v. Reno, 93 F.3d 897, 900 (D.C. Cir. 1996) (plaintiffs were not within the zone of interests protected by the INA for purposes of their claim that a “rush of immigrants adversely affects the welfare of the Federation’s members by generating unemployment and wage reductions”). Recently, one federal district court did find that the ICE agents challenging the DACA initiative satisfy the prudential standing requirements because the statutory provisions which they claim are violated by DACA also govern their conduct in managing investigations and initiating removal proceedings. See Crane v. Napolitano, 920 F. Supp. 2d 724, 740-41 (N.D. Tex. 2013). However, this court subsequently found that the ICE agents’ claims are within the exclusive jurisdiction of the Merit Systems Protection Board (MSPB), because their alleged injury was “being compelled to violate a federal statute upon pain of adverse employment action.” Crane, No. 3:12-cv-03247-O, Order (N.D. Tex., July 31, 2013), available at http://www.crs.gov/ analysis/legalsidebar/Documents/Crane_DenialofMotionforReconsideration.pdf.
80 See, e.g., Lance v. Coffman, 549 U.S. 437, 439 (2007) (“A plaintiff raising only a generally available grievance
about government—claiming only harm to his and every citizen’s interest in [the] proper application of the Constitution and laws, and seeking relief that no more directly [or] tangibly benefits him than it does the public at large—does not state an Article III case or controversy.”) (internal quotations omitted)); Lujan v. Defenders of Wildlife, 504 U.S. 555,
562 (1992) (“[W]hen the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but is ordinarily ‘substantially more difficult’ to establish.”). Individual Members of Congress also generally lack standing to challenge presidential actions. In Raines v. Byrd, the Supreme Court held that in order to obtain standing an individual Member must assert either a personal injury, like the loss of his congressional seat, or an
institutional injury that amounts to vote nullification, which requires that no other legislative remedy exists to redress the alleged injury. See 521 U.S. 811 (1997).
81 See, e.g., Donelon v. La. Div. of Admin. Law ex rel. Wise, 522 F.3d 564 (5th Cir. 2008) (Louisiana Commissioner of Insurance lacked standing to challenge the constitutionality of a state law which he alleged violated the Constitution); Finch v. Miss. State Med. Ass’n, Inc., 585 F.2d 765, 773-75 (5th Cir. 1978) (governor of Mississippi lacked standing to challenge a state law whose enforcement, he believed, would cause him to violate his oath to uphold the federal and state constitutions).
82 Compare Drake v. Obama, 664 F.3d 774, 780 (9th Cir. 2011) (“The notion that [the plaintiff] will be disciplined by the military for obeying President Obama’s orders is entirely speculative. He might be disciplined for disobeying those orders, but he has an ‘available course of action which subjects [him] to no concrete adverse consequences’—he can obey the orders of the Commander-in-Chief.”) (emphasis in original)) and Crane, 920 F. Supp. 2d at 738 (finding that the ICE agents challenging DACA have “suffered an injury-in-fact by virtue of being compelled to violate a federal statute upon pain of adverse employment action,” and otherwise satisfy the requirements for standing). After finding that the plaintiffs have standing, and are likely to prevail on the merits of their claim that DACA violates the INA, the court in Crane ultimately found that it lacks jurisdiction because the ICE agents’ claims are within the exclusive jurisdiction of the MSPB. Crane, Order, supra note 79.
83 Donelon, 552 F.3d at 568 (emphasis in original).



The Court has similarly emphasized the potential “diplomatic repercussions”
        a) of certain decisions
                i) made by immigration officers
                ii) (e.g., determining whether to grant
                        A) withholding of removal or
                        B) an alien’s petition to reopen deportation proceedings).86

Moreover,

in some cases,

courts have found that
        a) challenges
                i) to the alleged nonenforcement
                        A) of immigration laws

          involve nonjusticiable political questions
        b) because they fundamentally entail disagreements
                i) about the proper extent
                        A) of immigration enforcement.87


Constitution

The U.S. Constitution can be seen
        a) as imposing two potential limitations
                i) upon the executive branch’s exercise
                        A) of prosecutorial discretion,




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세금과 법률
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세금과 법률, 부동산경매, 토지수용, 이민
(TAX & LAW, REAL ESTATE, IMMIGRATION)

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