WASHINGTON - A federal appeals court has taken what some attorneys called the unprecedented step of demanding to know if the government plans to prosecute seven illegal immigrants who have no other criminal record.
The order from a three-judge panel of the 9th U.S. Circuit Court of Appeals cites 2011 memos from Immigration and Customs Enforcement that spell out when and how the agency may exercise "prosecutorial discretion" in immigration enforcement cases.
The court, in a series of opinions last week, gave ICE until March 19 to say whether it intends to exercise that discretion in five immigration appeals involving seven individuals.
Each of the defendants fits one or more of the criteria outlined in the 2011 ICE memo: no criminal record, long-term presence in the country, medical issues, or family members who are U.S. citizens, among other elements.
But in a sharp dissenting opinion, Judge Diarmuid O'Scannlain called the judges' demand for information from prosecutors an "audacious" ruling that crossed the court's constitutional bounds.
"We certainly lack authority to demand a pre-emptive peek into whether and when (and no doubt, before long, why) the executive branch will exercise such discretion," O'Scannlain wrote.
Ira Mehlman, spokesman for the Federation for American Immigration Reform, agreed that the court had overstepped its authority in the published opinions.
"This is not the role of the court to basically legislate our immigration policy," he said. "It's based on the faulty premise that the law is made by the executive branch, rather than the legislative branch."
An ICE spokeswoman said that the agency is working with the Justice Department on a response that will meet the court's March 19 deadline, but she declined further comment.
ICE Director John Morton in June issued guidance on how to implement the new policy of prioritizing cases, which he said was needed to best use limited agency resources in the fight against illegal immigration. That was followed later in the year by training of staff and the announcement of test programs in immigration courts in Baltimore and Denver.
But attorneys said last week's rulings appeared to be the first time the new procedures have reached an appellate court.
"I think these are test cases," said Delia Salvatierra, an Arizona immigration attorney, calling these particular cases "ripe" for review.
Salvatierra said the opinions are "a very clear message" that the court wants attorneys on both sides to talk about "closing these cases and negotiating administrative release."
Bernadette Connolly, a defense attorney in one of the cases, said she did not ask for the ruling on the ICE memo and was surprised by the opinion. Connolly, who represents David Aranda Rodriguez, said the court ruling could ultimately mean her client can stay in the country with his family, although she cautioned that it's too early to predict.
Connolly said the ruling is significant because it extends the exercise of prosecutorial discretion from prosecutors and immigration courts "to the appellate level."
Salvatierra called the ruling courageous, especially in the face of such a strong dissent. She said it could result in easing the court's backlog of immigration cases.
"It's giant and it's a win for the government and its resources and how it uses its resources," she said. "And I think it's a win for immigrants who are here illegally but have otherwise contributed … to our society."
Muzaffar Chishti, director of the Migration Policy Institute at New York University Law School, said it's "perfectly legitimate" for the court to demand to know ICE's intentions. He said the judges had struck the "right balance" by simply requesting what the attorney general's intentions are with the cases, but not overturning the underlying deportation rulings.
"Folks cannot second-guess the discretion" that an agency like ICE has, Chishti said, as long as that discretion is not exercised in an arbitrary or capricious manner.
"Looks like a perfectly reasonable thing to do," Chishti said of the appeals court ruling.