Federal Court Finds Napolitano and Morton DACA Directive Illegal

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.

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Content written by Federation for American Immigration Reform staff.


  1. avatar

    He said the law must be followed. What a concept. And let’s not forget the very important fact that IF the Dream Act had been passed, it would be the legal law of the land, and Napolitano WOULD have had the power to do whatever she wanted, including ordering what she ordered these agents to do.

    The point being, this current “reform” bill would give her the same authority to suspend any and all enforcement she feels like suspending. Because it gives her or any future head of Homeland Security the same legal power to do so.

    So, instead of the many solemn promises of how the law will be enforced as part of any reform package, the fact is it will WEAKEN present laws. It’s a Trojan horse. You have to look for what it contains, and it is NOT increased enforcement but the opposite. Another case of trust us even though we’re looking at four decades of broken enforcement promises. It’s like the husband who says, yeah you’ve caught me with 50 women, but just trust me this one more time.

  2. avatar

    The Money Hungry Federal Case Attorneys Will Split the Immigration Litigation Deficit Spoils

    And meanwhile, nothing against the illegal aliens involved will be done anyway…and the American taxpayer foots the bill for this amnesty charade.