“Immigration Group Says Protected Dreamer Deported,” reads a recent CBS News Headline. The mainstream media is throwing a collective hissy fit because the Trump administration deported Juan Manuel Montes – a self-admitted illegal alien, present in the U.S. under the constitutionally questionable Deferred Action for Childhood Arrivals (DACA) program. And they’re now accusing Team Trump of political blasphemy for having had the temerity to ignore the Obama administration’s illegal executive amnesty.
However, it is the press, not the president, that has gotten it all wrong. Deferred action offers no legal protection of any kind. Under the American legal system, the Executive Branch of government is entitled to determine how and when it will enforce the law. This prerogative is referred to by a variety of names –prosecutorial discretion, executive discretion, administrative discretion. But they all mean the same thing: no one can force the Executive Branch to prosecute a particular individual for a specific violation of law.
Administrative discretion is usually exercised on a case-by-case basis. Typically, there is no formal application process and no method of designating someone as the recipient of administrative discretion. And the exercise of discretion is usually for the administrative convenience of the enforcement agency, not for the benefit of the individual against whom enforcement is being contemplated.
Deferred action is a form of administrative discretion. It is not a positive benefit that confers any legal entitlement. Instead the Department of Homeland Security (DHS) simply refrains from acting. But nothing binds the government to continued inaction. When it chooses, DHS may simply lodge charges with the Immigration Court or directly deport those who are subject to expedited removal.
The Obama administration’s transformation of administrative discretion into a blanket executive amnesty vastly exceeded the constitutional authority granted to the president. Administrative discretion developed to aid Executive Branch agencies in enforcing the law. It was never intended as a mechanism for thwarting the will of Congress. That’s why the state of Texas questioned the legality of the program and was able to obtain a preliminary injunction against its expansion.
Details in the Juan Manuel Montes case are still emerging. It appears that Mr. Montes had a criminal record and was apprehended by U.S. Customs and Border Protection after being observed unlawfully re-entering the U.S. at Calexico, California. But the actual facts and circumstances of the case are far from clear.
They’re also totally irrelevant. Contrary to popular opinion, Mr. Montes didn’t receive “protected status,” pursuant to DACA. He received a temporary reprieve. And when DHS decided that the clock had run on that postponement, it was well within its rights to remove him. Unlawful presence in the United States, in and of itself, is a valid basis for deportation.