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Being the first isn’t always the same as being the best.  That is certainly true for U.S. District Judge Arthur J. Schwab’s decision finding President Obama’s executive order on immigration unconstitutional.  In his hunger to be first, Judge Schwab didn’t find the right case to give his opinion on.In October of 2014, Elionardo Juarez-Escobar plead guilty to re-entering the U.S. illegally after being deported in 2005.  This is considered a felony.  Following President Obama’s Executive Order, and before sentencing, Judge Schwab asked the Mr. Juarez-Escobar and the prosecutor to opine on the application of the Executive Order to the defendant.  The Justice Department said the policy doesn’t apply to Mr. Juarez-Escobar.  Neither the prosecutor nor the Mr. Juarez-Escobar’s attorney raised the issue.  The Judge didn’t seem to care; he ruled the executive action unconstitutional anyway.  That is why there isn’t a stay in place.  It is also why the decision has no bearing on the implementation of Deferred Action for Childhood Arrivals (DACA) or Deferred Action for Parental Accountability (DAPA).

Truthfully, Deferred Action isn’t relevant to this case.   Mr. Juarez-Escobar plead guilty to a felony.  That likely would disqualify him from Deferred Action, a discretionary program if he qualified.  But he doesn’t qualify.  Mr. Juarez-Escobar didn’t enter the U.S. before he turned 16 (so no DACA) or have any children who are U.S. citizens or Lawful Permanent Resident (so no DAPA).  Even if he wanted to apply, Mr. Juarez-Escobar couldn’t.What did Judge Schwab focus on?  The Judge focused on the new priorities for deportation that the President announced on November 20, 2014.  Here is the problem; those are not issues properly being considered in a criminal case.  It would be great if a criminal judge could consider the immigration impact in his or her decision.  They can’t.  The criminal Judge will make his or her decision based on the case before him.  Immigration services will then apply the priorities and determine in its discretion whether to put the defendant in immigration proceedings.  Because Mr. Juarez-Escobar has already been deported if he doesn’t qualify for relief and get a solid removal defense strategy by first filing a stay of removal, Form I-246, immigration will almost certainly deport him.  Those are the facts.Judge Schwab made an attention grabbing decision that isn’t binding on the implementation of DACA or DAPA.  There are additional substantive challenges to his opinion and those will come via the over 20 lawsuits filed on behalf of States throughout the U.S.  The same way those challenges were raised following DACA.  They are likely to be just as successful now as they were in 2012, meaning not at all.

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