United States District Court, W.D. Pennsylvania
For ELIONARDO JUAREZ-ESCOBAR, USMS 35329068, Defendant: Alonzo Burney, LEAD ATTORNEY, McKeesport, PA.
For USA, Plaintiff: Charles A. Eberle, LEAD ATTORNEY, United States Attorney's Office, Pittsburgh, PA.
MEMORANDUM OPINION AND ORDER OF COURT RE: APPLICABILITY OF PRESIDENT OBAMA'S NOVEMBER 20, 2014 EXECUTIVE ACTION ON IMMIGRATION TO THIS DEFENDANT
Arthur J. Schwab, United States District Judge.
On November 20, 2014, President Obama announced an Executive Action on immigration, which will affect approximately four million undocumented immigrants who are unlawfully present in the United
States of America. This Executive Action raises concerns about the separation of powers between the legislative and executive branches of government. This core constitutional issue necessitates judicial review to ensure that executive power is governed by and answerable to the law such that " the sword that executeth the law is in it, and not above it." Laurence Tribe, American Constitutional Law, 630 (3ed.-Vol. 1) (2000), quoting James Harrington, The Commonwealth of Oceana 25 (J.G.A. Pocock ed. 1992)(originally published 1656).
The Court, in this Memorandum Opinion, addresses the applicability of this Executive Action to Elionardo Juarez-Escobar, an undocumented immigrant, who has pled guilty to re-entry of a removed alien in violation of 8 U.S.C. § 1326, and who is awaiting sentencing.
Defendant is approximately 42 years of age. He was born in Honduras and his first language is Spanish. On October 21, 2005, Defendant was arrested in Lordsburg, New Mexico, by the United States Border Patrol. He was subsequently issued an Expedited Removal Order (via an administrative procedure), and was formally removed from the United States on December 5, 2005.
During the change of plea hearing held by this Court, Defendant testified, through a court-appointed interpreter, and with the assistance of court-appointed counsel, that he returned to the United States in the following manner: At an unknown time after 2005, Defendant traveled by land from Mexico and entered into the United States through Texas. While in Texas, Defendant saw an advertisement in a local newspaper for transportation vans. Defendant responded to the advertisement and paid an individual to drive him from Texas to New York. Once in New York, a friend drove Defendant to Pittsburgh to be re-united with his brother.
Defendant's brother is a citizen of the United States and owns a landscaping business in Pittsburgh. Defendant has worked for his brother's landscaping business for at least two (2) years. He has also done painting and construction work for friends while he has resided in the United States. Defendant presumably came to the United States in an attempt to make money and in search of a better quality of life than he had in Honduras. Defendant attempted to " file" income taxes for " a couple of years," but was unable to do so because he does not have a Social Security number.
On April 7, 2014, Defendant was stopped by a New Sewickley Township Police Officer after he drove his vehicle around a traffic stop. The Officer noticed open beer cans in the back seat of the vehicle and observed that Defendant might be intoxicated. Henry Gomez, a minor, was also present in the vehicle. Defendant failed field sobriety tests and submitted to a blood test at Heritage Valley Medical Center-Beaver. His blood alcohol level was .180%, which is above Pennsylvania's legal limit of alcohol of .08%. Defendant was released pending the filing of a criminal complaint. As a result of this encounter,
Defendant was charged with two (2) counts of Driving under the Influence of Drugs or Alcohol, Corruption of Minors, Selling/Furnishing Liquor to a Minor, and Driving Without a License. CR 208-2014/T468050-2.
On June 23, 2014, Defendant's immigration status was referred to the United States Department of Homeland Security (" Homeland Security" ). Homeland Security determined that Defendant was unlawfully present in the United States because he had been removed from the United States on December 5, 2005, and had thereafter re-entered the country without the permission of the United States Attorney General or the Secretary of the Department of Homeland Security.
II. Procedural Posture
A. How Defendant's Case Came to be before this Court
Defendant appears before this Court, in part, because of arguably unequal and arbitrary immigration enforcement in the United States.
As noted above, a New Sewickley Township Police Officer arrested Defendant and Homeland Security was notified of his potential undocumented status following his arrest. The Commonwealth of Pennsylvania is not a " sanctuary state." There is very little " official" information concerning " sanctuary cities" or " sanctuary states." In Veasey v. Perry, 13-CV-00193, 2014 WL 5090258, *17, fn 149 (S.D. Tex. October 09, 2014), a Federal Judge for the United States District Court for the Southern District of Texas defined " sanctuary cities" as " cities that have refused to fund law enforcement efforts to look for immigration law violators, leaving that to the federal government. S.J. of Tex., 82nd Leg., R.S. 8 (2011) (designating the elimination of sanctuary cities as a legislative emergency)."
Had Defendant been arrested in a " sanctuary state" or a " sanctuary city," local law enforcement likely would not have reported him to Homeland Security. If Defendant had not been reported to Homeland Security, he would likely not have been indicted for one count of re-entry of a removed alien in violation of 8 U.S.C. § 1326.
Further, neither a federal indictment nor deportation proceedings were inevitable, even after Immigration and Customs Enforcement (" ICE" ), a division of Homeland Security, became involved. In 2013, ICE personnel declined to bring charges against thousands of undocumented immigrants who had previous criminal convictions.
Therefore, Defendant possibly would not be facing sentencing and/or deportation if
he had been arrested under the same circumstances, but in another city/state or if different ICE personnel had reviewed his case.
B. Procedural History to Date
Defendant has been incarcerated since July 22, 2014, when he was arrested and detained by Homeland Security. On July 29, 2014, a grand jury returned an indictment against Defendant for one count of re-entry of a removed alien in violation of 8 U.S.C. § 1326. Doc. No. 1. Defendant appeared before United States Magistrate Judge Maureen P. Kelly for an Initial Appearance and, a few days later, for an Arraignment. Doc. Nos. 6, 12. Defendant, through a court-appointed interpreter, and with assistance of counsel, pled not guilty to the charge. Doc. No. 13.
The Court was informed of Defendant's decision to change his plea to guilty and proceed to sentencing in late August, 2014. The Court scheduled a hearing thereon for October 21, 2014, based upon the availability of a certified court-appointed interpreter. 09/09/2014 Text Order. The Court ordered the United States Probation Office to file a Pre-Plea Presentence Investigation Report addressing Defendant's criminal and work history in preparation for the change of plea and sentencing hearing. Doc. No. 19.
On October 21, 2014, the Court held a hearing, which Defendant, his counsel, and Assistant United States Attorney Eberle attended. Doc. No. 24. There was no plea agreement in this case.
During the hearing, the Court informed Defendant of his rights, and the consequences of waiving those rights, including potential deportation, if Defendant pled guilty. Id. The Assistant United States Attorney outlined that Defendant had been physically removed from the United States in 2005, and had been informed, at that time, that he could not re-enter the United States without obtaining permission from the United States Attorney General or the Secretary of the Department of Homeland Security prior to any re-entry into the country. Defendant was found to be " in the United States" as a result of his April 7, 2014, encounter with law enforcement. Defendant did not have permission from the United States Attorney General or the Secretary of the Department of Homeland Security to be in the United States.
During the change of plea hearing, Defendant accepted responsibility for his actions, evidenced that he understood his rights, and proceeded to waive his right to a trial and pled guilty to one count of re-entry of removed alien, as charged in the indictment. Doc. No. 25. The Court asked the Assistant United States Attorney to inquire into whether Defendant's employers had reported Defendant's wages for federal tax purposes. The sentencing hearing will be scheduled by this Court.
Historically, this Court has sentenced defendants who are charged with unlawfully re-entering the United States to time-served (normally within an advisory sentencing guideline range of 0-6 months) and one (1) year supervised release with the added condition that the defendant shall not re-enter the United States, without lawful authorization. The Court also customarily orders that supervised release be suspended due to anticipated removal/deportation.
In this case, Defendant's applicable advisory guideline range, based upon an offense level of 6 and a criminal history category of I, is 0-6 months imprisonment. Doc. No. 20. The date of January 22, 2015, six (6) months after Defendant's detention by Homeland Security, marks the end of this time period. A term of supervised
release of not more than one (1) year may also be imposed as part of Defendant's sentence. Id.
C. Request for Legal Briefing by This Court
On November 24, 2014, in light of the recently announced Executive Action, the Court requested counsel for the Government and for Defendant to brief the following issues, on or before noon on December 5, 2014:
1. Does the Executive Action announced by President Obama on November 20, 2014, apply to this Defendant?
A. If yes, please provide the factual basis and legal reasoning.
B. If no, please provide the factual basis and legal reasoning.
2. Are there any constitutional and/or statutory considerations that this Court needs to address as to this Defendant? If so, what are those constitutional and/or statutory considerations, and how should the Court resolve these issues?
Doc. No. 26. The Court also invited any interested amicus to submit briefs by the same date. Id. Any party could file a response thereto on or before noon on December 11, 2014. Id.
The Government, in its four (4) page response thereto, contended that the Executive Action is inapplicable to criminal prosecutions under 8 U.S.C. § 1326(a), and argued that the Executive Action solely relates to civil immigration enforcement status. Doc. No. 30.
Defense Counsel indicated that, as to this Defendant, the Executive Action " created an additional avenue of deferred action that will be available for undocumented parents of United States citizen[s] or permanent resident children."  Doc. No. 31, 3. In addition, Defense Counsel noted that the United States Citizenship and Immigration Services (" USCIS" ) " has announced that certain citizens of Honduras living in the United States are eligible to extend their Temporary Protected Status (TPS) so as to protect them from turmoil facing the citizens of that nation." Id. at 5.
III. Is President Obama's November 20, 2014 Executive Action on Immigration Constitutional or Unconstitutional?
A. Separation of Powers Under the Constitution
Under our system of government in the United States, Congress enacts laws and the President, acting at times through agencies, " faithfully execute[s]" them. U.S. Const., Art. II, § 3 (the " Take Care Clause" ; also known as the " Faithful Execution Clause" ).
In N.L.R.B. v. Canning, the United States Supreme Court reiterated that:
[T]he separation of powers can serve to safeguard individual liberty . . . and that it is the " duty of the judicial department" -- in a separation-of-powers case as in any other -- " to say what the law
is," Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 177, 2 L.Ed. 60 (1803).
573 U.S. __, 134 S.Ct. 2550, 2559-60, 189 L.Ed.2d 538 (Jun. 26, 2014).
The Court requested that the parties provide briefs to assist the Court in determining whether the Executive Action on immigration announced on November 20, 2014, would impact the sentencing of this Defendant. Specifically, this Court was concerned that the Executive Action might have an impact on this matter, including any subsequent removal or deportation, and thereby requiring the Court to ascertain whether the nature of the Executive Action is executive or legislative.
B. Substance of the Executive Action
On November 20, 2014, President Obama addressed the Nation in a televised speech, during which he outlined an Executive Action on immigration. Text of Speech: http://www.whitehouse.gov/the-press-office/2014/11/20/remarks-president-address-nation-immigration. President Obama stated that the immigration system is " broken," in part because some " play by the rules [but] watch others flout the rules." President Obama outlined that he had taken actions to secure the borders and worked with Congress in a failed attempt to reach a legislative solution. However, he stated that lack of substantive legislation necessitated that his administration take the following actions " that will help make our immigration system more fair and more just" :
First, we'll build on our progress at the border with additional resources for our law enforcement personnel so that they can stem the flow of illegal crossings, and speed the return of those who do cross over.
Second, I'll make it easier and faster for high-skilled immigrants, graduates, and entrepreneurs to stay and contribute to our economy, as so many business leaders have proposed.
Third, we'll take steps to deal responsibility with the millions of undocumented immigrants who already live in our country.
As to this third action, which may affect Defendant, President Obama stated that he would prioritize deportations on " actual threats to our security." The President also announced the following " deal" :
If you've been in America for more than five years; if you have children who are American citizens or legal residents; if you register, pass a criminal background check, and you're willing to pay your fair share of taxes -- you'll be able to apply to stay in this country temporarily without fear of deportation. You can come out of the shadows and get right with the law. That's what this deal is.
Thus, in essence, the President's November 20, 2014 Executive Action announced two different " enforcement" policies: (1) a policy that expanded the granting of deferred action status to certain categories of undocumented immigrants; and, (2) a policy that updated the removal/deportation priorities for certain categories of undocumented immigrants.
1. Deferred Action
The first policy (on deferred action) provides that individuals who fall within each of these proscribed categories would not be deported by President Obama's administration. (" All we're saying is that we're not going to deport you." ). According to the President, his Executive Action does not grant citizenship, the right to permanent residence, or entitlement to benefits of citizenship, and does not apply to individuals who: (1) have " recently" come to the United States; or (2) those who might come in the future. However, the Executive
Action does " create" substantive rights, including legal work authorization documentation, access to social security numbers, and other tangible benefits.
This Executive Action has been implemented through Memoranda by the Secretary of the Department of Homeland Security. Ex. Jeh Charles Johnson, Secretary, U.S. Department of Homeland Security, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who are the Parents of U.S. Citizens or Permanent Residents, November 20, 2014. Under the Executive Action and applicable administrative guidance, an undocumented immigrant would be eligible for deferred action if he or she applied for deferred action and if he or she:
(1) is not an enforcement priority under Department of Homeland Security Policy;
(2) has continuously resided in the United States since before January 1, 2010;
(3) is physically present in the United States both when Homeland Security announces its program and at the time of application for deferred action;
(4) has a child who is a U.S. citizen or Lawful Permanent Residence; and
(5) presents " no other factors that, in exercise of discretion, make the grant of deferred action ...