A score the immigration
Tom.
Congress gave the attorney general
Quote unquote soul and unreviewable discretion. The side whether
expedite expedited, renewed removal would apply to quote an alien.
Was not been paroled or admitted to the United States.
You decided a case?
Called Make the Road New York
Where you seem to agree that Congress gave the department, homeland
Security, soul and unreviewable discretion.
To decide which illegal immigrants would be.
Subject to expedite.
Removed.
But you still went on to review the department's decision. In fact,
you issued in nationwide injunction blocking Department of Homeland
Security from removing
Illegal immigrants who had been in the country for less than two
years.
In that hearing. You told us
There is the tax was clear that ended the question the law specifically
says.
That homeland security not the courts was responsible for making
the decision. Could you please explain why you believed federal Court
could review something Congress called on reviewable?
Thank you, Senator for allowing me to address that opinion in my
analysis with respect to it.
Um, as you said, make the road was a
Case involving a challenge to expedited removal, which was a Um
uh, a way in which Congress had given the authority to homeland to
the Department of Homeland Security.
To make a decision about how to deport people.
Who are non citizens.
Prior to the challenge that I heard
The Department of Homeland Security
since it received that authority several decades ago had decided
that people who are in this country for up to 14 days
And are found within 100 miles of the border.
Are subject to expedited removal.
The challenge that
I heard involved the department sudden shift to a determination.
That expedited removal would be applied to anyone who has found anywhere
in the country and who had been here up to two years.
Importantly, the challenge was not
About the actual determination.
The challenge was about the procedures that the agency undertook
to make that determination. And so the statute said, as you
Rightly pointed out.
That the agency had soul and unreviewable discretion to decide.
Adding interpreting that I took into account
The language of that statute and
The language of another statute that Congress has enacted to direct
agencies with respect to the manner in which they exercise their
discretion.
So I said, And I believed, um, that soul meant that the Department
of Homeland Security
Was the only agency who got to make this determination as to how
many months a person should be in the United States.
And unreviewable meant it was final once the agency decided.
Um then there was no ability to review substantively their determination
and I should say that importantly, the statute
That Congress enacted
Gave the agency the discretion to make this determination between
zero and 24 months.
There is a limit in the statute. It says Congress you. I mean, excuse
me. Department of Homeland Security. You get to decide where between
zero and 24 months. Uh, a person.
Who's been in this country can be subject to expedited removal.
So I read the statute.
DHS gets the soul ability to make that decision. DHS makes that decision
and it's final. What wasn't clear to me based on that language?
Was whether Congress intended to preclude
It's a procedural requirements for the exercise of agency discretion.
And in the D C circuit. There was precedent that indicated that even
when
Congress gives a great deal of discretion to an agency.
Procedural requirements may still apply. It is presumptive that the
EPA applies meaning that an agency can't act arbitrarily and capriciously
when it
Undertakes to exercise discretion. It has to do certain things in
order to make the determination that Congress has given it.
I looked at those statutes. Oh, I'm sorry. No, I looked at those
statutes and I've
Considered.
The canons of construction that say that statute should be read harmoniously
that you're that that as a court, you're supposed to understand that
Congress has directed sometimes in more than one statute. What is
supposed to happen, and so I read them together.
To mean.
That the court could still do what it Oh, almost always does in a
case
Involving a challenge to the manner in which an agency makes its
decision. And in fact, I thought, as I say, in my opinion,
That Congress intended for the EPA to imply because it had not excluded
it, which it had done expressly in other parts of the of the I n
A. It had not excluded it here.
And
It made sense to, uh, require the agency to use its expertise if
Congress wanted the agency to act arbitrarily in picking a number.
Congress could have done that.
Congress said You can do it up to 24 months, it could have randomly
picked the number.
But it was giving it to the agency. I thought and reason to precisely
because it wanted the agency to use its expertise to do its research
to figure out
What
Amount of time is sufficient. And so it was important. I thought,
um, to lay that out in the statute.
And I determined that both of those statutory directives of Congress