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Aug. 14 — Maricopa County (Ariz.) Sheriff Joe Arpaio cannot maintain his lawsuit against the Obama administration's deferred action programs because he can't show a connection between them and his claim that they will increase crime in his county, a federal appeals court in Washington, D.C., ruled Aug. 14.
Affirming a federal judge's finding that Arpaio lacks standing to bring his claims, the U.S. Court of Appeals for the District of Columbia Circuit rejected the sheriff's claim that the deferred action for childhood arrivals (DACA) program and new deferred action for parents of Americans and lawful permanent residents (DAPA) program will increase crime in Maricopa County because they will draw additional undocumented immigrants and deport fewer undocumented immigrants.
Arpaio's “allegations that the policies will cause more crime in Maricopa County are unduly speculative,” Judge Cornelia T.L. Pillard wrote for the court. “Projected increases he anticipates in the county's policing burden and jail population rest on chains of supposition and contradict acknowledged realities.”
With respect to Arpaio's “magnet theory,” the court said his ability to prove that DACA and DAPA would lead to additional crime by future undocumented immigrants is “compounded here because the third-party conduct the complaint forecasts depends on large numbers of people having the same unlikely experiences and behavior.” Furthermore, even if it could be argued that DACA and DAPA will lead to additional illegal immigration, the court found it speculative that future unauthorized immigrants also would commit crimes in Maricopa County.
Arpaio's second argument—that DACA and DAPA would lead to fewer undocumented immigrants being deported and thus more crime in the county—is undercut by the programs' premise, which is to prioritize the deportation of criminals over those who don't pose a public safety threat, the court said.
Judge Sri Srinivasan joined the opinion.
Judge Janice Rogers Brown wrote a concurring opinion, agreeing that Arpaio lacks standing but raising questions about the court's standing doctrine and whether the DACA and DAPA programs pass constitutional muster.
The same day that President Barack Obama announced his executive action on immigration, Arpaio filed a lawsuit challenging two elements of that action: the expanded DACA program and the new DAPA program. He also challenged the original DACA program, which was launched in 2012.
Both programs defer deportation and provide work authorization to undocumented immigrants who either came to the U.S. as children or who have U.S. citizen or lawful permanent resident children, and who don't pose a public safety or national security threat. The expanded versions of DACA and DAPA have been on hold since a federal judge in Texas issued a preliminary injunction barring their implementation in February (Texas v. United States, 2015 BL 39832, S.D. Tex., No. 1:14-cv-00254, preliminary injunction issued 2/16/15).
In the Texas case, the U.S. Court of Appeals for the Fifth Circuit affirmed that the plaintiff states have standing based on harm stemming from the cost of providing driver's licenses, which under state law would have to be issued to DACA and DAPA recipients (Texas v. United States, 2015 BL 164655, 787 F.3d 733 (5th Cir. 2015).
In the present case, however, the U.S. District Court for the District of Columbia in December found that Arpaio's alleged injury of having to handle additional crime couldn't be directly traced to DACA and DAPA, so he lacked standing to pursue his claims that the programs are unconstitutional.
Affirming, the D.C. Circuit distinguished the Fifth Circuit's decision. “Sheriff Arpaio’s contention is, at bottom, premised on the speculative prediction that DACA and DAPA will create incentives on third parties to behave in misinformed or irrational ways that would harm him,” Pillard wrote. “The claim in Texas, by contrast, was that undocumented aliens immediately become eligible for the license benefit by dint of becoming DAPA beneficiaries. Insofar as those circumstances pose ‘actual and imminent' concrete harm to Texas, we face a significantly different situation here.”
On Arpaio's claim that DACA and DAPA will lead to additional illegal immigration and thus more crime, the court rejected his contention that the original DACA program caused the influx of undocumented minors during the summer of 2014.
Even assuming that the administration's programs will increase illegal immigration, the court said it cannot draw the further inference that they necessarily will increase crime. “At base, Sheriff Arpaio’s contention is that more immigrants mean more crime,” Pillard wrote. “There is simple appeal to the notion that, all else being equal, more people will commit more crime. But the reality is that crime is notoriously difficult to predict,” she said.
Turning to Arpaio's argument that DACA and DAPA also will lead to fewer deportations and thus more crime, the court said the programs don't contemplate “the net removal of fewer individuals under the policies than under the status quo ante.” It also rejected the claim that the shift in administration enforcement and removal priorities will lead to additional crime in Maricopa County.
“Sheriff Arpaio’s prediction of an increase in undocumented aliens committing crime runs contrary to the thrust of those policies,” Pillard wrote. “DACA and DAPA apply only to non-dangerous immigrants. They are designed to allow the Department to focus its resources on removing those undocumented aliens most disruptive to the public safety and national security of the United States,” she said.
“Sheriff Arpaio has not explained how making the removal of criminals a priority over the removal of non-dangerous individuals will instead result in an increase in crime,” the court stated.
In her concurrence, Brown said some “may find today's outcome perplexing,” pointing out that “at first blush” Arpaio's allegations appear similar to those in Massachusetts v. EPA, 549 U.S. 497 (2007). In that case, the U.S. Supreme Court found that Massachusetts had standing to challenge the Environmental Protection Agency's alleged lack of regulation of greenhouse gas emissions, based on the anticipated loss of a portion of its coastline to climate change.
“Without the laxity afforded to state litigants, Sheriff Arpaio's arguments for causation are overly speculative,” Brown wrote.
The “central difference between this case and Massachusetts may be much more practical in nature: Massachusetts, unlike Sheriff Arpaio, did its homework,” Brown said, noting that the state hired experts and presented detailed information on the causal connection between greenhouse gases, climate change and the rise in sea levels.
Brown emphasized the narrowness of the court's ruling. The court held that Arpaio lacks standing, not that DACA and DAPA can't be challenged in court; and the decision doesn't “take issue” with the contention that “unlawful immigration carries consequences,” she said.
She also commented on the history of the standing doctrine, which she said shows a “surprising hostility to suits seeking to redress executive branch wrongdoing.” In addition, it means that “[s]ophisticated, well-resourced litigants can game the system, producing the types of proof that pass muster, while less sophisticated litigants may be left outside the courthouse doors,” Brown wrote.
“Today’s decision teaches a lesson: litigants bringing constitutional challenges must pay exceptionally close attention to standing requirements,” Brown said. “The courts do—especially when litigants do not.”
Larry Klayman of Washington represented Arpaio. Beth S. Brinkmann of the Justice Department in Washington represented the administration.
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Text of the opinion is available at http://www.bloomberglaw.com/public/document/Joseph_Arpaio_v_Barack_Obama_et_al_Docket_No_1405325_DC_Cir_Dec_2.
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