CA2 Slaps OIL for PD Posture: Akinsade v. Holder

"[W]e pause to express a concern, unrelated to the grounds on which we resolve this appeal. At argument, we asked the government, for informational purposes, whether Akinsade’s case might be one in which relief from prosecution would be exercised, pursuant to the Morton Memoranda. See Memorandum from John Morton, Director, U.S. Immigration and Customs Enforcement, to All ICE Employees (Mar. 2, 2011) (“Subject: Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens”); Memorandum from John Morton, Director, U.S. Immigration and Customs Enforcement, to All Field Office Directors, All Special Agents in Charge, All Chief Counsel (June 17, 2011) (“Subject: Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens”). Under the terms of the Morton Memoranda, the government announced that it would be reviewing all immigration cases as part of its initiative to focus on those who have committed violent crimes, and with the prospect of granting relief from prosecution in the exercise of discretion as to cases that met certain criteria. The government responded that Akinsade’s having filed a coram nobis petition in another proceeding challenging the constitutionality of his underlying conviction was a factor in the government’s decision not to exercise its prosecutorial discretion. See Tr. 20:4-7 (“[T]his is an individual who’s attacking his removal order and is attacking his criminal conviction. And I would doubt that [ICE officials] would exercise prosecutorial discretion in this case . . . .”); id. 22:1-7 (Whether an individual is “pursuing his rights” is “certainly in the background that could be looked at in this case in terms of why should we exercise prosecutorial discretion with respect to this particular individual. And that will be part of the mosaic that the immigration authorities would look at.”). We would be troubled if indeed it is the government’s position that petitioners will be penalized for exercising their legitimate rights to pursue their arguments fully. See Harlen Assocs. v. Inc. Village of Mineola, 273 F.3d 494, 499 (2d Cir. 2001) (holding that differential treatment based on the “‘intent to inhibit or punish the exercise of constitutional rights’” was basis for selective enforcement claim) (quoting LaTriest Rest. & Cabaret v. Village of Port Chester, 40 F.3d 587, 590 (2d Cir. 1994))." - Akinsade v. Holder, May 1, 2012.