Kansas Secretary of State and SB 1070 architect Kris Kobach spoke to Janet Mefferd today about a new lawsuit contesting the recent executive order blocking deportation of some younger undocumented immigrants. According to the executive order, young undocumented immigrants who were brought to the U.S. as children can apply for “deferred action,” giving them protection from deportation, as long as they have no criminal background and either have served in the military or received a high school diploma or GED. Kobach told Mefferd that the “shocking” decision has no precedent.

However, this is not the first time prosecutorial discretion has been used in immigration cases. As the Immigration Policy Center notes, the U.S. Citizenship and Immigration Services “exercised its prosecutorial discretion when it adopted a new policy establishing a procedure for surviving spouses and children of deceased U.S. citizens, who were no longer eligible to apply for permanent residence, to apply for deferred action.” Justice Anthony Kennedy in the majority opinion in Arizona v. United States (2012) also affirmed the right of the federal government to exercise such discretion:

“A principal feature of the removal system is the broad discretion exercised by immigration officials,” wrote Justice Anthony Kennedy, the author of the opinion. “Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all.” “Discretion in the enforcement of immigration law em¬braces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who com¬mit a serious crime,” Kennedy’s majority decision continued. “The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service.”

Later in the interview, Kobach suggested that undocumented immigrants who came to the U.S. on no fault of their own should leave the U.S. and return to their country of origin once they become adults and even falsely claimed that immigrants who commit crimes in the U.S. are eligible for deferred action.