... The word "shall" is imperative and, regardless of whether or not it eliminates
discretion, it certainly deprives the DHS of the right to do something that is clearly contrary to
Congress' intent.
That being the case, this Court finds that the presumption of unreviewability, even if
available here, is also rebuttable under the express theory recognized by the Heckler Court. In
Heckler, the Supreme Court indicated that an agency's decision to "'consciously and expressly
adopt[] a general policy' that is so extreme as to amount to an abdication of its statutory
responsibilities," would not warrant the presumption of unreviewability. 470 U.S. at 833 n.4
(citing Adams v. Richardson, 480 F.2d 1159 (D.C. Cir. 1973)).82
Since Heckler and Adams, it has clearly been the law that "[r]eal or perceived inadequate
enforcement of immigration laws does not constitute a reviewable abdication of duty." See
Texas, 106 F.3d at 667. That is not the situation here.
This Court finds that DAPA does not
simply constitute inadequate enforcement; it is an announced program of non-enforcement of the
law that contradicts Congress' statutory goals. Unlike the Government's position in Texas v.
In Adams, as noted above in the abdication discussion, the agency-defendants (including executive officials of
Health, Education, and Welfare (HEW» were sued for not exercising their duty to enforce Title VI of the Civil
Rights Act because they had not been taking appropriate action to end segregation in schools receiving federal
funds, as required by the Act. Defendants insisted that enforcement of Title VI was committed to agency discretion
and thus that their actions were unreviewable. The Court first noted that the agency-discretion-exception in the APA
is a narrow one, citing Citizens to Preserve Overton Park. It found that the statute provided "with precision the
measures available to enforce" Title VI and thus the terms of the statute were "not so broad as to preclude judicial
review." Like Defendants here, the defendants in Adams relied on cases in which courts declined to interfere with
exercises of prosecutorial discretion. Rejecting defendants' reliance on those cases, the court emphasized: "[t]hose
cases do not support a claim to absolute discretion and are, in any event, distinguishable from the case at bar."
Unlike the cases cited, Title VI required the agency to enforce the Act and also set forth specific enforcement
procedures. The INA removal provisions at issue here are no different and, like those at issue in Adams, are not so
broad as to preclude review.