A group of immigration agents on Thursday filed a lawsuit against the Obama administration, claiming that following new lenient deportation policies requires them to violate the law.
The 10 Immigration and Customs Enforcement agents say they are under orders not to arrest certain illegal immigrants who might qualify for the administration's new deferred deportation program, according to the complaint filed in a Texas federal court. The agents say they are prevented from verifying people's eligibility for deferment, violating federal law that requires agents to detain suspects before determining their status. Agents who have tried to pursue arrests anyway have been threatened with suspensions, the plaintiffs allege.
Homeland Security Secretary Janet Napolitano and ICE Director John Morton are named as defendants.
The plaintiffs are represented by attorney Kris Kobach, the Kansas secretary of state better known nationally as the architect of the tough immigration-enforcement laws in Arizona and other states. (The Supreme Court in June significantly weakened the Arizona law. A federal court in Atlanta recently followed in kind with rulings against similar laws in Alabama and Georgia). Kobach also is legal counsel to the Immigration Reform Law Institute , the legal arm of the Federation for American Immigration Reform, which opposes amnesty and favors stricter enforcement of existing laws.
"They are being ordered by their federal-appointee superiors to break federal law, or if they don't break federal law, according to their orders they will be disciplined," Kobach told reporters on a call Thursday. "This is an absolutely breath-taking assertion of authority and an abuse of authority."
Numbers USA, which advocates for reduced immigration and opposes deferred deportation, is paying the legal fees for the agents. The group and many Republicans have criticized the program as a backdoor to amnesty. Many Republican opponents deride it as election-year ploy by President Obama to boost his support among Latino voters.
Obama in July issued an executive order halting the deportations of undocumented immigrants who came to the U.S. as children. The policy, which took effect Aug. 15, allows the young people to come out of hiding, obtain work permits, and a social security number. Depending on state laws, they may be entitled to professional certificates, driver's licenses and in-state tuition for college. The program defers deportations for two years, which can be extended.
As many as 1.7 million people could be eligible if they arrived in the U.S. before age 16 and have lived here for at least five years, and attend school or have served in the military. They can't be older than 30 or have criminal records.
The lawsuit says the executive order violates the separation of powers by usurping the lawmaking authority of Congress.
The Obama administration has said the president issued the order under his existing legal authority. He didn't seek the approval of Congress, which has voted against measures to benefit illegal immigrants, including legislation known as the DREAM Act that served as a model for the deferred action program.
The complaint also targets ICE's previous attempt, in 2011, to scale back enforcement against young people and others by granting agents "prosecutorial discretion".
The ICE agents' union has been outspoken in opposing deferred action and prosecutorial discretion. Plaintiff Chris Crane, an ICE officer and president of the National ICE Council, the bargaining unit for about 7,000 agency employees, says threats of retaliation, in the form of suspensions, allegedly made by supervisors have made working conditions for agents untenable.
"We have officers that are under threats of losing their jobs and retirements if they refuse what we believe are unlawful orders," Crane told reporters. "The administration has been less than honest in saying what policies ICE agents have to use in the field... We have repeatedly tried to work with the administration, but they have just excluded us, from day one."
Kobach also has advised Republican presidential nominee Mitt Romney on immigration policy.
He said he informed the campaign of his intention to file the suit, but hasn't discussed the case with campaign officials.
Romney has criticized deferred deportation but hasn't said if he'd end it. He has proposed an unspecified "civil but resolute" fix to illegal immigration.
(Corey Dade is a national correspondent for NPR.)
Update on Friday, Aug. 24, Response From DHS:
The Department of Homeland Security sent us this statement saying that DHS always uses "prosecutorial discretion" to be able to focus on deporting criminals.
"In FY 2011, ICE removed more than 216,000 convicted criminal aliens, the largest number in the agency's history and an 89 percent increase in the removal of criminals since the previous administration. Overall, more than ninety percent of ICE's removals fell within our priority categories.
"The Secretary's memo on Deferred Action for Childhood Arrivals is a continuation of the Department's focus on these priorities, and ensures that responsible young people, who are Americans in every way but on paper, have an opportunity to remain in the country and make their fullest contribution. This policy is a temporary measure; Congress must still act to provide a permanent solution to fix the broken immigration system."