Monday, August 27, 2012
A group of ten Immigrations and Customs Enforcement (ICE) agents sued their own agency Thursday, contending that the Obama administration is forcing them to break the law by restricting their ability to identify and deport illegal immigrants.
The agents are represented by Kris W. Kobach of the Immigration Law Reform Institute, the legal arm of the anti-immigration group Federation for American Immigration Reform. A Republican, Kobach has helped lawmakers in Arizona and Alabama write strict anti-immigration laws and is also the Secretary of State of Kansas.
The lawsuit targets President Obama’s June 2012 decision to grant “deferred status” to some undocumented immigrants brought to the country as children, which would delay immigration enforcement action against them for at least two years, as well as a June 2011 memo by ICE Director John Morton ordering immigration officials to focus scarce resources on dangerous illegal immigrants, such as those with criminal records for violent crimes.
The 10 ICE agents allege that those directives violate the Constitution and federal immigration law. Chris Crane, the lead plaintiff in the case who is also an ICE agent and president of the National Immigration and Customs Enforcement Council union for ICE employees claims that ICE agents “are being ordered to break the law.” He contends that the policies “put ICE agents and officers in a horrible position,” of having to break the law by obeying the policies or risk disciplinary action for enforcing the law. The lawsuit, filed in a Dallas federal court, asks the judge to strike down the two directives and protect the agents from any retribution for their lawsuit.
Although the lawsuit invites discussion of the complexities of immigration policy and law enforcement, those issues are nearly irrelevant to whether the case can survive an inevitable motion to dismiss by the government. This is so because, as the lawsuit recognizes, the executive branch has enormous discretion in deciding how to allocate the scarce resources that are devoted to law enforcement, and judges are loath to second-guess law enforcement’s expertise.
This is especially true when the government’s decisions are based on public safety concerns, as the Obama administration argues regarding both policies. Rep. Luis Gutierrez (D-Illinois) made this point when he said that “Deferred action is a major boost to law enforcement who do not have to waste time on honor students and can do the harder work of actually tracking down and deporting criminals.” ICE spokesman Ross Feinstein said the policy of focusing on the most dangerous illegal immigrants works well and that the decision to defer deportation for some young illegal immigrants enhances that strategy.
To avoid the pitfalls of debating immigration policy with the government, the plaintiffs argue that because deferred status allows one to apply for a green card and a social security card, the policy change constitutes the conferring of a benefit and not the exercise of prosecutorial discretion. The trouble is that the sections of the Code of Federal Regulations cited by the plaintiffs define deferred status in terms that emphasize the government’s broad discretion as “an act of administrative convenience to the government which gives some cases lower priority,” rooted in “humanitarian or other public policy reasons.”
To Learn More:
A group of ten Immigrations and Customs Enforcement (ICE) agents sued their own agency Thursday, contending that the Obama administration is forcing them to break the law by restricting their ability to identify and deport illegal immigrants. The agents are represented by Kris W. Kobach of the Immigration Law Reform Institute, the legal arm of the anti-immigration group Federation for American Immigration Reform. A Republican, Kobach has helped lawmakers in Arizona and Alabama write strict anti-immigration laws and is also the Secretary of State of Kansas.
The lawsuit targets President Obama’s June 2012 decision to grant “deferred status” to some undocumented immigrants brought to the country as children, which would delay immigration enforcement action against them for at least two years, as well as a June 2011 memo by ICE Director John Morton ordering immigration officials to focus scarce resources on dangerous illegal immigrants, such as those with criminal records for violent crimes.
The 10 ICE agents allege that those directives violate the Constitution and federal immigration law. Chris Crane, the lead plaintiff in the case who is also an ICE agent and president of the National Immigration and Customs Enforcement Council union for ICE employees claims that ICE agents “are being ordered to break the law.” He contends that the policies “put ICE agents and officers in a horrible position,” of having to break the law by obeying the policies or risk disciplinary action for enforcing the law. The lawsuit, filed in a Dallas federal court, asks the judge to strike down the two directives and protect the agents from any retribution for their lawsuit.
Although the lawsuit invites discussion of the complexities of immigration policy and law enforcement, those issues are nearly irrelevant to whether the case can survive an inevitable motion to dismiss by the government. This is so because, as the lawsuit recognizes, the executive branch has enormous discretion in deciding how to allocate the scarce resources that are devoted to law enforcement, and judges are loath to second-guess law enforcement’s expertise.
This is especially true when the government’s decisions are based on public safety concerns, as the Obama administration argues regarding both policies. Rep. Luis Gutierrez (D-Illinois) made this point when he said that “Deferred action is a major boost to law enforcement who do not have to waste time on honor students and can do the harder work of actually tracking down and deporting criminals.” ICE spokesman Ross Feinstein said the policy of focusing on the most dangerous illegal immigrants works well and that the decision to defer deportation for some young illegal immigrants enhances that strategy.
To avoid the pitfalls of debating immigration policy with the government, the plaintiffs argue that because deferred status allows one to apply for a green card and a social security card, the policy change constitutes the conferring of a benefit and not the exercise of prosecutorial discretion. The trouble is that the sections of the Code of Federal Regulations cited by the plaintiffs define deferred status in terms that emphasize the government’s broad discretion as “an act of administrative convenience to the government which gives some cases lower priority,” rooted in “humanitarian or other public policy reasons.”
-Matt Bewig
To Learn More:
ICE Agents Sue own Agency over Deferred Deportations (by Alan Gomez, USA Today)
Obama Scores Political Points with Suspension of Deportation of Immigrants Brought to U.S. as Children (by Matt Bewig, AllGov)
Obama Administration Steps up Deportations in an Election Year…Again (by Noel Brinkerhoff, AllGov)
