- The Washington Times - Thursday, August 1, 2013

Immigration agents are weighing an appeal after a judge this week tossed out their lawsuit trying to halt the administration’s nondeportation policies, saying the federal courts don’t have jurisdiction over a personnel matter, agents said Thursday.

District Court Judge Reed O'Connor ruled that the Obama administration was likely in violation of the law by ordering Immigration and Customs Enforcement agents and officers not to arrest many of the illegal immigrants they encounter. But Judge O'Connor said federal employment laws meant his court didn’t have the power to overrule the president.

The ICE agents and officers had argued that federal law requires them to arrest any illegal immigrants they encounter, disputing President Obama’s guidance that told them only to arrest those illegal immigrants who appear to have serious criminal records.

One of those policies, known as “Deferred Action for Childhood Arrivals,” or DACA, applies to younger illegal immigrants who were brought to the U.S. by their parents. Another memo issued by top ICE officials instructs agents only to go after immigrants who have serious criminal records or who have repeatedly violated immigration laws.

Kris W. Kobach, Kansas’ secretary of state, who acted as the lawyer for the ICE agents and officers, said they are “considering our options,” and that one of those was to appeal the ruling.

“It is important to note that the judge went out of his way to reiterate that the Obama administration’s DACA directive orders ICE agents to violate federal law,” Mr. Kobach said. “This is without question a lawless amnesty being imposed upon America. All Americans, regardless of how they feel about amnesty, should be concerned when a president can flagrantly ignore the law and violate the Constitution. There has to be a forum in which the rule of law can be restored.”

The Homeland Security Department, which oversees ICE, declined to comment.

Judge O'Connor ruled that in his reading, the agents were right about the law — but he said the court didn’t have jurisdiction because the Civil Service Reform Act makes the dispute an employment matter.

“Plaintiffs’ injury is based on being compelled to violate a federal statute upon pain of adverse employment action,” Judge O'Connor wrote in a seven-page order dismissing the case.

Judge O'Connor said that because the penalty for refusing to follow the administration’s policy is that agents would be disciplined, the right avenue for fighting the policy is the regular method Congress has provided for resolving employment disputes.

The agents and officers had sued Homeland Security Secretary Janet A. Napolitano over policies she issued in the past few years ordering ICE employees not to arrest most rank-and-file illegal immigrants.

Instead, Mr. Obama and Ms. Napolitano say they’ve tried to limit deportations to immigrants with serious criminal records, or who match other priorities such as having only recently crossed the border or having repeatedly violated immigration laws.

The judge’s decision comes as Congress is wrestling with how to rewrite immigration laws.

The Senate has passed a bill that would grant most illegal immigrants a path to citizenship, while promising stiffer security in the future. But opponents argue the bill gives too much discretion to the Homeland Security secretary over how to enforce the new laws.

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