Trying to head off a potentially devastating court defeat, the Obama administration said Monday that ICE agents' lawsuit to overturn the president's non-deportation policy should be thrown out because the agents themselves initially wanted to handle the matter in collective bargaining.
But the agents say that position marks a reversal for the administration, which previously had told the agents that they wouldn't subject the new policies to collective bargaining.
At stake is whether the department can force agents to not arrest illegal immigrants they encounter. That's at the crux of the new Obama administration policies preventing most rank-and-file illegal immigrants from being deported, which the administration says has helped focus efforts on more dangerous criminal aliens.
A federal district judge in Texas last month ruled that the law requires agents to arrest all illegal immigrants they find, but he delayed implementing the ruling because he said it's not clear that a court is the right place to decide the matter. He asked them both to file briefs exploring the issue.
Late last year, Christopher Crane, the chief of the Immigration and Customs Enforcement Council labor union, asked for collective bargaining, but the administration turned him down, saying it was a management decision, not an area for negotiations.
Now, though, the administration says that since the agents asked for collective bargaining, they proved they have an alternative outside of court — making their lawsuit invalid.
"Channeling such disputes through the process established by the [Civil Service Reform Act] — and not allowing them to proceed directly in district court — is required even where the government employees' lawsuit purports to be a 'systemic challenge' to government policy, rather than a challenge to a disciplinary action," the administration lawyers said in their filing with the court.
Kris W. Kobach, the lawyer for the ICE union, said the administration is "looking for any way to push this case out of federal court" and are contradicting themselves to do it.
"Their argument is unsustainable as a matter of law, and remarkable in that it so clearly contradicts their client's position," he wrote in his own filing with the court.
Mr. Crane says agents and officers have been told if they ignore the order, they will be subject to discipline.
The Obama administration has said it is using "prosecutorial discretion" to decide which illegal immigrants to put in deportation proceedings.
ICE Director John Morton issued a policy in 2011 directing that only the most serious criminals be put in deportation, and then last year President Obama announced a policy telling agents to stop deporting illegal immigrants brought to the U.S. before age 16.
But Judge Reed O'Connor issued an order last month that said the administration cannot ignore the law, which directs ICE agents and officers to arrest illegal immigrants. He said the administration still could exercise discretion later in the process to drop deportation proceedings.
Halting deportations of most rank-and-file immigrants has been central to the administration's new policy.
Officials argue they are still deporting a record number of immigrants, though data introduced in the ICE agents' lawsuit actually shows those numbers have been padded by deportations of recent arrivals at the border, rather than deportations from the interior of the U.S.
Illegal immigrants within the interior of the U.S. run very little risk of being deported unless they are convicted of a major crime.
If Judge O'Connor sides with the agents, it will mean the administration will have to affirmatively decide to release them later — which could raise the stakes if one of those illegal immigrants who is released later commits a crime.
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