- The Washington Times - Thursday, August 23, 2012

Saying they are fed up with being told that they can’t do their jobs, 10 immigration agents on Thursday sued the Obama administration to try to overturn the president’s new non-deportation policy.

The lawsuit, filed in a federal court in Texas, adds a legal controversy to the political fight that has been brewing over President Obama’s immigration policies, which have steadily narrowed the range of immigrants whom the government is targeting for deportation.

The 10 U.S. Immigration and Customs Enforcement (ICE) agents and deportation officers said Mr. Obama’s policies force them to choose between enforcing the law and being reprimanded by superiors, or listening to superiors and violating their own oaths of office and a 1996 law that requires them to put those who entered the country illegally into deportation proceedings.

Upping the ante, the agents are being represented by a high-profile lawyer, Kris W. Kobach, secretary of state in Kansas and the chief promoter of state immigration crackdowns such as Arizona’s tough law.

“ICE is at a point now where agents are being told to break federal law. They’re pretty much told that any illegal alien under the age of 31 is going to be let go. You can imagine, these law enforcement officers are being put in a horrible position,” Mr. Kobach said.

Last week, the Homeland Security Department began taking applications from those no older than 30 who came to the U.S. as children and who have kept at least fairly clean criminal records. They are being granted “deferred action,” which is an official notice that they are not to be deported and will be granted work permits to stay and get jobs legally in the U.S.

Matt Chandler, a spokesman for the department, said the administration thinks it is right to target deportation efforts on those with major criminal records or other priority categories. He also said more than 90 percent of those whom ICE deports meet those criteria.

“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,” he said.

In their 22-page complaint, the agents say they have been told in broad terms to stop taking action on a whole class of illegal immigrants. They said they have been instructed not to bother asking for proof, either, but to take an immigrant’s word about qualifying for the president’s policy.

Chris Crane, president of the National ICE Council and one of those suing to stop the policy, said morale is low among rank-and-file employees at the agency.

“They feel like they’ve become the enemy because, literally, we have this situation where individuals that have broken U.S. immigration law as well as oftentimes criminal law at the state or local level — they’re being released, no questions asked, but our own officers are being threatened with their careers being taken away if they go out and enforce the laws on the books,” said Mr. Crane, an ICE deportation officer.

The lawsuit, filed in federal court in the Northern District of Texas, argues that the administration policies fail to pass muster on three grounds: They infringe on Congress’ right to set immigration policy, they force ICE agents to disregard the 1996 law, and the Homeland Security Department didn’t follow the federal Administrative Procedure Act, which requires agencies to write regulations and put them out for public comment before taking big steps.

David A. Martin, a professor at the University of Virginia School of Law who was a top lawyer at the former Immigration and Naturalization Service when the 1996 law was being written, said the agents’ reading of the law might seem correct on its face, but the provision in question was intended to give ICE more options, not tie its hands by mandating arrest of all violators.

He also said that if the administration proactively conducts a case-by-case review of illegal immigrants 30 and under, it makes ICE agents’ jobs easier because the aliens will have a document they can show the authorities proving that they are allowed to remain in the country.

Mr. Martin said there are other examples where the administration has carved out classes of immigrants not to be deported, including a 2009 policy exempting widows of American citizens from being removed.

“If there’s 11.5 million people here unlawfully in the country, you’re only going to get a small percentage each year, so you are in a way exercising prosecutorial discretion,” he said.

NumbersUSA, a group that pushes for stricter immigration limits, is funding the agents’ lawsuit.

Roy Beck, the group’s executive director, said that what’s at stake is ICE agents’ ability to deter more illegal immigrants, who could wreak havoc with the job market.

“Without immigration enforcement, the labor market would be filled until wages fell either to the global average or the federal minimum wage,” he said. “These agents are protecting every working American’s level of income and wages.”

In one instance raised in the complaint, ICE agent James D. Doebler arrested an illegal immigrant and tried to put him into deportation proceedings, even though his supervisors told him not to.

He now faces a three-day suspension — though he says he was just following a 1996 immigration law that requires him to begin deportation proceedings for anyone he catches who entered the country illegally.

Mr. Crane said agents face another dilemma: If they do follow orders and release someone who later goes on to commit a crime, they may open themselves up to a civil lawsuit.

Sen. Jeff Sessions, Alabama Republican, has written to ICE asking for an explanation of the Doebler case, and he said he is still waiting.

“The men and women who swore an oath to uphold the law and protect the public safety are now forced to ignore the law if they are to remain secure in their jobs,” he said.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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