- The Washington Times - Thursday, May 2, 2013

A federal judge in Texas is expected to rule next week on a request by rank-and-file U.S. Immigration and Customs Enforcement (ICE) agents for an injunction to block President Obama’s deferred-deportation initiative.

U.S. District Judge Reed O’Connor put off a decision in the matter on April 24, asking the ICE agents who brought a lawsuit against Mr. Obama to say they were tired of not being allowed to do their jobs and lawyers for the government to file additional arguments no later than Monday.

“The court finds that DHS does not have discretion to refuse to initiate removals proceedings” when the requirements for deportation under a federal statute are met, the judge wrote in a 38-page opinion. But he added he could not make a final ruling in the case based on the arguments he already had heard and ordered lawyers on both sides to submit additional arguments.

Ten ICE agents, including Christopher L. Crane, a deportation agent in the agency’s Salt Lake City field office who also serves as president of the ICE Agents and Officers Union, are seeking an injunction to overturn Mr. Obama’s new non-deportation policy.

The agents claim the policy forces them to choose between enforcing the law and being reprimanded by superiors, or listening to their superiors and violating their own oaths of office.

They note that Congress sought in 1996 to significantly reduce executive discretion in the enforcement of federal immigration laws, saying in a House resolution that “immigration law enforcement is as high a priority as other aspects of federal law enforcement, and illegal aliens do not have the right to remain in the United States undetected and unapprehended.”

The lawsuit specifically challenges directives issued by Homeland Security Secretary Janet Napolitano and ICE Director John Morton ordering the exercise of “prosecutorial discretion” in the deportation of illegal immigrants. The lawsuit says the Obama administration lacks the legal authority to arbitrarily halt deportations.

It says the June 2012 directives instruct ICE agents to refrain from placing certain aliens who are unlawfully present in the United States into removal proceedings, and to take actions to facilitate the granting of deferred action to aliens who are unlawfully present in this country. It says the directive also directs Homeland Security personnel to grant employment authorization to “certain beneficiaries of the directive.”

According to the lawsuit, the requirements an illegal immigrant must meet to avoid deportation is that they came to the United States under the age of 16; have continuously lived in the United States for a least five years preceding June 15, 2012, and was present in this country on June 15, 2012; is currently in school, has graduated from high school, has obtained a general education development certificate; or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States.

It says the directives also require that those avoiding deportation have not been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses, and does not otherwise pose a threat to national security or public safety; and is not above the age of thirty.

According to the lawsuit, the directives “command ICE officers to violate federal law … to violate their oaths to uphold and support federal law … unconstitutionally usurp and encroach upon the legislative powers of Congress … and violate the obligation of the executive branch to faithfully execute the law,” as required by the Constitution.

The lawsuit seeks to prevent ICE officer from being forced to either violate federal law if they comply with the unlawful directive or risk adverse employment action if they disobey the unlawful orders of Ms. Napolitano.

The named defendants are Ms. Napolitano, Mr. Morton and Alejandro Mayorkas, director of U.S. Citizenship and Immigration Services (USCIS).

The lawsuit says the directive, titled “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention and Removal of Aliens,” was accompanied by a 90-page memo explaining how applicants would be processed by DHS.

“The orders in the field that have been given to plaintiffs by their supervisors are that an alien only needs to claim that he is covered by the directive in order to be released and offered the benefits of the directive,” the lawsuit says. “ICE agents are prohibited from demanding that an alien provide proof that he meets the directive’s criteria.”

According to official estimates provided by USCIS, the number of illegal immigrants unlawfully present in the United States who qualify for the benefits offered by the directive is 1.76 million.

The lawsuit also says the law is not being followed: It notes that another plaintiff in the case, Samuel Martin, an ICE immigration enforcement agent in El Paso, picked up an illegal immigrant from the El Paso County Jail and while he and his partner were trying to place the man in their vehicle, he attempted to escape, and resisted and assaulted Agent Martin. It says the agents regained custody of the man and transported him to the El Paso Criminal Alien Program office for processing.

According to the lawsuit, Agent Martin’s supervisors ordered him to release the man without any charges being filed, saying, “it was a management decision, based on the president’s new immigration policies.” The lawsuit says no supervisor ever asked the agents if they were injured or if they needed assistance.

“The fact that the DREAM Act has been proposed in Congress two dozen times, and has been voted on by the United States House of Representatives and by the United States Senate, indicates Congress’s understanding that federal legislation is required in order to achieve these objectives,” the lawsuit says.

“The directive attempts to confer continued presence in the United States, as well as employment authorization, to all aliens meeting the criteria specified in the directive. The unlawfully present aliens who are given benefits by the Directive are substantially the same aliens that would have been given benefits by the DREAM Act, had it passed both Houses of Congress and been signed into law by the president,” it says.

The lawsuit says the application of “deferred action” to approximately 15 percent of the illegal immigrants who are in the United States without authorization is “not consistent with the executive’s duty to take care that the laws be faithfully executed.

“In effect, the directive orders that the immigration laws of the United States shall not be executed against a class of more than 1.7 million aliens,” it says.

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