ICE Officers: Deferred Action for DREAMers Unconstitutional

Kris Kobach Represents Immigration Agents in Lawsuit
by Published on
Photo Courtesy of ICE

Just as undocumented immigrants across the country celebrated a historic victory granting them temporary relief from deportation, Immigration and Customs Enforcement officers, seven of them from Texas, were preparing to challenge that possibility. The ICE employees filed a lawsuit today against Secretary of Homeland Security Janet Napolitano and ICE Director John Morton claiming the recent Obama policy is forcing them to violate the law.

Their lawyer is Kris Kobach, who was instrumental in drafting Arizona’s SB 1070 and Alabama’s similar HB 56, widely considered some of the harshest anti-immigrant laws in the country.

The lawsuit comes just a few days after the administration released the Deferred Action for Childhood Arrival applications, prompting thousands of young immigrants who qualify under the program to apply for relief from deportation and temporary work permits.

The lawsuit is a byproduct of a simmering feud between Chris Crane, president of the National ICE Council, the union that represents approximately 7,000 immigration officers, and the Obama administration. Crane is critical of the administration’s strategy regarding “prosecutorial discretion” which means that ICE agents focus on deporting violent criminals rather than non-violent undocumented immigrants.

Earlier in the year, the union refused to allow its members to attend a half-day training course on prosecutorial discretion, according to the Homeland Security News Wire.

Testifying before the House Judiciary subcommittee last October, Crane accused President Obama of pandering to Latino groups for political gain, according to the Homeland Security News Wire. “Law enforcement and public safety have taken a back seat to attempts to satisfy immigrant advocacy groups,” Crane told the committee.

In a telephone press conference today, Attorney Kobach called the order unconstitutional, saying, “ICE agents are … being ordered by their superiors to break federal law, or if they don’t break federal law according to their orders, they will be disciplined.”

The officers point to one particular case of a deportation officer in Delaware who was suspended for three days after arresting an undocumented immigrant and issuing a “Notice to Appear” in a deportation hearing even after being told the person should be released under the new executive order.

This has become the central case around which the ICE officers rally and the reason they say agents’ livelihoods could be taken away if they “attempt to enforce the laws on the books,” as Crane puts it, rather than follow the presidential directive which they believe are “unlawful orders.”

But the lawsuit itself contradicts the petition circulated by the ICE union. The lawsuit says the officer was temporarily suspended for processing the immigrant for a deportation hearing “rather than exercising the ‘prosecutorial discretion’ commanded by his supervisors,” whereas the petition claims ICE officers are being punished for using prosecutorial discretion.

In the press conference today, Kobach, who is the Kansas Secretary of State and has advised the GOP and presidential candidate Mitt Romney on immigration, called the new executive order regarding DREAM Act students a “breathtaking assertion and abuse of authority” and compared it to the Fast and Furious Operation.

“The Fast and the Furious operation is similar in that it, too, ordered ATF agents to knowingly break federal law by allowing their weapons to walk in violation of federal statute and over the protest of agents, the administration, in that case the Department of Justice, did it anyway,” Kobach says. “The lawsuit is based on the core principle that no administration, neither Republican or Democrat, should ever order law enforcement to break federal law – that is what the directive of June 15 does and that is why this lawsuit is on very firm statutory ground.”

Priscila Mosqueda is a contributing writer at the Observer, where she previously interned. She grew up in San Antonio and graduated with a bachelor's in journalism from the University of Texas at Austin in 2012. Her work has appeared in InsideClimate News, The Center for Public Integrity, The Daily Beast, and various Central Texas outlets.