Illegal immigration: agents sue to block Obama's 'DREAM Act'

Ten immigration agents say President Obama's bid to block deportation of some young illegal immigrants in a 'DREAM Act lite' is unconstitutional, and they are challenging it in court. 

Tom Tingle/The Arizona Republic/AP
Protesters denounce Arizona Gov. Jan Brewer's executive order to deny driver's licenses and other public benefits to young illegal immigrants who obtain work authorizations under a new Obama administration policy in this photo from last Thursday in Phoenix.

Ten federal immigration officials filed suit on Thursday asking a US district judge in Dallas to block the Homeland Security Department from implementing President Obama’s decision to give special immigration status to some 1.7 million children of illegal immigrants.

The suit charges that Homeland Security Secretary Janet Napolitano and a key immigration official are engaging in an illegal and unconstitutional usurpation of government power by implementing an administrative version of the DREAM Act without congressional authorization.

It says the agency action is forcing immigration agents in the field to either enforce federal law as passed by Congress or abide by the administration’s new immigration policies and priorities.

“We are federal law enforcement officers who are being ordered to break the law,” said one of the plaintiffs, Chris Crane, a deportation officer in Utah, and president of the immigration agents’ union.

Ms. Napolitano issued an agency directive on June 15 instructing immigration officials to use their “prosecutorial discretion” to confer special immigration status to the children of illegal immigrants. The program took full effect on August 15 and drew thousands of initial applicants. 

The DREAM Act is a legislative proposal designed to lift the cloud of deportation over children who were brought to the US before they were 16, have been in the country for five years, and have no criminal record. The DREAM Act has been debated 24 times since 2001 but has never passed Congress.

Earlier this year, Mr. Obama declared that his administration would take action on its own to implement the goals of the DREAM Act without relying on legislation from Congress.

Critics denounced the move as an unconstitutional power grab designed to appeal to potential Latino voters in a critical presidential election year.

Supporters said the executive branch of government has ample discretionary authority to implement DREAM Act goals. The effort is consistent with the administration’s policy of focusing enforcement and deportations on illegal immigrants who commit serious crime, officials say.

Thursday’s lawsuit essentially asks a federal judge to resolve the debate.

“This is an absolutely breathtaking assertion of authority,” said lawyer Kris Kobach, who is representing the 10 immigration officers.

“The administration can’t do this by fiat,” he said.

Mr. Kobach is secretary of state in Kansas and is an informal adviser to Mitt Romney, the Republican presidential candidate. He was a delegate to the Republican Party’s platform committee in advance of the GOP’s national convention in Tampa, Fla., next week.

Kobach is the same lawyer who helped Arizona officials draft their tough and controversial immigration enforcement law, Senate Bill 1070. In June, the US Supreme Court struck down three provisions of that law, but upheld the measure’s centerpiece, requiring state and local law-enforcement officials to check the immigration status of anyone detained during a lawful stop who they had reason to suspect was in the US illegally.

The lawsuit against Napolitano asks a federal judge to examine whether the agency’s actions violate federal law by directing agents to ignore the command in immigration statutes that agents “shall” place illegal immigrants into removal proceedings.

A memorandum by John Morton, director of Immigration and Customs Enforcement, asserts that under “prosecutorial discretion” agents no longer are required to follow the procedures in the immigration statute. The lawsuit says there is nothing under federal law authorizing an agency to ignore or rewrite the statute’s requirements.

The suit also charges that there is nothing in federal immigration law that permits an executive branch official to use regulatory discretion to grant a benefit to 1.7 million individuals.

The Homeland Security Department also lacks the unilateral authority to grant 1.7 million undocumented individuals authorization to work in the US, the suit says.

Finally, the suit charges that conferring legal rights and privileges to a large group is a legislative act assigned to Congress under the Constitution. The suit says the administration’s actions violate the constitutional command that the executive branch of government “shall take care that the laws be faithfully executed.”

Mr. Crane of Utah said the administration’s new policy toward the children of illegal immigrants is causing problems for enforcement agents.

He cited the case of an agent in Delaware who apprehended an illegal immigrant who had 10 traffic violations including driving without a license. Such an individual would routinely be placed in removal proceedings, Crane said.

But after the directives from Washington, he said, management-level officials are enforcing a broad reading of the agency’s “prosecutorial discretion.”

When the arresting agent insisted on processing the individual, he was threatened with a three-day suspension, Crane said. Now any subsequent action by the same agent might result in his being fired, he said.

Crane cited a similar incident in El Paso, Texas, where enforcement agents were ordered to release an illegal immigrant who has allegedly attempted to escape and allegedly assaulted one of the officers.

Rather than investigate the agents’ accusations, immigration managers ordered the man released because they said he fit the profile of an individual qualified for special status under the new program.

“We are not enforcing law anymore and we aren’t even enforcing the policy,” Crane said.

“When we come in contact with someone who claims to be a ‘DREAMer,’ we have to accept that claim and the alien has no burden of proof to substantiate that claim,” he said.

Of the 10 agents who filed the lawsuit, seven are posted in Texas, one is in California, one in Delaware, and one in Utah. Two of the immigration agents are deportation officers and eight are enforcement officers.

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