April 8 (Bloomberg) -- Ten U.S. Immigration and Customs Enforcement agents asked a federal judge to block an initiative by the Obama administration that defers deportation action against law-abiding undocumented immigrants.
Announced by President Barack Obama last year, the program allows the children of undocumented immigrants who were brought to the U.S. before age 16 to remain in the country if they have no criminal record and meet other criteria.
The agents sued ICE and the federal Department of Homeland Security over the policy in August. U.S. District Judge Reed O’Connor in Dallas heard arguments today on a request to block the measure.
“Officers are applying the directive to people detained in jails, not kids in school,” lead plaintiff Christopher L. Crane testified. “It is now the story in the jails for aliens to use to avoid arrest and deportation.”
Crane is president of the National Immigration and Customs Enforcement Council, a 7,600-member federal immigration agents’ union.
The hearing comes as bipartisan groups in the U.S. Senate and the House of Representatives negotiate legislation that would resolve the status of more than 11 million undocumented immigrants while addressing issues of border security.
Florida Republican Marco Rubio and New York Democrat Charles Schumer are among those in the Senate negotiations, while Illinois Democrat Luis Gutierrez and Idaho Republican Raul Labrador are part of the House talks.
The administration’s “Deferred Action” initiative, announced in June, was created with the intent of shifting immigration agency focus toward border security and the removal of dangerous people.
“This is not amnesty, this is not immunity,” Obama said at the time. “This is not a path to citizenship, it’s not a permanent fix.” Deferral, if conferred, is valid for two years, during which the person may obtain authorization for employment, and can be renewed, according to the ICE website.
The U.S. has opposed the agents’ bid for a court order blocking the program, arguing they’ve shown no likelihood of imminent and irreparable injury, and cannot prevail on the merits.
“The challenged action here (an agency’s issuance of memoranda providing guidance on how it will prioritize its enforcement efforts) is inherently a matter committed to agency discretion by law for which this court lacks jurisdiction,” the U.S. said in a December court filing.
O’Connor in January denied a government request to throw out the case, ruling that the agents were legally qualified to pursue most of their claims.
Crane told the court today that he and his peers don’t make street arrests. Their role is to review the immigration status of people who are already in state and local custody, he said.
ICE agents are often summoned to crowded jails where detainees who may be in the country unlawfully are turned over to them. When those detainees are found to not have prior felony convictions and otherwise meet the deferred-action criteria, immigration agents are compelled to release them, Crane said.
“If they enforce immigration law, they can face disciplinary action,” including dismissal, Crane said.
Also testifying today was ICE agent and co-plaintiff Samuel Martin, who said he works in jails and prisons in El Paso, Texas. He told the court that about a third of the detainees he interviews claim to be eligible for deferred action.
“They voice it to us. They say, ‘I fall under Obama’s Dream Act,’” Martin said. Undocumented immigrants found to not have a felony conviction are taken at their word that they have otherwise met the requirements for deferred action, he said.
The U.S. didn’t call any witnesses.
“These agents do not like the way the agency has prioritized the use of its resources,” Adam Kirschner, a U.S. Justice Department lawyer, told the judge.
11 Million People
“The executive cannot remove 11 million people,” he said of that branch of the U.S. government led by the president. “The executive has authority to exercise its discretion.”
Kirschner told O’Connor the case was, in reality, an employment dispute and that the agents can’t demonstrate they’ve been harmed.
“There has not been an individual who has been subject to discipline,” he said.
Plaintiffs’ lawyer Kris Kobach, who also serves as Kansas Secretary of State and is a national Republican Party adviser on immigration policy, disagreed.
“We have agents telling us they’re releasing dozens of criminals,” he told the judge.
The president’s directive violates a 1996 law ordering immigration officers to start proceedings on every person they encounter who is in the country illegally, Kobach said. Such a broad shift in federal policy requires a formal rule-making process including notice and a public opportunity to comment, he argued.
“This is not a little policy, it is an immense policy,” he said.
O’Connor heard more than five hours of testimony and argument. He didn’t render a decision.
The case is Crane v. Napolitano, 3:12-cv-03247, U.S. District Court, Northern District of Texas (Dallas).
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