April 24 (Bloomberg) -- A court challenge by federal immigration agents seeking to block President Barack Obama’s deferred-deportation initiative will probably succeed, a judge said.
U.S. District Judge Reed O’Connor in Dallas yesterday put off his own decision on whether to grant the request for a preliminary injunction by 10 U.S. Immigration and Customs agents. He asked both sides to file additional arguments no later than May 6.
Announced by Obama and Homeland Security Secretary Janet Napolitano last year, the directive gives agents the ability to defer action on people unlawfully in the U.S. if they came to the country under the age of 16, are in school or have obtained a high school diploma, haven’t been convicted of a felony, significant misdemeanor or multiple misdemeanors, and aren’t a threat to public safety or national security.
“The court finds that DHS does not have discretion to refuse to initiate removal proceedings” when the requirements for deportation under a federal statute are met, O’Connor said in yesterday’s decision, referring to the Department of Homeland Security.
Still, the judge said he can’t decide the case based on the arguments he’s heard so far.
“Accordingly, the court hereby defers ruling on the plaintiffs’ application for preliminary injunction until the parties have submitted additional briefing,” O’Connor said.
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 case was filed by attorney Kris Kobach, who also serves as Kansas Secretary of State and is a national Republican Party adviser. Lead plaintiff Christopher L. Crane is president of the National Immigration and Customs Enforcement Council, a 7,600-member federal immigration agents’ union.
“Officers are applying the directive to people detained in jails, not kids in school,” Crane testified at the April 8 hearing. “It is now the story in the jails for aliens to use to avoid arrest and deportation.”
Adam Kirschner, a lawyer for the Justice Department, told O’Connor at the hearing the case was, in reality, an employment dispute and that the agents can’t demonstrate they’ve been harmed. “These agents do not like the way the agency has prioritized the use of its resources,” he said.
“The executive cannot remove 11 million people,” Kirchner said of the branch of the U.S. government led by Obama. “The executive has authority to exercise its discretion.”
The case is Crane v. Napolitano, 3:12-cv-03247, U.S. District Court, Northern District of Texas (Dallas).
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