PHOENIX — A federal district judge in Dallas suggested in a recent order that an Obama administration initiative for young immigrants may violate the law.
Judge Reed O'Connor is weighing a legal challenge brought by Immigration and Customs Enforcement agents against their bosses to stop the program.
Agents argue Secretary of Homeland Security Janet Napolitano didn't go through the appropriate channels when she created the Deferred Action for Childhood Arrivals program, and the initiative is in conflict with existing federal law. Under the program, which is known as DACA, some young immigrants brought to the country illegally as children are eligible for work permits and a temporary reprieve from deportation.
"Napolitano's directive is ordering ICE agents to break the law," said Kris Kobach, who is representing the ICE agents. Kobach is also the Kansas Secretary of State.
"Because the law that Congress passed actually specifies the immigration officers themselves, and says those officers must — they shall — place certain illegal aliens in removal proceedings," he said.
In other words, the argument goes that ICE agents can't legally turn a blind eye when they find an immigrant who entered the country illegally.
In an order filed Tuesday, Judge O'Connor suggested that argument would likely succeed in court.
The order says "The Court concludes that Plaintiffs are likely to succeed on the merits of their claim" that both the directive to create DACA and an ICE memo to use prosecutorial discretion violate federal law.
But many immigration law experts say that's the wrong analysis.
"The judge's position is one that is surprising, to say the least, because prosecutorial discretion is a law enforcement tool that is firmly embedded in the American legal tradition," said Cesar Garcia Hernandez, a law professor at Capital University Law School.
"That means the Department of Homeland Security's emphasis on targeting dangerous individuals would be subverted," Garcia Hernandez said.
He said it is unreasonable to think that immigration agents can feasibly place every person they encounter who might be in the country illegally in deportation proceedings.
"Think about all of the costs in terms of time, and think about all the costs in terms of money that requires. It threatens to flood an already overburdened immigration court system," Garcia Hernandez said.
The ICE agents are asking the court for a preliminary injunction to suspend DACA while the case is litigated. But that question is now on hold because of another legal issue.
O'Connor, while at once suggesting the plaintiffs would likely succeed in court, wrote in his order that questions remain over whether he has jurisdiction to rule.
That's because this case is between members of the ICE union and their supervisors who lead the agency. The Department of Justice argues it falls under the category of federal employee disputes that must be dealt with administratively.
O'Connor has asked both sides to submit briefings on the jurisdiction question by early next month.
If O'Connor ultimately decides he has jurisdiction to rule on the request for a preliminary injunction, and decides in favor of the plaintiffs, it is unclear what the scope would be.
"In our briefing we have asked the judge to place the entire program on hold until a final decision can be reached by the court," Kobach told Fronteras Desk. "We did not specify and we left it up to the judge with respect to [work] permits that have already been issued."
It is likely that whatever the ruling, it will be appealed to the Fifth U.S. Circuit Court of Appeals.
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