By Mark Frey
AAP Guest columnist
On August 23, 2012, ten Immigration and Customs Enforcement (ICE) agents filed a federal lawsuit in Dallas, Texas against Department of Homeland Security (DHS) Secretary Janet Napolitano and Immigration and Customs Enforcement Director John Morton.
The ICE agents assert in their lawsuit that Secretary Napolitano’s June 15, 2012 Directive (“Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children”) orders ICE officers to “refrain from placing certain individuals who are unlawfully present in the United States into removal proceedings and to take actions to facilitate the granting of deferred action to aliens who are unlawfully present in the United States.”
In an earlier column, I discussed this Directive and also noted that it established the following eligibility criteria for those applying for deferred action:
• came to the United States under the age of sixteen;
• has continuously resided in the United States for at least five years prior to the Directive’s issuance on June 15, 2012 and is present in the United States on that date;
• is currently enrolled in school, graduated from high school, obtained a General Education Development Certificate (GED), or is an honorably discharged veteran of the U.S. Coast Guard or U.S. Armed Forces;
• has not been convicted of a felony offense, a “significant misdemeanor offense”, 3 or more non-significant misdemeanors, or otherwise poses a threat to national security or public safety; and
• under the age of thirty-one years on June 15, 2012.
The ICE agents assert that they took an oath to uphold and support federal law requiring them to arrest and remove those individuals who violate our immigration laws. They contend that if they follow the Directive they are breaking their oath and federal law. They argue that if they refuse to follow the Directive they face the prospect of sanctions for their failure to comply. As a result, they seek an injunction to stop implementation of the Directive.
This all appears to be straightforward and reasonable on its face. Yet the lawsuit seems puzzling, especially after looking at the parties involved. First, we have Kris Kobach, a Republican operative, who represents the ICE agents in their lawsuit and also serves as Kansas’ Secretary of State.
Mr. Kobach has helped draft several state-level immigration laws, such as that in Arizona, with most of the provisions being found unconstitutional by the U.S. Supreme Court. He also fills the role of informal adviser to Republican Party nominee Mitt Romney on immigration matters and pushed for several Republican Party platform planks calling for tougher immigration enforcement. We have in addition, NumbersUSA, an organization known for supporting lower numbers of immigrants in the United States, which touts itself as the financial backer of the lawsuit.
NumbersUSA has been identified by the Southern Poverty Law Center, a nonprofit civil rights organization devoted to fighting hate and bigotry, as part of a network of “anti-immigration” organizations (including the Federation for American Immigration Reform and Center for Immigration Studies) created by John Tanton.
John Tanton has been identified by the Southern Poverty Law Center as the “racist architect of the modern anti- immigrant movement.”
Everything about this case is curious. The agents presume that it’s best and most expedient to pick up any and all “illegals” without regard to their background and DHS’ limited resources. But, it’s not that simple. DHS must develop policy through its authority granted by Congress to delineate objectives and strategic use of those limited resources. It has, after careful review, decided to remove those individuals who are convicted criminals, repeat immigration violators, or pose a threat to the public safety.
In short, prioritizing removals by individuals’ background. This is an exercise of prosecutorial discretion and much used over the years. Quite simply, it’s one based on common sense. It’s hard to imagine the agents don’t understand this.
So, the big question is this. If this lawsuit isn’t truly about the agents’ grievances as outlined in their lawsuit, what is it? Hmm, it’s an election year, isn’t it?
(R. Mark Frey is a St. Paul, Minnesota attorney who has been practicing immigration law exclusively for almost 25 years with an emphasis on political asylum, family immigration, naturalization, and removal defense).