ICE Agents Sue Napolitano for Ordering Them to 'Violate Federal Law'

Penny Starr | August 24, 2012 | 6:32am EDT
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Illegal immigrants in Nogales, Arizona wait to be deported to Mexico. (AP Photo)

( – Ten U.S. immigration agents are suing Homeland Security Secretary Janet Napolitano and Immigration and Customs Enforcement Director John Morton over a directive that “commands ICE officers to violate federal law.”

“We’re not enforcing law any more,” said Chris Crane, an ICE deportation officer and president of the National Immigration and Customs Enforcement Council. “It is pretty much just let everyone go,” he told reporters during a conference call on Thursday.

Crane and nine other ICE agents filed their lawsuit in federal court in Dallas on Thursday.

They are seeking an injunction to block Napolitano’s June 15, 2012 directive, which instructs ICE officers to refrain from deporting most illegal immigrants who came to the United States as children.

"The Directive," says the lawsuit, "commands ICE officers to violate federal law ... commands ICE officers to violate their oaths to uphold and support federal law, violates the Administrative Procedure Act, unconstitutionally usurps and encroaches upon the legislative powers of Congress, as defined in Article I of the United States Constitution, and violates the obligation of the executive branch to faithfully execute the law, as required by Article II, Section 3, of the United States Constitution.”

The lawsuit “seeks to preserve the balance of legislative and executive powers established by the United States Constitution.”

Crane told reporters about two ICE agents, one in El Paso, Texas and one in Delaware, both plaintiffs in the suit, who were thwarted in their attempt to enforce federal immigration law.

In the El Paso case, local police arrested an individual for allegedly assaulting a relative and discovered that he was in the U.S. illegally. When ICE attempted to take him into custody, he tried to escape and an agent was injured. But the suspect was not issued an order for immigration processing and no investigation was conducted because of the Obama administration’s directive, Crane told reporters.

In Delaware, agents arrested an illegal alien who was driving the car of another man, described as a “criminal alien.”  After the driver was taken into custody, agents found he had ten previous driving violations and no driver’s license. The ICE officer who did not want to follow orders from his superiors to release the man has been threatened with suspension, Crane said.

Kris Kobach, the attorney representing the plaintiffs, said Napolitano’s directive is an extension of the DREAM Act, which was never passed by Congress.  “It violates federal immigration laws that require certain aliens to be placed in removal proceedings, it violates the Administrative Procedure Act, and it encroaches upon the legislative powers of Congress as defined in Article I of the United States Constitution.”

Kobach also serves as Secretary of State in Kansas and he is the author of SB 1070, the Arizona immigration law that was partially upheld by the U.S. Supreme Court earlier this year.

Roy Beck of NumbersUSA, the pro-legal immigration organization that is underwriting the ICE agents’ lawsuit, said the Obama administration’s immigration policies are harming U.S. workers.

"Any threat of harm to our nation's immigration officers for enforcing the law is a threat against the livelihoods of average American workers," Beck said. "Congress passes laws to determine how many and which citizens of other countries are allowed to enter U.S. job markets to compete with American workers.

“Fortunately during this long period of high unemployment, Congress has refused to add further competition through amnesties that would give millions of illegal aliens access to the legal U.S. job market,” Beck said. “The Napolitano amnesty directive does the opposite.

“If immigration agents are not allowed to enforce the laws as decided by Congress, the wages and jobs of American workers are at risk,” Beck said.

DHS spokesman Matt Chandler, commenting on the lawsuit, said: “DHS uses prosecutorial discretion to assist in focusing vigorously on the removal of individuals who are convicted criminals, repeat immigration law violators, and recent border-crossers.”

He noted that in fiscal year 2011, ICE removed more than 216,000 convicted criminal aliens -- the largest number in the agency’s history,” he said, and an 89 percent increase over the criminal removals accomplished in the Bush administration.

Chandler said Napolitano’s memo on “deferred action for childhood arrivals” continues the administrations focus on removing criminal aliens – “and ensures that responsible young people, who are Americans in every way but on paper, have an opportunity to remain in the country and make their fullest contribution>”

“This policy is a temporary measure,” Chandler said. “Congress must still act to provide a permanent solution to fix the broken immigration system.”

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