ICE Agents Have Standing to Sue DHS Over DACA

By Janice Kephart on February 3, 2013

In the midst of a "comprehensive immigration reform" package that could legalize the controversial so-called Morton memo on prosecutorial discretion and the Department of Homeland Security (DHS) directive for a DREAM Act-like deferred action amnesty (known as DACA), a legal challenge to both was upheld in a federal appeals court ruling last month. The ruling, issued by Judge Reed O'Connor in Dallas, concluded that 10 ICE agents and officers have standing to challenge both DHS initiatives aimed at limiting ICE agents from upholding immigration law.

The two initiatives not only provide no guidance to ICE agents as to when to enforce the law (other than for serious criminals) for the estimated 11 million illegal aliens currently residing in the United States, but also temporarily legalize a subset of the same illegal population. About 154,000 illegal immigrants already have been granted employment authorization and "temporary" legal status under DACA, which began accepting applications in late August 2012. Since then, illegal crossings into central Arizona have surged and continue to increase.

The basis for the lawsuit began with the June 2011 Morton memo that was solidified, from the plaintiff's viewpoint, with the June 2012 directive by DHS Secretary Napolitano offering deferred action and employment authorization to illegal aliens under the age of 31 who claimed to meet certain criteria and applied for a two-year deferred action of any immigration enforcement. For a history of amnesty based on internal DHS memos, including the Morton memo, see my Memorandum, "Amnesty by Any Means", and my five-part blog series discussing prosecutorial discretion and ICE union members' no confidence vote in leadership, "ICE Mission Melt".

The Obama administration asked the judge to dismiss the lawsuit, claiming the plaintiffs did not have standing as the agents had suffered no actual injury requiring legal redress. The court disagreed in its 35-page ruling, finding "injury" may include a future injury, in this case the threat that the agents could lose their jobs if they do not enforce the Morton memo and deferred action amnesty directive.

Judge O'Connor also found that the State of Mississippi does not have standing to sue. Mississippi had joined the lawsuit to assert injuries including the extra cost to the state of providing healthcare, education, and other benefits to the DACA recipients. The judge did not rule on the agents' motion for a preliminary injunction to halt the implementation of the DHS policy initiatives as he was limited to the issue of standing in the initial decision.

Kris W. Kobach, the secretary of state in Kansas and a former counsel to the Attorney General of the United States, is representing the ICE agents in their lawsuit. He told me via e-mail, "The Obama administration had hoped that the case would be dismissed on standing grounds and no court would review the merits of the challenge. Now the legal challenges to the program will be heard." The lead plaintiff is Chris Crane, an ICE deportation officer in Utah and president of the ICE agents' union. Other agents reside in Dallas, where the lawsuit is filed. Hearing their voice as the debate over "comprehensive immigration reform" rages will not only be helpful, but essential. The country needs to pay attention as this case moves forward.