ICE Agents File Suit to Block Deferred Action Initiative

Officers of Immigration and Customs Enforcement (ICE) have filed suit in the United States District Court for the Northern District of Texas against their boss, John Morton, and Department of Homeland Security Secretary Janet Napolitano.  

The suit challenges the legality of Secretary Napolitano's June 15, 2012, directive entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” commonly referred to as DACA.  They are seeking injunctive relief that if granted will prevent the implementation of what they characterize as an "unlawful and unconstitutional Directive."

The lawsuit specifically "seeks to prevent law enforcement officer Plaintiffs from being forced to either violate federal law if they comply with the unlawful Directive or risk adverse employment action if they disobey the unlawful orders of the DHS Secretary. This lawsuit alsoseeks to preserve the balance of legislative and executive powers established by the United States Constitution."

They argue that:

The Directive 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 Plaintiffs believe that if they follow the Directive, they will be violating their oath of office, as well as violating several laws of the United States. The claim that if they follow the requirements of federal law, contrary to the “Directive,” and arrest an alien or issue an alien an Notice to Appear (NTA) in removal proceedings, they will be disciplined or suffer other adverse employment consequences.

Here are the plaintiffs:

• Plaintiff Christopher L. Crane is an ICE Deportation Officer. He serves in Enforcement and Removal Operations at the Salt Lake City Field Office at 2975 Decker Lake Drive, Stop A, in West Valley City, Utah. He is also the President of the ICE Agents and Officers Union, AFGE Council #118. As an ICE Deportation Officer, Crane is authorized by law to, inter alia, arrest aliens for administrative immigration violations or for any criminal offense against the United States and execute administrative and criminal arrest warrants. 

• Plaintiff David A. Engle is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations at the Dallas Field Office at 8101 N. Stemmons Freeway, in Dallas, Texas. As an ICE Immigration Enforcement Agent, Engle is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.

• Plaintiff Anastasia Marie Carroll is an ICE Immigration Enforcement Agent. She serves in Enforcement and Removal Operations at the El Paso Field Office at 1545 Hawkins Boulevard, in El Paso, Texas. As an ICE Immigration Enforcement Agent, Carroll is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.

• Plaintiff Ricardo Diaz is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations at the El Paso Field Office at 1545 Hawkins Boulevard, in El Paso, Texas. As an ICE Immigration Enforcement Agent, Diaz is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.

• Plaintiff Lorenzo Garza is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations at the Port Isabel Detention Center at 27791 Buena Vista Boulevard, in LosFresnos, Texas. As an ICE Immigration Enforcement Agent, Garza is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.

• Plaintiff Felix Luciano is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations at the San Diego Field Office at 880 Front Street, Suite B- 2232, in San Diego, California. As an ICE Immigration Enforcement Agent, Luciano is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.

• Plaintiff Tre Rebstock is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations at the Houston Field Office at 7405 C-1 Highway 75 South, in Huntsville, Texas. As an ICE Immigration Enforcement Agent, Rebstock is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.

• Plaintiff Fernando Silva is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations at the El Paso Field Office at 1545 Hawkins Boulevard, in El Paso, Texas. As an ICE Immigration Enforcement Agent, Silva is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and issue administrative arrest warrants for aliens.

• Plaintiff Samuel Martin is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations in the El Paso Field Office at 8915 Montana Avenue, in El Paso, Texas. As an ICE Immigration Enforcement Agent, Martin is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.

• Plaintiff James D. Doebler is an ICE Deportation Officer. He serves in Enforcement and Removal Operations in the Dover Sub-Office at 1305 McD Drive, in Dover, Delaware. As an ICE Deportation Officer, Doebler is authorized by law to, inter alia, arrest aliens for administrative immigration violations or for any criminal offense against the United States and execute administrative and criminal arrest warrants.

Click here to read the full text of the complaint.

AMERICAN FAMILY FACING HORROR OF UNJUST DEPORTATION

Help a Family to be Reunited after Husband's Deportation

USCIS Won't Share the Information Provided on DACA Applications with ICE... UNLESS they decide to Deport You

It appears that when the Obama administration said they will not share the information provided in Deferred Action for Childhood Arrivals (DACA) applications with ICE, what they really meant to say was they won't share your information UNLESS they decide to deport you.

Here is what I found in the recently updated USCIS DACA Frequently Asked Questions:

Will the information I share in my request for consideration of deferred action for childhood arrivals be used for immigration enforcement purposes?

Information provided in this request is protected from disclosure to U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings UNLESS the requestor meets the criteria for the issuance of a Notice To Appear or a referral to U.S. Immigration and Customs Enforcement under the criteria set forth in USCIS’s Notice to Appear guidance (www.uscis.gov/NTA).  [Emphasis added]

The link in the USCIS FAQ brings you to the November 7, 2011, policy memorandum that establishes criteria for consideration of whether an individual is an immigration enforcement priority that should be targeted for deportation. The memo specifically prioritizes the deportation of individuals that have been found to have committed fraud through the submission of an immigration application.

This policy has been reinforced in the DACA FAQ:

What steps will USCIS and ICE take if I engage in fraud through the new process?

If you knowingly make a misrepresentation, or knowingly fail to disclose facts (i.e., you leave something out that you think will result in the denial of your application), in an effort to have your case deferred or obtain work authorization through this new process, you will be treated as an immigration enforcement priority to the fullest extent permitted by law, and be subject to criminal prosecution and/or removal from the United States. 

Fraud is not the only thing that may result in the institution of removal proceedings after the submission of a DACA application.  The Obama administration has created a new term of art called a "significant misdemeanor."

It has been defined as follows:

Any misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria:

1. Regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or,
2. If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.

Also be aware that just because you don't have a criminal record does not in any way prevent the Government from denying your application and sharing your information with ICE for the purpose of instituting removal.

They added the following catchall:

Notwithstanding the above, the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances. Therefore, the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion. DHS retains the discretion to determine that an individual does not warrant deferred action on the basis of a single criminal offense for which the individual was sentenced to time in custody of 90 days or less.

Translation: they can deny your DACA application and deport you if they decide to... and by the way, their decision is final.

So what does this mean?  

If you have a conviction, regardless of the seriousness (i.e., it has no immigration consequences), USCIS can deny your application and have ICE institute removal proceedings. Alternatively, even if you don't have a conviction, but have criminal charges that did not result in convictions, your DACA application may be denied in the exercise of discretion, and ICE may be notified for the purpose of instituting removal proceedings.

So here is the bottom line, when you are submitting a DACA application DO NOT be fooled into thinking that there is no chance that you will be deported.  The fine print that keeps being added to the process clearly permits the institution of removal proceedings for almost any reason, or no reason.

I am not saying that you shouldn't submit a DACA application if you believe that you are both eligible, and a low priority risk.  You can decide that for yourself after consulting an immigration lawyer that is experienced in deportation defense.  

What I am saying is that anyone that tells you that there is no/minimal risk of deportation when applying for DACA is lying to you.

USCIS: Misrepresentation, or Knowing Failure to Disclose Facts on a DACA or Work Authorization Application will result in Treatment as an Immigration Enforcement Priority

From USCIS website, updated on August 15, 2012:

What steps will USCIS and ICE take if I engage in fraud through the new process?

If you knowingly make a misrepresentation, or knowingly fail to disclose facts, in an effort to have your case deferred or obtain work authorization through this new process, you will be treated as an immigration enforcement priority to the fullest extent permitted by law, and be subject to criminal prosecution and/or removal from the United States. 

I am VERY concerned that this deferred action initiative is a ticking time bomb for many people.

The people who are claiming that this is a simple straight forward process simply do not understand the complexities of immigration law.  This process is so much more than simply filling out a form. 

I see issues relating to the admission of fraudulent use of a social security number, as well as potential false claims to United States citizenship on I-9 attestation forms that very well may result in the institution of removal proceedings, and deportation with no waiver available.

It is patently irresponsible for politicians to be stating that there is no need for an immigration lawyer in these applications.  The one thing I can say with absolute certainty is that you are going to need an immigration lawyer the moment this administration determines you are an enforcement priority.

Talking Points on Why Deferred Action is NOT Amnesty

If you find yourself being interviwed by any media source feel free to use the following talking points to answer the inevitable claims that Deferred Action for Childhood Arrivals is amnesty.

1. Contrary to the misinformation being spewed all over the media, President Obama has NOT issued an executive order.  DHS Secretary Napolitano has issued a nonbinding policy directive that does not have the full force of law, and may be ignored by adjudicating officers at their election.

If past results are any indicator there is not much to be optimistic about.  The last policy memorandum issued by John Morton only resulted in a favorable exercise of prosecutorial discretion in 1.9% of all reviewed cases.  We have absolutely no idea at this point how the new memo will be implemented. As such, there clearly is no guarantee that just because a deferred action application is submitted that discretion will be favorably exercised.

2. The deferred action initiative is temporary (two-years), and may be cancelled at any time for any reason, or for no reason.

3. We have no idea how long it will take for the current administration to issue decisions.  It is assumed that at a minimum it will take months, and decisions may not be issued until after the November election.   If denials come pouring in after the election there is little likelihood that the program will be renewed even if Obama wins.

4. Despite official statements to the contrary, there is no guarantee that the biographical information being provided on applications won't be used at some point in the future as a basis to institute removal proceedings.  Given the current administration's approximately 1.5 million deportations in 3.5 years, I tend to be cautiously pessimistic.

5. If prosecutorial discretion IS favorably exercised applicants are NOT guaranteed to receive a work permit.  To receive one you must establish economic necessity for employment.  Who knows how that will be interpreted.  The work permit will presumably be valid for two years, and must be renewed.  As stated above there is no way of knowing if subsequent permits will be issued.

6. If prosecutorial discretion is denied you have no right to due process to seek an appeal of the denial.  As stated above denials may be completely arbitrary and without justification, and there is nothing an applicant can do about it.

7. True immigration reform may only be accomplished through an act of Congress so we must continue to fight for reform. Our mission has NOT been accomplished.  

So there you have it.  If you hear someone claim that Obama has created an illegal amnesty through executive order you are now armed with a response.

Good luck!

Undocumented immigrants line up for relief from deportation