Violating Immigration Law — by Executive Command — in Texas
A lawsuit argues that DHS and ICE directors are punishing agents who follow the law.


Andrew Stiles

The immigration issue is front and center in Washington this week, as the so-called Gang of Eight finally unveiled a comprehensive reform bill at around 2:30 a.m. Wednesday. Meanwhile, in Texas, a federal judge is set to rule within days on a pending lawsuit that has gone largely unnoticed, although it could have serious implications for the immigration debate.

The suit pits the Obama administration against its own immigration-enforcement agents, who are suing over the administration’s use of “prosecutorial discretion” to dictate how immigration law is enforced — or not enforced. A group of ten U.S. Immigration and Customs Enforcement (ICE) agents has charged that a series of policy directives from ICE and the Department of Homeland Security (DHS) effectively “commands ICE officers to violate federal law” and face possible suspension or termination if they refuse. Critics of the Gang of Eight’s proposal worry that if nothing is done to prevent future administrations from similarly ignoring immigration laws, the country will inevitably face another crisis down the road.

A federal judge in Dallas heard arguments in the case on April 8, and he is expected to issue a ruling in the coming days. The plaintiffs are seeking an injunction against a June 2012 directive from Homeland Security Secretary Janet Napolitano that instructs ICE officers to refrain from initiating deportation proceedings for illegal immigrants who may qualify for what is sometimes referred to as “DREAM status.” Immigrants who might qualify would be those who were brought here illegally as children, who are currently enrolled in school or are a member of the military, and who have not been convicted of a serious crime.

The ICE agents claim that the directive “violates the obligation of the executive branch to faithfully execute the law,” which mandates that if immigration officers find that a detainee is in the country illegally, that individual “shall be detained” for removal proceedings. The Obama administration, however, is arguing that the word “shall,” in this instance, actually means “may.” The resulting enforcement breakdown has led officials to release dangerous criminals without charge. One of the most “shocking” examples of this, notes Kris Kobach, the attorney representing the plaintiffs, is the case of ICE agent Samuel Martin.

On July 17, 2012, an illegal immigrant who had been detained on a domestic-assault charge in El Paso, Texas, allegedly assaulted Martin and a colleague — a federal felony charge — as they tried to place the immigrant in a vehicle. When Martin, who would later require shoulder surgery as a result of the incident, sought to initiate removal proceedings against the immigrant, his ICE supervisors told him to release the detainee without charge. According to the plaintiff’s court filing, the agents protested, but were told that “it was a management decision, based on the President’s new immigration policies.” ICE supervisors, with an eye to possible disciplinary action, subsequently questioned the agents.

“Most of the people turned loose are criminals, people who have been arrested but not yet convicted,” Kobach tells National Review Online. “This is really a dangerous policy that results in hundreds, if not thousands, of illegal aliens [who’ve been] arrested for crimes being turned loose on the streets.”

Another agent involved in the lawsuit, James D. Doebler, was given a three-day suspension for arresting and initiating removal proceedings against a “non-targeted alien who did not appear to meet any of the ICE priorities,” according to the official notice of suspension. The illegal immigrant was arrested during a surveillance operation of which he was not the target, but he was later found to have multiple traffic violations, including driving without a license. Doebler determined that the immigrant was a legitimate security threat, made the arrest, and sought to initiate deportation proceedings. ICE supervisors intervened, however, and the immigrant was released without being charged. The arresting agent was served a notice of proposed suspension for his actions; according to court documents, Doebler “reasonably fears that a second disciplinary action will result in the loss of his job.”

ICE and DHS directors “rule with an iron fist,” says Chris Crane, who heads the union representing more than 7,000 ICE employees. Agents constantly face harassment and possible retaliation for actions that may diverge from the administration’s goals. The ongoing lawsuit has created some “breathing room,” but Crane insists it is only temporary. “The second this goes away, we’re in big trouble,” he says. Agents remain “beat down and scared,” as well as frustrated at having to choose between enforcing the law as written and keeping their jobs. This dynamic has wreaked havoc on agency morale, he says. According to a 2012 survey of federal agencies, ICE ranked 279th out of 291 agencies with respect to employee morale and job satisfaction.

Illegal immigrants are keenly aware of the administration’s policy directives, Crane says, and routinely claim “DREAM status” in order to escape criminal charges and deportation. ICE agents have been ordered to “take them at their word,” he adds, and have encountered increasingly aggressive pushback in the field: “They literally have people coming up to them, confronting them, saying, ‘Here’s Obama’s policy, you can’t arrest me, go away.’”

According to court testimony from ICE agent Sam Martin, illegal-immigrant inmates often claim protection under “Obama’s Dream Act” as soon as agents inform them that they will be placed in removal proceedings. Agents are then required to accept the claims and release the detainees without charge.

In some cases, ICE agents have overheard illegal-immigrant detainees — unaware that the agents understand Spanish — coaching one another on how to avoid arrest by claiming DREAM status; yet these agents are still unable to take action. “There’s no doubt in any of our officers’ minds that we are being lied to in thousands upon thousands of cases, and these people are walking out the back doors of jails based on these lies,” Crane says. “It’s an absolute joke.”

Crane met with Senator Marco Rubio (R., Fla.), a leading member of the Gang of Eight, on Monday, after repeated requests. After the meeting, he formally asked Rubio to delay the release of the legislation until “our officers and experts can provide real legislative input.” That didn’t happen. Crane’s biggest concern is that the Obama administration’s ability to ignore current immigration law is a strong sign that any future enforcement measures are unlikely to be implemented. “The single biggest breakdown in our entire immigration system is the fact that every president and every president’s appointees are able to pick and choose which laws they will follow and which laws they won’t,” he says.

Rubio, for his part, acknowledged such concerns in a conference call with conservative journalists on Tuesday. “People have a right to be skeptical about this administration’s commitment to enforcing immigration law,” he said. “The good news is that Barack Obama will only be president for three-and-a-half [more] years. He won’t be president forever.” ICE agents tasked with enforcing the law are hoping they won’t have to wait that long.

Andrew Stiles is a political reporter for National Review Online.