On August 23, 11 Immigration and Customs Enforcement officers sued to block the Obama administration’s program for granting deferred action to long-time U.S. residents who came here illegally as children. Those who receive deferred action, based on a careful application process, will be shielded from deportation for two years (potentially renewable) and can receive work authorization. The U.S. Department of Homeland Security (DHS) justifies this program as a systematic and thoughtful way of exercising prosecutorial discretion, by withholding enforcement, after careful screening, against youthful arrivals not culpable for their unauthorized entry. The plaintiffs argue that the statutes, as amended in 1996, leave no room for such discretion.
Policy objections to the new program are fair game, of course. But as a lawsuit, this is a very strange beast, and its full and disturbing implications have not been widely noted. In essence, the plaintiff officers are saying that they are empowered to make their own choices about which immigration violators to arrest, no matter what their hierarchy, all the way up to the president, may say about how to prioritize.
