Experts say the lawsuit, filed last week on behalf of three immigrants in Georgia, could be the first to directly challenge the legitimacy of the 287(g) program, which has been used to identify more than 180,000 illegal immigrants for deportation nationwide since 2006.
"I have heard of nobody filing a lawsuit on this, and I would have heard about it," said Charles Kuck, a prominent Atlanta immigration lawyer and past president of the American Immigration Lawyers Association.
The lawsuit names U.S. Immigration and Customs Enforcement director John Morton, Cobb County Sheriff Neil Warren, an investigator for the Georgia Department of Public Safety and other officials as defendants.
A Department of Public Safety spokesman and a spokeswoman for Warren's office said Thursday their agencies hadn't seen the lawsuit and couldn't comment. ICE did not have an immediate comment.
The lawsuit was filed on behalf of three immigrants and seeks to define the class as "all Hispanic persons who have been or will be restrained and interrogated within the State of Georgia" by local authorities enforcing federal immigration law under an agreement with U.S. Immigration and Customs Enforcement.
As of late September, the 287(g) program had been used to identify 14,692 illegal immigrants in Georgia for deportation in the four years since Cobb became the first county in the state to launch the program, according to ICE. Three additional counties plus the state Department of Public Safety have since signed agreements.
The lawsuit alleges ICE has failed to train, supervise and otherwise oversee sheriff's deputies in Cobb County, where the three plaintiffs live. It also claims ICE has improperly delegated its power to local authorities.
"This is a bad thing, and it tears apart families," said attorney Erik Meder, who filed the lawsuit. "While these people are certainly in the country illegally, they aren't criminals and don't deserve to be locked up and separated from their families."
Immigration officials have broad discretionary power and should not be issuing a notice to appear - which initiates deportation proceedings - for illegal immigrants who are arrested and discovered to be in the country illegally after initially having been stopped for relatively minor offenses, the lawsuit says.
The program is part of the 1996 Immigration and Nationality Act, but wasn't used much until 2006. It is intended to train state and local officers in immigration law enforcement and enables them to identify and detain illegal immigrants, who can then be turned over to ICE.
It has become a rallying point for immigrant rights activists all over the country who say it encourages racial profiling and discourages Latinos from reporting crimes for fear of being deported.
The inspector general of the Department of Homeland Security, which includes ICE, reported in March that the 287(g) program was poorly supervised and provided insufficient training to officers. The inspector general made recommendations for overhauling the program.
It was the second critical report for the program. The Government Accountability Office had criticized it in July 2009.
Meder said the program is unconstitutional because it "impermissibly delegates federal power to local authorities with insufficient oversight."
Kuck doesn't support the 287(g) program but said he believes Congress specifically authorized ICE to delegate enforcement authority to local entities.
"Unfortunately, I don't think it's unconstitutional," he said. "I don't think there's any harm in challenging it, but I don't expect the suit to go anywhere. And I certainly don't think it will be given class-action status."
Brittney Nystrom of the National Immigration Forum, a Washington-based immigrant advocacy organization, said she hasn't heard of any other lawsuit that directly attacks 287(g) on its merits.
"Most of the advocacy around this program is that local authorities aren't using the authority they're given correctly, that there's racial profiling, for example," she said.
The three named plaintiffs in the lawsuit "each represent a different kind of abuse" of the program, Meder said.
One, a Mexican citizen who came to the U.S. legally in 2004 but overstayed her authorization, was arrested after a car crash for not having a driver's license and is being deported. The second, an illegal immigrant arrested on a shoplifting charge she is fighting, is in deportation proceedings. But the lawsuit argues she should be able to stay until her criminal case is decided. The third is an El Salvadoran immigrant who has legal authorization to work in the U.S. but was arrested in July on felony forgery charges. Authorities say he used a false immigration document to renew his driver's license, a charge he denies.