Mitt Romney's Unofficial Adviser Confident About Immigration Lawsuit

Kris Kobach, architect of Arizona’s controversial immigration measure, as well as similar ones in other states, says he is confident that by January courts will declare Obama administration’s program for suspending deportation for some undocumented immigrants a violation of federal law.

Kobach told Fox News Latino that the debate between President Obama and his Republican challenger, Mitt Romney, over the president’s program --which Romney said he will end if he assumes the presidency in January– likely will be “a moot issue by the time he takes office.”

The lawsuit, in which Kobach is a lead attorney, was filed in August in federal court in Dallas on behalf of 10 U.S. Immigration and Customs Enforcement (ICE) employees. It contends that DACA violates federal law and forces ICE employees to break the law by not arresting certain undocumented immigrants.

Kobach, who described himself in the interview as "an informal adviser" to the Romney campaign on immigration matters, made his comments Wednesday as Mississippi became the first state to join his lawsuit against the president’s program, known as Deferred Action for Childhood Arrivals, or DACA.

"States must protect their borders while the federal government continues to ignore this growing problem," said Mississippi Gov. Phil Bryant in a news release. "I believe this action by the Obama administration is unconstitutional and circumvents Congress' authority.”

"The fact remains that illegal immigration is a real issue with real consequences, and ignoring the rule of law is irresponsible,” said Bryant, a Republican. “As governor, I cannot turn a blind eye to the problem of illegal immigration and its costs to Mississippi."

It’ll be a moot question by the time he takes office. I expect the judge in the case will have ruled by January and that he’ll find that the deferred action directive violated federal law.

- Kris Kobach, unofficial Romney immigration adviser and lawyer in lawsuit against the DACA program

Romney, who took a hard line on immigration during the GOP primaries, has said that as president he would end DACA as soon as he assumes office. He assailed DACA as a stop-gap effort that fails to bring any real solution to illegal immigration, and vowed to put in a “permanent solution,” though he has not provided specific information about what that would entail.

Kobach said that Romney did not discuss DACA with him. Kobach, who is Kansas’s secretary of state, added that Romney “will enforce immigration law” as president. As for DACA, he said: “It’ll be a moot question by the time he takes office. I expect the judge in the case will have ruled by January and that he’ll find that the deferred action directive violated federal law.”

Under DACA, immigrants have to prove that they arrived in the United States before they turned 16, have been in the country for at least five years, are 30 or younger, are in school or have graduated or have served in the military may be eligible. They cannot have a criminal record or otherwise be considered a threat to public safety or national security.

Kobach characterizes DACA applicants as people who are a drain on the country.

“Most of the individuals who qualify who are encountered by ICE are already in the penal system,” he says, noting that he is not referring to those who come forward now to apply. “A very high percentage (of DACA immigrants) is within the jail system.”

Efforts to get a comment from the Obama administration were unsuccessful.

Supporters of DACA assailed Kobach and the lawsuit. They said that DACA applicants are not criminals, but people who feel an allegiance to the United States, are contributing, and should not be punished for the decisions of adults who brought them here with them illegally.

“Most Americans support the DREAM Act and think legalization is a much more realistic solution than mass deportation, especially for young people who have grown up in the United States,” said Rep. Luis Gutierrez, Illinois Democrat and chairman of the immigration task force for the Congressional Hispanic Caucus.

“The President's policy allows our enforcement agents to concentrate on deporting criminals and others we really don't want in our country," he noted. "These are young people brought up in the U.S. who have achieved scholastically and remained crime-free.”

“And here we have the hardliners that crafted Romney's immigration policy suing to defend their mass deportation approach."

For the administration, the program was a way to deal with its unsuccessful attempt to push Congress to approve the DREAM Act, a measure that would offer a path to legalization for immigrants who meet a strict set of criteria -including completion of a college degree or two years of military service. Efforts to pass the DREAM Act in Congress have failed several times, most recently in 2010, when it passed the House of Representatives, but not the Senate.

Romney recently said he would support a version of the DREAM Act only if it provided relief to undocumented immigrants who commit to serving in the military.

DREAMers have been at the heart of the immigration debate in recent years, as advocates of more lenient immigration policies have seen them as the best chance for the United States to take a first step toward comprehensive immigration reform. 

Advocates have been particularly critical of Obama, who campaigned in 2008 on a promise of delivering a measure that would reform immigration to include a path to legalization for millions of undocumented immigrants, as well as tighter enforcement.

But no such reform has happened, and Obama’s critics place part of the blame on the president, who they say did not fight hard for it, as he did for healthcare reform, for instance. Taken together with the record number of deportations that have taken place under the Obama administration, many advocates saw the president as duplicitous on immigration.

On the other side, those who favor stricter immigration enforcement see DACA and similar measures as a form of amnesty, or rewarding lawbreakers.

Kobach says immigration enforcement has grown weaker under Obama, despite the record number of deportations. He said the Obama administration has scaled back worksite raids, which were common during under George W. Bush.

“It virtually never happens anymore,” Kobach said. “This administration just doesn’t take immigration law seriously.”

“The Napolitano directive is a good example of how the president has consistently undermined the rule of law in many ways,” Kobach says. “The directive is the latest in a long line of steps the president has taken to make an end run around Congress and pass an amnesty.”

By joining his lawsuit, Kobach says, Mississippi’s governor was expressing the frustration of many states that are bearing the burden of federal inaction on illegal immigration.

“Nationwide, it’s estimate that the total costs of illegal immigration to tax payers is $100 billion per year,” Kobach says.

DACA, he says, will only add to the burden.

“There’ll be criminal costs resulting from [DACA] beneficiaries, and healthcare costs,” he says. “They’ll use public hospitals and that will end up providing free services to individuals who benefit from the initiative.”

“And the DREAM Act applicant, if he has kids, then state will bear the burden of children who are costing money by going to our school system.”

Mississippi Gov. Bryant has said for years he wants to tighten immigration enforcement because he believes the federal government has done a poor job.

 During the 2012 session, the Mississippi House passed an immigration-enforcement bill but a Democratic chairman, Hob Bryan of Amory, killed the bill by choosing not to bring it up for debate in the Senate Judiciary B Committee. Bryan said the bill attempted to micromanage the way law-enforcement officers do their jobs.

Napolitano and ICE Director John Morton are named as defendants in the lawsuit.

"This gives voters another outstanding motivation to vote for President Obama," said Gutierrez, who has been the force in Congress behind the DREAM Act. "Americans want Congress to finally come together to update immigration laws that have not been changed since the 80s and 90s and they want an end to the gridlock that the hardliners have caused for two or three decades."

Elizabeth Llorente is Senior Reporter for FoxNews.com, and can be reached at Elizabeth.Llorente@Foxnews.com. Follow her on Twitter @Liz_Llorente.