The National Day Laborer Organizing Network claims that the agency is in violation of the Federal Administrative Procedure Act. "DHS’s failure to respond constitutes an effective denial that is arbitrary, capricious and void of any legitimate explanation,” the group said in the lawsuit.
"What the law says is, they have to respond in a reasonable amount of time," said Jessica Karp Bansal, a staff attorney at NDLON. "In a case like this where peoples' lives are at stake, nine months is clearly unreasonable."
The Department of Homeland Security did not respond to a request for comment on the suit.
The rulemaking petition was filed earlier this year as President Obama was mulling whether he should act alone on the issue. Fuentes and five other people who came to the United States illegally signed on. Now that the president has said he will take executive action to reform the nation's immigration system -- and has delayed his timetable for doing so from the end of the summer until after the midterm elections, but before the end of the year -- the lawsuit is intended to spur action.
But exactly what, if anything, it will accomplish remains to be seen. Obama told congressional leaders last week he intends to act despite calls from both parties to let Congress debate the issue, and warnings that acting alone will spoil his working relationship with the soon-to-be Republican-controlled Congress.
"This point is an important moment to push for action because the administration has made so many statements that they’re going to act, but they keep delaying and delaying," said Thomas Fritzche, a clinical teaching fellow at the Benjamin Cardozo School of Law at Yeshiva University in New York. Fritzche is one of the attorneys representing the network.
Fuentes, a day laborer from Chicago, has received a temporary stay of his removal. He is married with an infant son. Fuentes answered the door one night and found immigration agents looking for another man. They discovered that Fuentes was stopped at the border years ago after returning from his native Guatemala but was let go; agents in Chicago took him into custody.
"It’s uncomfortable not knowing what’s going to happen. You feel nervous because they might have good news or bad news," he said in Spanish.
Fuentes said he has waited months for Obama to do something to help people here illegally "and he hasn't done anything."
Jose A. DelReal contributed reporting.