Extension of STEM Optional Practical Training for Foreign Students Under President Obama’s Executive Actions?

Senator Grassley’s latest angry missive to the DHS protests the proposed increase of F-1 student Optional Practical Training (OPT), which was part of President Obama’s  executive actions of November 20, 2014.  While the Senator’s rant against any beneficial immigration proposal is nothing unusual, it reveals for the first time DHS plans to unveil an OPT  extension regulation relating to its promise to retain skilled foreign talent. It is also refreshing that the Obama Administration is endeavoring to implement a key executive action, especially after a  noted immigration blogger justifiably began to wonder whether the Obama Administration was fulfilling its promise or not.

According to Senator Grassley’s letter dated June 8, 2015, the DHS is moving forward with new regulations on OPT

– allowing foreign students with degrees in STEM fields to receive up to two 24-month extensions beyond the original 12-month period provided under OPT regulations, for a total of up to six years of post-graduation employment in student status; and

– authorizing foreign graduates of non-STEM U.S. degree programs to receive the 24-month extension of the OPT period, even if the STEM degree upon which the extension is based is an earlier degree and not for the program from which the student is currently graduating (e.g. student has a bachelor’s in chemistry and is graduating from an M.B.A. program).

Presently, students can receive up to 12 months of OPT upon graduation. In 2008, the DHS published regulations authorizing an additional 17-months extension of the OPT period for foreign students who graduated in STEM (Science, Technology, Engineering and Mathematical) fields. The Senator’s letter also seems to suggest that the agency is considering that employers will certify that they have not displaced US workers.  The STEM OPT extension is presently subject to a legal challenge by the  Washington Alliance of Technology Workers (Washtech). See Washington Alliance of Technology Workers v. DHS, Civil Action No. 1:14-cv-529.   Plaintiffs have alleged that the OPT STEM extension period is a deliberate circumvention of the H-1B visa cap in violation of Congressional intent, and have also been granted competitor standing, which recognizes that a party suffers injury when a government agency lifts regulatory restrictions on competitors or allows increased competition.

Notwithstanding Senator Grassley’s protest and the lawsuit, this is good news for foreign students, especially those who were not selected in the H-1B visa lottery for FY2016.  While the current lawsuit could potentially thwart the  efforts of the administration to extend STEM OPT especially in the face of mounting law suits,  we can also take comfort in an earlier failed legal challenge against STEM OPT.

Soon after the DHS extended OPT from twelve months to twenty-nine months for STEM students, the Programmers Guild sued DHS. in Programmers Guild v. Chertoff, 08-cv-2666 (D.N.J. 2008), challenging the regulation, and initially seeking an injunction, on the ground that DHS. had invented its own guest worker program without Congressional authorization. The court dismissed the suit for injunction on the ground that DHS was entitled to deference under Chevron USA, Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984). Under the oft quoted Chevrondoctrine, courts will pay deference to the regulatory interpretation of the agency charged with executing the laws of the United States when there is ambiguity in the statute. The courts will step in only when the agency’s interpretation is irrational or in error. The Chevron doctrine has two parts: Step 1 requires an examination of whether Congress has directly spoken to the precise question at issue. If Congress had clearly spoken, then that is the end of the matter and the agency and the court must give effect to the unambiguous intent of the statute. Step 2 applies when Congress has not clearly spoken, then the agency’s interpretation is given deference if it is based on a permissible construction of the statute, and the court will defer to this interpretation even if it does not agree with it. Similarly, the Supreme Court in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005), while affirming Chevron, held that if there is an ambiguous statute requiring agency deference under Chevron Step 2, the agency’s interpretation will also trump a judicial decision interpreting the same statute. Brand Xinvolved a judicial review of an FCC ruling exempting broadband Internet carrier from mandatory regulation under a statute. The Supreme Court observed that the Commission’s interpretation involved a “subject matter that is technical, complex, and dynamic;” therefore, the Court concluded that the Commission is in a far better position to address these questions than the Court because nothing in the Communications Act or the Administrative Procedure Act, according to the Court, made unlawful the Commission’s use of its expert policy judgment to resolve these difficult questions.

The District Court in dismissing the Programmers Guild lawsuit discussed the rulings in Chevron and Brand X to uphold the DHS’s ability to extend the student F-1 OPT regulation. Programmers Guild appealed and the Third Circuit also dismissed the lawsuit based on the fact that the Plaintiffs did not have standing. Programmers Guild, Inc. v. Chertoff, 338 Fed. Appx. 239 (3rd Cir. 2009), petition for cert. filed, (U.S. Nov. 13, 2009) (No. 09-590). While the Third Circuit did not address Chevronor Brand X – there was no need to – it interestingly cited Lorillard v. Pons, 434 U.S. 575, 580 (1978), which held that Congress is presumed to be aware of an administrative interpretation of a statute and to adopt that interpretation when it reenacts its statutes without change. Here, the F-1 practical training regulation was devoid of any reference to the displacement of domestic labor, and Congress chose not to enact any such reference, which is why the Programmers Guild lacked standing.

So, why is Washtech again challenging the STEM OPT extension after another challenger had previously failed? This is because the DC Circuit is a favorable court to get standing, which it has already been granted. Even if plaintiffs ultimately prevail on their competitor standing theory, which requires them to show that they are direct and current competitors to F-1 students, plaintiffs still have an uphill task. The plaintiffs rely on International Bricklayers Union v. Meese (another reason why they have commenced legal action in the DC Circuit),  which struck down an INS Operating Instruction that allowed foreign laborers to come to the US on B-1 visas to install equipment or machinery after it had been purchased from an overseas seller. The court in International Bricklayers agreed with the plaintiffs that the laborers were not properly in the United States on a B-1 business visa, which under INA 101(a)(15)(B) precluded one from “performing skilled or unskilled labor.” In fact, Congress had enacted the H-2B visa for this sort of labor pursuant to INA 101(a)(15)(H)(ii)(b).

On the other hand, the provision pertaining to F-1 students at INA 101(a)(15)(F)(i) is more ambiguous. It prescribes the eligibility criterion for a student to enter the United States, but does not indicate what a student may do after he or she has completed the educational program. For over 50 years, the government has allowed students to engage in practical training after the completion of their studies, which Congress has never altered.  Thus, a court should be more inclined to give deference to the Administration’s interpretation of INA 101(a)(15)(F)(i) under Chevron and Brand X even if it expanded STEM OPT beyond the maximum available  period of 29 months. From a policy perspective, the Administration should be given room to expand STEM OPT in order to retain skilled talent in the United States. Global competition for STEM students has increased dramatically, and many countries have reformed their immigration systems to attract such students. American innovation will fall behind global competitors  if we cannot find ways to attract foreign talent especially after they have been educated at American universities.

Senator Grassley’s misgivings about extending STEM OPT  are misplaced, and it is fervently hoped that the Administration will not pay heed to his letter and cynically scrap the program after putting up a show that it had tried it’s best. If extended STEM OPT is implemented, it will provide the impetus for the implementation of other key executive actions such as allowing entrepreneurs to be paroled into the United States and permitting beneficiaries of approved I-140 petitions to work and enjoy job mobilityeven if their priority dates have not become current. Each and every action will surely get challenged, but the Administration should fight on and prevail, like it did when the motion to preliminarily enjoin the granting of work authorization to H-4 dependent spouses failed.


Nothing more poignantly describes the current humanitarian crisis at the Southwest border than a recent New York Times article describing the journey of Alejandro, 8, who came to the United States on his own with only his birth certificate looking for his parents who are somewhere in San Antonio or an aunt in Maryland. The story of an adorable, courageous and resourceful 8 year old braving a dangerous journey in search of his parents will pull at the heartstrings of any parent. 

There may be many reasons for this crisis and what may draw unaccompanied young children to the United States, but one reason for this is our broken immigration system. This system does not allow people accessible pathways to come to the United States legally or gain legal status.  Even those who are here as permanent residents or naturalized citizens have to wait years before their loved ones can join them due to the backlogs in our family and employment-based immigration preferences.  Until recently there was some hope that the House would pass its own version of immigration reform after the Senate passed S. 744 last year. Those hopes have now been dashed

The impetus to preserve family unity is pervasive and exists across all cultures, and so is the deep love that parents have for their children and that children have for their parents. Many of the children fleeing violence in Central American countries are trying to unite with parents living in the United States. However, the broken immigration system does not allow families to unite through legal means Instead of beefing up the border with more enforcement; President Obama can bring some balance to the immigration system through bold administrative measures that will promote family unification in a legal and orderly manner. While there are several proposals on the table, one that resonates is to not count derivative family members in the employment and family preferences. The solution is simple but elegant: Count all members of a family together as one unit rather than as separate and distinct individuals. Do that and systemic visa retrogression, resulting in family members waiting endlessly, will quickly become a thing of the past. 

Not Counting Family Members 

Section 203(d) of the Immigration and Nationality Act (INA) is the provision that deals with family members. Let us examine what section 203(d) says: “A spouse or child defined in subparagraphs (A), (B), (C), (D), or (E) of section 1101 (b)(1) of this title shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) of this section, be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.” There is nothing in section 203(d) that explicitly provides authority for family members to be counted under the preference quotas. While a derivative is “entitled to the same status, and the same order of consideration” as the principal, nothing requires that family members also be given numbers. If Congress allocates a certain number of visas to immigrants with advanced degrees, it makes no sense if half or more are used up by family members.  

There is no regulation in 8 Code of Federal Regulations (C.F.R.) instructing what section 203(d) is supposed to be doing. Even the Department of State’s regulation at 22 C.F.R. 42.32 only parrots section 203(d) and states that children and spouses are “entitled to the derivative status corresponding to the classification and priority date of the principal.” 22 C.F.R. 42.32 does not provide further amplification on the scope and purpose of section 203(d). We acknowledge that section 203(d) derivatives are wholly within the preference system and bound by its limitations. They are not independent of numerical limits, only from direct limitations. It is the principal alien through whom they derive their claim who is counted and who has been counted. Hence, if no EB or FB numbers were available to the principal alien, the derivatives would not be able to immigrate either. If they were exempt altogether, this would not matter. There is a difference between not being counted at all, which we do not argue, and being counted as an integral family unit as opposed to individuals, which we do assert. We seek not an exemption from numerical limits but a different way of counting such limits.  

If the Executive Branch wanted to reinterpret section 203(d), there is sufficient ambiguity in the provision for it do so without the need for Congress to sanction it. A government agency’s interpretation of an ambiguous statute is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)—often abbreviated as “Chevron deference”.  When a statute is ambiguous in this way, the Supreme Court has made clear in National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005), the agency may reconsider its interpretation even after the courts have approved of it.  Brand X can be used as a force for good. For instance, in  Sciallaba v. Osorio: Does the Dark Cloud Have A Silver Lining, Cyrus  Mehta and David Isaacson propose that notwithstanding the Supreme Court’s recent decision concerning  section 203(h)(3) of the INA, where the Court agreed with the  Board of Immigration Appeal’s (BIA) more restrictive interpretation of this Child Status Protection Act provision in Matter of Wang, 25 I&N Dec. 28 (BIA 2009),  the BIA has the power to reverse Matter of Wang under Brand X. Matter of Wang held that not all children who are unable to protect their age under the Child Status Protection Act can claim the earlier priority date under which their parent immigration to the United States.  

As the plurality opinion in Sciallaba v. Osorio explained in its conclusion:

This is the kind of case Chevron was built for.  Whatever Congress might have meant in enacting §1153(h)(3), it failed to speak clearly.  Confronted with a self-contradictory, ambiguous provision in a complex statutory scheme, the Board chose a textually reasonable construction consonant with its view of the purposes and policies underlying immigration law.  Were we to overturn the Board in that circumstance, we would assume as our own the responsible and expert agency’s role.  We decline that path, and defer to the Board.

Kagan slip op. at 33. 

Thus, when a provision is ambiguous such as section 203(d), the government agency may reasonably interpret the provision in a reasonable manner. In our prior article relating to not counting relatives, Why We Can’t Wait:   How President Obama Can Erase Immigrant Visa Backlogs With A Stroke Of A Pen,,0201-endelman.shtm, we discussed  that  there are admittedly some statutory provisions which might be read as pointing against an interpretation to not count family members. Most notably, it has also been pointed to us that  INA section 202(b) permits a spouse or child to “cross charge” to the foreign state of either of the parents or the spouse to avoid family separation, and this may suggest that derivatives must be individually counted for purposes of the per country cap. Still, this too can be interpreted differently under Chevronand Brand X, namely, that the entire family be counted as single unit to the other spouse or parent’s country. Of course, the statutory provision which militates in favor of such an interpretation is most notably the text of INA §203(d) itself. If this happened, the EB and FB preferences could instantly become “current.” The backlogs would disappear. The USCIS might even have to build a new Service Center!

Expansion of Parole in Place

The very idea of “parole” in section 212(d)(5) of the INA is linked to  allowing deserving aliens to come to the United States for “urgent humanitarian reasons or significant public benefit.” In most cases, we think this only applies to people who are not yet here. Not so. Digging a bit deeper into the INA, we find in section 235(a)(1) this golden nugget: an applicant for admission is “an alien present in the United states who has not been admitted…” Putting all of this together, there is nothing in law or logic that prevents the full embrace and unfettered application of parole to those already in the United States outside the color of law. The invocation of ‘parole in place” is another example of using new interpretive techniques to mine the existing law for greater benefits. It is the antidote to the inability of Congress to enact comprehensive immigration reform. There should be no concern over a possible infringement of separation of powers for the authority of Congress over the legislative process is being fully respected.  Part of the responsibility of the President to enforce the laws is to adopt an understanding of them that best promotes what Congress had in mind when it passed the law in the first place. Parole in place does precisely that. This is not amnesty. The requirements for obtaining legal status on a permanent basis apply in full. It is merely an attempt to think of the law we have not purely or primarily as an instrument of enforcement but as a platform for remediation of the human condition. Indeed, is this not how law in the American tradition is meant to function?

The creation of new solutions by federal agencies has become the norm rather than the exception in our system of governance if for no other reason that the sheer multiplicity of issues, as well as their dense complexity, defies traditional compromise or achievable consensus which are the hallmarks of Congressional deliberation. They require timely and directed executive action as a formula for keeping present problems from getting worse. This is exactly why Congress authorized the Attorney General to grant employment authorization without terms or limitations pursuant to INA 274A (h) (3)(B), a provision that should be linked with the robust exercise of the Executive’s parole power. The INA leaves the granting of parole completely up to the discretion of the Attorney General, now shifted to the DHS. It is hard to imagine a more open invitation to Executive rule- making to provide when parole can be extended, as there is absolutely nothing in the INA that would contradict a DHS regulation allowing parole in place. Not only is it appropriate for the DHS to formulate immigration policy on highly minute technical issues of surpassing moment such as parole in place, but the Constitution expects that to happen. Indeed, without this, who would do it? Far from crossing the line and infringing the authority of Congress, what we ask the DHS to do augments Congressional prerogative by providing a practical way for them to function.

In addition to not counting derivatives, the Obama Administration can extend parole in place (PIP) that has been granted to military families to all immediate relatives of US citizens, which would allow them to adjust in the US rather than travel abroad and risk the 3 and 10 year bars of inadmissibility under sections 212(a)(9)(B)(i)(I) and (II) of the INA. Such administrative relief would be far less controversial than granting deferred action since immediate relatives of US citizens are anyway eligible for permanent residence. The only difference is that they could apply for their green cards in the US without needing to travel overseas and apply for waivers of the 3 and 10 year bars.

The concept of PIP can be extended to other categories, such as beneficiaries of preference petitions, which the authors have explained in The Tyranny of Priority Dates. However, they need to have demonstrated lawful status as a condition for being able to adjust status under INA section 245(c)(2) and the current memogranting PIP to military families states that “[p]arole does not erase any periods of unlawful status.” There is no reason why this policy cannot be reversed. The grant of PIP, especially to someone who arrived in the past without admission or parole, can retroactively give that person lawful status too, thus rendering him or her eligible to adjust status through the I-130 petition as a preference beneficiary. The only place in INA section 245 where the applicant is required to have maintained lawful nonimmigrant status is under INA section 245(c)(7), which is limited to employment-based immigrants. Family-based immigrants are not so subject. For purposes of section  245(c) of the INA, current regulations already define “lawful immigration status” to include “parole status which has not expired, been revoked, or terminated.” 8 C.F.R. section 245.1(d)(v). Indeed, even if one has already been admitted previously in a nonimmigrant visa status and is now out of status, the authors contend  that this person should be able to apply for a rescission of that admission and instead be granted retroactive PIP. Thus, beneficiaries of I-130 petitions, if granted retroactive PIP, ought to be able adjust their status in the US.

There is also no reason why PIP cannot extend to beneficiaries of employment I-140 petitions. If this is done, would such persons be able to adjust status to lawful permanent resident without leaving the USA? In order to do that, they not only need to demonstrate lawful status, but also  to have maintained continuous lawful nonimmigrant status under INA section 245(c)(7), as noted above.  Is there a way around this problem? At first glance, we consider the possibility of using the exception under INA section 245(k) which allows for those who have not continuously maintained lawful nonimmigrant status to still take advantage of section 245 adjustment if they can demonstrate that they have been in unlawful status for not more than 180 days since their last admission. We would do well to remember, however, that 245(k) only works if the alien is “present in the United States pursuant to a lawful admission.”  Is parole an admission? Not according to INA section 101(a)(13)(B). So, while retroactive PIP would help satisfy the 180 day requirement imposed by INA section 245(k)(2), it cannot substitute for the lawful admission demanded by section 245(k)(1). Even if an out of status or unlawfully present I-140 beneficiary who had previously been admitted now received nunc pro tunc parole, the parole would replace the prior lawful admission. Such a person would still not be eligible for INA section 245(k) benefits and, having failed to continuously maintain valid nonimmigrant status,  would remain unable to adjust due to the preclusive effect of section 245(c)(7). Similarly, an I-140 beneficiary who had entered EWI and subsequently received retroactive parole would likewise not be able to utilize 245(k) for precisely the same reason, the lack of a lawful admission. Still, the grant of retroactive PIP should wipe out unlawful presence and the 3 and 10 year bars enabling this I-140 beneficiary to still receive an immigrant visa at an overseas consular post without triggering the bars upon departure from the US. Thus, while the beneficiary of an employment-based petition may not be able to apply for adjustment of status, retroactive PIP would nevertheless be hugely beneficial because, assuming PIP is considered a lawful status, it will wipe out unlawful presence and will thus no longer trigger the bars upon the alien’s departure from the US.

Our proposal to grant PIP retroactively so that it erases unlawful presence can also assist people who face the permanent bar under section 212(a)(9)(C) of the INA. If PIP can retroactively erase unlawful presence, then those who entered the country without inspection after accruing unlawful presence of more than 1 year will not trigger the bar under this provision if the unlawful presence has been erased.

One of the biggest contributors to the buildup of the undocumented population in the US has been the 3 year, 10 year and permanent bars.  Even though people are beneficiaries of immigrant visa petitions, they do not wish to risk travelling abroad and facing the bars.  Extending PIP to people who are in any event in the pipeline for a green card would allow them adjust status in the US or process immigrant visas at consular posts, and become lawful permanent residents. These people are already eligible for permanent residence through approved I-130 and I-140 petitions, and PIP would only facilitate their ability to apply for permanent residence in the US, or in the case of I-140 beneficiaries by travelling overseas for consular processing without incurring the 3 and 10 year bars. PIP would thus reduce the undocumented population in the US without creating new categories of relief, which Congress can and should do through reform immigration legislation. 

Achieving Something Close to Comprehensive Immigration Reform Without Congress

Not counting family members and expanding parole in place can be a potent combination for nearing comprehensive immigration reform administratively in the face of Congressional inaction. The waits in the EB and FB preferences will disappear, and family members waiting abroad can unite with their loved ones more quickly and need not be forced to take the perilous path across the Southwest border in desperation. The expansion of PIP to beneficiaries of approved I-130 and I-140 petitions would allow them to obtain lawful permanent residence, rather than being stuck in permanent limbo due to the 3 and 10 year bars. After removing the obstacle of the bars, the grant of lawful permanent residence would be more rapid as there would be no backlogs in the FB and EB preferences, and loved ones from abroad can unite with newly minted immigrants in the United States through an orderly and legal process. 

Our proposals fall squarely within the mainstream of the American political tradition, animated by the spirit of audacious incrementalism that has consistently characterized successful reform initiatives. We acknowledge that immigration reform passed by Congress would solve more problems in a fundamental way. We seek less dramatic but no less meaningful advances through the disciplined invocation of executive initiative only because these are the ones that can be achieved sooner and with greater predictability. Our justifiable zeal for immigration reform must not blind us to the benefit of more moderate proposals. We are confident that future progress will follow in a way that minimizes disruption and maximizes acceptance. We hold fast to the distinction between prudence and absolutism, between incremental reform and revolutionary upheaval. In the long run, the American experience has been characterized more by the former than the latter and it has led to a fruitful stability that has been the envy of the world.

(Guest writer Gary Endelman is the Senior Counsel of FosterQuan)

Scialabba v. Cuellar de Osorio: Does the Dark Cloud Have a Silver Lining?

By Cyrus D. Mehta and David A. Isaacson

On June 9, 2014, the Supreme Court issued its ruling in Scialabba v. Cuellar de Osorio. (The case had previously been known as Mayorkas v. Cuellar de Osorio before Lori Scialabba was appointed as Acting Director of USCIS, replacing former Director Alejandro Mayorkas.)  The Court ruled in Cuellar de Osorio that the BIA’s previous interpretation of the Child Status Protection Act (CSPA), as set out in Matter of Wang, 25 I&N Dec. 28 (BIA 2009), was a reasonable interpretation of an ambiguous statute.  In particular, the Court deferred to the BIA’s narrow interpretation of INA §203(h)(3), 8 U.S.C. §1153(h)(3), severely limiting which derivative beneficiaries of visa petitions could retain their parents’ priority dates.  This is a disappointing decision, but the details of the opinions in Cuellar de Osorio do leave room for some hope.

As discussed in several severalpreviousposts onthis blog, INA §203(h)(3) provides for “automatic conversion” in the cases of certain beneficiaries of preference visa petitions whose age, even as adjusted under the CSPA to account for the time taken to process the visa petition, is determined to be above 21.  Some principal and derivative beneficiaries, according to the statute, will under these circumstances have their petitions automatically converted to the appropriate category, and retain the original priority date.  The question in Cuellar de Osorio and Matter of Wang was who gets to benefit from this automatic conversation.  The en banc Court of Appeals for the Ninth Circuit in Cuellar de Osorio, as well as the Court of Appeals for the Fifth Circuit in Khalid v. Holder, had argued for a broad interpretation which allowed all derivative beneficiaries to benefit, as at least some of the language of the statute seemed to suggest.  The BIA in Matter of Wang, as well as the Court of Appeals for the Second Circuit in Li v. Renaud and an earlier Ninth Circuit panel decision in Cuellar de Osorio, had chosen narrower approaches, which in effect allowed automatic conversion and priority date retention only for the principal and derivative beneficiaries of family 2A preference petitions, not the derivative beneficiaries of other categories of preference petitions.  The Supreme Court took the Cuellar de Osorio case to resolve this disagreement.

There was no single Supreme Court majority opinion in Cuellar de Osorio, but a total of five justices accepted the BIA’s narrow interpretation of the statute as set out in Matter of Wang, for two different sets of reasons.  The plurality opinion was written by Justice Kagan, and supported by Justices Kennedy and Ginsburg.  Chief Justice Roberts, joined by Justice Scalia, authored an opinion concurring in the judgment, but for somewhat different reasons.  Justices Sotomayor and Alito authored dissenting opinions; Justice Sotomayor’s dissent was joined by Justice Breyer in its entirety and by Justice Thomas except with regard to one footnote.

To appreciate the different opinions in Cuellar de Osorio, it is helpful to review the text of §1153(h)(3), quoted in the opinion of the Chief Justice and in a footnote to the plurality opinion.  It states:

If the age of an alien is determined under paragraph [1153(h)](1) [the CSPA provision the adjusts the age of a preference petition beneficiary to compensate for elapsed processing time] to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d) of this section, the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.

The different opinions in Cuellar de Osoriotook different views of what Congress may have meant in prescribing that “the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”

Justice Kagan’s plurality opinion described §1153(h)(3) as “Janus-faced”.  Kagan slip op. at 14.  The first half of the provision, she said, looks toward a broader interpretation of the sort supported by the Ninth Circuit, but the second half describes a remedy, automatic conversion, which Justice Kagan and the plurality saw as most naturally applying only when the new petition to which automatic conversion would occur would have the same petitioner and same beneficiary.  Given this “internal tension”, Justice Kagan said, the BIA was entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)—often abbreviated as “Chevron deference”.  As Justice Kagan and the plurality saw it, there are “alternative reasonable constructions” of §1153(h)(3), “bringing into correspondence in one way or another the section’s different parts.  And when that is so, Chevron dictates that a court defer to the agency’s choice—here, to the Board’s expert judgment about which interpretation fits best with, and makes most sense of, the statutory scheme.”  Kagan slip op. at 14.  As the plurality opinion explained in its conclusion:

This is the kind of case Chevron was built for.  Whatever Congress might have meant in enacting §1153(h)(3), it failed to speak clearly.  Confronted with a self-contradictory, ambiguous provision in a complex statutory scheme, the Board chose a textually reasonable construction consonant with its view of the purposes and policies underlying immigration law.  Were we to overturn the Board in that circumstance, we would assume as our own the responsible and expert agency’s role.  We decline that path, and defer to the Board.

Kagan slip op. at 33.

Chief Justice Roberts, joined by Justice Scalia, reached essentially the same conclusion as the three-Justice plurality led by Justice Kagan, but for different reasons.  Concurring in the judgment, the Chief Justice wrote that he did not see “conflict, or even internal tension . . . in section 1153(h)(3).”  Roberts slip op. at 2.  Rather, he “d[id] not think the first clause points to any relief at all.” 3.  Instead, he described the second clause of §1153(h)(3) as “the only operative provision.” 3-4. In that only operative provision, he took the view that beyond certain basic requirements, “Congress did not speak clearly to which petitions can “automatically be converted.”  Id. at 4.

The dissenting Justices, in contrast, were of the view that even if there was some ambiguity in the statute, it was not sufficient to justify the interpretation that the Board adopted in Matter of Wang.  While “Section 1153(h)(3) is brief and cryptic” and “may well contain a great deal of ambiguity, which the [BIA] is free to resolve,” Justice Alito wrote, it was at least clear that “the alien’s petition shallautomatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”  Alito slip op. at 2 (emphasis added in original).  The BIA, he contended, was “not free to disregard this clear statutory command.”  Id.  Justice Sotomayor, as well, argued in her dissent that because a reading of the statute was possible that gave effect to both the automatic conversion language and the statute’s broad description of who was eligible for automatic conversion, that reading should have been followed.  Because there were potential interpretations that “would treat §1153(h)(3) as a coherent whole,” she said, “the BIA’s construction was impermissible.”  Sotomayor slip op. at 9

On the surface, the Supreme Court’s decision in Cuellar de Osorio is obviously disappointing for a great many immigrants who were hoping to recapture priority dates of petitions initially filed for their parents through automatic conversion.  Aged-out children who have waited patiently for many years for their parent’s priority date to become current are told that they must now go back to the beginning of the line on a new petition filed by their parent under the Family 2B preference—which for most of the world has a backlog of more than seven years as of the June 2014 Visa Bulletin, and is backlogged many years more for those chargeable to Mexico or the Philippines.  While it is an unfortunate decision from that perspective, however, Cuellar de Osorio does contain some seeds of hope for better outcomes in the future.

The first seed of hope, with respect to §1153(h)(3) itself, is the latitude which the Court has provided for the executive branch to reconsider its decision.  Justice Kagan’s plurality opinion is careful to state that “we hold only that §1153(h)(3) permits—not that it requires—the Board’s decision to so distinguish among aged out beneficiaries.”  Cuellar de Osorio slip op. of Kagan, J., at 21.  The concurring opinion of Chief Justice Roberts and Justice Scalia is not as explicit in this respect, but it describes its disagreement with the plurality as involving “a different view of what makes this provision ambiguous under Chevron” rather than going to the question whether the provision is ambiguous at all. Indeed, the Chief Justice criticized Justice Kagan’s “Janus-faced” metaphor of §1153(h)(3). “But when Congress assigns to an agency the responsibility for deciding whether a particular group should get relief, it does not do so by simultaneously saying that the group should and that it should not. Direct conflict is not ambiguity, and the resolution of such a conflict is not statutory construction but legislative choice.” Id. at 2.   Thus, a majority of the Court agrees that the meaning of §1153(h)(3) is an ambiguity subject to Chevron deference, rather than suggesting, as the Second Circuit had done in Li v. Renaud, that a narrow reading of §1153(h)(3) is compelled by the statute.

When a statute is ambiguous in this way, the Supreme Court has made clear in National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005), the agency may reconsider its interpretation even after the courts have approved of it. Thus, the Court’s description of §1153(h)(3) as an ambiguous statute subject to Chevrondeference to the BIA’s interpretation implies that the BIA could, even after Cuellar de Osorio, reverse its position in Matter of Wang.  So too could the Attorney General, on whose behalf the BIA ultimately acts, go against Matter of Wang and adopt a broader interpretation of §1153(h)(3).  As the INA provides, within the executive branch, “determination and ruling by the Attorney General with respect to all questions of law shall be controlling.”  INA §103(a)(1), 8 U.S.C. §1103(a)(1).  Ultimately, it is within the power of Attorney General Holder to save those beneficiaries who have waited in line for many years, and now find themselves pushed to the back of a new line that may be decades long.  Whether or not these results of the Wang interpretation affirmed in Cuellar de Osorio may be legally permissible, they are not desirable as a policy matter, and the Supreme Court has left the Attorney General the power to recognize this.  In light of the Obama Administration’s many noteworthy administrative reform measures in the face of Congressional inaction, the provisional waiver rule and Deferred Action for Childhood Arrivals being such examples, a broader interpretation of §1153(h)(3) would be consistent with these efforts.

Of course, Congress too could fix the problem, by redrafting the statute to make it clearer that all derivative beneficiaries whose adjusted age is over 21 can retain the principal beneficiary’s priority date.  This was done in section 2305(d)(5)(C) of  S. 744, the comprehensive immigration reform bill passed by the Senate, which unfortunately has not been brought to a vote in the House of Representatives.  But if Congress continues not to act, the executive branch has the power to remediate the unfairness of requiring those who have waited in line with their parents for many years to go to the back of a new line and start over from the beginning.

Another policy argument in favor of such a reversal of Matter of Wang which would be worth the consideration of the BIA or the Attorney General, or for that matter Congress, is that the Matter of Wang interpretation of §1153(h)(3), now affirmed in Cuellar de Osorio, reintroduces some of the arbitrariness which the enactment of the CSPA had sought to avoid.  The age-adjustment process under INA §203(h)(1), 8 U.S.C. §1153(h)(1), in effect subtracts from the adjusted age of a visa applicant the time during which a visa petition was pending.  If the adjusted age of a derivative applicant is under 21, the CSPA as interpreted in Wang and Cuellar de Osorio will allow the applicant to utilize a principal beneficiary parent’s priority date; otherwise, the benefit of the priority date will be lost entirely.  But that means that children whose parents were petitioned for on the same date, and whose parents’ priority dates become current simultaneously, may be treated in dramatically different fashion depending on how long it happened to take USCIS to process the petition on behalf of their parents during the time that no visa number was available.  The broader interpretation of §1153(h)(3) rejected by the BIA in Matter of Wang would have reduced this arbitrariness, by enabling even a child whose parent’s petition happens to be processed relatively quickly, and whose CSPA-adjusted age is therefore over 21 when the priority date becomes current, to enjoy some benefit from that petition and its priority date.

The potential positive implications of Cuellar de Osorio beyond the CSPA context are also worth considering.  As previously discussed in postsonthis blog and articles by co-author Cyrus D. Mehta and Gary Endelman regarding “The Tyranny of Priority Dates” and “Comprehensive Immigration Reform Through Executive Fiat”, the executive branch’s authority under Brand X can potentially be used as a force for good in the immigration context.  This occurred for example in Matter of Douglas, 26 I&N Dec. 197 (BIA 2013), where, as discussed in one of the aforementioned blog posts, the BIA chose not to follow an unfavorable decision by the Court of Appeals for the Third Circuit regarding procedures for acquisition of citizenship under former section 321(a) of the Immigration and Nationality Act.  If, as the plurality in Cuellar de Osorioindicates, tension between the apparent meaning of different statutory provisions is sufficient to activate the Chevronand Brand X authority of the executive branch even if one could conceive of a potential interpretation which could harmonize the different provisions (at the cost of some awkwardness), this will expand the power that the executive branch may have to use Chevron and Brand X for pro-immigration ends.

Take, for example, the proposal in “The Tyranny of Priority Dates” that the executive branch re-interpret INA §203(d) so that derivative family members do not consume additional visa numbers beyond those taken up by the principal beneficiaries of visa petitions, thus freeing up a greater quantity of visa numbers for use by others.  As discussed in that article, there are admittedly some statutory provisions which might be read as pointing against such an interpretation.  But there are also statutory provisions which pull in favor of such an interpretation, most notably the text of INA §203(d) itself when it states that a derivative family member is “entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.”  INA §203(d), 8 U.S.C. §1153(d).  If family members must be provided with separate visa numbers, then how can one fulfill this command for the family members of the principal immigrant who receives the last available visa number in a fiscal year for a particular category—will they not inevitably be subject to a delay in their “order of consideration” that is inconsistent with §203(d)?  This tension, interpreted in line with the version of Chevron deference implemented by the Cuellar de Osorioplurality, would provide sufficient authority to reinterpret the priority-date system in a way that could significantly reduce the current backlogs in the visa preference categories.

Remarkably, Cuellar de Osorio was not decided on the usual conservative-liberal ideological lines as with many Supreme Court decisions. The pairings of justices who decided one way or the other are rather odd much like combining a full-bodied red Malbec with a delicate white fish –  Ginsburg and Scalia were part of the plurality that denied relief to children while Sotomayor and Thomas vigorously dissented. The outcome in this case is neither a liberal nor a conservative victory.  This could potentially give President Obama through his Attorney General some political cover if they decided to use Brand X as a force for good by reversing Matter of Wang. Of course, the government caused this in the first place by litigating all the way to the Supreme Court. Sceptics will rightly question why the government would change course after having gone so far. However, the Attorney General, through the BIA, has reversed course before. For example, in Matter of Silva, 16 I&N Dec. 26 (BIA 1976), the BIA acquiesced to Francis v. INS, 532 F.2d 268 (2d Cir. 1976), and allowed 212(c) relief for LPRs in deportation proceedings who had not previously departed and returned, despite its earlier contrary holdings in Matter of Francis and Matter of Arias-Uribe, 13 I&N Dec. 696 (BIA 1971). If Congress fails to  enact Congressional reform, it is likely that the Administration will endeavor to provide relief through further administrative measures. Our blog provides the Administration with a way to do so for children who were left out of the American Dream solely because they were unlucky to have aged out.

Matter of Douglas: The BIA Confirms That Brand X Can Sometimes be a Force For Good

On October 17, 2013, its first day back to normal operations after the end of the recent federal government shutdown, the Board of Immigration Appeals (BIA) issued a precedential opinion, Matter of Douglas, 26 I&N Dec. 197 (BIA 2013).  At first glance, Matter of Douglas is about an interesting but obscure aspect of a section of the Immigration and Nationality Act (INA) that was repealed more than a decade ago.  But perhaps more importantly, Matter of Douglas is also an example of the BIA using its authority to go against Court of Appeals precedent decisions under National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005) (“Brand X”), to the benefit of an immigrant and potential U.S. citizen rather than to the detriment of the immigrant.At issue in Matter of Douglas was former section 321(a) of the INA, repealed effective February 2001 by the Child Citizenship Act of 2000, which in relevant part replaced INA §321(a) with the simpler rule of current INA §320.  As Matter of Douglas explained, former §321(a)

provided that citizenship was automatically acquired by a child born outside the United States of alien parents under the following conditions:

(1) The naturalization of both parents; or
(2) The naturalization of the surviving parent if one of the parents, is deceased; or
(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; and if
(4) Such naturalization takes place while such child is under the age of eighteen years; and
(5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent last naturalized under clause (1) of this subsection, or the parent naturalized under clause (2) or (3) of the subsection, or thereafter begins to reside permanently in the United States while under the age of eighteen years.

Matter of Douglas, 26 I&N Dec. in 198 (emphasis in original).The question in Matter of Douglas was the relevance of the order in which the conditions of former INA §321(a) were satisfied.  As the BIA explained, Mr. Douglas

was born in Jamaica on January 29, 1976, to his married parents, each of whom was a native and citizen of Jamaica. On December 14, 1981, [Mr. Douglas] entered the United States as a lawful permanent resident. [Mr. Douglas]’s mother was naturalized on April 13, 1988. His parents were divorced on July 25, 1990. [He] became 18 years old in 1994.

Matter of Douglas, 26 I&N Dec. at 198.  That is, Mr. Douglas’s mother became “the parent having legal custody of the child when there has been a legal separation of the parents” under former INA §321(a)(3) only after she was naturalized, having been naturalized in 1988 and divorced in 1990.  Both of these events, however, happened while Mr. Douglas was a lawful permanent resident and before he reached the age of 18, in compliance with former INA §321(a)(4)-(5).In its earlier decision in Matter of Baires, 24 I&N Dec. 467 (BIA 2008), the BIA had held that “A child who has satisfied the statutory conditions of former section 321(a) of the Immigration and Nationality Act . . . before the age of 18 years has acquired United States citizenship, regardless of whether the naturalized parent acquired legal custody of the child before or after the naturalization.”  Matter of Baires, 24 I&N Dec. at 467.  Under this rule, Mr. Douglas would be a U.S. citizen.  Case law of the U.S. Court of Appeals for the Third Circuit, however, as the BIA acknowledged, required that one seeking to show acquisition of citizenship under former INA §321(a)(3) demonstrate “that his [parent] was naturalized after a legal separation from his [other parent],” rather than before such a separation.  Jordon v. Att’y Gen., 424 F.3d 320, 330 (3d Cir. 2005)(alterations in original) (quoting Bagot v. Ashcroft, 398 F.3d 252, 257 (3d Cir. 2005)).  In Matter of Baires, the BIA had noted the Third Circuit case law, but had indicated that “we are not bound by the Third Circuit decisions on which the Immigration Judge relied because this case is within the jurisdiction of the Fifth Circuit.” 24 I&N Dec. at 469.  The proceedings in Matter of Douglas, however, had taken place within the jurisdiction of the Third Circuit, and so the BIA had to decide whether to follow Matter of Baires or the Third Circuit’s decisions in Jordon and Bagot.

The BIA chose to follow Matter of Baires, rather than Jordon and Bagot, and so found Mr. Douglas to be a U.S. citizen and terminated his removal proceedings.  Under Brand X, as the BIA explained, an administrative agency such as the BIA can sometimes be entitled to “Chevrondeference” pursuant to Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) regarding its interpretation of a statute, even when there has been a prior court interpretation of the statute going the other way, so long as that court did not find that the statute unambiguously supported its interpretation.  Believing that its interpretation in Baires was a reasonable interpretation of the statute, and that Jordon and Bagot had not interpreted the statute to be unambiguous, the BIA concluded that under Brand X it could and would follow Baires, rather that Jordonand Bagot, even in the Third Circuit.

It appears that this may be the first time that the BIA has explicitly relied on Brand X to rule in favor of the immigrant respondent.  The BIA has, to be sure, previously rejected Court of Appeals case law that it thought to be incorrect in favor of a more immigrant-friendly approach. In Matter of F-P-R-, 24 I&N Dec. 681 (BIA 2008), for example, the BIA declined to follow the Second Circuit’s decision in Joaquin-Porras v. Gonzales, 435 F.3d 172 (2d Cir 2006), and held that the one-year period in which a timely application for asylum may be made runs from the applicant’s literal “last arrival” even when that last arrival followed a relatively brief trip outside the United States pursuant to advance parole granted by immigration authorities (which the Second Circuit had held would not restart the one-year clock).  The proceedings underlying Matter of F-P-R-, however, appear to have taken place in the Ninth Circuit, not the Second, see 24 I&N Dec. at 682 (referring to “the absence of any controlling decisions on the issue from either the United States Court of Appeals for the Ninth Circuit or the Board”), and so the BIA did not have to determine whether it would follow Joaquin-Porras within the Second Circuit.  Here, in contrast, the BIA held that it would not follow Jordon and Bagot even within the Circuit that had decided them.  And while there was a footnote in the BIA’s acclaimed decision inMatter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012) (regarding travel on advance parole by one who has accrued unlawful presence) that could be read as pointing in this direction, the BIA in Arrabally made much of the fact that it was addressing an aspect of the law that the petitioner in the Third Circuit’s previous decision in Cheruku v. Att’y Gen., 662 F.3d 198 (3d Cir. 2011), had not challenged, see Matter of Arrabally, 25 I&N Dec. at 775 n.6.  It appears that Matter of Douglas may be the first BIA decision to go flatly against a contrary Circuit precedent under Brand X and do so to the benefit of the immigrant respondent.

The possibility of using Brand X as a force for good has been raised before, notably by Gary Endelman and Cyrus D. Mehta in their articles on “The Tyranny of Priority Dates” and “Comprehensive Immigration Reform Through Executive Fiat”, as well as their post on this blog which explained how the BIA’s decision in Matter of Zeleniak, 26 I&N Dec. 158 (BIA 2013), implementing the Supreme Court’s striking down of Section 3 of the Defense of Marriage Act in United States v. Windsor, 133 S. Ct. 2675 (2013), effectively overruled the Ninth Circuit’s earlier decision in Adams v. Howerton, 637 F.3d 1036 (9th Cir. 1982) in regard to recognition of same-sex marriages for immigration purposes.  Like Matter of F-P-R-, however, Matter of Zeleniak had not explicitly relied on Brand X.  In this regard, Matter of Douglas is a significant step forward.Of course, Brand X is not always a force for good.  Less than a year ago, for example, the BIA decided in Matter of M-H-, 26 I&N Dec. 46 (BIA 2012), that it would disregard the Third Circuit’s decision in Alaka v. Att’y Gen., 456 F.3d 88 (3d Cir. 2006), and follow its own prior decision in Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007), so as to consider even some crimes that are not aggravated felonies as “particularly serious crimes” which can bar withholding of removal.  The merits of Matter of M-H- (which this author considers dubious) are beyond the scope of this blog post, but it is only one example of the fact that the BIA can seek to rely on Brand X to strip applicants for relief of protection that a Court of Appeals has given them.  Also within the last year, the BIA invoked Brand X in Matter of Cortes Medina, 26 I&N Dec. 79 (BIA 2013), to find that violation of California Penal Code 314(1), regarding indecent exposure, was categorically a crime involving moral turpitude, despite the contrary decision of the Court of Appeals for the Ninth Circuit in Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010).  Nor are these the only examples; an exhaustive list of all instances in which Brand X has been invoked by the BIA to the advantage of the Department of Homeland Security and the disadvantage of an immigrant would unnecessarily lengthen this blog post.Now that the BIA has acknowledged in Matter of Douglas that Brand X is not a one-way ratchet and can also work in favor of immigrants, however, it is important for practitioners to keep Brand X in mind when they are faced with unfavorable Court of Appeals case law interpreting an ambiguous immigration statute.  Especially where existing BIA case law in other circuits is more favorable, an unfavorable Court of Appeals decision in a particular circuit need not be the last word.


By Gary Endelman and Cyrus D. Mehta

“The arc of the moral universe is long but it bends towards justice.” Dr. Martin Luther King
As if the non-recognition by the governors of Arizona, Nebraska, Texas and Mississippi of Obama’s Consideration of Deferred Action for Childhood Arrivals (DACA) program was not enough, a lawsuit filed by disgruntled ICE agents further reveals the misguided hate against a most vulnerable and sympathetic immigrant population in the US – young  people who entered the US before they turned 16, and who are not in a lawful status through no fault of their own.

The lawsuit, Crane v. Napolitano, has been filed by 10 ICE agents in a federal court in Texas who are being represented by Kris Kobach – the architect of the anti-immigrant state laws of Arizona and Alabama. It is being bank rolled by NumbersUSA, an anti-immigrant organization, which has been called a hate group. Even the head of the AFL-CIO has slammed the plaintiffs as not representing legitimate union grievances (as 9 out of the 10 plaintiffs belong to the ICE Union) but as “working with some of the most anti-immigrant forces in the country, forces that have long sowed division and destruction.”

The lawsuit alleges that the recent prosecutorial discretion policies enunciated in the Memo by ICE Director John Morton  and DACA command ICE officers to violate federal law. In essence, ICE officers, according to plaintiffs,  are required to remove non-citizens who are not here legally while DACA prohibits an officer from doing just that, which among other things, requires the individual to have entered the US under the age of 16;  been continuously residing in the US from June 15, 2007 until June 15, 2012, and was present on June 15, 2012;  is currently in school, has graduated from high school or obtained a GED or has been honorably discharged from the Armed Forces or the Coast Guard;  and is not above the age of 30. Also, the qualified individual should not have been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses, and does not otherwise pose a threat to national security or public safety.

The lawsuit invokes provisions from the 1996 Immigration Act. The complaint alleges as follows:  “8 U.S.C. § 1225(a)(1) [INA § 235(a)(1)] requires that “an alien present in the United States who has not been admitted…shall be deemed for purposes of this chapter an applicant for admission.” This designation triggers 8 U.S.C. § 1225(a)(3) [INA § 235(a)(3)] which requires that all applicants for admission “shall be inspected by immigration officers.” This in turn triggers 8 U.S.C. § 1225(b)(2)(A)  [INA § 235(b)(2)(A)] which mandates that “if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.” The proceedings under 8 U.S.C. § 1229a [INA § 240] are removal proceedings in the United States immigration courts.”

Deferred action is neither recent nor radical. Widows of US citizens have been granted this benefit. Battered immigrants  have also known its sheltering arms.  Never has the size of a vulnerable population been a valid reason to say no. Knowing this, the extension of such relief to DACA applicants is less a leap into the unknown justified by some wild, lawless ideology than a sober reaffirmation of an existing tool for remediation in prior emergencies. Moreover, many EWIs are also eligible for adjustment of status under special provisions of the law, but they are not routinely detained under INA § 235(b)(2)(A).  While they may be entitled to admission beyond a clear doubt, such a determination is not been made upon the mere filing of the adjustment application. Moreover, this argument is clearly not applicable to individuals who enter the US on a valid visa and overstay, which is the case with many DACA applicants.

Also, Kobach’s lawsuit conveniently omits to mention INA § 103(a)(1), which charges the DHS Secretary with the administration and enforcement of the Act, which in turn implies that the DHS can decide when to and when not to remove an alien. He also fails to mention INA 274A(h)(3)(B), which excludes from the definition of “unauthorized alien” any alien “authorized to be so employed . . . by the Attorney General.” After all, 8 CFR 274a.12(c)(14),  which authorizes the grant of employment authorization to one who has been granted deferred action, has been around for several decades. The only new thing about DACA is that the guidance memorandum set forth criteria for the grant of deferred action, and work authorization under 8 CFR 274a.12(c)(14).Congress too has recognized “deferred action” in § 202(c)(2)(B)(viii) of the REAL ID Act as a status,  which can allow an alien to receive a driver’s license.  This stands in marked contrast to the stated refusal of the Republican gubernatorial quartet noted supra to allow issuance of state driver’s licenses. Texas Governor Perry apparently does not realize that current Texas law already allows deferred action beneficiaries who have an employment authorization document to get a one-year Texas license.

There is a direct conflict between these Governors and the provisions of the Real ID act that, as of January 1, 2013, will sanction issuance of state driver’s license to deferred action grantees, This has been brought out vividly in Nightmare in Arizona: Governor Brewer’s Nonsensical And Mean-Spirited Executive Order Against Dreamers, and is a classic example of conflict pre-emption that is constitutionally impermissible under Arizona v. United States, 132 S. Ct. 2492, 183  L.Ed.2d  351 (2012). Whatever state executives may think, when confronted with the expressed intent of Congress in the Real ID Act, their opposition to deferred action having state driver’s licenses must give way. State law cannot “stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz,  312 U.S. 52, 67 (1941). We suggest that the enemies of Dream Act relief tread softly and with great care. Gary Endelman & Cynthia Lange, The Perils of Preemption: Immigration and the Federalist Paradox, 13 Bender’s Immigr. Bull. 1217 (Oct. 1, 2008).

We refer our readers to the excellent Immigration Impact blog on why Kobach and the plaintiffs will likely lose. One compelling argument that the blog makes is that the court will dismiss for lack of jurisdiction since a federal case cannot be made out of a difference of opinion between government employees and their superiors. The blog’s author Ben Winograd draws this apt analogy: “ICE agents hauling the head of the Department of Homeland Security (DHS) into court is like a law clerk suing a judge for writing a decision with which she disagrees—or Kobach’s own subordinates in Kansas seeking an injunction requiring him to perform his actual job as Kansas Secretary of State. It’s just not how the legal system works.”

We propose further suggestions why the law suit may have no merit. We now revive the argument that we made in The Tyranny of Priority Dates that the courts will most likely give deference to the administration’s interpretation of INA provisions in the event that it grants benefits, such as work authorization, through executive action. Indeed, in the recent past, another restrictionist group filed a similar law suit against an administrative measure, which failed. In Programmers Guild v. Chertoff,  08-cv-2666 (D.N.J. 2008), the Programmers Guild sued DHS challenging the regulation extending Optional Practical Training from 12 months to 29 months for STEM (Science, Technology, Engineering and Math) students. The plaintiffs in seeking a preliminary injunction argued that DHS had invented its own guest worker program without Congressional authorization. The court dismissed the suit for injunction on the ground that DHS was entitled to deference under Chevron USA, Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984). Under the oft quoted Chevron doctrine, courts will pay deference to the regulatory interpretation of the agency charged with executing the laws of the United States when there is ambiguity in the statute. The courts will step in only when the agency’s interpretation is irrational or in error. Similarly, the Supreme Court in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005), while affirming Chevron, held that if there is an ambiguous statute requiring agency deference under Chevron,  the agency’s interpretation will also trump a judicial decision interpreting the same statute. The court in dismissing the Programmers Guild lawsuit discussed the rulings in Chevron and Brand X to uphold the DHS’s ability to extend the student F-1 OPT regulation. Programmers Guild appealed and the Third Circuit also dismissed the lawsuit based on the fact that the Plaintiffs did not have standing. Programmers Guild, Inc. v. Chertoff,  338 Fed. Appx. 239 (3rd Cir. 2009), petition for cert. filed, (U.S. Nov. 13, 2009) (No. 09-590). While the Third Circuit did not address Chevron or Brand X – there was no need to – it interestingly cited Lorillard v. Pons, 434 U.S. 575, 580 (1978), which held that Congress is presumed to be aware of an administrative interpretation of a statute and to adopt that interpretation when it reenacts its statutes without change. Here, the F-1 practical training regulation was devoid of any reference to the displacement of domestic labor, and Congress chose not to enact any such reference, which is why the Programmers Guild lacked standing.

In the ICE agents’ case against DACA, the same arguments can be forcefully made. In the event that the court finds jurisdiction, a similar argument can be made that the DHS be given deference in interpreting INA § 103(a)(1), which would allow the DHS Secretary to set forth policies regarding the exercise of prosecutorial discretion as in the Morton Memo and under DACA. Surely, the “body of experience” and the “informed judgment” that DHS brings to the Dream Act provide its interpretations with  “ the power to persuade.” Skidmore  v. Swift  & Co., 323 U.S. 134, 140 (1944). As Justice Elena Kagan famously noted when she served as the Dean of the Harvard Law School, the increasingly vigorous resort to federal regulation as a tool for policy transformation by all Presidents since Ronald Reagan has made “the regulatory activities of the executive branch agencies more and more an extension of the President’s own policy and political agenda.” Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2246 (2001).  Kobach and his clients might profitably peruse Randolph J. May, Defining Deference Down: Independent Agencies and Chevron Deference, 58 Admin. L. Rev. 429 (2006) if they really want to know why they are wrong.  Writing for the Brand X majority, Justice Thomas noted that, in Chevron itself, the Supreme Court deferred to the reversal by the Reagan EPA in 1981 as to the meaning of “statutory source” in the 1977 Clean Air Act amendments. Id. at 440, n. 66.   If  Kobach does not know if the DHS has the power to act, or what the constitutional wellsprings of the DACA memoranda are, we suggest that the Supreme Court does. The very notion of Chevron-deference is “premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gap.” FDA v. Brown & Williamson Tobacco Corp., 529 US 120, 159 (2000).  That is precisely what the DHS has done. Moreover, INA § 274A(h)(3)(B) provides authority to the Executive Branch to grant employment authorization  to whomever it wants. Deferred action has also been around for decades, and Congress has been aware of this administrative benefit, which it recognized when enacting the Real ID Act. Until now, Chevron, and Brand X in particular, have been feared by the immigration bar and immigration advocates for its negative potential as a legitimization of government repression. Yet, it has a positive potential by enabling the Executive to expand individual rights and grant benefits sua sponte. We do not need to live in fear of Brand X. We can make it our own – at least in this law suit challenging DACA.

It is also worth mentioning that while the lawsuit may argue that there is no express Congressional authorization for the Obama Administration to implement such measures, the President may act within a “twilight zone” in which he may have concurrent authority with Congress. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring). Unlike Youngstown Sheet and Tube Co. v. Sawyer, where the Supreme Court held that the President could not seize a steel mill to resolve a labor dispute without Congressional authorization, the Administration under through the Morton Memo and DACA is well acting within Congressional authorization. In his famous concurring opinion, Justice Jackson reminded us that, however meritorious, separation of powers itself was not without limit: “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” Id. at 635. Nativist lawyers look in vain for explicit authority in the INA that supports DACA relief. They can stop searching:

Congress …may not have expressly delegated authority to…fill a particular gap. Yet,it can still be apparent from the agency’s generally conferred authority that Congress will expect the agency to speak with the force of law when it addresses ambiguity in the statute…even one about which Congress did not actually have an intent as to a particular result.   United States v. Mead, 533 U.S. 218, 229(2001)

Finally, one cannot separate the vitriol against DREAMers in states like Arizona and the law suit challenging DACA. They emanate from the same xenophobia against immigrants without being able to see that the deserving beneficiaries of DACA are out of status for no fault of their own, and even if one pinpoints the blame on their parents, the reason for such a huge undocumented population is because of a broken immigration system that does not provide sufficient avenues to legalize oneself. This law suit challenging DACA, along with the opposition to DACA by the Arizona and other states, essentially challenges the federal government’s authority to exercise prosecutorial discretion. We think this is a losing proposition. In the Arizona v. USA decision, the Supreme Court acknowledged the federal government’s role in exercising prosecutorial discretion, where Justice Kennedy writing for the majority in that decision noted, “A principal feature of the removal system is the broad discretion exercised by immigration officials…Federal officials as an initial matter, must decide whether it makes sense to pursue removal at all.”  Kobach wants the Dreamers kicked out; neither he nor his ICE agents get to make that call; it is up to DHS to decide when, or whether, to initiate such an enforcement campaign.  Heckler v. Chaney, 470 U.S. 821, 835 (1985).  The reason is not hard to figure out;   inherent in the exercise of discretion is the bedrock truth that there is simply “no law to apply.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410(1971). The good sense and fundamental decency of the American people, guided by the continuing truth of the Constitution, will have to make due. It has served us pretty well so far.