Tag Archive for: DACA

Cyrus Mehta

The Role Of The Immigration Lawyer In The Age Of Trump

/1 Comment/in /by

Our role as immigration lawyers has never become more important since the morning of November 9, 2016. Notwithstanding his conciliatory speech after his upset win, President elect Donald Trump will have to deliver on some of his campaign promises that got him votes such as building a wall, extreme vetting and cancelling Obama’s executive actions such as the Deferred Action For Childhood Arrivals (DACA) program.

We are already getting a glimpse of the people who are being selected to be part of the immigration transition team. Kris Kobach has joined the team. He is avowedly anti-immigrant and was the architect of state enforcement laws, including Arizona’s notorious SB 1070, which includes the notorious “show me your papers” provision. SB 1070 authorizes local law enforcement to ask people for proof of their immigration status when there is “reasonable suspicion” that they might not be in the country legally. Kobach also coined the idea of “self-deportation” through attrition, which assumes that undocumented immigrants will leave on their own if the laws are applied harshly against them.

Another person who has joined the transition team is Danielle Cutrona who is Senator Jeff Sessions’ counsel on the Judiciary Committee. Senator Sessions is opposed to both legal and illegal immigration. He believes that even legal immigrants are bad for the United States.  When you have these sorts of people inducted into the immigration transition team, one can only imagine that they will want to implement as much as Trump’s vision on immigration, which he articulated in a fiery anti-immigration speech in Phoenix, Arizona:

  1. Begin working on an impenetrable physical wall on the southern border, on day one. Mexico will pay for the wall.
  2. End catch-and-release. Under a Trump administration, anyone who illegally crosses the border will be detained until they are removed out of our country.
  3. Move criminal aliens out day one, in joint operations with local, state, and federal law enforcement. We will terminate the Obama administration’s deadly, non-enforcement policies that allow thousands of criminal aliens to freely roam our streets.
  4. End sanctuary cities.
  5. Immediately terminate President Obama’s two illegal executive amnesties. All immigration laws will be enforced – we will triple the number of ICE agents. Anyone who enters the U.S. illegally is subject to deportation. That is what it means to have laws and to have a country.
  6. Suspend the issuance of visas to any place where adequate screening cannot occur, until proven and effective vetting mechanisms can be put into place.
  7. Ensure that other countries take their people back when we order them deported.
  8. Ensure that a biometric entry-exit visa tracking system is fully implemented at all land, air, and sea ports.
  9. Turn off the jobs and benefits magnet. Many immigrants come to the U.S. illegally in search of jobs, even though federal law prohibits the employment of illegal immigrants.
  10. Reform legal immigration to serve the best interests of America and its workers, keeping immigration levels within historic norms.

It may not be possible for Trump to implement his entire vision, as he would also need the cooperation of both houses of Congress. For example, Congress would have to agree to provide funding for Trump’s wall. However, when Kobach was asked about the wall, Kobach answered that there is “no question” that it would be built. “The only question is how quickly will get done and who helps pay for it.” Still, one is hearing that there is hedging on the election promises and the wall may no longer get immediate priority. While it would be nice to hope that all that Trump said was election blather, he has also been advised by the Center for Immigration Studies (CIS) whose goal and mission is to severely curtail immigration. If you take a look at their talking points to the next President on how to severely restrict immigration through administration actions, you will know what I mean. It is a scary 79-point list that if implemented will totally gut the system the way we know it.   Therefore, it would be a mistake to wait and see rather than taking action right away.

The low hanging fruit  is to cancel DACA (although I would prefer if they rather built the wall but left DACA untouched). There are hundreds of thousands of young people who have received benefits under DACA and have done extremely well in their careers. It would be a tragedy if DACA was rescinded, which is easy to do, since the policy was based on a memo of the Obama administration. Still, it will look bad on the Trump administration and the Republican party if this happens since jeopardizing the lives and careers of DACA recipients will generate much sympathy. Also, DACA recipients are active and know how to mobilize to protect themselves. Indeed, it is because of their effective activism that they were able to convince the Obama administration to implement DACA in the first place. Needless to say, DACA recipients should consider alternatives as soon as possible. If they have a legal basis for permanent residence, they should explore it, such as through marriage to a US citizen spouse or through some some other green card sponsorship basis. Even if they cannot adjust status in the US if they previously entered without inspection, they can leave on advance parole and return without triggering the 3 or 10 year bar, which would provide a basis for eligibility to adjust status as an immediate relative of a US citizen.  Alternatively, they can take advantage of the provisional waiver rule (and since it is a regulation in the federal register, it cannot be cancelled as easily as DACA), which allows one to waive based on extreme hardship to a qualifying relative the 3 or 10 year bars in advance of the departure from the US in order to process the immigrant visa at the US consulate.  And even if DACA is cancelled, the employment authorization document (EAD) is not unless the government specifically revokes it pursuant to 8 CFR 274a.14(b), and only after the EAD recipient has been given an opportunity to respond through a Notice of Intent to Revoke. These suggestions are by no means exhaustive and may not be accomplished by January 20, 2017 when Trump takes office, so DACA recipients must consult with advocacy organizations and attorneys to fully explore all their options.

Vulnerable immigrants need advocates more than ever before to defend and protect them. We have a new and renewed mission, and this should propel us forward and give us a new purpose. Trump’s immigration advisors will likely appoint hostile judges, officers and leaders in charge of immigration policy. He will be harsh in the enforcement of the immigration laws, and is likely to restrict business immigration in favor of an America first policy. There is a possibility that the Obama administration’s prosecutorial discretion policies may also get cancelled and people will be more susceptible to deportation. The proposed extreme vetting can become a nightmare, and for some, it could be a proxy for not being allowed to come into the United States at all. Immigration lawyers need to be strategic regarding advising clients to apply for citizenship and travel out of the US.  We will use our legal acumen and every skill to protect our clients and our client’s businesses. We will be the shield for them against all the hateful anti-immigration rhetoric that is bound to manifest itself even more from his supporters. We will do what we do best with a renewed sense of purpose.

Finally, we sincerely hope that Donald Trump as a President with respect to his immigration policies will be different from Donald Trump as a candidate. A new President elect should herald optimism in everyone rather than cause fear to hundreds of thousands of vulnerable immigrants. There has been no statement from Trump to allay their fear. Why should we think that Trump has changed after all the hateful rhetoric he spewed against immigrants and refugees? Just like a leopard does not change its spots, a bigot will always remain a bigot. The fact that Kobach and Cutrona have joined the team only heightens such fears. After 9/11, although we feared the worst, there were no drastic limits or moratoriums due to the resilience and strength of the immigration movement. 11/9 poses yet another grave challenge, but we are ready to brace for the fight to defend immigrants in the age of Trump and xenophobia. And prevail we must as the cause is righteous and just.

(This blog is for informational purposes, and should not be considered as a substitute for legal advice)

David Isaacson

Some Preliminary Reactions to the Oral Argument in United States v. Texas

/0 Comments/in /by

As most readers of this blog will likely be aware, the Supreme Court heard oral argument today in the case now captioned United States v. Texas, regarding the lawsuit brought by Texas and a number of other states to stop implementation of DAPA (Deferred Action for Parents of Americans) and expanded DACA (Deferred Action for Childhood Arrivals).  The transcript of the argument is now available online, although the audiotape will not be available until later in the week.  There has been much media coverage of the argument, including by the always-insightful SCOTUSBlog, and a number of media organizations and commentators have suggested that the Court may divide 4 to 4, thus leaving the Fifth Circuit’s decision intact and preventing DAPA and expanded DACA from going into effect at this time.  While that is a possibility, however, there are also some reasons to be optimistic that it may not come to pass.

I do not wish to recap all of the voluminous coverage of the argument by the media and commentators, but will focus in this blog post primarily on one or two things that I have not seen highlighted by other commentators. However, there is one observation about the argument, not original to me, which does seem worth passing along, and which falls under the heading of reasons for optimism.  As Chris Geidner has pointed out in his review of the oral argument on Buzzfeed, Justice Anthony Kennedy, who is often seen as a swing vote in cases where the Court is closely divided, raised the possibility that the more appropriate way for Texas to have proceeded would have been to challenge the application of the regulation granting employment authorization to deferred action beneficiaries, 8 C.F.R. §274a.12(c)(14), under the Administrative Procedure Act.  Justice Sotomayor discussed with Solicitor General Verrilli on page 31 of the transcript the possibility that, if Texas had wanted to attack the 1986 regulation that allows employment authorization under many circumstances including deferred action, they could have petitioned the agency for rulemaking under section 553(c) of the Administrative Procedure Act.  If that failed, they could then have gone to court.  Instead, Texas went directly into court without first raising its concerns with the agency—a procedural shortcut which a majority of the Court may not be willing to tolerate.  This is separate from the constitutional concern, also discussed at length during the argument, that Texas may not have standing to attack DAPA where its asserted injury relates to its own decision to subsidize the issuance of driver’s licenses to certain classes of individuals.

Another notable portion of the oral argument was the discussion of the outsized importance that the plaintiff States have attached to the brief mention in the DAPA memorandum of “lawful presence”. As Marty Lederman explained in a post on the Balkinization blog prior to the oral argument, the significance of “lawful presence” in this context relates primarily to eligibility for certain Social Security and Medicare benefits, as well as to the tolling of unlawful presence for purposes of potential future inadmissibility under 8 U.S.C. §1182(a)(9)(B).  Neither of these things, however, has anything to do with the injury that Texas alleges.  Nor are they of particularly great significance in the context of DAPA as a whole.  Professor Lederman had described the lawful-presence argument as “the smallest of tails wagging a very large dog”, a phrase that Solicitor General Verrilli expanded upon (or should I say contracted upon?) on page 32 of the oral argument transcript by noting that the lawful-presence issue was “the tail on the dog and the flea on the tail of the dog.”  (He also returned to the basic “tail of the dog” formulation on page 88, in his rebuttal.)  If necessary, he offered, the Court could simply take a “red pencil” and excise the offending phrase from the memo, and this would be “totally fine” with the government.

Just as the issue of “lawful presence” lacks a connection to the injury Texas alleges, it was also discussed at the oral argument how even the employment authorization that is a much more important component of DAPA as it would operate in practice, and which seems to be what Texas is in large part challenging, does not really relate to Texas’s alleged injury. As Solicitor General Verrilli and also Thomas Saenz, arguing for intervenor prospective DAPA beneficiaries, pointed out, Texas, under its current policy, gives driver’s licenses based on the granting of deferred action itself, rather than based upon employment authorization.  Even if the federal government restricted itself to deferring any removal action against the intended beneficiaries of DAPA – as Texas, in the person of its Solicitor General Scott Keller, seemed to concede on page 50 of the transcript that it would have the authority to do – and simply, as Justice Ginsburg suggested, gave out ID cards noting the low priority status of the beneficiaries, Texas would still, under its current policy, apparently have to give those beneficiaries subsidized driver’s licenses.  Thus, besides the other problems with Texas’s claim that it is harmed sufficiently by DAPA to have standing to challenge it, there is the problem of redressability.  A decision forbidding the federal government to give out employment authorization documents, or declare “lawful presence”, under DAPA, while still permitting it to defer removal actions against DAPA’s beneficiaries, would not actually solve the problem that Texas is claiming DAPA has caused.  It is, instead, merely a convenient hook for what is actually a political dispute.  Solicitor General Verrilli returned to this point in his rebuttal argument, noting that Texas had offered no response to it.

Another notable portion of the oral argument relating to employment authorization was the discussion of how, as Justice Alito asked on page 28 of the transcript, it is “possible to lawfully work in the United States without lawfully being in the United States?” As Solicitor General Donald B. Verrilli attempted to explain, while this may seem peculiar, employment authorization based on a mere pending application for lawful status, such as an application for adjustment of status or cancellation of removal, is quite common.  Many, many people receive such authorization pursuant to the administrative authority recognized by 8 U.S.C. §1324a(h)(3), as discussed in my prior blog post Ignoring the Elephant in the Room: An Initial Reaction to Judge Hanen’s Decision Enjoining DAPA and Expanded DACA.  The suggestion that such authorization cannot exist would wreak havoc on our immigration system as we now know it.  As Solicitor General Verrilli pointed out on page 31 of the transcript, reading the §1324a(h)(3) authority as narrowly as suggested by the plaintiffs would eliminate well over a dozen of the current regulatory categories of employment authorization.  It would, to quote from Solicitor General Verrilli’s rebuttal argument at page 89, “completely and totally upend the administration of the immigration laws, and, frankly, it’s a reckless suggestion.”

Indeed, as I pointed out in a blog post several years ago, there are many circumstances under which even someone subject to a removal order can be lawfully granted work authorization.  Those whose asylum applications were denied in removal proceedings but who are seeking judicial review of that denial, for example, may obtain employment authorization under 8 C.F.R. §274a.12(c)(8).  An applicant for adjustment of status under INA §245 or cancellation of removal for nonpermanent residents under INA §240A(b) who has his or her application denied by an immigration judge and the BIA, is ordered removed, and petitions for judicial review of the order of removal under 8 U.S.C. § 1252(a)(2)(D) on the ground that a legal or constitutional error has been made in adjudicating the application, may also renew employment authorization.  Even outside the context of judicial review, an applicant for adjustment who was ordered removed as an arriving alien, and who is nonetheless applying to USCIS for adjustment of status pursuant to Matter of Yauri, 25 I&N Dec. 103 (BIA 2009), can be eligible for employment authorization.

The anomaly of concurrent authorization to work in the United States and lack of authorization to be here, paradoxical though it may have seemed to Justice Alito, can exist even with respect to some of the forms of employment authorization authorized by very specific statutory provisions, rather than under the general authority of 8 U.S.C. §1324a(h)(3)—the forms of employment authorization that even Justice Alito and Texas acknowledge should exist. In 8 U.S.C. §1158(d)(2), for example, Congress specifically indicated that while “an applicant for asylum is not entitled to employment authorization . . . such authorization may be provided under regulation by the Attorney General.”  The implementing regulations at 8 C.F.R. §208.7(b) and 8 C.F.R. § 274a.12(c) make clear that such employment authorization is renewable pending the completion of administrative and judicial review of a denial of the asylum application.  Thus, an asylum applicant whose application was denied, resulting in an order of removal, and who is seeking judicial review of that order, can obtain renewed employment authorization.

Admittedly, in some cases, a court of appeals can grant a stay of the order of removal for an asylum applicant in this situation, pending adjudication of the petition for review—which one might consider a form of authorization to be in the United States. But a stay of removal is not a precondition for a grant of employment under 8 U.S.C. §1158(d)(2) and 8 C.F.R. §274a.12(c)(8), either in theory or in practice.  It is fairly common for asylum applicants who are not detained to pursue judicial review without a stay of removal and to renew their employment authorization while doing so.  They are authorized to work in the United States, even though in theory they are not authorized to be here.  As long as they are here, because the government has not thought it worth removing them during the pendency of their court case, they can lawfully work.

Given Justice Alito’s follow-up question about whether the categories of persons who had employment authorization without lawful presence were “statutory categories”, however, it is also worth emphasizing that other kinds of employment authorization besides those specifically authorized by statute can persist even in the face of a removal order. Employment authorization based on a pending application for adjustment of status or cancellation of removal, under 8 C.F.R. §274a.12(c)(9) and 8 C.F.R. §274a.12(c)(10), does not stem from the sort of type-specific statutory authorization at 8 U.S.C. §1158(d)(2).  Nonetheless, these types of employment authorization, which have been granted for many years in significant volume with little controversy, can be obtained by someone with a final removal order who is seeking judicial review of that order, or who is seeking adjustment of status under Matter of Yauri.  To the extent Justice Alito meant to imply that the seeming paradox of authorized employment without authorized presence could only be justified by a specific statutory authorization, this too was an inaccurate description of the world of immigration law since long before DAPA.

While the discussion at oral argument of employment authorization separate from lawful status did not go so far as to address this issue of employment authorization for those subject to orders of removal, it did seem that the Solicitor General’s emphasis on the sheer scale of those grants of employment authorization may have made an impact on Chief Justice Roberts.  The Chief Justice, at the end of Solicitor General Verilli’s rebuttal, returned to the question of how many of these sorts of employment authorization documents are issued, and the answer on page 90 that there were 4.5 million in the context of adjustment of status since 2008 and 325,000 for cancellation of removal was the last substantive portion of the argument transcript.  This was potentially a strong closing argument, which may be a hopeful sign.

Attempting to predict the outcome of a case from oral argument is always a risky endeavor, and we will have to wait and see what the Court actually does. Nonetheless, it is my hope that the above observations may perhaps provide some additional insight.

Cyrus Mehta

Preemption of Arizona Driver’s License Policy Provides Another Basis for Supreme Court to Uphold President’s Deferred Action Programs

/0 Comments/in /by

On August 15, 2012, when the Deferred Action for Childhood Arrival (DACA) program took effect, Arizona’s then Governor Janet Brewer tried everything in her book to de-legitimize DACA in Arizona. DACA would not confer lawful or authorized status, according to an Arizona executive order signed by Governor Brewer. Arizona’s Motor Vehicle Division announced that it would not accept an employment authorized document (EAD) issued to DACA recipients pursuant to 8 CFR 274a.12(c)(14) with code C33 as proof that their presence was authorized under federal law for purpose of granting a driver’s license.

In 2013, the Arizona Department of Transportation (ADOT) further tried to justify its animus to DACA by revising its policy to only recognize EADs if 1) the applicant has formal immigration status; 2) the applicant is on a path to obtain formal immigration status; or 3) the relief sought or obtained is expressly pursuant to the INA. Under these new criteria, Arizona refused to grant driver’s licenses not only to DACA recipients but also to beneficiaries of traditional deferred action and deferred enforced departure. It continued to grant driver’s licenses only from applicants with EADs pursuant to 8 CFR 274a.12(c)(9), those who had filed adjustment of status applications, or 8 CFR 274a.12(c)(10), those who had applied for cancellation of removal. Under this revision, even one who received deferred action other than DACA under 8 CFR274a.12(c)(14) would now be deprived of a driver’s license.

On April 5, 2016, the Ninth Circuit in Arizona Dream Act Coalition v. Brewer held that these arbitrary classifications defining authorized status were preempted under federal law and has finally put to rest Arizona’s “exercise in regulatory bricolage.” Although the Ninth Circuit also found that these distinctions between different EADs likely violated the Equal Protection Clause, in order to avoid unnecessary constitutional adjudications, the Court also found that these arbitrary classifications under Arizona’s law were preempted as they encroached on the exclusive federal authority to create immigration classifications. The latest ruling permanently enjoins Arizona’s policy of depriving DACA and other deferred action recipients driver’s licenses, following an earlier ruling that affirmed a preliminary injunction of the same executive order.

While Arizona sought to exalt the status of an EAD that was obtained when one sought adjustment of status or cancellation of removal, the Ninth Circuit gave short shrift to such arbitrary classification. There is no difference if one receives an EAD though cancellation of removal or through deferred action as submitting a cancellation application does not signify that the applicant is on a clear path to formal legal status. Such an application could well be denied. In this regard, noncitizens holding an EAD under C9 or C10 are in no different a position than one who has received an EAD pursuant to DACA under C33. The following extract from the Ninth Circuit’s opinion is worth quoting:

Arizona thus distinguishes between noncitizens based on its own definition of “authorized presence,” one that neither mirrors nor borrows from the federal immigration classification scheme. And by arranging federal classifications in the way it prefers, Arizona impermissibly assumes the federal prerogative of creating immigration classifications according to its own design

Arizona Dream Act Coalition thus provides another basis for the Supreme Court in United States v. Texas to uphold the expanded deferred action programs as part of President Obama’s November 20, 2014 executive actions, especially the Deferred Action for Parental Accountability (DAPA) and extended DACA. There is simply no difference between an EAD granted under DACA as an EAD granted based on an application for relief, such as adjustment of status or cancellation or removal. Indeed, it is INA section 274A(h)(3), which provides the authority for a granting of EADs under both DACA and based on application for adjustment of status or cancellation of removal. According to the Ninth Circuit ruling, “DACA recipients and noncitizens with (c)(9) and (c)(10) EADs all lack formal immigration status, yet the federal government permits them to live and work in the country for some period of time, provided they comply with certain conditions.”

INA 274A(h)(3) provides:

As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General

If INA 274A(h)(3) is discredited, as suggested by the Fifth Circuit in Texas v. USA for the purpose of justifying a grant of EADs under DAPA ,  many other justifications for providing an employment authorization document (EAD) would collapse.  The reason the EAD regulations are principally located in 8 CFR 274a is that the authority for most of them has always been thought to stem from INA 274A(h)(3). While many of the 8 CFR 274a.12(a) EADs have some specific statutory authorization outside of INA 274A(h)(3), which is why they exist incident to status, many 8 CFR 274a.12(c) EAD categories are based on INA 274A(h)(3) in just the same way that  8 CFR 274a.12(c)(14) EADs for deferred action are.  People with pending adjustment applications under 8 CFR 274a.12(c)(9), including the “class of 2007” adjustment applicants, pending cancellation applications under 8 CFR 274a.12(c)(10), pending registry applications under 8 CFR 274a.12(c)(16), all get EADs based on that same statutory authority.  Even the B-1 domestic workers and airline employees at 8 CFR 274a.12(c)(17) have no separate statutory authorization besides 274A(h)(3). Some (c) EADs have their own separate statutory authorization, such as pending-asylum 8 CFR 274a.12(c)(8) EADs with their roots in INA 208(d)(2), and 8 CFR 274a.12(c)(18) final-order EADs with arguable roots in INA 241(a)(7), but they are in the minority.  And even some of the subsection (a) EADs have no clear statutory basis outside 274A(h)(3), such as 8 CFR 274a.12(a)(11) for deferred enforced departure.  If the Fifth Circuit’s theory is taken to its logical conclusion, it would destroy vast swathes of the current employment-authorization framework.

It is thus important for the Supreme Court to uphold the Administration’s authority to implement DAPA and extended DACA as part of its broad authority to exercise prosecutorial discretion, and its authority to grant EADs under INA 274A(h)(3). While on first brush Texas v. USA is not a preemption case, the  Supreme Court in Arizona v. United States, 132 S.Ct. 2492, 2499 (2012), articulated the federal government’s authority  to exercise prosecutorial discretion rather elaborately, which can be deployed to preclude states from opposing this federal authority under dubious standing theories:

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. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal….

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state maybe mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.

The Ninth Circuit, on the eve of oral arguments to be presented before the Supreme Court on April 18, 2016 in United States v. Texas, has provided added impetus for the upholding of President Obama’s deferred action programs. A grant of an EAD under DACA or DAPA is not any less than a grant of EAD to an applicant seeking lawful status through an adjustment of status application or by seeking cancellation of removal. All of these EADs stem from INA 274A(h)(3), which ought to be upheld as a legal basis for the executive to grant work authorization to noncitizens as part of its discretionary authority. Moreover,  it should also not make a difference whether the EAD stems from an application that would ultimately result in permanent residence, such as adjustment of status or cancellation of removal, or through a grant of deferred action. The executive branch has equal authority to grant adjustment of status or deferred action, provided certain conditions are met, from which separately ensue EADs to a noncitizen. The latest Ninth Circuit ruling in Arizona Dream Coalition could not have made this clearer.

Cyrus Mehta

Equating Immigrants to Greenhouse Gases: Is This a Valid Basis for Standing to Sue The Federal Government?

/0 Comments/in /by

It has lately become fashionable for states that oppose President Obama’s immigration executive actions to sue in federal court on grounds that they are unconstitutional.  But in order to get heard in court, a state must demonstrate standing.        

In the Texas v. United States litigation challenging President Obama’s November 2014 Deferred Action for Parent Accountability Program (DAPA) and expanded Deferred Action for Childhood Arrival (DACA) programs, plaintiff states led by Texas successfully invoked standing by equating immigrants to noxious air pollutants that cause greenhouse gases. While greenhouse gases can only cause harm, immigrants, legal or not, are more likely to confer benefits than harm. Is it appropriate for a judge to give standing to a state opposing federal immigration policy based on the sort of harm that pollutants would cause it?

Parties seeking to resolve disputes in federal court must present actual “Cases” or “Controversies” under Article III of the US Constitution. Plaintiffs must demonstrate that they have standing in order to satisfy Article III. They must establish three elements set forth in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) that there is 1) an injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision.

In Texas v. United States, the states attempted to show harm through the influx of immigrants who will remain in the United States through deferrals of their removals and thus burden them. The basis for linking the harm caused by immigrants to noxious pollutants stems from the seminal Supreme Court decision in Massachusetts v. EPA in which plaintiffs requested the Environmental Protection Agency to regulate greenhouse gas emissions from motor vehicles under section 202 of the Clean Air Act. After EPA refused to do so, plaintiffs, which included Massachusetts, sought review of the EPA’s refusal in the Supreme Court to regulate greenhouse gases. Massachusetts successfully sought standing under Lujan by showing that global warming caused by greenhouse gas emissions was so widespread that the failure of the EPA to regulate them would cause the state environmental damage such as coastal flooding of its shores. Justice Steven delivered the opinion of the Court by beginning with this broad pronouncement on global warming:

A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are related. For when carbon dioxide is released into the atmosphere, it acts like the ceiling of a greenhouse, trapping solar energy and retarding the escape of reflected heat. It is therefore a species—the most important species—of a “greenhouse gas.”

Later, in showing how Massachusetts as a landowner would suffer injury even though global warming was widespread, Justice Stevens stated:

That these climate-change risks are “widely shared” does not minimize Massachusetts’ interest in the outcome of this litigation. [citation omitted]. According to petitioners’ unchallenged affidavits, global sea levels rose somewhere between 10 and 20 centimeters over the 20th century as a result of global warming. MacCracken Decl.  5(c), Stdg.App. 208. These rising seas have already begun to swallow Massachusetts’ coastal land. Id., at 196 (declaration of Paul H. Kirshen 5), 216 (MacCracken Decl.  23). Because the Commonwealth “owns a substantial portion of the state’s coastal property,” id., at 171 (declaration of Karst R. Hoogeboom  4),[citation omitted] it has alleged a particularized injury in its capacity as a landowner. The severity of that injury will only increase over the course of the next century: If sea levels continue to rise as predicted, one Massachusetts official believes that a significant fraction of coastal property will be “either permanently lost through inundation or temporarily lost through periodic storm surge and flooding events.” Id.,  6, at 172.[citation omitted]. Remediation costs alone, petitioners allege, could run well into the hundreds of millions of dollars. Id., 7, at 172; see also Kirshen Decl.  12, at 198.[citation omitted]

While it is undeniable that greenhouse gases can cause only harm, should this case be applicable when a state uses it to invoke standing to challenge federal immigration policy? Texas, the lead plaintiff in Texas v. United States, argued that the President’s executive actions would cause a significant economic burden as deferring removal of certain classes of non-citizens would allow them to  apply for drivers licenses, which  in turn would cost the state several million dollars. Texas relied on this trifling economic burden as the injury that would give it standing,  which Judge Hanen accepted among other standing legal theories. After providing standing, Judge Hanen temporarily blocked the executive actions, and a trenchant criticism of his reasoning in doing so can be found here.  Judge Hanen elaborated at great length in equating the harm that Massachusetts would suffer through global warming with the harm that Texas would suffer as a result of “500,000 illegal aliens that enter the United States each year.” Judge Hanen went on to further expound his views on the harms caused by illegal immigration, as follows:

The federal government is unable or unwilling to police the border more thoroughly or apprehend those illegal aliens residing within the United States; thus it is unsurprising  that, according to prevailing estimates, there are somewhere between 11,000,000 and 12,000,000 illegal aliens currently living in the country, many of whom burden the limited resources in each state to one extent or another. Indeed, in many instances, the Government intentionally allows known illegal aliens to enter and remain in the country. 

While emphasizing the alleged harms that undocumented immigration would cause to the states, Judge Hanen gave short shrift to the well-reasoned amicus brief of 12 states   demonstrating the overwhelming benefits that DAPA and DACA would confer to the states.  Amici argued that the recipients of a prior DACA program in 2012, which was not challenged in the litigation, caused 60% of the recipients to find new jobs and that wages increased by over 240%. Allowing immigrants to work legally and increase their wages substantially increases the state tax base. The granting of deferred action also provides many social benefits, amici argued, as it allows parents to support US citizen children, thus reducing the cost of state social service benefits and it also allows families to remain united.  According to the amicus brief, “When fit parents are deported, it can be difficult for the State to find the parents and reunite them with their children. The existence of fit parents – even if they have been deported – can also prevent the State from seeking alternative placement options for a child, such as a guardianship or adoption by another family member or third party.[citation omitted]. Deferred deportation allows families to remain together, even if only temporarily.”The government appealed Judge Hanen’s preliminary injunction to the Fifth Circuit Court of Appeals. In a hearing before a panel in the Fifth Circuit to lift the block while the government’s appeal was pending, Massachusetts v. EPA was again discussed, as presented in David Isaacson’s summary:

Continuing with the standing discussion, Judge Smith directed AAG Mizer to the Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007), which he considered to be a key case on the standing issue.  Mizer responded, first, that there isn’t a territorial effect in this case as in Massachusetts, where the state’s territory was being affected (by rising sea levels resulting from global warming).  Also, the specific statute in Massachusetts v. EPA gave a specific right to sue, while the INA, Mizer argued, “is not enacted to protect the states”.

The success of the legal challenges to President Obama’s executive actions hinges on whether courts will give plaintiffs standing or not. In Crane v. Johnson, the Fifth Circuit upheld the lower court’s finding that Mississippi, a plaintiff, did not have standing as its claim to fiscal injury arising out of deferral under the DACA 2012 program was speculative.  More recently, a three judge panel in the D.C. Circuit was skeptical of Arizona sheriff Joe Arpaio’s challenge against DAPA and expanded DACA based on standing. While they were skeptical that the deferred action programs will result in more immigrants being detained in Maricopa County jails, one George W.  Bush appointee judge again cited Massachusetts’ standing to sue to prevent environmental harm from greenhouse gases by asking why “at least at the state level, isn’t concern about public safety and crime and that sort of things costs and crime should not be at least equal to the sovereignty concern to the sea level rise taking a few inches of shoreline.”

Although the government has argued in its appeal brief that the Clean Air Act gave a state such as Massachusetts the right to sue while the INA does not in the context of deferred action and prosecutorial discretion, a broader and more compelling argument can be made against invoking Massachusetts v. EPAin immigration litigation. Analogizing the ability of certain classes of immigrants to temporarily remain in the United States to greenhouse gases is both specious and offensive. It is well recognized that greenhouse gases only cause harm, and thus a state impacted by them can readily demonstrate injury in order to seek standing to sue the federal government. Immigrants, unlike greenhouse gases, bring great benefits to the United States. Any manufactured claim of harm by a state, like what Texas has claimed with the so called economic burden caused by issuing driver’s license, is far outweighed by the benefits that immigrants bring to this country. Apart from all the benefits that were discussed by the states opposing the legal challenge, even a second grader can figure out that handing out licenses to people who otherwise could not get it before deferral ensures that many more will drive safely in the state of Texas.

One would also not use this analogy in other contexts as it is highly offensive to link human beings to greenhouse gases.  Imagine if a state were to challenge a federal policy of providing federal benefits to same-sex married couples whose marriages are valid where celebrated but not in the state of their residence, on the basis that this policy led more same-sex married couples and their families to reside in that state and thus overburden its schools and public hospitals. If the state invoked Massachusetts v. EPA, it would be viewed as highly offensive and also not a very strong argument.  Plaintiffs seem to be getting away for the time being in linking immigrants to noxious pollutants, and it is hoped that some judge will strike down this odious analogy so that it is  no longer invoked in immigration litigation.

David Isaacson

A PRELIMINARY ANALYSIS OF THE FIFTH CIRCUIT ORAL ARGUMENT ON THE APPLICATION FOR STAY IN TEXAS V. UNITED STATES

/0 Comments/in , /by

On Friday, April 17, 2015, the U.S. Court of Appeals for the Fifth Circuit heard oral arguments on the motion by the United States for a stay pending appeal of the preliminary injunction issued by Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas in Texas v. U.S., which currently prevents implementation of the DAPA and expanded DACA programs set out in a November 20, 2014 Memorandum of Secretary of Homeland Security Jeh Johnson.  The decision on the motion for stay will not be the last word with respect to the preliminary injunction, which is the subject of a pending expedited appeal with briefing scheduled to be completed by mid-May and oral argument possible over the summer.  However, the decision on the motion for stay will determine whether implementation of DAPA and expanded DACA can resume immediately.

In a previous blog post, I provided some initial reaction to the Memorandum and Order in which Judge Hanen issued his injunction.  Having listened to the recording of the oral argument that is available online, it seemed appropriate to provide some initial reactions to the oral argument as well.  Nicholas Espiritu of the National Immigration Law Center, who was actually present at the argument, provided his own recap in a blog post that I would urge readers to review, but I think it is possible that reviewing the recording may make it possible to pick up some things that were less obvious in person—although since a recording still has some disadvantages relative to a transcript, it is also possible that the below may contain errors, for which I apologize in advance.

As background, the three Fifth Circuit judges on the panel hearing the motion for stay were Judge Jerry E. Smith, appointed to the Fifth Circuit by Ronald Reagan in 1987; Judge Jennifer W. Elrod, appointed to the Fifth Circuit by George W. Bush in 2007; and Judge Stephen A. Higginson, appointed to the Fifth Circuit by President Obama in 2011.  Texas was represented by state solicitor general Scott A. Keller, and the United States by Acting Assistant Attorney General Scott A. Mizer.

Near the beginning of the argument, Judge Elrod offered an extensive hypothetical regarding the question of reviewability: would the states be able to sue, she asked, if the administration gave something like DAPA to all of the aliens present without authorization?  What about if the administration gave that same population voting rights?  The goverment’s attorney, AAG Mizer, responded that the states wouldn’t have standing in the hypothetical case of DAPA being greatly expanded, although there might be competitor standing by other workers.  In the voting hypothetical, however, he indicated that the states would probably have standing because the Voting Rights Act has provisions giving special rights and thus standing to states.

On the topic of reviewability, Judge Higginson asked whether expanding deferred action and thereby vastly expanding the class of people eligible for employment authorization might be reviewable, despite the existence of the longstanding regulations regarding employment authorization for deferred action recipients, if employment authorization through deferred action had previously been available to a smaller class of people.

Judge Elrod raised the issue of the district court’s factual finding that there is not an actual exercise of discretion by USCIS, and whether it is necessary to overcome a clear-error standard of review in order for the government to prevail with regard to that finding—a point that she revisited later in the argument.  The argument was based on the agency’s alleged practices in adjudicating applications for the original DACA program, as instituted in 2012 by then-Secretary of Homeland Security Janet Napolitano, which was not challenged by the plaintiff States and is not affected by the injunction; Judge Hanen effectively found that DHS had not exercised discretion in the 2012 DACA program and so would not exercise discretion with DAPA and expanded DACA.  Judge Higginson, in response, made an interesting point about how the fact the agency is removing more people than ever before may rebut the suggestion that DHS is being pretextual in claiming that they are exercising discretion.

Judge Elrod then raised the issue of whether the government has been disingenuous in the litigation, and whether that influences a credibility determination.  (On the question of whether the attorneys for the government indeed had breached any ethical obligations, I would refer the reader to an AILA Leadership Blog postby Cyrus D. Mehta in his capacity as Chair of the AILA Ethics Committee, and the related more comprehensive paper from the AILA Ethics Committee, “Judge Hanen’s Troubling Accusations of Unethical Conduct in Texas v. United States of America”.)  The district court, AAG Mizner pointed out in response, considered “public safety” denials of the original 2012 DACA as not being discretionary, which is not really fair, since protecting public safety is a major discretionary factor.

Judge Higginson pointed out, with regard to the question of alleged disingenuousness and credibility, that the district court doesn’t actually seem to have made any credibility finding regarding the competing affidavits of USCIS union official Kenneth Palinkas and USCIS Associate Director for Service Center Operations Donald Neufeld, who had offered vastly different accounts of how applications are processed.  That goes to Judge Elrod’s earlier point regarding the finding of fact, since it would seem to be error to make such a finding while simply ignoring a contrary affidavit and without having held an evidentiary hearing to resolve any credibility issues.

Returning to the question of standing and reviewability, the government noted that “Texas has been here before” in terms of trying to sue the US government about immigration policy, in 1997, and lost.  AAG Mizner further pointed out that 8 U.S.C. 1252(g), and the Supreme Court’s decision in Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999), interpreting that section, argue against anybody being able to sue regarding prosecutorial discretion—if even disappointed aliens can’t sue regarding the exercise of such discretion, then why would states, who have no role in immigration, be able to do so?

Continuing with the standing discussion, Judge Smith directed AAG Mizer to the Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007), which he considered to be a key case on the standing issue.  Mizer responded, first, that there isn’t a territorial effect in this case as in Massachusetts, where the state’s territory was being affected (by rising sea levels resulting from global warming).  Also, the specific statute in Massachusetts v. EPA gave a specific right to sue, while the INA, Mizer argued, “is not enacted to protect the states”.

Mizer moved on to an interesting hypothetical about the problem with Texas’s standing argument.  Take the case of thousands of paroled Cubans, for example, who then became eligible to adjust status (under the Cuban Adjustment Act).  On Texas’s theory, if the paroled aliens moved to Texas, then Texas would have a judicially cognizable harm.  But to find standing for Texas under such circumstances, Mizer said, would be inconsistent with the FAIR v. Reno decision of the D.C. Circuit, which rejected a challenge to an agreement between the US and Cuba that would have such an effect.  Indeed, if Texas is right, Mizer argued, then they would be able to challenge an individual decision to grant a single person asylum, because if that person then gets a Texas driver’s license, it’s a harm to Texas.

Judge Elrod asked about why the US didn’t address the constitutional arguments made by the plaintiffs below (and not passed upon by the District Court).  Given the burden is on the government, she suggested that this might mean the government would lose at the stay stage.  Between this, the earlier noted questions from Judge Elrod, and a question soon thereafter in which Judge Elrod relied on President Obama’s comments at a press conference, rather as Judge Hanen had below, it seemed that Judge Elrod might be leaning in favor of denying a stay, although reading the proverbial “tea leaves” from an oral argument is always tricky.

Judge Higginson next returned to a variant of his point about the potential significance of DHS’s high number of removals, noting that the “abdication” theory propounded by Judge Hanen doesn’t make sense given that high number.

Judge Higginson followed up with an interesting hypothetical question about what would happen if the next administration flipped the priorities and went after DAPA recipients. AAG Mizer responded that DHS hasn’t bound itself not to change its mind.  Secretary Johnson may have bound his subordinates, but he has not bound the agency.

Returning to the question of standing, Judge Smith asked about the “special solicitude” that Massachusetts v. EPA says is afforded to the states.  Mizer says the immigration context is different than that case, because the Supreme Court has said in Arizona v. United States that the states can’t enact laws to conflict with federal immigration policy; why should the states be able to file a lawsuit to the same end?

Judge Elrod then asked AAG Mizer about whether “lawful status” is a benefit and about the difference between this and the Watt case, that is, Watt v. Energy Action Education Foundation, 454 U.S. 151 (1981).  Regarding Watt, Mizer’s response was to point out that California actually had a statutory interest in sharing the revenues from the program at issue in that case.  Regarding “legal status”, Mizer stated that deferred action is not a lawful status, just lawful presence. There followed a somewhat confused discussion of what exactly lawful presence is.  AAG Mizer ultimately pointed out that it doesn’t matter a great deal as a practical matter if one has lawful presence under DAPA, because DAPA beneficiaries already had more than a year of unlawful presence to begin with, and would thus already have sufficient unlawful presence to trigger the 10-year bar (that is, INA §212(a)(9)(B)(i)(II)).

The states’ lawyer, Texas Solicitor General Keller (TSG Keller for short), near the beginning of his argument, tried to pick up the thread regarding lawful presence versus lawful status and make the case that granting “lawful presence” is affirmative government action different than prosecutorial discretion. He couldn’t answer a question whether past deferred action grantees had lawful presence, but suggested that they might not have.  He also seemed near the beginning of is argument to concede that the scale of the program is not “pertinent to the legal doctrines”, though he then said that it “colors whether it is a substantive rule”.

Judge Higginson, picking up on the earlier discussion of lawful presence and lawful status, cited to Arizona v. United States and other case law to say that allowed presence from deferred action is different from lawful status.

TSG Keller moved on to talk about the double deference afforded in this stay posture.  He returned again later in the argument to a discussion of the “stay posture” and the record compiled on an expedited basis.  I found this interesting because to the extent the decision on the motion to stay relies on deference factors unique to the stay context, that suggests that any unfavorable decision on the motion to stay should not be given much deference by the panel that subsequently considers the appeal of the preliminary injunction.

One of the more notable aggressive moments of TSG Keller’s argument was when he claimed that 8 U.S.C. §1324a(h)(3)is only a “definitional” provision, and that the existing regulations regarding employment authorization may not be legal.  Judge Hanen, as I had pointed out in my prior post on this blog, had seemed to ignore that statute and the portion of the regulations, 8 C.F.R. §274a.12(c)(14), authorizing the grant of employment authorization to deferred action recipients.  Suggesting that the statutory provision is nearly meaningless and the regulations potentially invalid is, I suppose, an interesting alternative analytical route, but the argument strikes me as unconvincing, and would have far-reaching and problematic consequences if it did succeed.  This argument by TSG Keller would imply that the courts should read the statute to invalidate, for example, all employment authorization given to applicants for adjustment of status pursuant to 8 C.F.R. §274a.12(c)(9), just because the powers given to the Secretary of Homeland Security (formerly the Attorney General) by the statute to confer such employment authorization happen to be bestowed in the form of a definitional provision.

Another somewhat rocky moment in TSG Keller’s argument pertained to the “abdication” theory of Article III standing mentioned by Judge Hanen, regarding which even Judge Elrod appeared to be skeptical.  Judge Elrod was able to get TSG Keller to clarify that the states would still need to show Article III injury in order to proceed on such a theory of standing.  As examples of such injury, TSG Keller pointed to driver’s licenses, health care and education benefits.

On the question of whether discretion was actually exercised in adjudicating applications under the 2012 DACA program, Judge Higginson pointed out that because of “self-selection bias”, you’d expect a high approval rate.  That is, given that it is up to each applicant whether to seek the benefit, people who aren’t going to qualify for the benefit won’t tend to apply for it.  This seemed a compelling point to me, and Judge Higginson returned to it repeatedly.  This discussion of discretion led to a further discussion of the data, or lack thereof, regarding reasons for refusal and so on in DACA 2012, and why the government didn’t, or couldn’t, provide evidence of discretionary refusals—evidently DHS had not kept track of such discretionary denials separately from other denials.

Also with respect to discretion, Judge Higginson had what I thought was a very interesting point about the perverse incentive that would be created by adopting the states’ viewpoint on what evidences a proper exercise of discretion.  If a high approval rate for those applicants meeting the written policy criteria is evidence of a lack of discretion, does that mean that executive agencies need to be careful not to comply with their written policies too well?  He came back to this again later in the argument.  This too struck me as a compelling point, because the implication of the states’ argument is that executive-branch policies not meant to confer enforceable rights on the public may only be defensible if the administration is careful to be arbitrary and unpredictable, allowing lower-level officers to make decisions without any meaningful guidance from their superiors—which would be a very strange way to run the executive branch, and a very strange policy to mandate as a matter of administrative law.

Judge Higginson also pointed out that in one of the cases the states have cited, the remedy for an agency supposedly not exercising the discretion that it claimed to be exercising was remand to the agency.  But he seemed potentially convinced by TSG Keller’s response that this possibility would be more relevant to the merits than to the stay.

In an interesting exchange towards the end of TSG Keller’s argument, both he and Judge Elrod seemed to say that if it were “just deferred action” this would be a very different case.  It seems to me, however, that the difference is not so clear, because once you get “just deferred action” you are eligible for an EAD under the existing regulations, as I have explained previously.

In his rebuttal argument, AAG Mizer argued that deferred action has always conferred lawful presence, and that Congress has acknowledged that.

Judge Elrod pressed AAG Mizner during his rebuttal regarding what scheme Texas could use to decide whom to give driver’s licenses to, that would not necessarily result in the grant of licenses to DAPA recipients, as the U.S.’s argument had seemed to suggest was possible.  AAG Mizer indicated that Texas could come up with a classification scheme not relying on employment authorization, as long as there was a legitimate state reason for that classification scheme.

Judge Higginson followed up with an interesting question about whether Congressional appropriations sufficient to remove all 11 million unauthorized aliens would mandate that this be done.  AAG Mizer responded there would be an impoundment problem with the funds not being utilized for their intended purpose in that hypothetical, but that the government would still have some residual discretion to consider foreign policy and humanitarian concerns and so on.

Regarding the “status quo” standard for a stay, Mizer points them to Justice O’Connor’s stay opinion in INS v. Legalization Assistance Project, 510 U.S. 1301 (1993) (O’Connor, J., in chambers), regarding the injury that the federal government suffers when the judicial branch interferes in its internal processes.

At the end of the argument, Judge Elrod pushed AAG Mizer regarding whether there would be significant benefits granted during a period after any lifting of the stay that would be difficult to unwind if the preliminary injunction were ultimately affirmed.  She did not seem convinced by his response.

Based on this oral argument, the most difficult prediction appears to me to be what view Judge Smith will take on the merits.  Although it seemed from Judge Smith’s questions regarding Massachusetts v. EPA that he was inclined to find in favor of the plaintiff states with regard to standing, his questions did not reveal his view of the merits to the extent that Judge Elrod’s did.  Judge Higginson was also a bit harder to read than Judge Elrod, but on balance it seems from the oral argument that he is more likely to favor the federal government’s position.  Even if Judge Smith and Judge Elrod were both to agree that the plaintiff states had standing, however, a stay could still be granted if Judge Smith were to agree with Judge Higginson’s apparent view of the federal government’s likelihood of prevailing on the merits.  While I am not sure how likely such an outcome is, it is not a possibility that I would entirely rule out based solely on the oral argument.

David Isaacson

IGNORING THE ELEPHANT IN THE ROOM: AN INITIAL REACTION TO JUDGE HANEN’S DECISION ENJOINING DAPA AND EXPANDED DACA

/2 Comments/in , /by

On February 16th, as the holiday weekend was coming to an end, Judge Andrew S. Hanen of the U.S. District Court for the Southern District of Texas issued a Memorandum Opinion and Order in the case of State of Texas, et al., v. United States, et al.,  granting the motion of the plaintiff States for a preliminary injunction against the “Deferred Action for Parents of Americans and Lawful Permanent Residents” program, known as DAPA, and the expansion of Deferred Action for Childhood Arrivals, known as DACA, that were set out in a November 20, 2014 Memorandum from Secretary of Homeland Security Jeh Johnson.  (The original DACA program, as instituted in 2012 by then-Secretary of Homeland Security Janet Napolitano, was not challenged by the plaintiff States, and is not affected by the injunction.)  According to Judge Hanen, the plaintiff States have shown a likelihood of success on the merits of their claim that DAPA and the DACA expansion were authorized in violation of the Administrative Procedures Act (APA), as well as meeting the other requirements for a preliminary injunction.

The Memorandum Opinion and Order is more than 120 pages long, so a full analysis is not feasible in a blog post, especially one being published just two days after the Memorandum Opinion and Order itself.  In this blog post, however, I will focus on what I think is one of the most important conceptual flaws in the Memorandum Opinion and Order.  It appears to overlook key sources of statutory and regulatory authority for DAPA and expanded DACA, particularly the portions of DAPA and expanded DACA which relate to the grant of employment authorization and related benefits.

In the Memorandum Opinion and Order, Judge Hanen accepts that the Department of Homeland Security (DHS), and in particular the Secretary of Homeland Security, Jeh Johnson, has the authority to set priorities regarding whom to remove from the United States.  “The law is clear that the Secretary’s ordering of DHS priorities is not subject to judicial second-guessing.”  Memorandum Opinion and Order at p. 69.  “The States do not dispute that Secretary Johnson has the legal authority to set these priorities,” Judge Hanen writes, “and this Court finds nothing unlawful about the Secretary’s priorities.”  Memorandum Opinion and Order at 92.

Judge Hanen asserts in his Memorandum Opinion and Order, however, that DHS’s statutorily granted authority to set enforcement priorities does not go so far as to authorize DAPA because of the affirmative benefits which are to be granted under the program.  He similarly holds that the usual presumption against APA review of decisions not to enforce a statute, as set out by the Supreme Court in Heckler v. Chaney, 470 U.S. 821 (1985), does not apply in this case because DAPA is not merely a determination not to enforce:

Instead of merely refusing to enforce the INA’s removal laws against an individual, the DHS has enacted a wide-reaching program that awards legal presence, to individuals Congress has deemed deportable or removable, as well as the ability to obtain Social Security numbers, work authorization permits, and the ability to travel. 

Memorandum Opinion and Order at 85-86.  A similar theme is sounded later in the opinion when contrasting DHS’s statutory authority to set priorities, of which Judge Hanen approves, with the benefits conferred under DAPA:

The [Homeland Security Act]’s delegation of authority may not be read, however, to delegate to the DHS the right to establish a national rule or program of awarding legal presence—one which not only awards a three-year, renewable reprieve, but also awards over four million individuals, who fall into the category that Congress deems removable, the right to work, obtain Social Security numbers, and travel in and out of the country.

Memorandum Opinion and Order at 92.

Setting aside for the moment the ability to travel internationally, which is offered only as part of a subsequent application by those already granted DAPA or DACA and is granted when appropriate pursuant to the discretionary parole authority of INA §212(d)(5)(A), 8 U.S.C. §1182(d)(5)(A), the core of Judge Hanen’s concern (or at least a key portion of it) appears to be with the grant of employment authorization and the related documentation, such as a Social Security number, for which one who is granted employment authorization becomes eligible.  It is certainly true that those who receive Employment Authorization Documents (EADs), and are thereby able to receive Social Security numbers, become in an important sense “documented” where they were previously “undocumented”.  But it is not true that DHS has acted without statutory authority in giving out these important benefits.

It is at this point in the analysis that Judge Hanen appears to have overlooked a very important part of the legal landscape, what one might term the elephant in the room.  The statutory authority for employment authorization under the INA is contained in section 274A of the INA, otherwise known as 8 U.S.C. §1324a.  That section lays out a variety of prohibitions on hiring and employing an “unauthorized alien”, and concludes by defining the term as follows:

As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General.

8 U.S.C. §1324a(h)(3).

That is, the Attorney General – whose functions have now been in relevant part taken over by the Secretary of Homeland Security – is statutorily empowered to authorize an alien to be employed, thus rendering the alien not an “unauthorized alien” under the INA.  There are a few restrictions on this authority noted elsewhere in the INA: for example, 8 U.S.C. §1226(a)(3) states that an alien who is arrested and placed in removal proceedings may not be provided with work authorization when released from custody unless he or she is otherwise eligible for such work authorization “without regard to removal proceedings”.  But overall, the authority provided by 8 U.S.C. §1324a(h)(3) is quite broad.

Moreover, it is not as though this authority has gone unremarked upon in the context of DAPA and DACA expansion.  The November 20, 2014 Memorandum from Secretary of Homeland Security Jeh Johnson regarding DAPA and DACA (or “Johnson DAPA Memorandum” for short)  states that “Each person who applies for deferred action pursuant to the criteria above shall also be eligible to apply for work authorization for the period of deferred action, pursuant to my authority to grant such authorization reflected in section 274A(h)(3) of the Immigration and Nationality Act.”  Johnson DAPA Memorandum at 4-5.  Nonetheless, other than a quote from this section of the Johnson DAPA Memorandum at page 13 of the Memorandum Opinion and Order, Judge Hanen’s Memorandum Opinion and Order does not appear to address the authority provided by INA §274A(h)(3), 8 U.S.C. §1324a(h)(3).

Pursuant to the authority contained in 8 U.S.C. §1324a(h)(3), the Attorney General and then the Secretary of Homeland Security have promulgated regulations for many years listing various categories of people who are authorized to accept employment by virtue of their status, or who can apply (initially to the INS, and now to USCIS) for authorization to accept employment.  The list is currently contained in 8 C.F.R. §274a.12, and as noted in earlierversionsof that regulatory section, it has existed in substantively similar form since at least 1987, when it was put in place by 52 Fed Reg. 16221.  Included on the list are not only such obvious categories as Lawful Permanent Residents, asylees, and refugees, but also those with various sorts of pending applications for relief, certain nonimmigrants, and many other categories.

One subsection of the 8 C.F.R. §274a.12 list that is particularly relevant here is 8 C.F.R. §274a.12(c)(14), the existence of which is acknowledged in passing by the Memorandum Opinion and Order at page 15 and footnote 66 of page 86 but is not discussed elsewhere.  That provision has long included among the list of those who may apply for employment authorization: “An alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment.”

As noted in footnote 11 of the Office of Legal Counsel memorandum regarding the legal basis for DAPA, which also addresses much of the authority discussed in the foregoing paragraphs, a prior version of this regulation authorizing employment for deferred-action recipients actually dates back to 1981.  But for present purposes, it is sufficient to point out that the 1987 version of the employment-authorization regulations has continued in force, with various modifications not relevant here, for over 35 years.  The validity of 8 C.F.R. §274a.12(c)(14) as it has been in effect for over three decades does not appear to have been challenged by the plaintiff States or by Judge Hanen, nor is it clear how it could be, given the broad authority provided by 8 U.S.C. §1324a(h)(3).

This long-existing regulation, grounded firmly in explicit statutory authorization, clearly states that an alien beneficiary of “an act of administrative convenience to the government which gives some cases lower priority,” 8 C.F.R. §274a.12(c)(14), which is called “deferred action,” id., may be granted employment authorization upon a showing of economic necessity.  (Such a showing of economic necessity is, in fact, required when seeking employment authorization under DACA, the instructions for which require the filing of the Form I-765 Worksheet regarding economic necessity; the instructions for DAPA, when they are published, will presumably have the same requirement.)  Thus, the regulation at 8 C.F.R. §274a.12(c)(14) authorizes the very features of DAPA and DACA which so troubled Judge Hanen as explained in the Memorandum Opinion and Order: the jump from the setting of enforcement priorities to the granting of affirmative benefits.  The notion that those whose cases are given lower priority as a matter of administrative convenience to the government, should potentially be granted employment authorization as a consequence, is not some new idea created for DAPA and DACA without notice and comment, but has been set out in regulations for many years.

One might say that DAPA and DACA are composed of two logically separable components: first, the designation of certain cases as lower priority, and second, the tangible benefits, principally employment authorization and related benefits, which flow from that designation.  Judge Hanen has found the designation of certain cases as lower priority to be unobjectionable, and has held the provision of tangible benefits in those cases to be in violation of the APA.  But according to a long-existing regulation which no one has challenged, the second component of DAPA and DACA may permissibly flow from the first.

It is therefore logically problematic to say, as Judge Hanen has done in his Memorandum Opinion and Order, that the provision of benefits under DAPA violates the APA even though the prioritization of cases would not.  The bridge from the first step to the second was, as it were, installed a long time ago.  Although Judge Hanen refers to “a new rule that substantially changes both the status and employability of millions,” Memorandum Opinion and Order at 112, it is in fact a very oldrule that has provided that those who are treated, as a matter of convenience, as being lower priority, should be made employable if they can demonstrate economic necessity.  Since the prioritization is concededly acceptable, it follows that the employment authorization and related benefits should be acceptable as well.

The only thing which Secretary Johnson’s November 2014 Memorandum really added to the pre-existing rules governing deferred action and its consequences was a set of criteria for DHS officers to use in determining whether to grant deferred action.  But since the grant of deferred action, as it has long been described in regulation, is merely “an act of administrative convenience to the government which gives some cases lower priority,” 8 C.F.R. §274a.12(c)(14), it can hardly be less permissible under the APA, or for that matter under the Constitution (the basis of another challenge which Judge Hanen did not reach), to grant deferred action than it is to give certain cases lower priority.  If DHS is indeed free to give certain cases lower priority, a proposition which is difficult to seriously dispute given basic background norms of prosecutorial discretion, then pursuant to 8 C.F.R. §274a.12(c)(14) as promulgated under the authority of 8 U.S.C. §1324a(h)(3), DHS is also free to grant employment authorization to those whose cases it has given lower priority and who can show economic necessity for employment.

In a world of finite resources, deciding which cases are worth pursuing necessarily implies deciding which cases are not worth pursuing.  Every dollar of funding or hour of officer time that DHS were to spend seeking to remove someone who meets the DAPA criteria would be a dollar of funding or hour of time that it could not spend seeking to remove a more worthy target.  The DAPA criteria are flexible by their nature, including a final criterion of “present[ing] no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate,” Johnson Memorandum at 4.  But where no such negative factors exist, DHS has reasonably determined that parents of U.S. citizens and Lawful Permanent Residents who meet the other DAPA criteria are likely to be appropriate candidates for deferred action—which is, to repeat, simply “an act of administrative convenience to the government which gives some cases lower priority,” 8 C.F.R. §274a.12(c)(14).  Having made that determination, DHS is authorized by both statute and regulation to confer employment authorization on those whose cases it has given this lower priority.  In ruling otherwise, without addressing either 8 C.F.R. §1324a(h)(3) or the implications of 8 C.F.R. §274a.12(c)(14) promulgated under its authority, Judge Hanen appears to have overlooked the proverbial elephant in the room.

Michelle S. Velasco

DACA RENEWALS AND THE UPHOLDING OF EXECUTIVE ACTION IN ARIZONA DREAM ACT COALITION V. BREWER

/0 Comments/in , /by

August 15, 2014 marks the two-year anniversary of the implementation of Deferred Action for Childhood Arrivals (DACA) by the Department of Homeland Security (DHS).  The policy was announced through a memorandum by then Secretary of Homeland Security Janet Napolitano on June 15, 2012.  The Memo directed the heads of Customs and Border Protection (CBP), Citizenship and Immigration Services (CIS), and Immigration and Customs Enforcement (ICE) to implement DHS’s decision to grant deferred action, and employment authorization, to certain eligible individuals who entered the U.S. when they were younger than 16 years old.  Now, nearly two years have passed since DHS began accepting applications for the program on August 15, 2012.  DACA recipients who were among the first to apply and receive DACA and employment authorization must now undergo the process of renewing their DACA.

ICE and USCIS released their renewal processes in February and early June, respectively.  ICE had begun issuing DACA to eligible immigrants in removal proceedings prior to August 15, 2012, when USCIS began accepting applications.  To be eligible for DACA renewal, the recipient must (1) not have departed from the U.S. on or after August 15, 2012 without advance parole; (2) have continuously resided in the U.S. since the first DACA approval; and (3) not have been convicted of a felony, significant misdemeanor, or three or more misdemeanors, and does not otherwise pose a threat to national safety or public safety.

The renewal process for ICE-granted and USCIS-granted DACA recipients is the same:

Complete and submit the following forms:

    • The new version of Form I-821D (6/4/2014 edition)
    • Form I-765
    • Form I-765 Worksheet
  • Submit the $465 fee for the employment authorization application
  • Submit only new documents involving removal proceedings or criminal history that was not previously provided to USCIS (Note: USCIS does not require previously submitted documentation establishing the applicant’s DACA eligibility)

USCIS has advised DACA recipients to renew approximately 120 days (4 months), but no more than 150 days (5 months), before their current DACA grant expires.  USCIS also anticipates that in the event it cannot process the submitted applications before the initial DACA expires, it might issue extensions of the initial DACA to prevent any lapse in time before the renewal is approved.

Since its implementation, DACA has been granted to over 550,000 recipients, according to USCIS statistics released on March 2014.  DACA has provided more than half a million young immigrants security from removal and a means to work lawfully in the U.S. The DACA recipients, sometimes also called Dreamers, can now live openly, work, and contribute to their own and their families’ wellbeing.  The economic and social repercussions of this have not yet been fully studied or revealed, though the American Immigration Council recently published a studyof the economic impact of DACA on the recipients.  The study found that through DACA, many young immigrants have benefitted economically through such activities as obtaining new jobs, getting driver’s licenses, and opening bank accounts.  We can also imagine what has been the psychological impact on these young immigrants of coming out of hiding and being able to be productive members of American society and the American workforce.  They have experienced the excitement of receiving an approval notice and the much sought after work permit, then a valid Social Security Number and card, and then oftentimes a State Identification Document in the form of an ID or driver’s license.

Though it has undoubtedly bettered the lives of half a million recipients, DACA has been a double-edged sword.  While it provides recipients protection from removal from the U.S. and allows them to work legally, DACA is still far less than what these young immigrants would have received from the government had the DREAM Act or Comprehensive Immigration Reform (CIR) passed in Congress.  The DREAM Act would have granted a way for eligible young immigrants to apply for permanent residence, and therefore, lawful status.  S.744, the CIR bill passed by the U.S. Senate on June 27, 2013, and that has since stalled in the House of Representatives, included stipulations for the implementation of the DREAM Act’s provisions.  In contrast, DACA is only granted for two years, and DACA recipients must renew before the expiration of their deferred action and work permits.  Moreover, DACA recipients do not have lawful status in the U.S. (although they do not accrue unlawful presence upon the grant of DACA since they are still authorized to remain), and there is no direct pathway to permanent residency or U.S. citizenship.

One limitation that some DACA recipients face is getting a driver’s license.  Until recently, two states, Arizona and Nebraska, refused to grant driver’s licenses to DACA recipients.  The Ninth Circuit, on July 7, 2014, struck down Arizona’s law that denied driver’s licenses to DACA recipients.  Arizona Dream Act Coalition v. Brewer, No. 13-16248, WL 3029759 (9th Cir. July 7, 2014).  This much-maligned law (see Cyrus Mehta’s take down of it here) was put in place as soon as DACA was first announced in the summer of 2012.  Governor Jan Brewer issued Executive Order 2012-06 “Re-Affirming Intent of Arizona Law In Response to the Federal Government’s Deferred Action Program,” August 15, 2012, directing Arizona state agencies to design rules to prevent DACA recipients from becoming eligible to obtain state identification such as driver’s licenses.  Arizona’s Department of Transportation’s Motor Vehicle Decision changed its requirements for state identification eligibility such that Employment Authorization Documents (EADs or work permits) with the DACA category code of (c)(33) would not be accepted as proof that the license or ID applicant’s presence was authorized in the U.S.  Five DACA recipients living in Arizona, along with the Arizona Dream Act Coalition, filed suit to stop Arizona from enforcing its policy.  The Ninth Circuit found that the law violated the Equal Protection Clause and there was no rational basis for the Arizona government’s policy.  The decision hinged on Arizona’s refusal to accept as proof of “authorized presence” in the U.S. an EAD based on DACA category (c)(33) work while they continued to accept EADs based on (c)(9) and (c)(10) categories, which respectively correspond to applicants for adjustment of status and applicants for cancellation of removal.  The Ninth Circuit systematically rejected each of Arizona’s arguments that it had a legitimate state interest in upholding the policy. Initially the Court rejected Arizona’s argument that (c)(9) and (c)(10) noncitizens could demonstrate authorized presence in the U.S. while (c)(33) could not.  Putting aside the nonsensical use of the term “authorized presence” which holds no actual meaning in immigration law, Arizona conflates the immigration concepts of unlawful presence and unlawful status – two very different things.  Unlawful presence is used in determining admissibility under the 3- and 10-year bars, while a noncitizen not in lawful status may be authorized to stay in the U.S.  The Court’s clearly did not make that mistake: “Employment Authorization Documents merely “tied” to the potentialfor relief [i.e. (c)(9) and (c)(10) categories] do not indicate that the document holder has current federally authorized presence, as Arizona law expressly requires.”  Arizona Dream Act Coalition, at *9.  Moreover, the Court found that Arizona’s other four arguments also could not hold up against a rational basis test. Arizona could not show it might have to issue licenses to 80,000 unauthorized immigrants (less than 15,000 Arizona residents have applied for DACA). DACA recipients cannot access state or federal benefits using a driver’s license alone.  Though the DACA program might be canceled at any time and DACAs could lose their authorized stay, the same could occur to (c)(9) and (c)(10) noncitizens whose corresponding applications are denied.  Therefore, these arguments also do not pass the rational basis test.  The Court went on and mentioned that additionally, Arizona’s policy “appears intended to express animus toward DACA recipients themselves, in part because of the federal government’s policy toward them.”  Id. at *25.  The court pointedly stated: “Such animus, however, is not a legitimate state interest.”  Id.

Interestingly, the Court struck down the law on equal protection grounds rather than conflict-preemption.  Generally, courts use preemption analysis to strike down a conflicting state law acting to regulate immigration.  In a concurrence, Circuit Court Judge Christen analyzed the case’s conflict-preemption argument and found that Arizona’s policy effectively created a new class of noncitizens who are not under “authorized presence” – a descriptor not recognized in immigration law.  The act of creating a new immigration classification, in Judge Christen’s view, is preempted by federal law because states may not directly regulate immigration.  Id. at *13, citing Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1023 (9th Cir. 2013), cert. denied, 134 S. Ct. 1876 (2014).  Moreover, in footnote 3, the Court notes that Judges Pregerson and Berzon agree with the concurring opinion, and specifically that the plaintiffs in the case could succeed on a conflict preemption argument.

Here, however, the Court’s majority analyzed Arizona’s law from an equal protection perspective, which gives it lasting and powerful impact.  By going this route, the 9th Circuit recognized DACA recipients to be part of a protected class.  This can have huge implications for any other state laws that purport to discriminate against this now recognized protected class of noncitizens.  Moreover, the Court, in footnote 4, acknowledged that the Supreme Court in other cases applied strict scrutiny standard of review when state action discriminates against noncitizens authorized to be present in the U.S., see e.g. Graham v. Richardson, 403 U.S. 365 (1971).  But here, the Court states it did not have to analyze under strict scrutiny review because Arizona could not even make its case under the lower rational basis test.  In its analysis the Court found it could “identify no legitimate state interest that is rationally related to Defendant’s decision to treat DACA recipients disparately from noncitizens holding (c)(9) and (c)(10) Employment Authorization Documents”  Arizona Dream Act Coalition at *8. (emphasis added).  It is also worthwhile to note that, unlike the Arizona district court which also held that the Arizona government’s arguments failed a rational basis review, the 9th Circuit found that the protected class, here the DACA recipients, would likely suffer irreparable harm in the absence of a preliminary injunction.  The irreparable harm was the limiting of the DACA recipients’ professional opportunities, hurting their abilities to seek or maintain a job in a state where 87 percent of its workers commute by car.

The decision lays bare the type of backlash that occurred after the Obama administration introduced DACA.  Conservative pundits and anti-immigration groups believe that these young people should receive no acknowledgement or benefits from a country to which they do not belong.  This type of thinking is not only wrong, but it fuels hatred toward a group that, for all intents and purposes, took no part in the decision to enter the U.S. without inspection or to overstay visas.  The point of the DACA policy is to respond to the cries from millions of young immigrants brought into the U.S. as children, who have grown up in the U.S., but who are forced to stay in hiding.  They are punished for someone else’s sins.

I have personally processed over 100 DACA applications in the past two years.  When talking to these young immigrants and their families, it is often impossible to tell apart the individuals who were born here and the ones who were brought here.  DACA requestors speak like Americans, look like Americans, and dream the American dream like native-born Americans.  It is hard to put into words the unfairness of their lives: to live in a country that is oftentimes the only one they have known, and yet to be denied full recognition and basic equal treatment.  Worse, they are called “illegal” and are made to feel unwanted and unwelcome.  This treatment is confusing and painful to many of these young people who had no choice about coming to the U.S.  Yet they are undoubtedly the future of this country.  They will help shape the U.S. cultural, economic, and political landscape.  And we are not doing enough to acknowledge their presence, since they are here to stay, and provide them with the tools to be full active members of American society.

The Obama administration has implemented regulations and executive policies to alleviate some of the pain from long-standing immigration problems that Congress has time and again failed to address.  DACA, for instance, was the Executive’s response to Congress’s failure to pass the DREAM Act in 2010.  Recently President Obama spoke out angrily against Congress’s ability to compromise on immigration reform, calling it the reason behind his decision to direct more resources to address the ongoing crisis of unaccompanied children.  As has been pointed out on this blog, Obama can expand the use of Executive action to confront problems in immigration law while we wait for Congress pass CIR.  The Obama administration can do more than just grant deferred action to young immigrants.  DHS could grant deferred action to DACA parents.  The Department of Education could grant federal student loans to DACA recipients.  Paradoxically, the Obama administration has specifically rendered DACA recipients ineligible for healthcare benefits under the Affordable Care Act even though prior to the August 2013 rule, DACA recipients would have been eligible.  There are myriad ways Executive action, such as DACA, can provide relief to millions of immigrants who live and work beside us every day.  Until such time that Congress takes action, the Executive will have to be the branch taking action, and immigrants must be content with its limitations.

Because the basis of a deferred action grant is DHS’s policy of prosecutorial discretion, it remains only in the form of executive action and it is not an actual law passed by Congress and signed by the President.  DACA and any other executive action are thus vulnerable to attacks from groups and individuals who consider them an overreach by the Obama administration. These attacks, such as Arizona’s driver’s license law, are often informed by fear and a fundamental misunderstanding of immigration law.  Litigation to strike down these anti-immigrant and anti-immigration state laws, which are arguably preempted by federal law, can sometimes take years.  Moreover, executive action while necessary in the face of Congressional inaction is limited in scope: it cannot grant visas or permanent residence, which only Congress can do by expanding the eligibility categories for permanent residence.  Meanwhile, immigrants languish in backlogged visa lines, wait months and years for hearings before an immigration judge, face harsh vitriol from anti-immigration groups, and DACA recipients still do not have a way to become fully integrated into American life.

Cyrus Mehta

Obama’s Paradoxical Deportation Policies

/1 Comment/in /by

President Obama has been called the Deporter in Chief as he has presided over nearly 2 million deportations during his presidency – higher than that of any other President. On the other hand, President Obama has also rolled out some of the most innovative prosecutorial discretion policies, which include granting deferred action to hundreds of thousand immigrants who came to the United States when they were young.

A revealing article in the Los Angeles Times shows that the high number of deportations is largely misleading. The likelihood of an undocumented individual already in the United States who has developed ties being deported has lessened considerably under President Obama. Even people with removal orders can seek a stay of removal if they establish that they are deserving of prosecutorial discretion under the Morton June 17, 2011 Memo.  Young immigrants who arrived in the United States prior to the age of 16 and who meet other conditions can apply for deferred action, along with work authorization, under the Deferred Action for Childhood Arrivals (DACA) program.

The people who are being deported, and are part of the increased statistics, are those who recently crossed the border without inspection and are apprehended within 100 miles from the border. Under previous administrations, such people were informally bused back outside the United States in what was known as “voluntary returns.” Under the Obama administration, these people are fingerprinted and issued formal deportation orders. INA section 235(b)(1), which was enacted by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, granted authority to expeditiously remove persons at the border who are deemed inadmissible under INA sections 212(a)(6)(C) for making a material misrepresentation or 212(a)(7) for not possessing valid visa documents. On August 11, 2004, DHS promulgated a rule to expand expedited removal to persons who are present in the United States without having been admitted or paroled and who are apprehended within 100 miles from the southern border and who also cannot prove that they were physically present in the country continuously for the preceding 14 days. This rule was expanded to all borders on January 30, 2006.

This is not to suggest that the increased use of expedited removal to recent border crossers does not have devastating effects and should not be remedied through immigration reform measures, since many of these crossers are entering the United States to join family members. Still, it is the expanded use of expedited removal that has resulted in an increase of deportations, when under prior administrations, such persons were informally returned from the United States without terming them as deportations. Once a recent border crosser is expeditiously removed, a reentry into the United States also carries severe criminal penalties unlike a ‘voluntary return.” On the other hand, a person who has been in the United States for a longer period is less likely be placed in the removal proceedings, and even if this person is issued a Notice to Appear before an Immigration Judge, he or she can have a shot at requesting prosecutorial discretion under President Obama’s administration than before, which will result in either administrative closure or termination of the case. Unfortunately, the majority of people who came to the attention of the immigration enforcement authorities within the interior, resulting in deportation proceedings,  are those who got arrested for minor offenses.

As an aside and consistent with the topic of this article, there are instances when it can be more beneficial for a person to be placed in removal proceedings than not. Pursuant to INA section 240A(b), an individual who meets 10 years of physical presence, good moral character for this entire period and can demonstrate exceptional and extremely unusual hardship to qualifying relatives who are either citizens or permanent residents can obtain cancellation of removal, leading to lawful permanent resident status. The hardship standard is extremely high and needs to be substantially beyond the hardship that would ordinarily be expected to result from the alien’s deportation, as demonstrated in cases such as Matter of Monreal, 23 I&N Dec. 53 (BIA 2001); Matter of Andazola, 23 I&N Dec. 319 (BIA 2002) where cancellation was denied; and Matter of Recinas, 23 I&N  Dec. 467 (BIA 2002) where it was granted. Another advantage of being in removal proceedings is to escape the 3 year bar based on unlawful presence of more than 180 days but less than 1 year pursuant to INA section 212(a)(9)(B)(i)(I). Departing the United States under a grant of voluntary departure, which is issued prior to the alien accruing 1 year of unlawful presence, and after the commencement of proceedings, may allow this alien to reenter the United States without being subject to the 3-year bar. Finally, another tactical advantage to being placed in removal proceedings is when an application for adjustment of status is denied, and the best way to get a second chance is to have an Immigration Judge review the adjustment application de novo in proceedings. The irony is that ICE is often  reluctant to put a person under these circumstances in removal proceedings because it is does not have the resources, and is also of the view that as an enforcement agency,  it is contrary to the agency’s mission to place someone in removal so that he or she can ultimately secure an immigration benefit.  One note of caution is that those who came into the United States on a visa waiver should not consider requesting a removal proceeding as they have waived their right to a removal hearing under INA section 217(b).

President Obama used the increased deportation statistics to show that he was enforcing the law, but this has backfired among his critics. Those who favor stricter enforcement are not satisfied with the record increase in deportations by pointing to the Administration’s expanded prosecutorial discretion policies that has resulted in the deferring of thousands of deportations. Enforcement advocates in Congress use the President’s expanded prosecutorial discretion policies, while conveniently ignoring the spike in deportations, as an excuse to delay immigration reform and cooperating with the President.  At the same time, immigration advocates and allies have criticized President Obama for increasing deportations without truly bringing about genuine immigration reform. After the passage of the S. 744, the Senate’s immigration reform bill last year, there is now a stalemate where the prospects of immigration reform in the House have almost evaporated despite unanimous agreement that the immigration system is broken.

If President Obama desires to cement his legacy with respect to immigration reform, he may not be able to achieve it through this Congress. In the past, President Obama has indicated that he does not have the authority to further expand prosecutorial discretion, but this may have to change. The only way for the President to fulfill the promise he has made to so many who voted for him is to go about it on his own through administrative policy changes. The Executive branch can expand deferred action to a broader group of people, which could include family members of DACA recipients and those who have US citizen children. The prosecutorial discretion guidelines under the Morton Memo ought to be further strengthened to ensure that they are not ignored by ICE officials, as many are wont to do. The parole in place policy for relatives of military personnel can be expanded to benefit those who are on the pathway to permanent residency if they are beneficiaries of employment and family immigrant visa petitions. In an eloquent New York Times editorial entitled Yes He Can, On Immigration, the following is worth extracting:

Mr. Obama may argue that he can’t be too aggressive in halting deportations because that will make the Republicans go crazy, and there’s always hope for a legislative solution. He has often seemed like a bystander to the immigration stalemate, watching the wheels spin, giving speeches and hoping for the best.

It’s hard to know when he will finally stir himself to do something big and consequential.

The President must no longer fear doing something big and consequential on the immigration front. Some may justifiably fear that if the President ameliorates the plight of undocumented people through administrative reform measures, another President can quickly undo them; and therefore it is best for Congress to enact immigration reform. Administrative remedies are clearly no substitute for comprehensive immigration reform passed through Congress, but it would be hard for a future President to undo wise administrative reform measures that provide a fix to a broken immigration system. For example, DACA benefits have already been granted to hundreds of thousands of young immigrants who have been able to graduate from college and find jobs. It would be politically imprudent for a future President to undo DACA. Indeed, S. 744, the bipartisan reform bill that was passed by the Senate, incorporates DACA and places DACA recipients on a faster track to permanent residency. If President Obama implements bold administrative measures, it would be difficult for a future administration to undo them, and it is likely that a future Congress will have no choice but to readily adopt them into law.

Cyrus Mehta

The Lazarus Effect: How Comprehensive Immigration Reform Can Survive The House GOP and Come Back to Life

/0 Comments/in /by

By Gary Endelmanand Cyrus D. Mehta

“The only true test of leadership is the ability to lead and lead vigorously”

President John F. Kennedy

The Republican National Committee passed a resolution on Friday calling on Congress to pass immigration reform by the end of the year. Unlike the Senate Bill, s. 744, the Border, Security, Economic Opportunity and Immigration Modernization Act, which grants a path way to citizenship, the RNC resolution contemplates legalizing immigrants who came to the US above the age of 18, but only by granting them 2 year renewable work permits. For those who came to the US as minors, they would get a renewable 5 year permit. There is no pathway to citizenship in the RNC’s resolution.

This tepid resolution is completely at odds with BSEOIMA, which will dramatically reform the immigration system. Although the bill does not have everything that everyone wants, S. 744 offers a pathway to legalization for the 10 million undocumented, a new W visa to allow for future flows of lower skilled immigrants and attempts to clear up the backlogs in the employment and family preferences. It also reforms the existing system in many ways by removing the 1 year bars to seeking asylum, creating a startup visa for entrepreneurs, clarifying a contentious provision under the Child Status Protection Act, providing greater discretion to both Immigration and Judges to terminate removal proceedings, among many other beneficial provisions.

Therefore, it remains uncertain whether any measure that the House passes can get reconciled with BSEOIMA, which truly reforms the immigration system. The intransigence in the GOP controlled House, while frustrating the hopes and aspirations of all those who believe that a reformed immigration system will benefit America, also further foreshadows doom for the party in future elections.  What caught our attention was a statement by Senator Rubio on the anniversary of the Deferred Action of Childhood Arrivals (DACA) program, one of the main Republican architects of BSEOIMA, when he warned his party members in Congress that if they did not pass a reform bill then President Obama could extend the administrative relief for young people to everyone through administrative action.

The authors have since 2010 been advocating the ability of the President to ameliorate the plight of non-citizens trapped in a broken system through administrative measures. We have also proposed that the President can resolve the crisis in the backlogs in the employment and family based preferences by not counting derivative family members.  It was thus heartening to know that Rubio also acknowledged the President’s ability to pass an executive order, although he sees this more as a threat for his party.  First, if Obama provides ameliorative relief to millions of immigrants, it will benefit the Democrats in future elections, just as DACA benefited the President in his reelection in November 2012. Second, if the President were to expand DACA to a broader group of undocumented people, and allow them to apply for work authorization and travel permission, this might be better than the GOP immigration reform proposal, if it got passed into law as part of a compromise with the Senate. Such an executive order will not be accompanied by a needless and expensive militarization of the border (which is also a feature of S. 744), along with mandatory E-Verify that will bog down business large and small.  It will not include draconian provisions that the House might likely pass in exchange for legalization, such as authorizing enforcement of immigration law by state police or criminalizing undocumented status.

This is not to say that a Presidential executive order is a substitute for comprehensive immigration legislation. The President will not be able to grant permanent residence to the undocumented, only work authorization and travel permission, and the family and employment based preferences will continue to have a limited supply of visas. Still, in the absence of Congress passing a comprehensive bill to reform the broken system, something is better than nothing. As we have already commented, if we do not count family members, that in itself would dramatically reduce waiting times in the family and employment preferences. Many of the people who will be legalized under an executive order may be able to ultimate get permanent residence through existing pathways.  It is true that the President will not be able to increase badly needed H-1B visas through executive fiat, but it may be possible to give employers greater access to the unlimited O-1 visa by broadening the definition of “extraordinary ability” to allow many more accomplished foreign nationals to work in the US. While an executive order will not include a new start up visa, if the current Entrepreneurs Pathways initiative is implemented faithfully, many entrepreneurs can start companies in the US under existing work visa categories.

While the authors support the passage of  S.744, it is tempting to add that executive action can avoid the economic illiteracy that plagues the H-1B wage provisions embraced by the Senate as the price of passage and avoid the misguided tendency of House Republicans to extend this inflationary regime to other categories such as the TN.  Unlike S. 744, it will not discourage employers from hiring foreign nationals by mandating artificially inflated wages for foreign nationals, a feature of S. 744 that sharply conflicts with expanded H-1B quotas and more generous provisions for employment-based migration. It will not cripple start-up companies who badly desire key foreign personnel but will under the new law be unable to afford them. It will not price American companies out of the green card sponsorship market, divert precious funds that would otherwise be invested in cutting-edge research or  dry up surplus capital that would be better spent on equipment modernization. Executive action will be devoid of the hugely inflationary wage rules adopted by the Senate as part of the deal making that resulted in the passage of S. 744, thereby encouraging more employers to refrain from moving jobs offshore or to low wage labor markets out of the United States. As a result, when compared to S. 744, action now by President Obama might make it more, not less, likely that companies will sponsor foreign workers for green cards.

The President always has this ace up his sleeve, which is the ability to grant relief through an executive order, to force Congress to pass immigration reform. If Congress in fact fails to pass immigration reform, the President can actually bring about immigration reform, which may look better than any of the reform proposals being floated by the GOP in the House. Of course, a future President can get rid of such administrative measures, but this usually does not happen as it would be politically too dangerous to further alienate the Latino vote. It is more likely that a future Congress will bless such administrative measures like the way BSEOIMA did with DACA recipients. So, in light of  all the uncertainty regarding the passage of a comprehensive immigration bill, a Presidential executive order, or the potential for one (as Rubio presciently realized)  may not be such a bad thing.

The invocation of executive action would allow the undocumented to remain in the United States with the opportunity for employment authorization and seek to utilize existing avenues for transition to lawful permanent resident status. It puts them in the same position as everyone else who seeks the green card. From this perspective, executive action would be consistent with the compromise proposal advocated by House Judiciary Committee Chair Robert Goodlatte ( R-Va.).  Many of the undocumented already have, or will, over time, acquire adult US citizen children; others may marry American citizens and still others could attract employer sponsorship. Keep them here, allow them to come in from the shadows, and let the undocumented regularize their status through the disciplined utilization of existing remedies. Not only is this a solution that does not require the House GOP to abandon dysfunctionality as their prime governing philosophy, something they are manifestly loath to do, but, even if Congressional ratification subsequently is felt necessary or desirable, this is precisely the path to legalization that Represenative Goodlatte has already outlined.

The President cannot grant more L-1 intra-company transferee visas but he can restore the relevancy of those that now exist by ending the war on claims of specialized knowledge. No new allowances for extraordinary ability can come through the stroke of a pen but an enlightened decision to banish the suffocating Kazarian final merits determination would give new hope to aliens who now have none but otherwise satisfy what the law requires.  Only Congress can exempt green card categories from the tender mercies of PERM but no legislative sanction is required to halt the use of audits as a tool of intimidation. The need for change should not blind us to the ample opportunities for remediation that the present law affords.  As valuable as comprehensive reform is, as badly needed as the benefits it will bring most surely are, no law will succeed if those who enforce and interpret it lack the moral courage and political will to usher in a newer world. As that fan of Tudor prerogative told us long ago in no less contentious times, “the fault dear Brutus is not in our stars but in ourselves.”

(Guest author Gary Endelman is Senior Counsel at FosterQuan)

Cyrus Mehta

YES HE CAN: A REPLY TO PROFESSORS DELAHUNTY AND YOO

/2 Comments/in /by

By Gary Endelman and Cyrus Mehta

 Article II, Sec. 3 of the Constitution provides that the President “shall take Care that the laws be faithfully executed.”   That being so, can President Obama grant deferred action for childhood arrivals (DACA) whose presence here represents a violation of US law? Professors Robert Delahunty and John Yoo offer a scholarly and resounding “ No” to this question in their paper, The Obama Administration, the DREAM Act and the Take Care Clause(hereinafter cited as Delahanty & Yoo).  They argue that the President must enforce the removal provisions of the Immigration and Nationality Act. Absent either express or implied authority to the contrary, the Obama Administration has violated its constitutional duty.  No presidential prerogative exists that would sustain such non-enforcement nor has the President put forward a cogent excuse that would make his DACA decision constitutionally permissible.  Professors Delahunty and Yoo offer up George Washington’s famous reminder in his Proclamation of September 15, 1702 that “it is the particular duty of the Executive ‘to take care that the laws be faithfully executed.” Such a serious charge requires an answer. That is why we write.

We agree with Professors Delahunty and Yoo that President Obama must enforce all provisions of the INA, including the removal sections contained in Section 235.  We do not agree, however, that DHS Secretary Napolitano’s June 15, 2012 memorandum, or ICE Director John Morton’s June 17, 2011 directive on prosecutorial discretion, instructed or encouraged ICE officers to violate federal law.  At current levels of funding, it is manifestly impossible for ICE to deport most undocumented persons in the United States.  Even at the historically high levels of removal under President Obama, some 400,000 per year, this amounts to only 3-4% of the total illegal population. Delahanty & Yoo n.21.   That is precisely why the Obama Administration has focused its removal efforts on “identifying and removing criminal aliens, those who pose a threat to public safety and national security, repeat immigration law offenders and other individuals prioritized for removal.” Delahanty & Yoo n. 22,  citingLetter from Janet Napolitano, Secretary, Department of Homeland Security, to Senator Richard Dubin (D-Ill.)(Aug. 18, 2011). Far from refusing to enforce the law, President Obama is actually seeking to honor his constitutional obligation by creating a scheme that removes some while deferring the removal of others without granting anyone legal status, something only Congress can do.

Professors Delahanty and Yoo’s characterization of DACA relief as detached, even radical, suffers from a lack of an informed appreciation of the extent to which it has deep roots in existing immigration law. The truth is that deferred action is neither recent nor revolutionary. Widows of US citizens have been granted this benefit. Battered immigrants have sought and obtained refuge there.  Never has the size of a vulnerable population been a valid reason to say no. The extension of DACA relief is less a leap into the unknown arising out of a wild, lawless ideology divorced from a proper respect for the Take Care Clause than a sober reaffirmation of an existing tool for remediation in prior emergencies. Professor Delahanty and Yoo conveniently omits any mention of INA Section 103(a)(1), which charges the DHS Secretary with the administration and enforcement of the INA. This implies that the DHS can decide when to and when not to remove an alien. They also fail to consider INA Section 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 grants employment authorization to one who has received deferred action, has been around for several decades. The only new thing about DACA is that the Secretary Napolitano’s guidance memorandum articulates limiting criteria without endowing deferred action grantees with any legal status, something reserved solely for the Congress. In fact, the Congress has also recognized “deferred action” in Section 202(c)(2) (B)(viii) of the REAL ID Act as a status sufficiently durable to allow the extension of driving license privileges.

Courts are loath to review any non-enforcement decisions taken by federal authorities. See,e.g., Lincoln v. Vigil, 508 U.S. 182, 191-92 (1993); Massachusetts v. EPA, 127 S. Ct. 138, 1459 (2007).  It is up to DHS, rather than to any individual, to decide when, or whether, to initiate any enforcement campaign. Heckler v. Chaney,  470 US 821, 835 (1985). During the last Supreme Court term, Arizona v. United States, 132 S.Ct. 2492, 2499 (2012)  articulated the true reason why: “(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…”

Professors Delahanty and Yoo do not feel constrained by the wide deference that has traditionally characterized judicial responses to executive interpretation of the INA. Under the oft-quoted Chevron doctrine that the Supreme Court announced in Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 US 837(1984), federal 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 intrude only when the agency’s interpretation is manifestly irrational or clearly erroneous. Similarly,  the Supreme Court in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 US 967 ( 2005),while affirming Chevron, held that, if there is an ambiguous statute requiring agency deference under Chevron, the agency’s understanding will also trump a judicial exegesis of the same statute.  Surely the “body of experience” and the “informed judgment” that DHS brings to INA § 103 provide its interpretations with “ the power to persuade.”  Skidmore v. Swift& Co., 323 US 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).Indeed, 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 President and DHS have done with respect to their power to enforce the immigration laws.

This is precisely why 100 law professors argued that the President had the discretionary authority to extend such relief, which Professors Delahunty and Yoo have acknowledged in their paper:

Through no statutes or regulations delineate deferred action in specific terms, the U.S. Supreme Court has made clear that decisions to initiate or terminate enforcement proceedings fall squarely within the authority of the Executive. In the immigration context, the Executive Branch has exercised its general enforcement authority to grant deferred action since at least 1971

            Delahanty & Yoo n. 38.

It is also worth mentioning that while 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. We agree with Professors Delahunty and Yoo when they cite Youngstown Sheet, Delahunty & Yoo n 185. as a rejection of the idea that the President has “prerogative” power, but the President has not used any “prerogative power” with respect to DACA relief; he has indeed acted pursuant to 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.  Professors Delahanty and Yoo look in vain for explicit authority in the INA that supports DACA relief, and delve into instances when Presidents have been able to use “prerogative” power, which they argue cannot be applied in the context of DACA. 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)

Even if arguendo discretion is too weak a foundation for DACA relief, the equitable merits of such remedial action should be strong enough to withstand constitutional scrutiny.  Indeed, as the Supreme Court’s  Arizona opinion recognized,  it is frequently the case that “ Discretion in the enforcement of immigration law embraces immediate human concerns.” Delahanty & Yoo, n. 222.  That is why Section 240A of the INA endows the Attorney General with discretion to cancel removal.  Contrary to what Professors Delahanty and Yoo argue, the exercise of executive compassion in the Dream Act context is not a constitutionally prohibited expression of misplaced sentiment floating without anchor in a sea of ambiguity but a natural out-growrth of prior initiatives when dealing with deferred action. Such initiative is entirely consistent with the Take Care Clause while scrupulously respectful of Congressional prerogatives to make new law. While Professors Delahanty and Yoo argue that equity in individual cases may be justified as an exception to the President’s duty under the Take Care Clause, they claim that the  DACA program is not a judgment in equity but more as a statement of law. We disagree. The President has made clear under DACA that each case merits an exercise of individual discretion. Each application has to be supported by voluminous evidence of not just an applicant’s eligibility, but also evidence as to why the applicant merits an exercise of favorable discretion.  Professors Delahanty and Yoo claim that equity divorced from reliance on another statute or treaty must be opposed as a breach of the President’s sworn oath. No such worry here need trouble them for the Administration not only acts in reliance on its well-settled authority under the INA but precisely and primarily to infuse such authority with relevance made ever more insistent by the lack of Congressional action.

Notwithstanding our rebuttal, the deep scholarship and sincere reservations voiced by Professors Delahanty and Yoo must not be cavalierly ignored nor summarily dismissed. Indeed, they are a powerful justification of the need for comprehensive immigration reform. Only Congress can solve this problem, even though we have shown that the President did have authority to roll out DACA.  The nation waits.