Tag Archive for: Judge Hanen

Cyrus Mehta

Guilford College v. Wolf: Reflecting on the Nationwide Injunction in Immigration Cases

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In a stunning victory for F, J, and M nonimmigrant students battling unlawful presence policy, a federal district court in North Carolina has granted a permanent injunction preventing USCIS from enforcing its problematic August 9, 2018 policy memo. The Trump Administration’s August 2018 policy would have rendered students in F, J and M status unlawfully present for minor technical violations thus subjecting them to 3 and 10 year bars from reentering the United States.

The February 6, 2020  Guilford College et al v. Chad Wolf et al opinion, issued by the Honorable Loretta C. Biggs, is an extraordinary nationwide injunction holding the  August 2018 policy unlawful not just for the Plaintiffs “but for all those subject to its terms.” In addition to summarizing the Court’s well-reasoned justifications for granting Plaintiff’s summary motion in Guilford College, I also reflect on the Court’s justification for granting a nationwide injunction shortly following Justice Gorsuch’s disapproval of such nationwide injunctions in Department of Homeland Security v. New York on January 27, 2020.

As background, the August 2018 policy changed over 20 years of established practice by recalculating how ‘unlawful presence’ time is accrued for foreign students and exchange visitors. In doing so, USCIS blurred the line between established concepts of ‘unlawful presence’ and ‘unlawful status’, and instead made the two terms synonymous as it related to F, J, and M nonimmigrants.

Prior to the August 2018 policy, unlawful presence time would not begin to accrue until the day, or day after, a formal finding was found that the nonimmigrant was out of status. In contrast, under the new policy nonimmigrants would begin accruing unlawful presence time the moment any violation of status occurred. Further, nonimmigrants would not receive any formal notice of a status violation, and any past violation that had been discovered would have begun accrual of unlawful presence. This drastic recalculation of unlawful presence time put many who would be unaware of any status violations at risk of being subject to 3-year or 10-year bars of admission should they accrue more than 180 days of unlawful presence. See INA §212(a)(9)(B)(i)&(II). Mistakes due to technicalities, human error, miscommunication, or ambiguity of rules would cause a nonimmigrant to fall out of status and accrue unlawful presence without their knowledge and without opportunity to cure the violation.

This decision makes permanent a preliminary injunction that was granted on May 3, 2019 on grounds that 1) USCIS had issued the August 2018 policy in violation of the Administrative Procedure Act (APA) for failure to observe the APA’s notice and comment procedures, and 2) the August 2018 policy conflicted with statutory language of the Immigration and Nationality Act (INA).

The Court agreed with the Plaintiffs showing that the language, purpose, context, and effect of the August 2018 USCIS policy rendered it a legislative rule. For a legislative rule to be valid it must have been promulgated in compliance with the APA’s notice and comment procedures under U.S.C. § 553. Thus, in failing to publish notice of its proposed policy change in the Federal Register, USCIS violated the APA, thus invalidating the policy. While acknowledging that the distinction between legislative and interpretive rules is “enshrouded in considerable smog”, the Court found the August 2018 policy to be a legislative rule rather than an interpretive rule as it changed the policy for calculating unlawful presence. It established a binding norm for adjudicators to start calculating unlawful presence from the date of the status violation.

With respect to Plaintiff’s contention that the August 2018 policy violated the statute at INA §212(a)(9)(B)(ii), the provision is reproduced in its entirety to better explain the Court’s reasoning:

“Construction of unlawful presence – For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.”

The Court opined that it was clear that unlawful presence accrued “after the expiration of the period of stay authorized” in §212(a)(9)(B)(ii). Since F, M and J nonimmigrants were admitted under “duration of status” there is no express expiration date. Under the August 2019 policy, the nonimmigrant “starts accruing unlawful presence…the day after he or she engages in an unauthorized activity.”  The August 2019 policy, according to the Court,  “improperly dissolves the distinction between the ‘expiration of the period of stay authorized’ and the violation of lawful status.” The second ground for setting aside the August 2019 is significant. Even if the administration promulgated a rule under the APA, as it appears to be proposing to do so, it may still potentially be set aside as violating §212(a)(9)(B)(ii).

On top of the Court’s reasons for granting a permanent injunction, it also grants a nationwide injunction despite Justice Gorsuch’s scolding against this practice in DHS v. New York a week earlier. Justice Gorsuch complained that a single judge enjoined the government from applying the new definition of public charge to everyone without regarding to participation in this lawsuit, and that they are “patently unworkable” and sow chaos. Earlier, Justice Thomas too complained in his concurrence in Trump v. Hawaii that universal injunctions are a recent phenomenon and that federal courts’ equitable powers were constrained after the country’s founding. Hence, nationwide injunctions are constitutionally suspect. Mila Sohoni, a professor at the University of San Diego law school, argues in the Harvard Law Journal that nationwide injunctions are not a recent phenomenon and this practice goes all the way back to the 19th century. Because nationwide injunctions have a long pedigree, moves today by judges, lawyers in the Trump administration, members of Congress and legal scholars to do away with the universal injunction would be a sharp departure from precedent and practice.

The Court in Guilford College properly reasoned that the scope of an injunction is dictated by “the extent of the violation established, and not by the geographical extent of the plaintiff class.” The Court further held that “Plaintiffs seek a remedy that applies not just anywhere, but to anyone who would otherwise be subject to the policy implemented by the August 2018 PM.” Moreover, as Professor Sohoni has argued, if the policy is violative of the APA, then it must be set aside under 5 USC 706(2). The Fourth Circuit has also explained in IRAP v. Trump that nationwide injunctions are especially appropriate in the immigration context, as Congress has made clear that federal immigration laws must be enforced vigorously and uniformly. Moreover, the plaintiffs in Guilford College were dispersed throughout the US further justifying a nationwide injunction. And to counter Justice Gorsuch’s point that nationwide injunctions sow chaos, could it also not be argued that the lifting of a nationwide injunction would sow even greater chaos if a law that is potentially inconsistent with a statute or unconstitutional is implemented until it is found so by a court – thus causing needless hardship to hundreds of thousands, even millions, of would be immigrants? Another legal scholar Amanda Frost agrees that “nationwide injunctions are the only means to provide plaintiffs with complete relief, or to prevent harm to thousands of individuals similarly situated to the plaintiffs who cannot quickly bring their own cases before the courts.” As the executive has been steadily expanding its powers, a nationwide injunction can act as an important check against the executive branch especially when a polarized and ineffective Congress is unable to do so, according to yet another legal scholar Suzette Malveaux.

Finally, why are people in favor of restrictionist immigration policies within the Trump administration making a fuss about nationwide injunctions? It already happened the other way when Judge Hanen issued a nationwide injunction in Texas v. USA  against President Obama’s expansion of deferred action to parents of US citizen children. Judge Hanen justified the grant of a nationwide preliminary injunction on the ground that if millions began to benefit from a policy that was potentially in violation of the APA or the INA, there would be no effective way of “putting the toothpaste back in the tube should the plaintiffs prevail on the merits.”  When Judge Hanen issued a nationwide injunction, the very same people who are now in charge of implementing hurtful immigration policy cheered. Today, they are critical of the nationwide injunction when courts block their immigration policies.   They cannot have it both ways!

 

 

Cyrus Mehta

Were the DOJ Lawyers Really Unethical in Texas v. USA?

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Judge Hanen’s order dated May 19, 2016 reprimanding thousands of Department of Justice lawyers for unethical conduct is astounding because it does not even appear that their conduct was unethical.

Much has already been written about Judge Hanen’s strange order. Professor Orin Kerr questions whether the judge can even impose ethics classes on hundreds of DOJ lawyers who are not remotely connected to the case. Professor Shobha Sivaprasad Wadhia is justifiably concerned that the order, in addition to reprimanding DOJ attorneys, also threatens to ‘out’ the names of more than hundred thousand  recipients of the Deferred Action for Childhood Arrival (DACA) program who were granted 3 year extensions instead of 2 year extensions. Professor Stephen Legomsky does not even think the DOJ lawyers did anything wrong.

I completely agree. Let’s look at Rule 3.3 of the American Bar Association Model rules of Professional Conduct and the corresponding Texas Disciplinary Rules of Professional conduct, which Judge Hanen used, along with a fair sprinkling of dialogs from popular films, for finding that the DOJ lawyers were not truthful to the court. One of the cardinal ethical cannons is that a lawyer has a duty of candor to a tribunal.  ABA Model Rule 3.3 provides in relevant part:

a)  A lawyer shall not knowingly:

1) Make a false statement of fact or law to a tribunal or fail to correct a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.

The relevant potions of the Texas version of Rule 3.3 are similar:

a)  A lawyer shall not knowingly:

1) Make a false statement of material fact or law to a tribunal

2) Fail to disclose a fact to as tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act;

  ………………..

    5)  offer or use evidence that the lawyer knows to be false.

In order for a lawyer to violate Rule 3.3, he or she must have knowingly made a false statement to the tribunal. Was there such a knowing violation of Rule 3.3 here?

On June 15, 2012, the Obama administration announced DACA that allowed young people who came to the United States prior to the age of 16 and had lived continuously since June 15, 2007, and were not in a lawful status, to be granted deferred action.  On November 20, 2014, DHS Secretary Jeh Johnson issued a memo expanding DACA by changing the eligibility criteria to cover those who had come to the United States prior to January 1, 2010 instead of June 15, 2007 and by removing the maximum age limit of 31 (“Johnson Memo”). The Johnson Memo also lengthened the deferred action time from two to three years. The Johnson Memo further granted deferred action to parents of US citizens or resident children, known as the Deferred Action for Parent Accountability (DAPA), if they had arrived into the United States on or before January 1, 2010.

A group of states challenged the Johnson Memo in Texas v. USA by filing in a court in Brownsville, TX,  where Judge Hanen sat who had already expressed strong views against the Obama administration on immigration.  Judge Hanen granted a preliminary injunction on February 16, 2015 blocking DAPA and expanded DACA. Much has already been written to rebut the conclusions in this flawed decision, and the further flaw in the Fifth Circuit’s affirmation of Judge Hanen’s preliminary injunction.  The preliminary injunction order did not expressly block the original DACA 2012 program. Qualified applicants thus continued to apply for DACA 2012 benefits. Under the terms of the Johnson Memo, qualified applicants under DACA 2012 started receiving grants of deferred action for 3 years instead of 2 years as of November 24, 2014.

Prior to the preliminary injunction of February 16, 2015, in conversations between Judge Hanen and DOJ attorneys, the DOJ attorneys indicated to the court that USCIS had not taken any actions pursuant to the Johnson Memo. Although actions had been taken since November 24, 2014 to grant three year deferred action periods rather than two years, those stemmed from the DACA 2012 program. They were also well publicized.  The expanded DACA, which brought forward the entry date from June 15, 2007 to January 1, 2010, was to take effect on February 18, 2015. Thus, when DOJ attorneys denied that the government had not taken any actions regarding expanded DACA, it was well conceivable that issuing three year deferred action periods instead of two years were actions stemming from the DACA 2012 program and had nothing to do with the expanded DACA program, which had not gone into effect.

After the preliminary injunction was issued, which applied to “expansions (including any and all changes)” to DACA 2012, the DOJ filed an Advisory indicating that out of an abundance of caution it was informing the court that it had granted three year periods of deferred action under the original DACA 2012 guidelines in the event of any misunderstanding.

Given this lack of clarity, as well as the fact that DACA 2012 was never the subject of the lawsuit, could the DOJ attorneys have knowingly made a false statement to be sanctioned under Rule 3.3? This Ethics Committee of the American Immigration Lawyers Association first questioned whether this was so in 2015, but it has become even more important to assert whether there was a Rule 3.3 violation Judge Hanen’s order.ABA Rule 1.0(f) defines the terms “knowingly,” “known” or “knows” as “actual knowledge of the fact in question.” Rule 1.0(f) goes on to state that a “person’s knowledge may be inferred from circumstances.” When the DOJ attorneys were giving an assurance to the court about no action being taken, it could have well been understood to be in relation to recipients who would have become eligible under the expanded DACA, which had not gone into effect., Even the expansion of the deferred action term from two years to three years, if referred to by Judge Hanen,  could have meant to relate to those recipients who would become eligible under the expanded DACA and not relating to the granting of a three year term to qualified recipients under the DACA 2012 program, which had nothing to do with the proposed preliminary injunction. It should be noted that since DACA 2012 was not part of the preliminary injunction, the administration could have fashioned any new benefits for them, and could have theoretically issued a separate guidance memorandum articulating three year renewals rather than two years, separate from the guidance in the Johnson Memo.

Rule 3.3 also allows a lawyer to correct false statements that may have previously been made to the tribunal, which the DOJ did through the Advisory seeking clarification. Unfortunately, Judge Hanen did not view this as clarification but as a further admission that the government lawyers had deceived the court. It is hard to imagine that DOJ lawyers would have knowingly and intentionally deceived the court when three year work permits were being publically announced and given out to those eligible under DACA 2012, and it was a well publicized fact.   There was nothing to hide, and it is inappropriate for a judge to use Rule 3.3 to club not one lawyer but thousands when it was not so clear that knowing false statements had been made to the court.

Although government lawyers oppose private immigration lawyers, and often take unreasonable positions against our clients we defend, Judge Hanen’s reprimand should not be cause for celebration as such a fate could well befall a private lawyer. When there are issues of differing interpretation, involving complex immigration law and policy in hotly contested litigation, it is extremely problematic to use Rule 3.3 to accuse a lawyer for knowingly making false statements to a court or tribunal. While it is one thing for a lawyer to lose a case, it is quite another for a judge to also sanction a lawyer for ethical violations when there was no clear dividing line between an immigration program such as DACA 2012 that was not being enjoined and an expanded version of it that was being enjoined. This is especially so and rather precipitous when the case is still pending at the Supreme Court in United States v. Texas and the issues are yet to be resolved.  And when a lawyer seeks to clarify the ambiguity, as required under Rule 3.3, a judge should not use that as a basis to accuse the lawyer for deliberate deception.  Handing out sanctions for ethical violations in such a ham handed manner not only unfairly undermine a lawyer’s reputation, but create a chilling effect, and in this case demonstrates Judge Hanen’s bias and hostility towards only one of the parties in Texas v. USA.

On June 3, 2016, the government filed a mandamus action against the lower district court for exceeding its scope, with an accompanying request for a stay, essentially asserting that its lawyers did not intentionally intend to deceive the court, and any perception by Judge Hanen that there was a Rule 3.3 violation was due to miscommunications regarding the scope of the preliminary injunction. The government further complains that there was no hearing prior to the issuance of these unusual sanctions. This is a new front in the government’s battle against a district court judge that has blocked President Obama’s deferred action program, and has also imposed an unusual reprimand for alleged ethical violations. In this instance, it is hoped that the government wins the day on both fronts. A dual victory will allow deserving undocumented immigrants to remain in the United States and it will also nullify the bizarre ethics sanctions of a hostile judge, thus sending a message that ethics rules should not be arbitrarily used to club well intentioned lawyers in hotly contested litigation.

(The views in this blog are the personal views of the author, and do not necessarily reflect the views of any organization that he is part of)

Cyrus Mehta

Impact of Texas v. USA on Other Executive Actions Involving Employment Authorization

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Although the Fifth Circuit in Texas v. USA ruled against the Administration on November 9, 2015 by upholding the preliminary injunction against implementation of President Obama’s program to grant deferred action to certain groups of undocumented persons, the ruling may impact other executive actions that President Obama had announced on November 20, 2014, especially relating to skilled immigrants. It is thus important for the the Supreme Court to reverse this erroneous decision to not only allow the Administration to implement Deferred Action for Parental Accountability program  and the expanded Deferred Action for Childhood Arrival program (collectively referred to as DAPA in the decision), but to also allow the Administration to grant other kinds of administrative relief such as interim employment authorization to immigrants who face great hardship and are deprived of the benefits accorded to them under the Immigration and Nationality Act.

The majority’s ruling in the Fifth Circuit went even further than Judge Hanen’s decision in the lower district court by holding that DAPA was not authorized under any INA provision. Judge Hanen’s ruling suggested that if the Administration had followed the notice and comment procedure under section 553 of the Administrative Procedures Act, DAPA could have survived judicial scrutiny. The Fifth Circuit, on the other hand, held that since DAPA implicated “questions of deep economic and political significance,” Congress would have expressly authorized DHS, which it did not do. Hence, DAPA was a substantive APA violation under section 706(2) as it was not authorized under the INA. Thus, promulgating a rule at this juncture will not help to save DAPA.

One of the INA provisions relied on by the government to implement DAPA is INA section 274(h)(3), which 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.

While the ability to of INA 274A(h)(3) to provide authority to the Administration was  completely overlooked in Judge Hanen’s decision (and his flawed decision is discussed in David Isaacson’s excellent blog entitled IGNORING THE ELEPHANT IN THE ROOM: AN INITIAL REACTION TO JUDGE HANEN’S DECISION ENJOINING DAPA AND EXPANDED DACA), the Fifth Circuit took notice of INA 274(h)(3), but gave it short shrift by observing that this provision, which is listed as a miscellaneous definitional provision is an unlikely place to find authorization for DAPA.

Contrary to the Fifth Circuit’s gloss, INA 274A(h)(3)  gives the Attorney General, and now the Secretary of Homeland Security, broad  flexibility to authorize an alien to be employed, thus rendering the alien not an “unauthorized alien” under the INA.  Indeed, INA 274(h)(3) was invoked by the DHS in promulgating a rule providing employment authorization for H-4 dependent spouses of H-1B visa holders in the US who are caught in the employment based second and third preference backlogs. INA 274A(h)(3) will also most likely be invoked when the DHS promulgates a rule to grant work authorization to beneficiaries of approved employment-based I-140 petitions who are waiting for their green cards in the backlogged employment preferences.

Indeed, if INA 274A(h)(3) is discredited, as suggested by the Fifth Circuit,  many other justifications for providing an employment authorization document (EAD) would collapse.  The reason the EAD regulations are principally located in 8 CFR 274a, after all, is that the authority for most of them has always been thought to stem from INA 274A. 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 as part of its broad authority to exercise prosecutorial discretion, without the need to undermine INA 274A(h)(3). As I have advocated in FIFTH CIRCUIT PRECEDENT ON PREEMPTION CAN PROVIDE OBAMA WITH PATH TO VICTORY IN TEXAS v. UNITED STATES, the government’s authority to exercise prosecutorial discretion, which includes deferred action, is non-justiciable and notwithstanding the Fifth Circuit decision, never required rule making. The dissenting opinion in the Fifth Circuit decision thankfully held that deferred action, which is a quintessential exercise of prosecutorial discretion, is non-justiciable.  Indeed, one of the principal reasons why state regulations have been held to  conflict with federal immigration law is because they interfere with the Administration’s ability to exercise prosecutorial discretion. While on first brush Texas v. USA is not a preemption case, it would still provide a basis for any cantankerous state politician to sue the federal government, under the broad and dubious standing theory  that the Fifth Circuit provided to Texas, whenever the federal government chooses to exercise prosecutorial discretion. While the DACA program of 2012 will be the most vulnerable, if the Supreme Court were to uphold the Fifth Circuit’s majority decision, another court would hopefully reach another conclusion with respect to INA 274A(h)(3) as providing the authority to the Administration to grant work authorization in many other contexts.

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:

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 majority of the Supreme Court  justices ought to  latch onto the dissenting opinion, which is the correct opinion, and should reverse the preliminary injunction on the ground that the President’s executive actions regarding DAPA are non-justiciable, and thus leave alone INA 274A(h)(3). The Administration ought to be provided flexibility to provide ameliorative relief, especially EAD under INA 274A(h)(3) to a number of non-citizens needing relief. The prime example are those who have to wait for decades in the India EB-2 and EB-3 backlogs for their green card, even though they have otherwise fulfilled all the conditions. Due to the lack of a current priority date, beneficiaries who are otherwise approved for permanent residence ought to be able to obtain EADs, and the same also should apply to H-4 spouses of H-1B visa holders who are caught in the employment based backlogs. Also, researchers, inventors and founders of startup enterprises ought to be paroled into the US and issued EADs under the broad authority provided in INA 274A(h)(3), and this too is one of the initiatives contemplated in the President’s  November 20, 2014 executive actions.  There are many good reasons why the Administration should be allowed to issue work authorization to noncitizens, and INA 274A(h)(3) ought not be reinterpreted to curtail this flexibility.

Cyrus Mehta

Sophie Cruz and Pope Francis: Shattering Myths About Immigrants

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How are immigrants currently combating labels and stigmas and what can we do more to promote immigrant pride?

I am participating in #MoreThanALabel: Immigrant Stories, Simmons College’s online MSW Program’s campaign to promote transcending labels. By participating in this campaign, I will be sharing my thoughts and how I believe we can shatter the stigmas often attributed to immigrant communities.

 

As Pope Francis arrived in the United States on September 23, 2015 and was cheered by thousands in Washington DC, Sophie Cruz, a 5 year old US citizen whose parents are undocumented, came forward and handed him a t-shirt and a letter. The t-shirt  read, “Pope: rescue DAPA, so the legalization would be your blessing.”

Sophie then said this later in the day:

“I believe I have the right to live with my parents. I have the right to be happy. My dad works very hard in a factory galvanizing pieces of metal. All immigrants just like my dad feed this country. They deserve to live with dignity. They deserve to live with respect.”

President Obama’s executive action announced last November 2014 would have allowed Sophie’s parents to defer their deportations and apply for temporary authorization to remain in the United States so that they could contribute more meaningfully to America. While millions of immigrants and their supporters cheered after Obama’s announcement, not everyone was pleased. Texas, along with 24 more states and governors, sued to block the Deferred Action for Parent Accountability (DAPA) program. Judge Andrew Hanen in a Texas federal district court readily agreed with the plaintiffs that DAPA was not issued in accordance with law and blocked the program. Also blocked was the expansion of another program that was announced in 2012 to allow those who came before 16 and who fell out of status for no fault of their own to defer their deportation. The expansion would have granted work permits for 3 years instead of 2 years, and would have also lifted the age limit of 31. The Fifth Circuit Court of Appeals is about to decide whether to reverse the lower court or not. It is anticipated that the Fifth Circuit will affirm Judge Hanen’s decision, and the battle will move up to the Supreme Court.

Young Sophie’s actions and her interaction with Pope Francis today are powerful and poignant, and perhaps more effective than the current legal team defending the lawsuit. She has shown how mean spirited the efforts have been to block DAPA. Immigrants work very hard and like her dad they “feed this country.”  Pope Francis in turn wants to highlight the lack of access for migrants as one of the most pressing issues of our time.  Sophie and Pope Francis have further shown how wrong Donald Trump has been in falsely claiming that undocumented immigrants from Mexico are criminals and rapists.  While Trump and others wish to abolish birthright citizenship protected by the Fourteenth Amendment, Sophie and the Pope have demonstrated that repeal of birthright citizenship will result in absurd and disastrous results. Birthright citizenship renders all born in this country to be treated equally as Americans no matter who their parents are or where they came from, and it also prevents a permanent underclass from taking root that will continue for generations. The demonization of immigrants reached another nadir recently  when Trump did not dissuade anti-Muslim comments in his rally and Dr. Carson categorically stated that he would never support a Muslim to be President of the United States.

In their serendipitous encounter today, Sophie and Pope Francis courageously shattered the false labels and stigmas that are associated with immigrants. It is not that people want to remain undocumented. They are forced to remain undocumented because our immigration system is terribly broken and does not afford meaningful pathways to legally come to America to work like Sophie’s dad or to unite with families. Congressional inaction in not expanding these pathways has contributed to the buildup of 12 million plus undocumented people, who work hard and contribute to the well being of America, and who now according to Trump, should all be deported. We hope that Sophie and Pope Francis reverse this deplorable trend and shine the way towards repairing America’s broken immigration system. America will only be made great again when Sophie can live without fear and succeed!

Cyrus Mehta

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

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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

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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.

Cyrus Mehta

JUSTICE, JUSTICE SHALL THOU PURSUE: WHY THE LAWSUIT AGAINST THE IMMIGRATION ACCOUNTABILITY EXECUTIVE ACTIONS IS A WASTE OF TIME AND MONEY

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For I was hungry and you gave me food, I was thirsty and you gave me drink, I was a stranger and you welcomed me

Matthew 25:35

A lawsuit was expected as soon as President Obama dramatically announced that his immigration executive actions could impact more than 5 million people. It is already here. On December 3, 2014, Texas took the lead with 18 other states in a lawsuitagainst the United States asserting that the President’s unilateral Immigration Accountability Executive Actions are unconstitutional.  The coalition of states in addition to Texas include Alabama, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Mississippi, Montana, Nebraska, North Carolina, South Carolina, South Dakota, Texas, Utah, West Virginia and Wisconsin. 

The complaint essentially alleges that the DHS directive violates the President’s constitutional duty to “take Care that the Laws be faithfully executed” under Article II, §3, Cl. 5 of the United States Constitution. Another basis for the complaint is that under the Administrative Procedure Act, 5 U.S.C. § 553, the President’s executive action is akin to a rule, which needs to be promulgated through notice-and-comment rulemaking. The complaint also cites APA, 5 U.S.C. § 706, which gives a federal court power to set aside an agency action that is, among other things, arbitrary or capricious, contrary to constitutional right or in excess of statutory authority.  But it reads more like a white-hot tabloid, and instead of providing a forceful legal basis, loudly proclaims in bombastic fashion several prior utterances of President Obama claiming that he could never bypass Congress. Here are two out of many examples: 

“I am president, I am not king. I can’t do these things just by myself…[T]here’s a limit to the discretion that I can show because I am obliged to execute the law…I can’t just make the laws up by myself.”

“[I]f in fact I could solve all these problems without passing laws in Congress, then I would do so. But we’re also a nation of laws. That’s part of our tradition. And so the easy way out is to try to yell and pretend like I can do something by violating our laws. And what I’m proposing is the harder path, which is to use our democratic processes to achieve the same goal. “ 

The President still went ahead and changed the law himself despite his many previous assertions that he could not, according to the complaint, as if that can be a legal basis to challenge the actions. Interestingly, the President consistent with these prior utterances of his still insists even after November 20, 2014 that only Congress can change the law and bring on meaningful reform.  The centerpiece of the President’s executive actions is to broaden deferred action, which has always been deployed by the Executive Branch. The November 20, 2014 announcement defers the deportation of people who were in unlawful status as of the date of the announcement, and who were also the parents of US citizen or permanent resident children, provided they were in the United States before January 1, 2010. The previous Deferred Action for Childhood Arrivals (DACA) program has been expanded to include those who came to the United States when they were below 16 years prior to January 1, 2010 instead of January 15, 2007. The previous age limit of 31 that was imposed in the June 15, 2012 announcement has been lifted. Eligible people who are a non-priority for enforcement purposes can apply for deferred action, and obtain employment and travel authorization. 

The lawsuit is a waste of time and taxpayers money. The authors have argued in A Time for Honest Truth: A Passionate Defense of President Obama’s Executive Actions that the President clearly has the legal authority to exercise discretion with respect to prioritizing on whom to enforce the law against, especially when Congress has not provided sufficient funding to deport 12 million undocumented people all at once. Even the conservative establishment refers to those who desire to deport 12 million as the “boxcar” crowd.  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. Even if the law suit alleges that the President does not have authority, now is a good time to remind critics about Justice Jackson’s famous concurrent opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952), which held that the President may act within a “twilight zone” in which he may have concurrent authority with Congress. 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 executive branch under the recent immigration actions is well acting within Congressional authorization. In his famous concurring opinion, Justice Jackson reminded us that, however meritorious, separation of powers itself was not without limit: “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” Id. at 635. Although President Truman did not have authorization to seize the mill to prosecute the Korean War, Justice Jackson laid a three-pronged test to determine whether the President violated the Separation of Powers clause. First, where the President has express or implied authorization by Congress, his authority would be at its maximum. Second, where the President acts in the absence of congressional authority or a denial of authority, the President may still act constitutionally within a “twilight zone” in which he may have concurrent authority with Congress, or in which its distribution is uncertain. Under the second prong, Congressional inertia may enable, if not invite, measures of independent presidential authority. Finally, under the third prong, where the President acts in a way that is incompatible with an express or implied will of Congress, the President’s power is at its lowest and is vulnerable to being unconstitutional.

Through the Immigration Accountability Executive Actions, the President is likely acting under either prong one or two of Justice Jackson’s tripartite test. INA Section 103(a)(1) 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..”  INA § 212(d)(5), which Congress also enacted, authorizes the Executive to grant interim benefits for “urgent humanitarian reasons” or “significant public benefits.”  Parole can also be used to allow promising entrepreneurs to come to the United States and establish startups, although this and many other actions to help businesses have not been attacked in the law suit. Moreover, INA § 274A(h)(3)(B) provides authority to the Executive to grant employment authorization. Even if such authority is implied and not express, Congress has not overtly prohibited its exertion but displayed a passive acquiescence that reinforces its constitutional legitimacy. Operating in Justice Jackson’s “twilight zone,” such constructive ambiguity creates the opportunity for reform through executive initiative. In terms of employment authorization issuance, Congress has rarely spoken on this except via INA § 274A(h)(3)(B), so that many instances of employment authorization issuance are purely an act of executive discretion justified by that one statutory provision. Furthermore, INA § 103(3) confers powers on the Secretary of Homeland Security to “establish such regulations, prescribe such forms or bonds, reports, entries and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the provisions of this Act.”

We reproduce the very penetrating and insightful comments of our esteemed colleague Jose R. Perez, who is a partner at Foster: 

It’s my hope that Federal Judge Andy Hanen in Brownsville, TX, will do the right thing and dismiss this lawsuit based on: 

·   #1: Lack of subject matter jurisdiction since the alleged cause of action is a ‘political question’ or a dogfight between the executive & legislative branches as there is no case or controversy for an Article III Court to decide;

·         #2: The plaintiffs lack ‘standing’ since the states have NOT suffered a palpable injury suffered and the ‘alleged injury’ is baseless and at best highly speculative since no undocumented alien has benefited from the executive actions of November 20, 2014; and

·         #3: Once implemented, the executive actions do NOT circumvent Congress or usurp our Constitution since President Obama has the executive authority under Article II of the U.S. Constitution and the statutory authority under the INA to grant deferred action based on law enforcement priorities as an act of prosecutorial discretion. This is an presidents have done so. [ My family and I came to the U.S. as ‘parolees’ based on President Johnson’s exercise of discretion that allowed approx. 1 Million Cubans to be paroled and to eventually benefit from the Cuban Adjustment Act of 1966, a very open-ended and most favorable statute.] 

We wish to double down on these sage comments concerning lack of state standing to bring this lawsuit for they are its Achilles heel.  This is not a case where a federal agency like the Environmental Protection Agency has declined a request by an affected state actor to regulate the emission of toxic greenhouse gas emissions whose presence in our air and water present a clear and present danger of environmental catastrophe.. For this reason, the holding by the Supreme Court that the State of Massachusetts did have requisite Article III standing to sue the EPA is fundamentally inapposite both in logic and law. Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007). Undocumented immigrants who work long hours at low pay doing the hard and dirty jobs on which we all depend but are loath to perform are not the cause or harbinger of global warming. Whatever grievances Texas and her sister states have , the proper forum for their expression and resolution in our system of governance is the Congress not the courts.  See Lajan v. Defenders of Wildlife, 504 U.S. 555, 576 (1992)..

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). 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…” The decision by President to order ICE to focus its enforcement activities on designated priorities is a policy judgment which the courts have neither the time nor inclination to second guess: 

This Court has recognized on several occasions over many years that an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion. See United States v. Batchelder, 442 U. S. 114, 123-124 (1979); United States v. Nixon, 418 U. S. 683, 693 (1974); Vaca v. Sipes, 386 U. S. 171, 182 (1967); Confiscation Cases, 7 Wall. 454 (1869). This recognition of the existence of discretion is attributable in no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement. 

Heckler v. Chaney, 470  U.S. 821, 8311 (1985) 

The Constitution neither allows nor encourages any of the state litigants in this extra-constitutional litigation to micromanage the enforcement or implementation of current immigration law or regulation. That is up to the President and those federal agencies to whom he delegates his authority: “An agency has broad discretion to choose how best to marshal its limited resources and personnel to carry out its delegated responsibilities.” Chevron v. Natural Resources Defense Council, 467 U.S. 837, 842-845 (1984). Under the oft-quoted Chevron doctrine, 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.  There is simply no case or controversy here for the federal courts to settle. None of these Plaintiffs identify or present  such a “ personal stake in the outcome of the controversy as to assure the concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination.” Baker v. Carr, 369 U.S. 186, 204 (1962). Where is their standing then one wonders? In all of the hyperbolic protestations that suffuse this complaint, where rhetoric often masquerades as reality,  one looks in vain for any allegation or evidence that any of the state complainants can “ show that it has suffered a concrete and particularized injury that is fairly traceable to thte defendant and that a favorable decision will likely redress that injury.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992). 

Still, one should not be too sanguine about Judge Hanen doing the right thing who will hear this case in the United District Court for the Southern district of Texas,   Division. In US v. Nava-Martinez, a case that involved a human trafficker who sought to smuggle an El Salvadorian girl into the United States, Judge Hanen chastised the DHS for completing the crime by delivering the minor to the custody of the parent,  even though the DHS was obliged to unify the child under the 1997 Flores v. Reno, CV-85-4544-RJK, settlement agreement. Judge Hanen equated this policy to “taking illegal drugs or weapons that it had seized from smugglers and delivering them to the criminals who initially solicited their illegal importation/exportation.” Id. at 10. The plaintiffs have cleverly cited Nava-Martinezin their complaint as an example of DHS laxity encouraging illegal migrants, and also disingenuously conflated the surge of unaccompanied minors this summer with the President’s previous DACA program, even though it has been well documented that these children may have come to the US for other legitimate reasons, such as fleeing horrific gang persecution in countries such as Honduras, el Salvador and Guatemala. . A December 5, 2014 NY Times article confirms this: 

At the National Immigrant Justice Center in Chicago, lawyers interviewed 3,956 migrant children this year. Lisa Koop, associate director of legal services there, said the number of children who had heard of the 2012 program was “in the single digits.”

“It is clear that DACA was not a driving force behind the migration,” Ms. Koop said. “What we heard time and again was that violence in Central America and the need for safe haven was what prompted these children to undertake the journey north.” 

Even if Judge Hanen does not rule the way we think he should, it is hoped that the Fifth Circuit will swiftly reverse him. Indeed, the Fifth Circuit has recently recognized the supremacy of federal immigration law over state law as well as federal discretion in enforcing immigration law. In Villas at Parkside Partners v. Farmers Branch, 726 F.3d 524 (5th Cir. 2013), the Fifth Circuit struck down a local housing ordinance on preemption grounds because it conflicted with federal law regarding the ability of aliens not lawfully present in the United States to remain in the US. The Fifth Circuit also noted that the federal government could exercise discretion: 

Whereas the Supreme Court has made clear that there are “significant complexities involved in [making] . . . the determination whether a person is removable,” and the decision is “entrusted to the discretion of the Federal Government,” Arizona, 132 S. Ct. at 2506; see also Plyler, 457 U.S. at 236 (Blackmun, J., concurring) (“[T]he structure of the immigration statutes makes it impossible for the State to determine which aliens are entitled to residence, and which eventually will be deported.”), the Ordinance allows state courts to assess the legality of a non-citizen’s presence absent a “preclusive” federal determination, opening the door to conflicting state and federal rulings on the question.  

The creation of law by federal agencies in the implementation of executive initiative has become the norm rather than the exception in our system of governance , if for no other reason than that the sheer multiplicity of issues, as well as their dense complexity, defy traditional compromise or consensus which are the very hallmarks of Congressional deliberation. Despite the assertion in Article I of the Constitution that “ All legislative Powers herein granted shall be vested in a Congress of the United States,” it is far from novel to acknowledge as we must that independent federal regulatory agencies also exercise legislative powers. As Justice White noted in his dissent in INS v Chadha,462 U.S. 919, 947 (1983) (White,J., dissenting) after reviewing prior cases upholding broad delegations of legislative power:

These cases establish that by virtue of congressional delegation, legislative power can be exercised by independent agencies and Executive departments without passage of new legislation. For some time, the sheer amount of law- the substantive rules that regulate private conduct and direct the operation of government- made by the agencies has far outnumbered the lawmaking engaged in by Congress through the traditional process. There is no question that agency rulemaking is lawmaking in any functional or realistic sense of the term.

Immigration has historically been linked to foreign policy. Indeed, a core reason for the plenary federal power over immigration is precisely because it implicates real and genuine foreign policy concerns. This is another reason why the Executive enjoys wide, though not unchecked, discretion to effect changes in immigration procedures through sua sponte regulation. Indeed, it is perhaps only a modest exaggeration to maintain that the INA could not be administered in any other way.  The President’s executive action does not displace Congress as the primary architect of federal immigration policy but rather is in aid of the legislative function and, as such, is in harmony with the constitutional injunction to diversify authority. The President is not divorced from lawmaking; that is the very reason why the Framers provided an executive veto power. If the President had no role in lawmaking, why give such a weapon to limit congressional prerogative? Once we accept the fact that the Executive is a junior partner in lawmaking, then the President’s executive actions become a strong but unremarkable expression of this well-settled constitutional concept. To suggest that the President is powerless to act simply because only Congress can modify the INA is to isolate one co-equal branch of our national government from another beyond what the Constitution suggests or requires. This is not what the Framers had in mind:

Yet it is also clear from the provisions of the Constitution itself, and from the Federalist Papers, that the Constitution by no means contemplates total separation of each of these three essential branches of government…The mean who met in Philadelphia in the summer of 1787 were practical statesmen, experienced in politics, who viewed the principle of separation of powers as a vital check against tyranny. But they likewise saw that a hermetic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself effectively.

Buckley v. Valeo, 424 U.S. 1, 121 (1976)

Not only is it appropriate for the President to direct the formulation of immigration policy on technical issues of surpassing importance, this is the way it must be; this is what the Constitution expects. The decision by President Obama to do now what he had been reluctant or unwilling to do earlier suggests not a reversal of position or a grab for imperial power but  a willingness to change, to grow, to embrace solutions that meet the exigencies of an ever-changing challenge stubbornly resistant to what has been tried before and failed. We are reminded of what President Lincoln wrote to Albert G. Hodges on April 4, 1864 : “I claim not to have controlled events, but confess plainly that events have controlled me.” In  perhaps the most famous judicial exposition of the need for pragmatic presidential initiative, we end our advocacy in confident reliance upon the still cogent observations of Chief Justice John Marshall in McCulloch v. Maryland:

To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur 

17 U. S. 316 (1819) 

The President’s proposals do nothing to inhibit or prevent Congress from enacting amendments to the INA. He has not attempted to supplant Congress when it comes to the exercise of the legislative function over which in alone enjoys plenary power.  President Obama has acted solely in furtherance of what the Congress has already done to give America the immigration policy that it needs and deserves, one that is more effective and adaptable to the exigencies of the moment so that both the nation and the immigrants who have sacrificed all to write the next great chapter in the American story can benefit in full measure.

(Guest author Gary Endelman is Senior Counsel at Foster)