Tag Archive for: United States v. Texas

Cyrus Mehta

As Texas Has Been Smacked Down Twice for Lack of Standing in Challenges to Federal Immigration Policies, Biden Should Get Even Bolder in Reforming Our Immigration System Through Executive Actions

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On March 8, 2024, Judge Tipton in Texas v. DHS dismissed a lawsuit brought by Texas and 20 other states challenging President Biden’s humanitarian parole program. Judge Tipton, who was appointed by Trump,  has otherwise been receptive to challenges to Biden’s immigration policies but not this time. Texas filed the lawsuit in his court thinking that Judge Tipton would again issue a favorable decision but Judge Tipton held that Texas did not have standing to bring the lawsuit.

President Biden’s humanitarian parole program is a wonderful example of how executive action can reshape immigration policy in the face of Congressional inaction.  It allows people fleeing troubled spots to come to the US in an orderly manner. The program initially implemented for Ukrainian and Venezuelan nationals all0wed 30,000 qualifying nationals of Cuba, Haiti, Nicaragua and Venezuela (CHNV) to be admitted to the United States every month for up to two years. These individuals will be eligible for work authorization, and must have a U.S. sponsor who agrees to provide them with financial support for the duration of the parole period.

In Texas v. DHS  the challengers asserted that the program exceeded the parole authority given to the administration under INA 212(d)(5) as it can be used ‘only on a case-by-case basis for urgent humanitarian reasons or significant public benefit’”. They also asserted that the program failed to include a notice and comment period and the program was arbitrary and capricious. Judge Tipton’s order did not address the merits because the plaintiffs did not demonstrate they had standing to bring the lawsuit.

Judge Tipton gave short shrift to Texas’s claim that the parole of CHNV nationals  would impose additional health care costs on the state or additional incarceration costs or an increase in education costs since the CHNV program has resulted in the decrease of migrants entering the US irregularly through the southern border. Judge Tipton also found that an increase in CHNV nationals seeking driver’s licenses would not impose additional costs on Texas, in fact the increased applications would result in a profit for Texas.  Prior to the CHNV program DHS released an average of 2,356 CHNV nationals per day but after the implementation of the program there were a total of 1,326 arrivals per day, which was a 44% reduction.

As a result, Texas was unable to show an “injury-in-fact” that the CHNV program increased the   costs on Texas. In fact, to the contrary, the CHNV parole program has reduced the total number of individuals from the four countries and Texas has spent less money after the implementation of the parole program. Texas counter argued that even if there are fewer apprehended CHNV nationals, the court should consider the money Texas would spend on CHNV nationals under the parole program. Judge Tipton emphasized that the court must consider the “actual injury – not the labels put on the injury” as otherwise plaintiffs will engage in “artful pleading” to make an end run around the standing requirement under Article III of the Constitution. To determine whether actual injury exists the raw numbers need to be looked at in context rather than in a vacuum. The CHNV program reduced the overall numbers of CHNV nationals that the United States admitted prior to the implementation of the program.

The CHNV program, which will continue for now,  has been a spectacular success thus far and is built on the US historically using parole to respond to immigration crises.  The CHNV parole program has “redirected many migrants away from risky journeys through Mexico into a lawful framework. By allowing sponsors to financially support beneficiaries, the programs have facilitated safe and orderly migration, reducing the strain on government resources,” according to the Cato report in the link.

Texas and the other states may appeal Judge Tipton’s decision, but this is the second time that Texas’s challenge has been smacked down due to lack of standing. Last June 2023 in United States v.  Texas, the Supreme Court in an 8-1 majority opinion rendered a blow to Texas and Louisiana in holding that they had no standing to challenge the Biden administration on federal immigration policy on enforcement priorities. Writing for the majority, Justice Kavanaugh said, “The States have brought an extraordinarily unusual lawsuit. They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests. Federal courts have not traditionally entertained that kind of lawsuit; indeed, the States cite no precedent for a lawsuit like this.”

Originally laid out in the 2021 Mayorkas Memo, this list of enforcement priorities would have allowed ICE to focus its efforts on the apprehension and removal of noncitizens who pose a threat to “national security, public safety, and border security”. The attorneys general of Texas and Louisiana swiftly challenged these enforcement priorities, arguing that ICE would be allowed to overlook noncitizens for whom detention was required, which would subject the citizens of these states to crime committed by noncitizens who should be in detention, and force the state to spend resources providing education and medical care to noncitizens who should be detained.. The question turned on  whether the Biden administration’s enforcement priorities in the Mayorkas Memo contradicted two statutory provisions – 8 U.S.C. § 1226(c) and 8 U.S.C. § 1231(a). 8 U.S.C. § 1231(a) pertains to the detention and removal of those who have been ordered removed. § 1226(c) lays out a list of noncitizens who “shall” be taken into custody by the Attorney General, including those who have committed certain criminal offenses. Judge Tipton readily agreed by vacating the Mayorkas Memo. The Fifth Circuit affirmed but the Supreme Court reversed holding  that in order to get standing the plaintiff states must show that the alleged injury must be legally and judicially cognizable and that the dispute must also be redressable in federal court. As Kavanaugh explains, the plaintiff states “have not cited any precedent, history, or tradition of courts ordering the Executive Branch to change its arrest of or prosecution policies so that the Executive Branch makes more arrests of initiates more prosecutions.”

As a result of Texas losing twice on standing, the enforcement priorities under the Mayorkas Memo continue to be applied and the CHNV parole program will also allow CHNV nationals to enter the US through parole in an orderly manner and relieve the strain on the Southern border. It remains to be seen whether Texas’s challenge to DACA can also be denied based on standing. Currently, the Fifth Circuit is reviewing Judge Hanen’s ruling in September 2023 holding that DACA is illegal.  Judge Hanen also affirmed that Texas had standing to challenge DACA notwithstanding the Supreme Court decision in United States v. Texas, where Justice Kavanaugh also stated  that “a challenge to an Executive Branch policy that involves both the Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status could lead to a different standing analysis.” Judge Hanen seized upon this sentence from Justice Kavanaugh’s decision by holding that DACA involved  “non prosecution with benefits” and so it was distinguishable from the enforcement priorities in the Mayorkas Memo. Judge Hanen also seized upon another part in Justice Kavanaugh’s opinion stating that the “standing calculus might change if the Executive Branch wholly abandoned its statutory responsibilities to make arrests or bring prosecutions.” Judge Hanen thought that DACA was such an example where the administration has abandoned its statutory responsibility to make arrests and bring prosecutions and thus violated the “Take Care Clause” of the Constitution.

Both Texas v. DHS and United States v. Texas should serve as templates for either the Fifth Circuit or the Supreme Court to once again deny Texas standing to challenge DACA and Texas’s other serial challenges to Biden’s immigration programs. Texas lacks standing  because DACA like the CHNV parole program has been widely successful and it can be shown that it has not injured Texas. In his order Judge Tipton contrasted Texas v. United States, 809 F.3d 134 (5th Cir. 2015), as revised, (Nov. 25, 2015), aff’d by equally divided Court, 597 U.S. 547 (2016), where President Obama’s Deferred Action for Parents of Americans (DAPA) was found to be unlawful, with the CHNV program. The Fifth Circuit held that Texas demonstrated injury in fact because “DAPA would enable at lest 500,000 illegal aliens in Texas” and the extended DACA program  would also cause “pocketbook injuries on the State in the form of healthcare, education, and social service costs.” However, if DACA is viewed independently from DAPA, it can be demonstrated that the benefits from DACA recipients since 2012 in the form of tax contributions to Texas and increased profits from the issuance of driver’s licenses, among other benefits,  have not resulted in injury-in-fact to Texas. Using the comparative analysis of Judge Tipton in Texas v. DHS, it can also be argued that the number of DACA recipients did not increase after the implementation of DACA in 2012 as they were already in the US prior to its implementation.

Moreover, in  Texas’ challenge to the Deferred Action for Childhood Arrivals (DACA) program, Texas has argued that it is entitled to “special solicitude.” The doctrine first enunciated in Massachusetts v. EPA allows states to skirt some of the usual standing requirements, like whether the court can redress an alleged injury. However, Justice Brett Kavanaugh addressed the doctrine in a footnote in United States v. Texas stating that the states’ reliance on Massachusetts v. EPA to support their argument for standing was misplaced. Massachusetts v. EPA held that the state could challenge the U.S. Environmental Protection Agency’s failure to regulate greenhouse gases based on special solicitude, although that case dealt with a “statutorily authorized petition for rulemaking, not a challenge to an exercise of the executive’s enforcement discretion,” the footnote said. Another footnote in Justice Kavanaugh’s majority opinion said lower courts need to be mindful of constraints on lawsuits filed by states, saying that indirect effects on state spending from federal policies don’t confer standing. Although Justice Kavanaugh’s opinion in United States v. Texas left open the possibility that “a challenge to an Executive Branch policy that involves both the Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status could lead to a different standing analysis”. note that Justice Kavanaugh said that it “could” lead to a different standing analysis and not that it would. It is also worth mentioning that In his concurrence in United States v. Texas, Justice Gorsuch argued that the harm Texas and the states that joined it were concerned with – primarily increased spending to provide healthcare and other services to higher numbers of undocumented immigrants present in the state – was not redressable. As with the Mayorkas Memo, the DACA program also involves prosecutorial discretion and so Texas’s challenge to DACA may suffer the same redressability problem identified by Justice Gorsuch.

As the latest order to Judge Tipton in Texas v. DHS and Texas v. United States has made it harder for a state like Texas, which has reflexively sued on every immigration policy to get standing, the Biden administration should consider moving forward more boldly by reforming the immigration system through parole initiatives  and other executive actions without fear of being sued by these states. As a fitting coda, it is worth mentioning that the Judicial Conference of the United States, the policy arm of the judiciary, has  strengthened the policy governing random case assignment, limiting the ability of litigants to effectively choose judges in certain cases by where they file a lawsuit. This new policy would make it more difficult for states like Texas to file a lawsuit in courts where the judge might rule more favorably in a challenge to a Biden federal immigration policy. However, after receiving intense backlash from conservative lawmakers, judges and judicial experts, the Judicial Conference issued a revised policy making clear that the policy is a recommendation and district courts cannot be forced to follow it.  Although Texas’s choice of filing its lawsuit against the CHNV program in the United States District Court Southern District of Texas, Victoria Division, where Judge Tipton presides, backfired, even if this policy is non-binding guidance, it would still make it more difficult for Texas to try this strategy repeatedly in courts where other friendly judges preside like the United States District Court for the Southern District of Texas, Brownsville Division,  where Judge Hanen presides.

Cyrus Mehta

DHS’s Family Reunification Parole Initiative Can Serve as Template for Other Bold Executive Actions to Reform the Immigration System Without Fear of Being Sued by a State

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By Cyrus D. Mehta and Kaitlyn Box*

On July 7, 2023, DHS announced a new family reunification parole initiative for beneficiaries of approved I-130 petitions who are nationals of Colombia, El Salvador, Guatemala, & Honduras. Nationals of these countries can be considered for parole on a case-by-case basis for a period of up to three years while they wait to apply to become lawful permanent residents. This is an example of the administration using its executive authority to shape immigration policy in the absence of meaningful Congressional action to reform the system. Indeed, this initiative can serve as a template to allow beneficiaries of approved I-130, I-140, and I-526 petitions to be paroled into the US while they wait for a visa number to become available, which under the backlogs in the employment and family preference categories, can take several years to decades.

Section 212(d)(5) of the Immigration and Nationality Act (INA) authorizes the Secretary of Homeland Security, in his discretion, to parole noncitizens into the United States temporarily on a case-by-case basis for urgent humanitarian reasons or significant public benefit. The parole authority has long been used to establish family reunification parole (FRP) processes administered by U.S. Citizenship and Immigration Services, including the Cuban Family Reunification Parole Program, which was established in 2007, and the Haitian Family Reunification Parole Program, which was established in 2014.

The processes begin, according to the DHS announcement, with the Department of State issuing an invitation to the petitioning U.S. citizen or lawful permanent resident family member whose Form I-130 on behalf of a Colombian, Salvadoran, Guatemalan, or Honduran beneficiary has been approved. Beneficiaries awaiting an immigrant visa could include certain children and siblings of U.S. citizens and certain spouses and children of permanent residents. The invited petitioner can then initiate the process by filing a request on behalf of the beneficiary and eligible family members to be considered for advance travel authorization and parole.

The new processes allow for parole only on a discretionary, case-by-case, and temporary basis upon a demonstration of urgent humanitarian reasons or significant public benefit, as well as a demonstration that the beneficiary warrants a favorable exercise of discretion. Individuals paroled into the United States under these processes will generally be considered for parole for up to three years and will be eligible to request employment authorization while they wait for their immigrant visa to become available. When their immigrant visa becomes available, they may apply to become a lawful permanent resident.

The Federal Register Notices for Colombia, El Salvador, Guatemala, and Honduras provide more information on the FRP process and eligibility criteria.

According to the federal register notices, the justification for the new FRP initiative is part of a broader, multi-pronged, and regional strategy to address the challenges posed by irregular migration through the Southwest border. Consideration of noncitizens for parole on a case-by-case basis will meaningfully contribute to the broader strategy of the United States government (USG) to expand access to lawful pathways for individuals who may otherwise undertake an irregular migration journey to the United States. The case-by-case parole of noncitizens with approved family-based immigrant visa petitions under this process will, in general, provide a significant public benefit by furthering the USG’s holistic migration management strategy, specifically by: (1) promoting family unity; (2) furthering important foreign policy objectives; (3) providing a lawful and timely alternative to irregular migration; (4) reducing strain on limited U.S. resources; and (5) addressing root causes of migration through economic stability and development supported by increased remittances.

It remains to be seen whether states like Texas will attack this program in federal court. A similar humanitarian parole program has been the subject of a lawsuit by Texas and nineteen other states, and  allows 30,000 qualifying nationals of Cuba, Haiti, Nicaragua and Venezuela to be admitted to the United States every month for up to two years. The new FRP initiative is more narrowly tailored as it applies only to spouse, children and sibling beneficiaries of  approved I-130 petitions. Also, in United States v.  Texas, the Supreme Court in an 8-1 majority opinion rendered a blow to Texas and Louisiana in holding that they had no standing to challenge the Biden administration on federal immigration policy on enforcement priorities. Although that case dealt with whether a state could challenge the federal government’s ability to exercise prosecutorial discretion, it can also potentially deter a state’s ability to demonstrate standing when it challenges other federal immigration policies.

In Texas’ challenge to the Deferred Action for Childhood Arrivals (DACA) program, Texas has argued that it is entitled to “special solicitude.” The doctrine first enunciated in Massachusetts v. EPA allows states to skirt some of the usual standing requirements, like whether the court can redress an alleged injury. However, Justice Brett Kavanaugh addressed the doctrine in a footnote in United States v. Texas stating that the states’ reliance on Massachusetts v. EPA to support their argument for standing was misplaced. Massachusetts v. EPA held that the state could challenge the U.S. Environmental Protection Agency’s failure to regulate greenhouse gases based on special solicitude, although that case dealt with a “statutorily authorized petition for rulemaking, not a challenge to an exercise of the executive’s enforcement discretion,” the footnote said. Another footnote in Justice Kavanaugh’s majority opinion said lower courts need to be mindful of constraints on lawsuits filed by states, saying that indirect effects on state spending from federal policies don’t confer standing. Still, Justice Kavanaugh’s opinion in United States v. Texas left open the possibility that “a challenge to an Executive Branch policy that involves both the Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status could lead to a different standing analysis”. Note that Justice Kavanaugh said that it “could” lead to a different standing analysis and not that it would.

Florida has already challenged the Biden administration’s “Parole Plus Alternatives to Detention” (Parole+ATD) and “Parole with Conditions in Limited Circumstances Prior to the Issuance of a Charging Document” (PWC) policies in Florida v. Mayorkas  that is currently pending before the Eleventh Circuit Court of Appeals. In a brief filed on July 5, 2023, the government argued that the “special solicitude” doctrine proffered by states in United States v. Texas. should not apply in the humanitarian parole context. Florida asserted that it was entitled to special solicitude for the same reasons articulated by Texas in United States v. Texas – “a challenge to its sovereignty and indirect fiscal costs flowing from the presence of more noncitizens in its state.” Because the Supreme Court rejected an almost identical argument for the application of special solicitude in United States v. Texas, the government argued that Florida is similarly not entitled to avail of the doctrine.

The Supreme Court’s decision in United States v. Texas could have interesting implications for challenges to DACA, as well, and DACA recipients as intervenors have filed additional briefing to the US District Court for the Southern District of Texas in US v. Texas, Case No. 1:18-CV-68. In his concurrence in United States v. Texas, Justice Gorsuch argued that the harm Texas and the states that joined it were concerned with – primarily increased spending to provide healthcare and other services to higher numbers of undocumented immigrants present in the state – was not redressable. Although an injunction would prevent the implementation of the Biden administration’s enforcement guidelines, Justice Gorsuch argued that this remedy was unavailable to the states because of 8 U. S. C. § 1252(f )(1), which provides that “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of ” certain immigration laws, including the provisions that the states want to see enforced. The district court attempted to avoid offending this provision by “vacating” the Biden administrations guidelines instead of issuing an injunction, but Judge Gorsuch argued in part that a vacatur order nullifying the guidelines does nothing to redress the states’ supposed injuries because the “federal officials possess the same underlying prosecutorial discretion”, even in the absence of the guidelines. DACA recipients argued that this program also represents an exercise of inherent prosecutorial discretion, and states’ challenge of the program therefore suffers from the same redressability problem identified by Judge Gorsuch. Similarly, the states challenging the DACA program have alleged indistinct injuries similar to those articulated by Texas in United States v. Texas. Because the Supreme Court found that Texas lacked standing to challenge the Biden administration’s guidelines, DACA recipients have argued that states do not have stating to challenge the DACA program based on similar theories.

DOJ attorneys and intervenor defendants filed a joint motion on July 7, 2023, asking Judge Tipton of the United States District Court for the Southern District of Texas to delay a bench trial in the earlier lawsuit filed by Texas to challenge the Biden administration’s parole program for Cubans, Haitians, Nicaraguans, and Venezuelans. Although the motion argued that the outcome of United States v.  Texas would determine whether Texas had standing in the federal suit, Judge Tipton predictably declined to push back the trial date. Texas had previously argued that the parole program is distinguishable from the Biden administration’s enforcement guidelines because “[w]hatever discretion [the administration] might have in choosing which aliens to arrest or otherwise take into custody, [it has] no discretion to parole into the country aliens who do not meet the statutory criteria for parole.” At this point, states like Texas are arguing that their legal challenges to Biden’s earlier humanitarian parole or DACA program can be distinguished from United States v. Texas, which involved enforcement priorities, while the Biden administration and intervenors such as DACA recipients are arguing that Texas should not have standing to challenge even other immigration programs.

Returning to the idea of how this initiative can be broadened, parole can potentially be expanded to all beneficiaries of approved I-130, I-140, and I-526 petitions who are waiting overseas in the green card backlogs. Even if parole is expanded, the administration can still remain faithful to INA § 212(d)(5) by approving parole on a discretionary and case-by-case basis for urgent humanitarian reasons or a significant public benefit. For instance, it may be possible to justify the parole of certain beneficiaries of I-526 petitions who have made a minimum investment of  $500,000 in a US business prior to May 15, 2022 or $800,000 after this date,  and created 10 jobs as that could be considered a significant public benefit. The same justification can be made for certain beneficiaries of approved I-140 petitions in the EB-1, EB-2, and EB-3 preference categories whose presence in the US can benefit US employers who have sponsored them through the labor certification process or who have demonstrated that they are either persons of extraordinary ability or are well situated to advance the national interest of the United States. Beneficiaries of approved I-130 petitions who are caught in backlogs can make a justification for parole for urgent humanitarian reasons to unite with family members in the US.

Out of the four proposals Cyrus Mehta made to the Biden administration in May 2021 for reforming the legal immigration system without waiting for Congress to act, we are happy to see that two have come to fruition- parole for beneficiaries of I-130 petitions and using the Dates for Filing (DFF) for protecting the age of the child under the Child Status Protection Act. Cyrus Mehta has also proposed that the administration has the authority to advance the DFF in the State Department Visa Bulletin to current to maximize the number of people who can file for adjustment of status in the US. Cyrus Mehta has also proposed that there is nothing in INA § 203(d) that requires the counting of derivatives in  the family and employment green card preferences, although since the submission of this proposal, the DC Circuit Court of Appeals in Wang v. Blinken ruled that INA § 203(d) requires the counting of derivative. Hence, any hope of administrative reform with regards to the unitary counting of family members has been shelved for the time being unless Congress is able to provide clarification on §203(d). Even if the administration issues a new interpretation to INA § 203(d) and abandons the position it took in Wang v. Blinken, the DC Circuit Court of Appeal’s interpretation will still prevail within the jurisdiction.

As Texas v. United States has made it harder for a state like Texas, which has reflexively sued on every immigration policy to get standing, the Biden administration should consider moving forward more boldly by reforming the immigration system through executive actions without fear of being sued by these states. It may be no coincidence that the latest family reunification parole initiative was unveiled within two weeks of the favorable ruling for the Biden administration in Texas v. United States!

[This blog is for informational purposes only and should not be considered as a substitute for legal advice]

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

While Supreme Court Holds That States Have No Standing to Challenge Federal Immigration Enforcement Priorities in United States v. Texas, How Does This Bode for  DACA and Other Immigration Policies?

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By Cyrus D. Mehta

In United States v.  Texas, the Supreme Court in an 8-1 majority opinion rendered a blow to Texas and Louisiana in holding that they had no standing to challenge the Biden administration on federal immigration policy on enforcement priorities. Writing for the majority, Justice Kavanaugh said, “The States have brought an extraordinarily unusual lawsuit. They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests. Federal courts have not traditionally entertained that kind of lawsuit; indeed, the States cite no precedent for a lawsuit like this.”

Originally laid out in the 2021 Mayorkas Memo, this list of enforcement priorities would have allowed ICE to focus its efforts on the apprehension and removal of noncitizens who pose a threat to “national security, public safety, and border security”. The attorneys general of Texas and Louisiana swiftly challenged these enforcement priorities, arguing that ICE would be allowed to overlook noncitizens for whom detention was required, which would subject the citizens of these states to crime committed by noncitizens who should be in detention, and force the state to spend resources providing education and medical care to noncitizens who should be detained.. The question turned on  whether the Biden administration’s enforcement priorities in the Mayorkas Memo contradicted two statutory provisions – 8 U.S.C. § 1226(c) and 8 U.S.C. § 1231(a). 8 U.S.C. § 1231(a) pertains to the detention and removal of those who have been ordered removed. § 1226(c) lays out a list of noncitizens who “shall” be taken into custody by the Attorney General, including those who have committed certain criminal offenses. Trump appointed Judge Tipton readily agreed by vacating the Mayorkas Memo.

Justice Kavanaugh held that in order to get standing the plaintiff states must show that the alleged injury must be legally and judicially cognizable and that the dispute must also be redressable in federal court. As Kavanaugh explains, the plaintiff states “have not cited any precedent, history, or tradition of courts ordering the Executive Branch to change its arrest of or prosecution policies so that the Executive Branch makes more arrests of initiates more prosecutions.” In Linda R.S. v. Richard D., 410 U.S. 614 (1973), cited in the majority opinion, “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” Similarly, a state government like the private citizen in this case cannot bring such a lawsuit. In another case Heckler v. Chaney, 470 US 821 (1983), the Court recognized that the government has to balance several factors such as resource constraints and changing public safety and public welfare needs, and that such a complicated balancing process leaves the courts without meaningful standards for assessing those policies.

The Court recognized that the Executive Branch exercises absolute discretion to prosecute a case, and this discretion extends to the immigration context. The Court previously in Arizona v. United States, 567 U.S. 387 (2012) declared that the Executive Branch retains discretion over whether to remove a noncitizen from the United States. Indeed, prosecutorial discretion is so inevitable in immigration enforcement that even after the Mayorkas Memo was set aside, ICE has continued to exercise discretion by moving to dismiss thousands of removal cases in immigration courts  but without referring to the priorities in the Mayorkas Memo.

This decision bodes well for the other cases where Texas and other states have challenged federal immigration policy, although with respect to the Deferred Action for Childhood Arrivals (DACA) program, Kavanaugh’s opinion states that “a challenge to an Executive Branch policy that involves both the Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status could lead to a different standing analysis.” One wonders whether this would give Judge Hanen some leeway in distinguishing this case from United States v. Texas. Still, DACA is also part of enforcement priorities as the administration has decided to defer the removal of youths who fell out of status for no fault of their own. The final rule’s definition of “lawful presence” is also a significant provision. The final rule points to 8 CFR § 1.3(a)(4)(vi), which defines “an alien who is lawfully present in the United States” as “an alien who belongs to one of the following classes of aliens permitted to remain in the United States because DHS has decided for humanitarian or other public policy reasons not to initiate removal proceedings or enforce departure” including “aliens currently in deferred action status”. As this provision makes clear, all recipients of deferred action, not DACA recipients alone, are considered lawfully present for certain purposes. Lawful presence does not confer any immigration status in the United States, a distinction that has long been misunderstood. In a 2017 decision that upheld a challenge to DAPA by the state of Texas, the Fifth Circuit viewed a grant of deferred action as something akin to an immigration status. Judge Hanen in 2021, too, seemed to conflate lawful presence with a legal immigration status. Rather, lawful presence renders individuals who have been granted deferred action eligible for certain federal benefits and ensures that they do not accrue unlawful presence for inadmissibility purposes, which could render them subject to the 3- and 10- year bars. Moreover, since they are considered lawfully present, DACA recipients will be eligible for Social Security benefits, including a Social Security number itself when they apply for employment authorization, which assists individuals in filing taxes, obtaining identification cards, and obtaining employment. Most important, a clarification of lawful presence not being legal status should put DACA in the same category of cases where the DHS has exercised  prosecutorial discretion, and should in turn preclude Texas and other states from getting standing to challenge the program.

There is also this fear whether this ruling would preclude an immigrant friendly state like New York, Hawaii, Washington or California to challenge an anti-immigrant policy of a future president. Would Hawaii be able to challenge a future travel ban based on discriminatory grounds like it did in Trump v. Hawaii? Or would a state like New York be able get standing to sue a future administration if it again restricted the public charge parameters?  Assuming that United States v. Texas precludes standing for these states in the future, there will also be plaintiffs who have been actually injured such as noncitizens whose travel has been blocked to the US or who have been denied permanent residence as they could not meet the new restrictive public charge grounds. United States v. Texas serves as a shield against plaintiffs who wants to play offense but does not come in the way of an injured plaintiff who needs to play defense. It also remains to be seen whether the standing analysis in the ruling is limited to challenging the government regarding non-prosecutions or exercising prosecutorial discretion or whether it would apply to other matters.

If the standing analysis applies to other matters, then the Biden administration should consider boldly providing relief to backlogged skilled immigrants by radically advancing the dates for filing in the State Department Visa Bulletin so that thousands of beneficiaries of approved I-140 employment petitions may file for adjustment of status in the US and obtain benefits such as interim work authorization, travel permission and the ability to exercise job portability. The administration can also consider  providing parole to beneficiaries of approved I-130 family,  I-140 employment  and I-526 investor petitions who are waiting overseas to immigrated until their priority dates becomes current. These are just a few examples where the Biden administration can tread more boldly without fear of being sued by Texas, Louisiana or Missouri.

In the immediate aftermath of the decision where Justice Alito was the only dissenter, DHS Secretary Alejandro Mayorkas said that the DHS would reinstate the guidelines, which were paused last summer by the Supreme Court. He said this would “enable DHS to most effectively accomplish its law enforcement mission with the authorities and resources provided by Congress.” Texas Gov. Greg Abbott said that Texas would “continue to deploy the National Guard to repel [and] turn back illegal immigrants trying to enter Texas illegally.”

 

David Isaacson

An Eventful Thursday for Immigration Law at the Supreme Court: United States v. Texas, Mathis v. United States, and What’s Next

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On Thursday, June 23, the U.S. Supreme Court issued two decisions of significance to immigration law: a 4-4 affirmance without opinion in United States v. Texas, and a 5-3 decision in Mathis v. United States.  The first, which was more obviously immigration-related, is very disappointing and has rightly received a great deal of media attention, but the second is also worth noting and is somewhat more positive.

 

The Court’s evenly-divided decision – or one might say lack of decision – in United States v. Texas left standing the previous 2-1 decision of a panel of the Court of Appeals for the Fifth Circuit, which had upheld District Judge Andrew Hanen’s preliminary injunction against Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and against the related expansion of Deferred Action for Childhood Arrivals (“DACA+”).  This is quite a momentous outcome to have been reached without explanation.  As former Solicitor General Walter Dellinger has written: “It is hard to know what to say about an immigration opinion affecting 4.3 million people that reads, in its entirety: ‘The judgment is affirmed by an equally divded Court.’  Seldom have so many hopes been crushed by so few words.”

 

It has long been customary for an evenly divided Supreme Court to affirm the judgment below without offering opinions, as was done here (and has been done since at least 1909), although this is not a custom followed by all multi-member appellate courts in the United States.  The Court of Appeals for the First Circuit sitting en banc, for example, has provided opinions explaining the views of its judges when it has divided 3 to 3 in recent years and so affirmed the district courts below, as in the immigration detention case of Castaneda v. Souza, on which the First Circuit split in December 2015.  If the Supreme Court were to adopt a similar custom, one would at least have the satisfaction of knowing the reasoning behind the Justices’ votes.  In this particular case, one might also have hoped that some of the Justices who voted to affirm the Fifth Circuit could have been convinced to change their minds by a compelling dissenting opinion that they knew they would have to confront publicly, although presumably draft opinions were circulated internally, given the long lapse of time between oral argument in the case on April 16 and the issuance of decision last week.  The 4-4 deadlock, and the Supreme Court’s custom of not issuing opinions in that scenario, has left those Justices who voted to affirm the Fifth Circuit in the position of being able to do so without having to explain formally and publicly why such a position is legally coherent.

 

While it is frustrating that the injunction in United States v. Texas was affirmed without explanation and without any precedential decision, however, this does have the benefit of leaving the door open for a different outcome in the long run.  United States v. Texas could return to the Supreme Court once a 9th Justice is seated on the Court, and potentially be decided differently, in one of at least two ways.

 

First, as SCOTUSBlog pointed out soon after the 4-4 decision came down, the government can petition the Supreme Court to rehear the case, and ask that the petition be held until a 9th Justice is seated on the Court.  Former Solicitor General Dellinger also endorsed that approach in his above-quoted post at Slate’s “Supreme Court Breakfast Table”.  This would be one way for U.S. v. Texas to come back before the Supreme Court, potentially quite quickly after a 9th Justice is seated.  Under Supreme Court Rule 44, a petition for rehearing ordinarily will only be granted both “by a majority of the Court” and “at the instance of a Justice who concurred in the judgment or decision”, but it is unclear how this latter requirement could possibly be applied in the case of a 4-4 affirmance without opinion, where the Court has not issued its own judgment and there is no public record of any Justice concurring in the affirmance more than any other Justice.  Thus, it appears that an ordinary majority, presumably composed of the 4 Justices who voted to reverse plus a newly arrived 9th Justice, could grant a petition for rehearing if it were still pending when a 9th Justice were confirmed.

 

SCOTUSBlog also noted today, however, that the Court had denied one petition in another case seeking such rehearing by a 9-member Court, which may not bode well for the rehearing possibility.  Specifically, the Court denied rehearing in Hawkins v. Community Bank of Raymore, which had been the subject of an affirmance without opinion by an equally divided Court on March 22, 2016.  One might think, though, that there is a significant difference between a case like U.S. v. Texas, decided just before the end of the term and affecting national policy so substantially, and a case like Hawkins, in which the Court failed 3 months earlier to reach a conclusion regarding the questions “(1) Whether “primarily and unconditionally liable” spousal guarantors are unambiguously excluded from being Equal Credit Opportunity Act (ECOA) “applicants” because they are not integrally part of “any aspect of a credit transaction”; and (2) whether the Federal Reserve Board has authority under the ECOA to include by regulation spousal guarantors as “applicants” to further the purposes of eliminating discrimination against married women.”  Without meaning to minimize the significance of discrimination against married women seeking credit, one might reasonably suggest that this sort of garden-variety issue of statutory interpretation does not call for unusual procedural measures to achieve a final, reasoned resolution to the same extent as the issue of the legitimacy of DAPA and DACA+.

 

Even if rehearing is not granted, it is likely that U.S. v. Texas may ultimately return to the Supreme Court, unless it is rendered moot in the meantime by Congressional enactment of comprehensive immigration reform or recission of DAPA by a hypothetical Republican President.  (Hillary Clinton, the presumptive Democratic Presidential nominee, has made quite clear that she would seek to defend and expand administrative relief such as DAPA, not rescind it.)  The injunction issued by Judge Hanen and upheld by the Fifth Circuit was a preliminary injunction, and the case would now ordinarily be expected to proceed to a trial on the merits, or at least some sort of further proceedings.  At the conclusion of such further proceedings, Judge Hanen may then issue a permanent injunction.  The grant of such a permanent injunction could be appealed back to the Fifth Circuit, and if it were again affirmed by the Fifth Circuit, the government could seek certiorari from the Supreme Court regarding that affirmance.  One hopes that by the time the case worked its way back up through the Fifth Circuit to the Supreme Court in this fashion, there will be a 9th Justice seated on the Supreme Court.

 

There has also been some speculation that a new case regarding DAPA and DACA+ could be commenced, in a Circuit other than the Fifth Circuit, which might come out differently and create a circuit split.  It may be unlikely that such other litigation, even if deemed feasible, would make it back to the Supreme Court sooner than one of the other two routes discussed above.  If there is a way to launch such other litigation despite the current national scope of the injunction against DAPA and DACA+, however, it could have other benefits: David Leopold, for example, suggests in a recent blog post that further litigation might allow DAPA and DACA+ to go into effect in portions of the United States even if not nationwide.  Achieving such a goal would be difficult, given the current nationwide injunction against DAPA and DACA+ issued by Judge Hanen and upheld by the Fifth Circuit, but it appears that some intelligent and creative attorneys may be looking to see if they can find a way.

 

Ultimately, however, it appears that the future of DAPA and DACA+ will likely depend on who (if anyone) fills the currently vacant 9th seat on the Supreme Court.  In this, as in many other things, the outcome of this November’s elections will be crucial.

 

If Hillary Clinton is elected President and the Democrats retake the majority in the Senate, the 9th Justice who would be confirmed, whether that is President Obama’s nominee Chief Judge Merrick Garland of the Court of Appeals for the D.C. Circuit or a new nominee put forward by President Clinton, would likely vote to overturn the injunction against DAPA and DACA+ if and when the case returned to the Supreme Court.  In the tragic event of a Donald Trump Presidency, on the other hand, the issue would be moot, since DAPA and DACA+ would be rescinded anyway.  In the event that Hillary Clinton is elected President and the Republicans maintain control of the Senate, one hopes that they would not attempt to block a Supreme Court nomination indefinitely, but given the current behavior of the Senate Republican majority, one cannot be sure.  Therefore, a Democratic victory in not only the Presidential election, but also a sufficient number of Senate elections to reclaim the majority (requiring a net gain of at least four seats), would give the best hope for a revival of DAPA and DACA+.  If the Democrats can also regain the majority in the House of Representatives, then the issue of DAPA and DACA+ could be rendered moot in a much more pleasant way: comprehensive immigration reform, along the lines of the Senate CIR bill S.744 that was passed by the Democratic Senate with a bipartisan majority in 2013 but denied a vote in 2013 and 2014 in the Republican-controlled House of Representatives, could become law.  Hopefully, many of the U.S. citizen relatives of those who would be affected by DAPA, DACA+, or comprehensive immigration reform will be motivated by these possibilities to turn out and vote in November.

 

Until comprehensive immigration reform becomes law or DAPA and DACA+ come into effect, however, immigration attorneys will remain on the lookout for other small pieces of good news where we can find them.  The Supreme Court’s decision Thursday in Mathis v. United States, while at first glance not about an immigration case at all, provided just such a piece of good news for noncitizens with certain types of criminal convictions.  (Since most significant criminal convictions would have precluded applying for DAPA and DACA+, the set of noncitizens who will benefit from Mathis has very little overlap with the set of those harmed by U.S. v. Texas, so it may only be from the perspective of immigration attorneys that Thursday was something of a good news / bad news situation; hopefully I do not strike the reader as too insensitive for examining the two decisions in one blog post nonetheless.)

 

Mathis was primarily a sentencing case, arising under the Armed Career Criminal Act, or ACCA.  That statute provides for harsher criminal sentences against those with certain sorts of prior criminal convictions.  ACCA has been interpreted by the Supreme Court to provide for a “categorical approach”, where what is important is what one can be certain a person has been convicted of, that is, the elements of their crime, and not other facts regarding what they may actually have done in the past.

 

In its use of the categorical approach, ACCA operates similarly to several provisions of the Immigration and Nationality Act (INA) regarding noncitizens with criminal convictions.  As the Supreme Court explained in Moncrieffe v. Holder, 569 U.S. ____, 133 S.Ct. 1678 (2013), the categorical approach, grounded in the language of immigration statutes that ask what a noncitizen was “convicted” of, “has a long pedigree in our Nation’s immigration law.”  Indeed, it goes back more than 100 years, at least back to the Second Circuit’s decision in United States ex rel. Mylius v. Uhl, 210 F.860 (2d Cir. 1914).  There are some provisions of immigration law that have been interpreted to deviate from the categorical approach, such as the $10,000 loss threshold for a fraud crime to qualify as an aggravated felony under section 101(a)(43)(M)(i) of the INA, addressed in the Supreme Court’s 2009 decision in Nijhawan v. Holder, but they are the exception, not the rule.

 

Because both ACCA cases and many areas of immigration law rely on the categorical approach, the reasoning of ACCA cases is often found to control in immigration cases.  Moncrieffe, for example, which addressed the immigration consequences of a conviction under Georgia law for possession of marijuana with intent to distribute, cited and relied upon Shepard v. United States, 544 U.S. 13 (2005), and Johnson v. United States, both ACCA cases.  (The particular ACCA provision involved in Johnson was held unconstitutionally vague by the Court, but the principles behind the categorical approach were still usefully elucidated in that case.)  Footnote 2 of the Mathis majority opinion specifically acknowledged the applicability of the categorical approach discussed in Mathis to immigration cases, citing Kawashima v. Holder, 565 U. S. 478, 482–483 (2012).

 

In both the ACCA context and the immigration context, issues have arisen regarding the application of the categorical approach to what are known as “divisible” statutes.  In effect, such statutes contain multiple separate crimes, and so one can look at the record of the conviction, using what is known as the “modified categorical approach” to determine which of these crimes applied.  The Supreme Court clarified in Mathis that this is only to be done when the difference between the components of the statute of conviction turns on a true element, a fact on which a jury would have to agree to convict, or which a defendant would have to admit in a guilty plea.  It does not apply to alternate means of commission of a crime, even if they are listed in the statute of conviction.

 

Mr. Mathis had been convicted multiple times of burglary under Iowa law, which covered unlawful entry into “any building, structure, [or] land, water or air vehicle.”  Mathis, slip op. at 5.  For ACCA purposes, on the other hand, the Court had held years earlier that a conviction only counted as “burglary” if it involved unlawful entry into a building or other structure.  The question thus became whether one could look at the record of Mr. Mathis’s conviction to see whether he had been convicted of breaking into a building or other structure, on the one hand, which would qualify as ACCA “burglary”, or breaking into a land, water or air vehicle, which would not so qualify.  Iowa case law made clear that these were merely alternative means of committing a single crime, and that a jury could convict someone of burglary without agreeing on whether the defendant had burgled a building or a vehicle.  The government sought nevertheless, however, to argue based on documents from Mr. Mathis’s prior criminal cases that he had in fact been convicted of burglarizing a house and not a vehicle.

 

In a decision written by Justice Kagan and joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor, the Court held that this was not permissible.  Facts on which a jury need not be unanimous are not elements of a crime, and so the Iowa burglary statute at issue was not truly divisible: it created only one crime, not many.  Because the categorical approach focuses on what the defendant was convicted of doing, and not what he or she may have actually done, one cannot pick through the record of a prior case and speculate regarding whether the jury might have agreed on something that the law did not require it to agree on in order to convict.

 

Justice Breyer, joined by Justice Ginsburg, dissented, arguing that if the record revealed that evidence supported conviction of a defendant only pursuant to one statutory word or phrase, it should not matter whether that word or phrase was termed an element or a means.  Justice Alito, writing only for himself, compared the Court’s ACCA case law to a Belgian woman who had set out for Brussels and ended up in Zagreb, Croatia, by following her GPS too unquestioningly.  Accusing the majority of “pointless formalism”, he hypothesized a lengthy plea colloquy in which a defendant admitted to burglarizing a house at “10 Main St.” in the face of lengthy questioning from the judge regarding whether this address might represent a yacht, house boat, trailer, or tent.  (The hypothetical defendant’s response to this last query was said to be, “No, it’s made of brick.  I scraped my knee on the brick.”)  Even in this case, he lamented, “[a]s the Court sees things, none of this would be enough.”

 

Before addressing some of the implications of this decision for immigration purposes, I will pause to note that Justice Alito’s lengthy hypothetical colloquy, humorous though it may be, strikes me as not really supporting his argument, and perhaps even as weakening it.  In the real world, a judge would almost never go through such a lengthy discussion of the nature of the premises burgled if that did not affect the crime of which the defendant was to be convicted or the punishment for which the defendant was eligible.  If the defendant had actually broken into a car parked right outside the garage of the house at 10 Main Street to steal money and jewelry, rather than breaking into a car parked inside the garage and the garage itself to steal the same money and jewelry, one would not expect him to start an argument with the judge, in the context of a law which made the penalty for the two versions of the crime exactly the same.  Rather, if asked whether he broke into a “structure” at 10 Main Street, there is a good chance that such a hypothetical defendant would simply say “yes”, and that would be the end of it.  To quote from Justice Kagan’s majority opinion:

 

“At trial, and still more at plea hearings, a defendant may have no incentive to contest what does not matter under the law; to the contrary, he “may have good reason not to”—or even be precluded from doing so by the court. . . .  When that is true, a prosecutor’s or judge’s mistake as to means, reflected in the record, is likely to go uncorrected. See ibid. Such inaccuracies should not come back to haunt the defendant many years down the road by triggering a lengthy mandatory sentence.”

 

Justice Alito’s hypothetical colloquy, which I admit was quite funny, draws its humor partly from its unrealistic nature.

 

And just as the sorts of uncorrected inaccuracies to which Justice Kagan refers “should not come back to haunt the defendant many years down the road by triggering a lengthy mandatory sentence”, as Mathis makes clear, they also should not come back to haunt the defendant by triggering deportation.  In footnote 3 of Mathis, Justice Kagan specifically notes a scenario in which the Mathis rule will apply to immigration cases:

 

To see the point most clearly, consider an example arising in the immigration context: A defendant charged under a statute that criminalizes “intentionally, knowingly, or recklessly” assaulting another—as exists in many States, see, e.g., Tex. Penal Code Ann. §22.01(a)(1) (West Cum. Supp. 2015)—has no apparent reason to dispute a prosecutor’s statement that he committed the crime intentionally (as opposed to recklessly) if those mental states are interchangeable means of satisfying a single mens rea element. But such a statement, if treated as reliable, could make a huge difference in a deportation proceeding years in the future, because an intentional assault (unlike a reckless one) qualifies as a “crime involving moral turpitude,” and so requires removal from the country.

 

Under Mathis, if recklessness and intentional assault are indeed interchangeable means of satisfying the same mens rea requirement under a particular statute, then for immigration purposes the statute cannot be divided between them.

 

That is, even someone who seemingly pled guilty to intentional conduct, under such an indivisible statute, should be considered as if he or she had only pled guilty to reckless conduct, because, as Moncrieffe explained, “we must presume that the conviction “rested upon [nothing] more than the least of th[e] acts” criminalized,” 133 S. Ct. at 1684.  As Mathis’s footnote 3 explains, this makes more sense than might at first glance appear, because someone convicted under such a statute would have had no reason to dispute the allegation that he or she had acted intentionally rather than recklessly—unless perhaps he or she had consulted immigration counsel prior to entering a plea.  Allowing the proverbial hairs of a state statute’s text to be split, adversely to the noncitizen, beyond the point where the distinction makes any difference under state law, would penalize those who did not have immigration consequences in mind at the time of their plea or trial.  Certainly, for a variety of reasons, all noncitizens charged with a crime should consult with a competent immigration attorney before pleading to any charge or otherwise proceeding with their criminal case, but the law should not unnecessarily and unfairly penalize those who fail to heed this advice.

 

The distinction between recklessness and intentional conduct is not the only context in which this means/elements distinction may have relevance for immigration law.  For example, attorneys whose clients have been convicted of possession of a controlled substance, under state laws covering at least some substances not federally controlled, should explore whether the identity of the substance is an element or a means under the relevant state law—whether, in order to obtain a conviction, the state is required to prove which controlled substance a defendant possessed.  If the identity of the substance is a means and not an element, then the conviction may, under Mathis, fall within the protection of the Supreme Court’s decision last year in Mellouli v. Lynch, which required a controlled substance conviction to relate to a federally controlled substance in order to cause adverse immigration consequences.  (The Third Circuit’s 2013 en banc decision in Rojas v. Attorney General rejected what it called the “formal categorical approach” in this controlled-substance context, but it is not clear that this aspect of Rojas can survive the combination of Mellouli and Mathis in states where the identity of the controlled substance is a means and not an element under state law, although we will have to wait and see how the case law develops to be sure.)  There will be other areas, as well, where a statute which lists multiple ways of committing a crime is actually indivisible under state law, and so a noncitizen is entitled under Moncrieffe and Mathis to the assumption that he or she committed the crime in whichever way is least harmful for immigration purposes.

 

Mathis is therefore good news for a significant number of immigrants, and their attorneys, even though this small piece of good news may pale in comparison to the disappointment of U.S. v. Texas and the continued injunction against DAPA and DACA+, which are bad news for substantially more immigrants.  With respect to the latter, we can hope for, and fight for, the possibility that the November elections may bring more good news.

Cyrus Mehta

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

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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.