On Denial of Deferrals for DACA Parents

November 20th, 2014

The OLC Memo (which I discussed here and here) does not permit the deferral of deportations for the parents of DACA beneficiaries, even though HHS seems to have thought this was permissible. This is an important limitations, because those who are parents of U.S. Citizens have a path to citizenship. The DACA parents do not. As I noted yesterday–they do not have a pathway to citizenship. Therefore, this would not be a temporary gap.

But the proposed program for parents of DACA recipients is unlike the pro- posed program for parents of U.S. citizens and LPRs in two critical respects. First, although DHS justifies the proposed program in large part based on considerations of family unity, the parents of DACA recipients are differently situated from the parents of U.S. citizens and LPRs under the family-related provisions of the immigration law. …

Granting deferred action to the parents of DACA recipients would not operate as an interim measure for individuals to whom Congress has given a prospective entitlement to lawful status. Such parents have no special prospect of obtaining visas, since Congress has not enabled them to self-petition—as it has for VAWA self-petitioners and individuals eligible for T or U visas—or enabled their undocumented children to petition for visas on their behalf. Nor would granting deferred action to parents of DACA recipients, at least in the absence of other factors, serve interests that are comparable to those that have prompted implemen- tation of deferred action programs in the past. Family unity is, as we have discussed, a significant humanitarian concern that underlies many provisions of the INA.

In effect, President Obama would have attempted to bootstrap a future grant of amnesty based on his own 2012 deferral, which had the effect of protecting minors and not their families. I’m glad the OLC drew the line here.

Wallter Dellinger (who I suspect had an advance copy of the OLC memo) writes at Slate at the analysis is “thin.”

The lawyers here were cautious. They gave approval for deferred actions for parents of citizens and lawful permanent residents, finding that Congress had demonstrated support for permitting people who are lawfully in America to be united with their parents, spouses, and children. They did not, however, believe that they could approve a similar program for parents of those who are in the United States under the deferred action for childhood arrivals, or DACA, program. Because the Dreamers remain in the country based on discretion, not on the basis of a legal entitlement, OLC reasoned that without a family member with lawful status in the United States, there was not the same grounding in congressional policy to justify classwide relief.

Ironically, if anything could be criticized in the administration’s legal opinion, it would be that the reasoning for not permitting deferred action for Dreamer parents is somewhat thin. At the end of the day, the legal concern seems to be that approving deferral in the case of Dreamer parents would suggest the absence of a limiting principle: If relatives of children who are not themselves lawful residents are permitted temporarily to remain, what about relatives of relatives of relatives? The program approved by Justice is more soundly grounded in a family connection with a child who is a citizen or a lawful permanent resident.