Updated Version of “The Constitutionality of DAPA Part I: Congressional Acquiescence to Deferred Action”

February 21st, 2015

I have posted to SSRN the near-final version of “The Constitutionality of DAPA Part I: Congressional Acquiescence to Deferred Action.” It will be published in the Georgetown Law Journal Online.

It still has to go through another round of cite-checking, but the body of the article is close to complete. In this version, I added a lengthy discussion of President Bush’s 1990 “Family Fairness” plan. While OLC downplayed the relevance of this program, in its sur-reply, DOJ pivoted much more strongly to discussing it. Here is the new section, which explains why “Family Fairness” does not provide a precedent for DAPA:

            There is a sixth instance of deferred action that OLC puts surprisingly little weight on—the 1990 “Family Fairness” program instituted under President George H.W. Bush.[1] A brief history will explain why. In 1986, President Reagan signed into law the Immigration Reform and Control Act (IRCA).[2] This bipartisan act provided a path to citizenship for up to 3 million immigrants who had been continuously present in the United States since 1982. However, the law did not cover eligible immigrants’ spouses and children who did not themselves meet the residency requirement. This gap created so-called “split-eligibility” families. Generally, once a beneficiary of IRCA received LPR status, he or she could petition for a visa for a spouse or child.[3] Under the IRCA, however, during this potentially lengthy and cumbersome process to obtain a visa—roughly three-and-a-half years after status was approved[4]—these immediate family members without legal status would be subject to deportation.[5]

In 1987, the INS put on hold deportations of children under the age of 18 that were living with a parent covered by IRCA.[6] In effect, this temporary deferral of deportations was meant to give the parent the appropriate time to complete the process, and then allow the parent to petition for a visa for the child. At this point, it made little sense to deport children whose parents would, in due time, receive lawful status, and by extension petition for a visa for their children.[7] Attorney General Edwin Meese’s policy focused on circumstances where there were “compelling or humanitarian factors” that counseled against deportations.[8] On the other side of this deferral, a legal status awaited the child. In this sense, the deferral of deportations served as a bridge. The pot of gold was glistening, awaiting the alien on the other side of the rainbow.

In July of 1989, the Senate passed what would become the Immigration Act of 1990. This bill, among other provisions, provided relief for the children and spouses of IRCA beneficiaries. The Senate bill was not brought up for a vote in the House until October 1990,[9] though, as the New York Times reported at the time, “passage of the new legislation seemed almost certain.”[10] It ultimately passed by a vote of 231-192, with 45 Republicans voting yea and 65 Democrats voting nay.[11] Despite disagreements about the economics of the bill, the Times reported, “few dispute the humanitarian aim of uniting families.”[12]

In the interim, between the Senate vote in July of 1989, and the House vote in October of 1990, spouses and children of IRCA beneficiaries, who would soon be provided with a process to obtain lawful status, were still subject to deportation. In response, in February of 1990, INS Commissioner Gene McNary announced a new policy[13] to expand the deferral of deportations of roughly 100,000—not 1.5 million (as reported in the OLC opinion)[14]—spouses and children of IRCA beneficiaries. This was a temporary stopgap measure to protect those who would soon receive a lawful status after the legislation was enacted.

On November 29, 1990, President George H.W. Bush signed into law the Immigration Act of 1990. On signing the law, the President said it “accomplishes what this Administration sought from the outset of the immigration reform process: a complementary blending of our tradition of family reunification with increased immigration of skilled individuals to meet our economic needs.”[15] With the signing of the law, the Family Fairness policy become immediately moot—exactly what the President had in mind by temporarily putting on hold deportations until Congress could finish passing the bipartisan legislation.

Both Presidents Reagan and Bush used prosecutorial discretion to keep together families. For the 40th President, the deferrals were used to afford time so that parents could petition for a visa for their children. For the 41st President, the deferrals were a temporary stopgap measure in the several months between votes in the Senate and the House. In both cases, it made little sense to rip apart families, when in due course, the spouse and children could receive a visa, ancillary to statutory authorizations. As a 1990 article in the New York Times explained, a legal resident under the 1986 amnesty with lawful status, “would [soon] be able to file a petition for his wife to be granted legal status, a process expected to take about two years.”[16] Protection was extended based on someone who already benefited from Congress’s naturalization laws.

While the American Immigration Council calls President George H.W. Bush’s policy a “striking parallel to today’s immigration challenge,”[17] it teaches just the opposite lesson.  Presidents Reagan and Bush deferred deportations for family members who would shortly be able to receive a lawful status by virtue of the status of their spouse or child. In sharp contrast, DAPA defers deportations for parents of citizen children—who need to wait at least 21 years to petition for a visa—and parents of LPRs, who will never be able to petition for a parental visa.

Perhaps recognizing this difference, the OLC opinion draws a distinction between the five previously discussed programs, and the Family Fairness policy. OLC characterizes the “Family Fairness” policy not as a deferred action program, but a “voluntary departure program.”[18] Specifically under the policy, aliens were “potentially eligible for discretionary extended voluntary departure relief,” not deferred action. Voluntary departure allowed “allowing an otherwise removable alien to depart the United States at his or her own personal expense and return to his or her home country.”[19] In this case, the aliens were not required to actually depart during this interim period. Further, while OLC contended that Family Fairness and DAPA were on a similar scale, the opinion acknowledged that DAPA will “likely differ in size from these prior deferred action programs.”[20] OLC did not consider Family Fairness a precedent with respect to deferred action.

Perhaps unwittingly, the OLC opinion makes clear that the Family Fairness program fits within the “bridge” construct: “INS implemented a ‘Family Fairness’ program that authorized granting extended voluntary departure and work authorization to the estimated 1.5 million spouses and children of aliens who had been granted legal status under the Immigration Reform and Control Act of 1986.”[21] Precisely! The temporary relief afforded to the beneficiaries of Family Fairness was connected to the 1986 IRCA.[22] The OLC opinion even makes clear that “Congress later implicitly approved” of the Family Fairness policy.[23] Such acquiescence is lacking for DAPA.

In short, Family Fairness served as a bridge—a very temporary one—until Congress could finish acting. President George H.W. Bush’s short-lived voluntary departure program was connected to the IRCA, and sandwiched between the Senate and House voting on a bipartisan bill.  As Professor Marguiles explains, “All of the relief provided under both Family Fairness and the 1990 Act was ancillary to legal status that would be available within a discrete and reasonably short period to recipients of that relief.”[24]

DAPA, in contrast, is not meant as a temporary stopgap measure while Congress finishes a bill in the works. It imposes a not-too-veiled quasi-permanent status. Though it is not binding on the winner of the 2016 election, as a practical matter, those given deferred prosecution and work permits will be effectively untouchable. The President has admitted as much, explaining that future presidents may “theoretically” remove DAPA beneficiaries, but “it’s not likely.”[25] Call it lawful status by estoppel.

(Citations below the fold).

[1] It is only mentioned twice in the Opinion. OLC Opinion at 14-15, 30-31.  However, it is cited extensively in the government’s defense of DAPA in federal court. Sur-Reply of United States, Texas v. United States, 1:1-cv-00254 (Jan. 30, 2015) at 29 (“Although Plaintiffs contend that prior deferred action programs were limited to providing a “temporary bridge” to lawful status for which recipients were already eligible by statute, that was true of neither the 1990 Family Fairness Program nor 2012 DACA (which Plaintiffs are not challenging here).”).

Government Sur-Reply Part 6: How Big was President Bush’s Family Fairness Program of 1990?

[2] Immigration Reform and Control Act of 1986, Pub. L. No. 99- 603, 100 Stat. 3359 (“IRCA”).
[3] 8 U.S.C. § 1153(a)(2) (authorizing immigrant visas for “spouses or children” of LPRs).
[4] Peter Margulies, The Boundaries of Executive Discretion: Deferred Action, Unlawful Presence, and Immigration Law, Am. Univ. L. Rev. at 23 (Forthcoming 2015), http://ssrn.com/abstract=2559836.
[5] The Senate Judiciary Committee Report had declared that “families of legalized aliens . . . will be required to ‘wait in line’ in the same manner as immediate family members of other new resident aliens.” See 1985 U.S. Senate Committee on the Judiciary, Report on S. 1200, 99th Cong., 1st Sess., at 16 (Aug. 28, 1985).
[6] INS, Control of Employment of Aliens: Final Rule, 52 Fed. Reg. 16216 (May 1, 1987).
[7] See U.S. House of Representatives, Committee on the Judiciary, Subcommittee on Immigration, Refugees, and International Law, Immig. Reform & Control Act of 1986 Oversight 459 (May 10 & 17, 1989) (hereinafter IRCA Oversight Hearing) (testimony of INS Commissioner Alan C. Nelson) (providing relief for “young children” of IRCA beneficiaries.”).
[8] http://edsource.org/wp-content/uploads/Deferred-Action-Congressional-Research-Service-Report.pdf p. 10
[9] http://clerk.house.gov/evs/1990/roll406.xml
[10] http://www.nytimes.com/1990/10/03/us/immigration-bill-debated-in-house.html
[11] http://clerk.house.gov/evs/1990/roll406.xml
[12]http://www.nytimes.com/1990/10/04/us/immigration-bill-approved-in-house.html?module=Search&mab Reward=relbias%3As
[13] Re: Family Fairness: Guidelines for Voluntary Departure under 8 CFR 242.5 for the Ineligible Spouses and Children of Legalized Aliens (Feb. 2, 1990) (“Family Fairness Memorandum”).
[14] The OLC Opinion repeated an oft-cited, but incorrect statistic that President George H.W. Bush’s “Family Fairness” deferred the deportation of 1.5 million. See OLC Opinion at 14. This statistic has been repeated by the President. This Week (Nov. 23, 2014) http://abcnews.go.com/ThisWeek/week-transcript-president-obama/story?id=27080731 (“If you look, every president—Democrat and Republican—over decades has done the same thing. George H W Bush—about 40 percent of the undocumented persons, at the time, were provided a similar kind of relief as a consequence of executive action.”). The actual estimate was roughly 100,000. Glenn Kessler, Fact Checker: Obama’s Claim that George H.W. Bush Gave Relief to ’40 percent’ of Undocumented Immigrants, Wash. Post (Nov. 24, 2014), http://www.washingtonpost.com/blogs/fact-checker/wp/2014/ 11/24/did-george-h-w-bush-really-shield-1-5-million-illegal-immigrants-nope. The origin of this false number is subject to some dispute, and seems to be based on an error in congressional testimony. INS Commissioner Gene McNary himself told the Washington Post, “I was surprised it was 1.5 million when I read that. I would take issue with that. I don’t think that’s factual.” Ultimately, by October 1 of 1990, INS had received only 46,821 applications. Id. The next month, President Bush signed the Immigration Act of 1990, which ended the temporary family fairness program. See Josh Blackman, Government Sur-Reply Part 6: How Big was President Bush’s Family Fairness Program of 1990?, Josh Blackman’s Blog (Feb. 4, 2015), https://joshblackman.com/blog/2015/02/04/government-sur-reply-part-6-how-big-was-president-bushs-family-fairness-program-of-1990/.
[15] http://www.presidency.ucsb.edu/ws/index.php?pid=19117
[16] http://www.nytimes.com/1990/03/05/nyregion/new-policy-aids-families-of-aliens.html
[17] http://www.immigrationpolicy.org/sites/default/files/docs/executive_grants_of_temporary_immigration_relief_1956-present_final_4.pdf
[18] Id. at 30.
[19] http://www.justice.gov/eoir/press/04/ReliefFromRemoval.htm
[20] Id. at 30.
[21] Id. at 14. (emphasis added).
[22] Peter Margulies, The Boundaries of Executive Discretion: Deferred Action, Unlawful Presence, and Immigration Law, Am. Univ. L. Rev. at 22 (Forthcoming 2015), http://ssrn.com/abstract=2559836. (“While proponents of DAPA sometimes cite the Family Fairness program implemented by immigration officials under Presidents Ronald Reagan and George H.W. Bush as precedent for DAPA,146 this analogy is inapposite. Family Fairness was ancillary to enumerated grants of status and far smaller than DAPA. Moreover, Family Fairness was within a short period ratified by Congress in the Immigration Act of 1990 – a prospect that is almost certain to elude DAPA, which has already generated substantial congressional opposition.”).
[23] Id. at 31.
[24] Marguiles, supra note __ at 24.
[25]http://www.washingtontimes.com/news/2014/dec/9/obama-next-president-wont-undo-immigration-reform/ (“It’s true a future administration might try to reverse some of our policies. But I’ll be honest with you — the American people basically have a good heart and want to treat people fairly and every survey shows that if, in fact, somebody has come out and subjected themselves to a background check, registered, paid their taxes, the American people support allowing them to stay. So any future administration that tried to punish people for doing the right thing, I think, would not have the support of the American people,” Mr. Obama told a supportive crowd at a town hall meeting in Nashville. “It’s true, theoretically, a future administration could do something that I think would be very damaging. It’s not likely, politically, that they reverse everything we’ve done.”).