The ImmigrationProf Blog is holding a symposium on Texas v. United States. Take a look at three posts.
Speaking of bridges, the Fifth Circuit deploys this metaphor to describe previous uses of deferred action. As Judge Smith observes on pp. 63-64 (see also Josh Blackman’s Georgetown on-line piece here) most previous uses of deferred action have been short-term bridges to a legal status that was already available to the noncitizen. Judge Smith aptly describes the Bush I Family Fairness program, which Mark Noferi has sought to re-brand as a precursor to DAPA, as an “interstitial” program that granted a reprieve from removal to spouses and minor children of IRCA grantees. Family Fairness recipients, as the spouses and children of individuals who would shortly receive lawful permanent resident status, were in line to receive visas within 3-5 years. In contrast, as Judge Smith recounts at p. 56 of his opinion (text adjoining n. 167), Congress has deliberately erected a daunting obstacle course for undocumented parents of post-entry U.S. citizen children, based on concerns articulated by Senator Robert Kennedy during the drafting of the 1965 Immigration Act.
Both Bobby Kennedy, who had just stepped down as Attorney General, and Senator Sam Ervin of North Carolina, who would later chair the Senate Watergate Committee, worried that undocumented persons might seek to have children in the U.S. to improve their own immigration prospects. The INA seeks to derail that strategy, by mandating that a U.S. citizen child sponsoring a parent must be at least 21 years of age and an undocumented parent must leave the country to obtain a visa. At that point, a parent who has already been unlawfully present in the U.S. for over a year (like virtually all prospective DAPA beneficiaries) is subject to a ten-year bar on admission to the United States. In other words, rather than the 3-5 years that a Family Fairness recipient had to wait for a legal status, a prospective DAPA recipient’s wait will often be at least twenty, and sometimes thirty, years. No short-term bridge can span that abyss, which Congress deliberately built into the legal landscape confronting DAPA recipients to deter the very conduct that DAPA rewards.
The Fifth Circuit was also right that DAPA is a “substantive rule” that requires notice and comment procedures. Congress required such procedures under the APA because it believed that input from a spectrum of stakeholders would improve regulatory outputs. That range of inputs can improve agency deliberation, focusing the agency’s attention on matters it may have unduly discounted or even ignored. A process that enhances immigration benefits such as work authorization for almost 40% of undocumented immigrants has the pervasive substantive impact that courts view as requiring rulemaking.
Second, from Stephen Legomsky:
A second observation is that, like the district court, the two judges in the Fifth Circuit majority conflated what should have been two separate, albeit related, issues. One issue is whether DHS has the authority to implement DAPA itself. The other issues are whether, once deferred action is granted, DHS has the authority to deem the person lawfully present and/or the authority to grant work authorization. The latter consequences flow from preexisting legal authority (statutory in the case of lawful presence, and statutory, regulatory, and judicial in the case of work permits) that the DAPA memo does not change in any way. DAPA itself is simply a specific vehicle for prosecutorial discretion, which the court did not question. So if the court felt that DAPA itself would be legal but for these other consequences, it should have approved the DAPA memo and only then proceeded to decide whether the Secretary had the authority to deem the recipients lawfully present and grant them work permits. Each of these issues generates its own set of competing legal arguments and competing policy considerations. By conflating them, the court abdicated its duty to explain why these preexisting authorities did not permit DHS to deem the recipients lawfully present and grant them permission to work.
A third observation, which follows from the preceding one, specifically concerns the concept of “lawful presence.” ‘This was a dominant theme in the majority opinion. The majority repeatedly says or implies that there is no statutory authority for deeming millions of undocumented immigrants lawfully present. I found it striking that the majority would rely so heavily on that assertion without even mentioning INA § 212(a)(9)(B)(ii), which at least on its face seems to provide precisely that authority. This provision recognizes that the Attorney General (now the Secretary of Homeland Security) may authorize a period of stay for “an alien” (it does not limit this authority to particular subclasses of “aliens”), even when such periods of stay are not already authorized by the statute itself. The same provision explicitly defines unlawful presence so as to exclude any such authorized periods.
Perhaps one can argue that this provision doesn’t mean what it says. If that’s what the Fifth Circuit thought, then it could and should have acknowledged this provision and explained why it fails to supply the necessary authority. But the Fifth Circuit did not do even that. Instead, like Judge Hanen, their preferred path was to ignore this provision entirely. Since both the government and amici had cited section 212(a)(9)(B)(ii) in their briefs, and since the dissent cited it as well (the majority surely had the opportunity to read the dissenting opinion in draft before finalizing its opinion), this omission is inexplicable – unless the majority felt it could not persuasively explain this provision away and hoped no one would notice.
Finally, the Fifth Circuit majority approved Judge Hanen’s “finding” that, if DAPA were to be implemented, the DAPA adjudicators would defy the Secretary’s clear and repeated instructions to evaluate each case individually and to exercise discretion even when the threshold criteria are met. I would submit that this is not even a case in which the evidence to support that speculation was merely flimsy; it was nonexistent.
But most unnerving of all was the assumption that, if DACA adjudicators were rubber-stamping approvals (a premise for which, again, there was no evidence in any event), DAPA adjudicators will do the same. Since DAPA has not begun yet, that assumption is speculative. Moreover it is speculation that is both unsupported by the evidence (keeping in mind, again, that Texas has the burden of proof) and irrational. The court’s only asserted basis for this speculation was the Secretary’s statement that the DAPA process would be “similar” to the DACA process. As Judge King pointed out, “similar” does not mean “identical.” Since the substantive threshold criteria for DAPA bear little if any resemblance to those for DACA, the assumption that a high approval rate for DACA (whose beneficiaries were brought here as children) augurs a similar result for DAPA has no basis in the evidence.
Third, from Shoba Sivaprasad Wadhia:
While there is a possibility for the Supreme Court to hear the case in Texas, the political moves and legal mistakesuttered throughout this litigation cannot be ignored. Oral arguments on the merits of the injunction were held on July 10, 2015 and heard by a three-judge panel. In my commentary to this hearing, I expressed frustration about the flaws made by the plaintiffs during the oral arguments as it related to the definition of “deferred action” and the myth that the DAPA created new law. To the contrary, and as eloquently phrased by Judge King in her dissenting opinion, “Deferred action decisions, such as those contemplated in the DAPA Memorandum, are quintessential exercises of prosecutorial discretion.”