The 1990 Family Fairness Program Was Not “Extrastatutory”

April 18th, 2016

One of the biggest red herrings in the entire litigation over DAPA has been President George H.W. Bush’s 1990 Family Fairness Program. Justice Sotomayor’s question about it, barely 30 seconds into Solicitor General Keller’s argument, illustrates the common misconceptions about this program.

MR. KELLER: Thank you, Mr. Chief Justice, and may it please the Court: DAPA is an unprecedented unlawful assertion of executive power. DAPA would be one of the largest changes in immigration policy in our nation’s history ­­

JUSTICE SOTOMAYOR: How can you say that? I mean, we have the Fairness Act that happened in 1990. It granted basically the same thing, deferred action and work authorization, to 1.5 million people out of 4 million. That was a ­­ 40 percent of the immigrant population of the time was affected. Here, the best estimate is that only 35 percent are affected. So at least once before, the President has taken action that has a greater percentage effect than now. So why is it the largest? Is it the number of people?

MR. KELLER: Well, the Family Fairness Program, first of all, was done pursuant to statutory authority. It was a voluntary departure program. It was not an extra statutory deferred action program. Also, I believe only 47,000 people actually got relief there.

Keller was 100% correct. First, the 1.5 million number has been debunked over and over again–only 47,000 aliens ever actually received relief. But more importantly, the Family Fairness Program was ancillary to statutory authority. It was a short-term bridge of relief for people who were entitled to relief based on a prior statute. In contrast DAPA beneficiaries have no prospect of an adjustment of status at the end of the three year period, unless some other unrelated condition happens (such as a child becomes eligible to petition for an adjustment of status).

And don’t take my word for it. The Office of Legal Counsel expressly stated that it was based on the 1986 comprehensive immigration reform bill. As we discuss in the Cato Amicus Brief:

For a fifth precedent, the government has placed increasing weight throughout this litigation on the 1990 Family Fairness Program. However, the OLC Opinion released contemporaneously with the announcement of DAPA, demonstrated—perhaps unwittingly—that Family Fairness fits within the “bridge” construct. That opinion noted that Family Fairness “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 [IRCA].” OLC Opinion at 14 (emphasis added).11

Precisely! The temporary relief afforded by Family Fairness was “ancillary to Congress’s grant of legal status to millions of undocumented persons in IRCA.” Peter Margulies, The Boundaries of Executive Discretion: Deferred Action, Unlawful Presence, and Immigration Law, 64 Am. U. L. Rev. 1183, 1217 (2015) (emphasis added). That is, “those legalized by . . . IRCA would become eligible to petition for the admission of their spouses and children through the already existing immigration system.” Cox & Rodríguez, supra, at 121 n. 39. But there is no ancillary statutory relief awaiting beneficiaries of DAPA after the three-year grant of deferred action.

11 Repeating the 1.5 million figure, the solicitor general notes that the “INS could only estimate how many people were potentially eligible and how many would actually come forward.” Brief for the Petitioners at 56, U.S. v. Texas, (No. 15- 674). The actual estimate was closer to 100,000. See Glenn Kessler, Obama’s Claim that George H.W. Bush Gave Relief to ‘40 percent’ of Undocumented Immigrants, Wash. Post (Nov. 24, 2014), The origin of the 1.5-million estimate seems to be an error in congressional testimony. INS Commissioner Gene McNary himself told the 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.” Id. Ultimately, INS had received only 46,821 applications by October 1, 1990. Id. The next month, President Bush signed the Immigration Act of 1990, ending the temporary Family Fairness program.

Solicitor General Verrilli made a related point during his rebuttal:

Now, if I could go to the merits. Repeatedly, you’ve heard that the Family Fairness policy was pursuant to statutory authorization. That’s just flat wrong. There’s a D.C. Circuit case, and you can read Judge Silverman’s [sic] opinion in that case that we cite at page 49 in our brief which specifically describes it as extra­statutory, which is what it was.

The S.G. was referring to the D.C. Circuit’s en banc decision in Hotel & Rest. Emps. Union v. Smith, 846 F.2d 1499 (1988). (Fittingly enough for today’s arguments, the D.C. Circuit affirmed by an equally divided court, 6 to 6). Judge Silberman’s opinion (not really a concurring opinion or a dissent) was joined by Judges Buckley, Williams, and D.H. Ginsburg.

Respectfully, this case does not support the argument the Solicitor General advanced. First, the decision had nothing to do with Family Fairness. Indeed the district court opinion was from 1984–long before Family Fairness was created. Second, it had nothing to do with deferred action (the practice at issue in DAPA), or voluntary departure (the practice used in Family Fairness), but instead dealt with (yet another) form of relief known as Extended Voluntary Departure (EVD). This involved country-specific relief to Salvadoreans.

The SG’s brief (at n. 3) gives it an “accord” Bluebook symbol, which is far more tenuous than what he suggested during oral arguments.

EVD is also different from “voluntary departure” under 8 U.S.C. 1254(e) (1988 & Supp. II 1990). That statute allowed aliens “under deportation proceedings” to “depart voluntarily” “in lieu of deportation.” Ibid. EVD was accorded without regard to whether deportation proceedings were underway and enabled aliens to remain without departing. E.g., J.A. 213-215. The INS’s EVD regulations accordingly identified Section 1103(a) as the authority. See 43 Fed. Reg. 29,258 (July 10, 1978); accord Hotel & Rest. Emps. Union, Local 25 v. Smith, 846 F.2d 1499, 1510 (D.C. Cir. 1988) (en banc) (Mikva, J.); id. at 519 (Silberman, J.) (“extra-statutory”).

In no respect does this case demonstrate that Respondent’s argument about Family Fairness was “flat wrong.” (I was struck by the Solicitor General’s tone on this point, as he is usually far more charitable when opposing counsel errs–which did not happen here).

Here is how Judge Mikva sets out the facts in the case:

The Attorney General enjoys broad latitude in enforcing the immigration laws. See 8 U.S.C. § 1103(a) (authorizing Attorney General to establish such regulations and perform such other acts as he deems necessary to carry out his authority). The decision to grant or to withhold EVD falls within this broad mandate. On several occasions in the past, the Attorney General has granted EVD by temporarily suspending enforcement of the Act for a particular group of aliens. The Attorney General has determined that circumstances do not warrant granting EVD to Salvadoran aliens. This assessment was based upon: (a) the number of Salvadoran aliens already in this country; (b) the current crisis in which our country is experiencing a “floodtide’ of illegal immigrants; (c) the prospect of inducing further immigration by Salvadorans; (d) the effect of illegal immigration on the United States’ finite law enforcement, social services, and economic resources, and (e) the availability of statutory avenues of relief, including application for asylum. These factors correspond to the Secretary of State’s description of the EVD process: the State Department “invariably considers a number of factors in deciding whether to recommend the granting of EVD in any particular case, and the granting of EVD may meet different objectives in different cases.” Letter from George P. Shultz to William French Smith (June 23, 1983), J.A. tab 17, at 1.

Judge Mikvah does not describe the policy as “extrastatutory.” Judge Silberman’s opinion does, in his discussion that the actions were not subject to review. Here is the relevant passage:

The Attorney General has declined to grant extended voluntary departure status to Salvadoran nationals. See Letter from Attorney General William French Smith to Congressman Lawrence J. Smith (July 19, 1983), reprinted in Joint Appendix tab 18. Appellants ask us to review the Attorney General’s decision to determine whether he has departed from a settled pattern of basing EVD decisions on humanitarian factors.

We need not inquire into the array of factors the Attorney General considered in refusing to confer EVD status, for we are without power to order modification of that decision. The extrastatutory decision to withhold enforcement is an exercise of the Executive Branch’s discretion to decide whether to prosecute a case that flows from the Constitution’s admonition that that Branch “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3; see also United States v. Batchelder, 442 U.S. 114, 123–24, 99 S.Ct. 2198, 2203–04, 60 L.Ed.2d 755 (1979); United States v. Nixon, 418 U.S. 683, 693, 94 S.Ct. 3090, 3100, 41 L.Ed.2d 1039 (1974). In Heckler v. Chaney, 470 U.S. 821, 828–33, 105 S.Ct. 1649, 1654–57, 84 L.Ed.2d 714 (1985), the Supreme Court held that, absent statutory *1520 **61 language that would provide the reviewing court with a “meaningful standard against which to judge the agency’s exercise of discretion,” id. at 830, 105 S.Ct. at 1655, the decision to refuse to take enforcement action is presumed unreviewable under 5 U.S.C. § 701(a)(2) as having been committed to the agency’s discretion.16

Only when read in isolation does this passage support the SG’s assumption that EVD was “extrastatutory”–again, EVD is different than voluntary departure and deferred action. But if you keep reading two paragraphs later, the scope of Judge Silberman’s comment becomes clear: This case involved the President’s Article II powers over foreign affairs, which the courts are especially not in a position to review:

Prosecutorial discretion with respect to EVD is particularly insulated from review because it involves considerations of foreign relations. Control of the country’s policy toward aliens is “inherent in the executive power to control the foreign affairs of the nation.” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542, 70 S.Ct. 309, 312, 94 L.Ed. 317 (1950); see also Harisiades v. Shaughnessy, 342 U.S. 580, 588–90, 72 S.Ct. 512, 518–19, 96 L.Ed. 586 (1952). “Matters relating ‘to the conduct of foreign relations … are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.’ ” Regan v. Wald, 468 U.S. 222, 242, 104 S.Ct. 3026, 3038, 82 L.Ed.2d 171 (1984) (quoting Harisiades, 342 U.S. at 589, 72 S.Ct. at 519).17 This court certainly could not undertake to review a decision with such a significant foreign policy component in the absence of an extraordinarily precise statutory standard against which to measure the conduct in question. See Mathews v. Diaz, 426 U.S. 67, 81–82, 96 S.Ct. 1883, 1892–93, 48 L.Ed.2d 478 (1976) (“The reasons that preclude judicial review of political questions also dictate a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization.” (footnote omitted)). Because there is none, and for the other reasons set forth in this opinion, we would affirm the judgment of the district court.

I think the most reasonable interpretation of Judge Silberman’s opinion is that the “extrastatutory” refers to the President’s inherent powers over foreign affairs, which are not subject to review.  Judge Silberman was referring to the President’s power to grant relief to a specific group (Salvadoreans) based on a determination from the Secretary of State concerning the national interest of the United States. In any event, a dictum in a non-precedential opinion attached to an equally-divided en banc court is entitled to very little, if any weight.

President Obama has never relied on his Article II powers over foreign affairs to justify DAPA. Indeed, the policy applies irrespective of what nation an alien has citizenship with. This is what differentiates other exercises of prosecutorial discretion, such as to Chinese aliens who would have been affected by the aftermath Tiananmen Square Massacre.

Erin Murphy, representing the House of Representatives, answered Justice Sotomayor’s questions along these lines:

JUSTICE SOTOMAYOR: So your position is that in 1989, when George H. W. Bush granted deferred enforced departure for Chinese residents after the Tiananmen Square situation, that he acted illegally?

MS. MURPHY: No. Because that program was justified on a different power than the power here. It was deferred ­­ that ­­ the deferred enforced departure in Article II ­­

JUSTICE SOTOMAYOR: But there was no statutory authority for him to do that.

MS. MURPHY: It is a power that the Executive has always grounded in Article II foreign affairs power. A nationality, country­based concern power.

Texas Solicitor General Scott Keller made a similar comment in response to a question from Justice Sotomayor about Salvadorians:

JUSTICE SOTOMAYOR: Well, [Congress] has­­ it has acquiesced to larger numbers of Salvadorians, Guatemalans, Hondurans, Haitians, Chinese, the TNU visa applications, those numbers have been much larger than the limited numbers you’re quoting right now.

MR. KELLER: And those programs would have been under temporary protective status; humanitarian parole, deferred enforced departure, which is justified­­ and has been, at least, under the President’s Article II power, and there’s no suggestion that ­­ here DAPA is unprecedented because this is a extra statutory deferred action program that is not bridging lawful status. The aliens do not have a preexisting status, and they don’t have an [imminent] status.


This was one of the more surprising elements of arguments that baffled many of us in the Lawyer’s Lounge afterwards.