A federal magistrate is currently considering whether a DACA beneficiary is properly being detained by ICE. In a 46-page decision (via Chris Geidner), the magistrate queried what rights “flow” from DACA’s grant of lawful presence. There is a foundational problem with this analysis. DACA, unlike DAPA, does not confer “lawful presence.” The court’s analysis elides this important question:
Courts have recognized that DACA confers lawful presence. See Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1058-59 (9th Cir. 2014) (“DACA recipients enjoy no formal immigration status . . . . DHS considers DACA recipients not to be unlawfully present in the United States because their deferred action is a period of stay authorized by the Attorney General.”); Texas v. United States, 809 F.3d 134, 148 (5th Cir. 2015) (“‘Lawful presence’ is not an enforceable right to remain in the United States and can be revoked at any time, but that classification nevertheless has significant legal consequences.”).
This is not correct. Note that the magistrate does not cite Secretary Napolitano’s June 2012 memorandum establishing the DACA program. The phrase “lawful presence” appears nowhere in the memorandum. In contrast, the November 2014 memorandum establishing DAPA expressly noted that it conferred “lawful presence.”
The Arizona Dream Act coalition panel opinion was very careful not to use the phrase “lawful presence,” because it’s holding was that DACA did not confer any sort of lawful status. This passage is instructive:
First, defendants point to the “Frequently Asked Questions” (FAQ) section of the website for the United States Citizenship and Immigration Services. The answer to one of the questions states that although DACA recipients “do not accrue unlawful presence (for admissibility purposes) during the period of deferred action, deferred action does not confer any lawful status.” But the position articulated on this website is entirely consistent with the Executive’s discretionary authority to defer prosecution of some individuals without changing their formal immigration status. The “answer” in the FAQ section lends no support to Arizona because the terms “presence” and “status” are terms of art in the scheme of federal immigration law, and they are not necessarily interchangeable. See Chaudhry v. Holder, 705 F.3d 289, 291 (7th Cir.2013) (“The Board [of Immigration Appeals has] acknowledged that ‘unlawful presence’ and ‘unlawful status’ are distinct concepts.”); Dhuka v. Holder, 716 F.3d 149, 154–59 (5th Cir.2013) (accepting the Board’s distinction between presence and status and rejecting argument that an authorized stay pursuant to 8 U.S.C. § 1182(a)(9)(B)(ii) is equivalent to lawful status). More fundamentally, of course, it cannot be disputed that the FAQ section of a federal website is not a source of “federal law,” nor would an interpretation announced there be subject to deference by a court.
Indeed, FAQs are not sources of federal law. Yet, an all-star cast of attorneys have relied on this FAQ as the basis for DACA bestowing deferred action.
The magistrate judge’s citation to the U.S. v. Texas opinion is a non-sequitur, because that case involved DAPA, which expressly provided lawful presence.