Wednesday, June 03, 2015

Executive Action on Immigration and the Judicial Artifice of “Lawful Presence”

By Anil Kalhan

U.S. Circuit Judges Jerry E. Smith and Jennifer Walker ElrodAs Professor Dorf noted on Friday, last week a divided panel of the U.S. Court of Appeals for the Fifth Circuit denied the federal government’s motion for a stay pending appeal of U.S. District Judge Andrew Hanen’s preliminary injunction blocking the Obama administration’s immigration initiatives. At least rhetorically, the language of the opinion, written by U.S. Circuit Judge Jerry E. Smith and joined by U.S. Circuit Judge Jennifer Walker Elrod, is more measured than Judge Hanen’s cloddish, 123-page screed—although concededly, that is a rather low hurdle to clear. Aside from a long footnote endorsing a patronizing argument for why the increasingly discredited term “illegal alien” should not be understood as “an opprobrious epithet,” Judge Smith’s opinion contains little of the gratuitous anti-immigration rhetoric found in Judge Hanen’s opinion, which I have analyzed both here at Dorf on Law and in a forthcoming article in the UCLA Law Review Discourse.

Substantively, however, the opinion suffers from precisely the same basic flaws. In some detail, immigration law expert David Leopold has already highlighted the manner in which the dissenting opinion filed by U.S. Circuit Judge Stephen A. Higginson persuasively demonstrates some of those flaws, and his essay is a must read for anyone interested in this litigation. In this post, I examine a different set of flaws in Judge Smith's opinion that Judge Higginson does not discuss in his dissent. Like Judge Hanen, Judges Smith and Elrod rest their conclusion upon a wholly incorrect set of characterizations of both the legal basis for the Obama administration’s immigration initiatives and the manner in which they actually operate, even as they offer those mischaracterizations in more restrained tones than Judge Hanen. In order to characterize those initiatives as involving something other than the exercise of prosecutorial discretion as permitted by existing law, Judge Smith’s opinion fashions a severely mistaken conception of “lawful presence” almost out of whole cloth. While more refined and polished than Judge Hanen’s opinion, Judge Smith’s opinion takes many of the same liberties when it comes to accurately characterizing and analyzing the factual and legal realities of the Obama administration’s initiatives.

As I discussed in my previous post on Judge Hanen’s opinion, the Obama administration’s initiatives—Deferred Action for Childhood Arrivals (DACA), which was instituted by the Department of Homeland Security in June 2012 and expanded in November 2014, and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which was newly created in November 2014—permit individuals to apply for “deferred action,” which simply constitutes a time limited, revocable notification that federal officials have exercised prosecutorial discretion not to take enforcement action against its recipients. Literally for decades, agency officials have exercised discretion to grant deferred action to individuals deemed to fall outside of the agency’s enforcement priorities for one reason or another. But whether under those longstanding agency practices or under the guidance establishing DACA or DAPA, deferred action itself does not provide its recipients with any lawful immigration status in the United States. Indeed, deferred action itself confers no additional “benefits” of any kind—it simply constitutes notification of nonenforcement, informing its recipients that agency officials do not have any present intention to prioritize enforcement action against them.

According to Judge Smith, however, DAPA does more than provide guidance for agency officials to exercise prosecutorial discretion in line with the agency’s immigration enforcement priorities. “If that were all DAPA involved,” he insists, “we would have a different case.” Rather, he asserts, DAPA establishes a different “version of deferred action”—which he presumably means to contrast in some relevant way to the traditional “version” of deferred action long granted by rank-and-file officials—that involves “more than nonenforcement” and instead bestows its recipients with a host of other “benefits”:
DAPA’s version of deferred action, however, is more than nonenforcement. It is the affirmative act of conferring “lawful presence” on a class of unlawfully present aliens. Though revocable, that new designation triggers eligibility for federal and state benefits that would not otherwise be available. 
“[A]lthough prosecutorial discretion is broad, it is not ‘unfettered.’” Declining to prosecute does not convert an act deemed unlawful by Congress into a lawful one and confer eligibility for benefits based on that new classification. [slip op. at 24-25]
He goes on to suggest that while it might in fact be entirely lawful for those “benefits” to be extended to deferred action recipients, the agency’s decision to make those benefits available cannot be understood as an act of prosecutorial discretion:
Regardless of whether the Secretary has the authority to offer those incentives for participation in DAPA, his doing so is not shielded from judicial review as an act of prosecutorial discretion. And as shown above, neither the preliminary injunction nor compliance with the APA requires the Secretary to prosecute deportable aliens or change his enforcement priorities. [slip op. at 25]
To reinforce this view of DACA and DAPA as fashioning a novel “version” of deferred action that provides undocumented immigrants an aggregated, integrated package of benefits other than nonenforcement, Judge Smith emphasizes the concept of “lawful presence,” which he describes as a feature of DAPA that has “significant legal consequences.” [slip op. at 4 n.9] On this characterization—which closely resembles the strained defense of Judge Hanen’s opinion offered in February by Michael McConnell in the Wall Street Journal—the lawsuit challenging the Obama administration’s deferred action initiatives is not really a challenge to deferred action at all, but rather a challenge to the supposed “designation” of the individuals eligible for DACA and DAPA as “lawfully present,” given the “benefits” made available to deferred action recipients as a result of that “designation.” [slip op. at 4]

Johnson Memo - 2014-11-20 - Exercising Prosecutorial DiscretionIn legal terms, Judge Smith’s strikingly casual reasoning about “lawful presence” lacks precision and ultimately makes very little sense. Contrary to Judge Smith’s insinuation, the policy statements announcing DACA and DAPA do not bestow any “benefits” upon anyone. Indeed, the only operative effects that those guidance documents have are to create processes for certain categories of individuals to affirmatively apply for deferred action and to establish a framework and guidelines for officials to exercise enforcement discretion to grant or deny those applications. Nor is there anything particularly novel about the form that enforcement discretion takes, since individuals receive essentially the same “version” of deferred action under DACA and DAPA that officials have granted for decades under the agency’s traditional practices.

Moreover, while the memorandum by DHS Secretary Jeh Johnson establishing DAPA and expanding DACA alludes in passing to the notion that deferred action permits individuals “to be lawfully present in the United States” for a temporary period of time, that offhand reference—rendered in colloquial terms, rather than technical legal terms—cannot be understood as effecting any “change in designation that confers eligibility for federal and state benefits on a class of aliens who would not otherwise qualify” [slip op. at 26]. While Judge Smith helpfully tacks on an “emphasis added” when citing that language from the Johnson memorandum at least twice in his opinion, italics cannot give legal effect to words that have none. Nowhere does the Johnson memorandum cite any legal authority concerning what it means to be “lawfully present” or announce any federal “benefits” that the Obama administration plans to provide as a result of having supposedly “designated” individuals as “lawfully present.” (Nor, of course, could the federal government direct the availability of any “benefits” under state or local law—which makes Judge Smith’s characterization of eligibility for state benefits as an integral part of DAPA particularly puzzling.) Indeed, the earlier 2012 memorandum by former DHS Secretary Janet Napolitano announcing DACA—the initiative upon which DAPA itself directly builds, and which Judge Smith intimates might similarly involve something above and beyond than the exercise of prosecutorial discretion—makes no reference to “lawful presence” at all, much less any reference to “benefits” that DACA might confer.

To the extent that any federal “benefits” might subsequently be available to deferred action recipients—whether under DACA, DAPA, or longstanding agency practices—those benefits are disaggregated and piecemeal, flowing not from the grant of deferred action itself or from the policy statements announcing DACA and DAPA, but from a constellation of entirely separate legal authority and administrative guidance that long predate DACA and DAPA and that already have fully satisfied the requirements of the Administrative Procedure Act. Accordingly, if there were any plausible legal claims calling eligibility for those “benefits” into question, those claims should not be directed at the guidance announcing DACA or DAPA, but at those other sources of legal authority—and should encompass all recipients of deferred action, not just those eligible for deferred action under the Obama administration’s new deferred action initiatives.

Indeed, contrary to Judge Smith’s implication, the relevant legal authority does not always even turn on the notion of “lawful presence” at all. To take the example that often seems to most agitate the Obama administration’s critics, individuals granted deferred action under DACA or DAPA—like any other deferred action recipients—subsequently may be able to obtain employment authorization upon affirmatively establishing “economic necessity for employment,” a showing that is not required of most other noncitizens. (Or may not be able to obtain employment authorization, because of that “economic necessity” requirement. While critics of DACA and DAPA routinely suggest otherwise, employment authorization is not an automatic incident of deferred action and requires a separate application.) However, the legal authority to grant employment authorization to deferred action recipients comes not from the administrative guidance announcing DACA or DAPA, but under regulations promulgated decades ago under the Reagan administration—using notice-and-comment rulemaking—to implement the broad statutory authority expressly delegated to the executive branch by Congress under 8 U.S.C. § 1324a(h)(3). The concept of “lawful presence” plays no role whatsoever in that statutory and regulatory regime.

When the concept of “lawful presence” does appear in various statutes and regulations, it does so not in the aggregated manner that Judge Smith suggests—which he characterizes as tightly integrated with DACA and DAPA—but in a much less coherent and disaggregated fashion. Indeed, the definition of “lawful presence” is not even identical among these various provisions. For example, while individuals are statutorily excused from certain prohibitions on receiving federal public benefits under 8 U.S.C. § 1611 if they are “determined by the Attorney General” to be “lawfully present in the United States,” it is not the administrative guidance under DACA or DAPA that entails that determination, or even any particular grant of deferred action. Rather, individuals granted deferred action constitute one of several different categories of individuals deemed “lawfully present” under regulations adopted—again, using notice-and-comment rulemaking and pursuant to broad, expressly delegated authority—by the Clinton administration soon after Congress adopted that provision in 1996. By contrast, in an entirely separate statutory provision concerning the so-called three- and ten-year bars on future admissibility, 8 U.S.C. § 1182(a)(9)(B), individuals who have previously been “unlawfully present” for specified periods of time may subsequently be barred from admission to the United States for either three or ten years. The provision includes a somewhat different definition of “unlawful presence” than the definition in 8 U.S.C. § 1611. Under § 1182(a)(9), individuals are deemed to be unlawfully present if they are present in the United States “after the expiration of a period of stay authorized by the Attorney General” or present in the United States without being admitted or paroled. Under administrative guidance first issued in 2002, and reiterated in 2009, immigration officials have interpreted periods of deferred action to constitute “periods of stay authorized by the Attorney General” for purposes of this discrete provision—and expressly “for no other purpose or benefit” under the immigration laws.

As such, the determinative significance that Judge Smith affords to the reference to “lawful presence” in the Johnson memorandum, which he characterizes as an aggregated, coherent engine of “benefits” for undocumented immigrants, is entirely an artifice—no more “burdened by the factual” than Judge Hanen’s own flawed analysis of “legal status” and “lawful presence.” Like Judge Hanen, Judge Smith exhibits zero interest in examining the various statutory and regulatory provisions that actually govern the benefits that deferred action recipients might receive, instead treating those benefits as flowing almost automatically from the administrative guidance memos announcing DACA and DAPA themselves. In this context, Judge Smith’s insistence that Judge Hanen’s sweeping injunction does not infringe upon the agency’s enforcement priorities or exercise of enforcement discretion is entirely incorrect. As I have previously discussed, if Judge Hanen’s injunction were properly understood as limited to the extension of “benefits,” then it should not have disturbed the processes of granting deferred action itself under DACA and DAPA—since deferred action is the exercise of prosecutorial discretion. But rather than narrowly crafting its injunction to focus specifically on benefits, Judge Hanen’s injunction blocked the new deferred action initiatives in their entirety. And since issuing that injunction, Judge Hanen has gone rogue to an even more aggressive degree, issuing a highly irregular “supplemental order” that more squarely and directly challenges the Obama administration’s enforcement priorities themselves. (That supplemental order may also call into question the appearance of Judge Hanen’s impartiality in the litigation, but we can leave that issue to one side for the moment.)

The Gift of Mitt RomneyLacking precision and analytic clarity as a factual and legal matter, Judge Smith’s characterization of DACA and DAPA as bestowing “benefits” upon undocumented immigrants makes considerably more sense in political terms. As measured as its language may seem, Judge Smith’s opinion calls to mind Mitt Romney’s claim that President Obama won the 2012 election by handing out “gifts” to “the African American community, the Hispanic community and young people.” It may be recalled that among the “gifts” expressly cited by the would-be (self-)deporter-in-chief was DACA itself—or rather, on his description, President Obama’s “amnesty for children of illegals,” which Romney regarded as having been a “huge plus” for Obama with Latino voters. There are echoes of this rhetoric in Judge Smith’s charge that DACA and DAPA bestow “benefits” upon their recipients—particularly insofar as he characterizes those benefits as goodies or “incentives” doled out by the DHS Secretary to induce individuals to participate in DACA and DAPA, instead of more accurately describing them as arising from longstanding legal authority and guidance that long predate the Obama administration's deferred action initiatives.

At a more basic level, Judge Smith’s heavy emphasis on “lawful presence” serves primarily to replace the clumsy assertion by Judge Hanen that DACA and DAPA grant “legal status” with a more refined formulation that might superficially seem more plausible while carrying essentially the same implication. But as a legal matter, “lawful presence” simply doesn't exist as a thing in the sense that Judge Smith describes it. Rather, “lawful presence” ultimately operates mostly as a rhetorical device in his opinion, as the simulacrum of “legal status.” In using that term in the manner in which he does, Judge Smith leaves more or less the same false impression that Judge Hanen and the Obama administration’s political opponents leave with their suggestions that DACA and DAPA bestow “legal status”—namely, that the deferred action initiatives amount to “executive amnesty,” unlawfully imposing by decree that which Congress has declined to authorize by statute. The opinion is no less mistaken, however, for having substituted “lawful presence” in places where Judge Hanen might instead have used the term “legal status.” Judge Smith's opinion might be a kinder, gentler form of judicial truthiness than Judge Hanen’s more strident commentaries on immigration policy, but judicial truthiness it nevertheless remains.

3 comments:

matt30 said...

It's hard to understand what the injunction means when it's divorced from DACA/DAPA.

Are immigration officials making lawful presence determinations now? Do they just not do it for people that would potentially qualify for deferred action under DAPA?

Stuart McPhail said...

Agreed the opinion is tortured in its logic, but there's a larger policy question that nags at me and that probably allows one to find solace in such tortured logic.

Is there anything that would prevent a President from saying that he is using prosecutorial discretion to refuse to enforce the entirety of the immigration laws? Or to refuse to enforce the securities exchange act or the clear air/water acts? Or any federal criminal law at all?

Clearly, there's a political check and the possibility of impeachment. But is there any legal check?

Joe said...

He isn't refusing to enforce the "entirety" of the law so such extreme examples don't impress me much. You can play that game in any number of cases. As applied here, there appears to be a reasonable prosecutorial discretion.