Yale Journal on Regulation (Opinion)
By Anil Kalhan
February 12, 2016
In
an essay published earlier this week, Prof. Michael Kagan expresses
concern that “one aspect” of the Obama administration’s executive
actions on immigration might be
vulnerable when the Supreme Court adjudicates United States v. Texas
later this year. In particular, Kagan worries that the plaintiffs might
“have a valid point” when they assert that the administration’s
initiatives—Deferred Action for Parents of Americans and Lawful Permanent Residents and its predecessor, Deferred Action for Childhood Arrivals—improperly purport “to make lawful something that
Congress has made unlawful.” Kagan’s concern rests principally—and
possibly in its entirety—on a stray line in the
memorandum issued by Homeland Security Secretary Jeh Johnson to
establish DAPA and expand DACA, which states that “deferred action ...
means that, for a specified period of time, an individual is permitted
to be lawfully present in the United States” (emphasis
added).
Kagan
is likely correct in predicting that the plaintiffs’ assertions about
“lawful presence” may become a focal point now that the Supreme Court
has granted certiorari.
In both his initial May 2015 opinion denying the government’s motion
for a stay pending appeal (as I discussed here ) and his subsequent
November 2015 opinion affirming the district court’s preliminary
injunction, U.S. Circuit Judge Jerry Smith went out of
his way to characterize DAPA and DACA as affirmatively conferring their
recipients with “lawful presence.” In their brief in opposition to
certiorari, the plaintiffs have now followed his lead. Read
superficially and in isolation, the sentence that Kagan highlights
might seem to support that characterization. (By contrast, the
memorandum establishing DACA issued by Johnson’s predecessor, Janet
Napolitano, makes no reference to “lawful presence” or “unlawful
presence” at all.)
Ultimately,
however, describing DAPA and DACA as entailing a grant of “lawful
presence” mischaracterizes those initiatives, relying upon a
misunderstanding of both the
structure and content of immigration law and the manner in which
undocumented immigrants are recognized and constructed as legal
subjects. Moreover, in order to characterize DAPA and DACA as something
other than guidance structuring the exercise of enforcement
discretion, as permitted by existing law, both Judge Smith and the
plaintiffs fashion a unitary but entirely mistaken conception of “lawful
presence” itself—one that constitutes an aggregated, intertwined
package of benefits, in a manner that approximates
conventional understandings of lawful immigration “status”—that has no
actual legal basis. Kagan’s attention to the plaintiffs’ claim about
“lawful presence” is amply warranted, and he is correct in suggesting
that the government may have contributed to these
misunderstandings. Nevertheless, there is only the illusion of a
substantive problem here, because as a matter of law, “unlawful
presence” simply does not carry the meaning that Judge Smith, the
plaintiffs, and (possibly) Kagan himself ascribe to it.
I.
Let’s
start by clarifying precisely how the deferred action initiatives
actually operate—which I have previously discussed in two essays for
Dorf on Law (here and here)
and an article published last summer in the UCLA Law Review
Discourse—and how Judge Smith and the plaintiffs either misunderstand or
disregard those realities. Both DACA and DAPA set forth eligibility
criteria and processes for certain individuals falling
outside the government’s articulated immigration enforcement priorities
to seek “deferred action,” which for decades has been a principal
mechanism by which immigration authorities operationalize their exercise
of enforcement discretion. Whether under those
longstanding agency practices or the memos establishing DACA or DAPA, deferred action provides its recipients with nonbinding, revocable
notification that officials have deprioritized enforcement action
against them—but by itself does nothing more than that.
Indeed, deferred action itself confers no additional benefits of any
kind. It simply memorializes and provides notification, on a form like
the one shown here, that agency officials have deprioritized the
individual’s removal and do not have any present intention
to prioritize enforcement action against them.
As
the memos establishing DACA and DAPA make unmistakably clear, notice of deferred action under the two initiatives—like notice of deferred action more generally, under
the agency’s longstanding practices—does not confer immunity from
removal, lawful immigration status, substantive rights, or a pathway to
citizenship. When individuals receive a form I-797 providing notice of deferred action, it expressly tells them that “deferred action is an exercise of prosecutorial discretion” that “does not
confer or alter any immigration status,” and that the notification
itself “does not constitute employment authorization.” Indeed, it is
somewhat misleading, even if not entirely inaccurate,
to refer to deprioritization of enforcement action in the form of deferred action as a form of “relief” from removal at all, since it is
inherently tenuous and temporary and can be revoked at any time, without
any opportunity to contest that revocation. Nobody
has any right to seek or obtain deferred action, and if deferred action is denied the individual cannot appeal that denial.
In
his opinions, Judge Smith disregards these facts, repeatedly
characterizing deferred action not as a mechanism by which agency
officials exercise prosecutorial discretion,
but rather as a more comprehensive, aggregated package of intertwined
“benefits.” The phrase that he foregrounds to describe this aggregated
package is “lawful presence,” highlighting and latching onto the same
offhand reference to that phrase that Kagan identifies
in the memo establishing DAPA. In his May 2015 opinion, for example,
Judge Smith insisted that deferred action under DAPA 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.
Using more or less the same language, Judge Smith’s November 2015 opinion similarly maintains that deferred action is
much more than nonenforcement: It would affirmatively confer “lawful
presence” and associated benefits on a class of unlawfully present
aliens. Though revocable, that
change in designation would trigger (as we have already explained)
eligibility for federal benefits—for example, under title II and XVIII
of the Social Security Act—and state benefits—for example, driver's
licenses and unemployment insurance—that would not
otherwise be available to illegal aliens.
In
legal terms, these descriptions do not accurately reflect the true
nature of DACA, DAPA, or deferred action. To begin with, the picture
that Judge Smith paints—in which
the Obama administration flipped a switch and affirmatively doled out
an aggregated, intertwined package of goodies to large numbers of
undocumented immigrants by decree in one fell swoop—misunderstands how
recipients of deferred action (and for that matter,
undocumented immigrants more generally) are recognized and constructed
as legal subjects. To be sure, it is true that once individuals receive
notice of deferred action—whether under DACA, DAPA, or otherwise—other
legal consequences may result. However, it
bears emphasis that any such legal consequences are disaggregated,
piecemeal, and collateral to the exercise of enforcement discretion—the
result of other legal authority, not the result of the guidance
documents establishing DACA and DAPA. For example, as
both Kagan and Marty Lederman discuss, individuals who receive notice
of deferred action may become eligible to apply for employment
authorization. However, unlike, say, lawful permanent residents—who are
automatically eligible to work by virtue of their immigration
status itself—individuals who have received notice of deferred action are eligible to apply for employment authorization not because the DACA or DAPA guidance documents directly make them eligible, but collaterally
under regulations issued decades ago using
notice and comment rulemaking to implement delegated statutory
authority under 8 U.S.C. § 1324a(h)(3). (Indeed, because those
regulations require deferred action recipients to establish “economic
necessity to work,” many of those individuals will never receive
employment authorization at all.)
Despite
what Judge Smith maintains, the combination of rights, benefits, and
obligations that recipients of deferred action bear as legal subjects is
not an aggregated
and inextricably intertwined package, deriving from a single source of
legal authority or a single status determination. To the contrary, that
combination of those rights, benefits, and obligations arises from a
variety of different sources of federal, state,
and even local legal authority—and in this instance is definitely not
simply the function of the Obama administration’s establishment of the
eligibility criteria and processes for DACA and DAPA that the plaintiffs
seek to invalidate. In this context, as in
others, recognition of noncitizens as legal subjects is considerably
more disaggregated and piecemeal than that.
The
disaggregated nature of the collateral legal consequences that may
arise when individuals receive notice of deferred action accordingly
demands similarly disaggregated
analysis of the various sources of legal authority that govern those
consequences. As I have previously explained, however, neither the
plaintiffs nor the lower court judges adjudicating their claims have
shown much interest in this litigation in carefully
parsing and examining that legal authority. Instead, they have largely
directed their fire at “DACA” or “DAPA” writ large, as if the guidance
documents establishing those initiatives somehow confer something
unitary and coherent that approximates lawful immigration
status. Indeed, in the district court, U.S. District Judge Andrew Hanen
went so far as to repeatedly insist that DACA and DAPA confer actual
legal immigration status—a conclusion that is flatly incorrect. Perhaps
recognizing that Judge Hanen’s conclusion is
untenable, Judge Smith stopped short of that, fashioning instead a
conception of “lawful presence” that on the surface might seem more
plausible but in fact operates in precisely the same manner, effectively
as the simulacrum of “legal status.” By treating
the legal consequences of deferred action as intertwined with and
flowing automatically from the guidance documents establishing DACA and DAPA, Judge Smith disregards altogether the realities of how deferred action operates and how recipients of deferred action are recognized as legal subjects, whether under these two initiatives
or otherwise.
In
their lawsuit, the plaintiffs therefore must be understood as squarely
challenging the manner in which the agency seeks to exercise enforcement
discretion to implement
its enforcement priorities—because, by their terms, the memos
establishing DACA and DAPA only provide guidance and structure for the
exercise of enforcement discretion. At every stage of the litigation,
the plaintiffs have denied that they are challenging
the exercise of enforcement discretion, claiming instead that the
“real” targets of their challenge are “benefits” and other legal
consequences that they believe to be inherent in DAPA. Part of that
denial may involve a refusal to acknowledge deferred action as a legitimate means of exercising enforcement discretion at all. But
to an even greater extent, that denial also seems to rest upon an even
more basic misunderstanding of the manner in which DACA, DAPA, and
deferred action actually operate, along with an
inability or unwillingness to directly engage, in a precise way, with
the legal authority governing any of the particular legal consequences
with which they purport to take issue.
II.
Nor,
for that matter, does Judge Smith’s conception of “lawful presence”
properly reflect any actual legal meaning of that phrase. The
disaggregated, piecemeal nature
of the legal authority governing the rights, benefits, and obligations
of deferred action recipients becomes central to assessing the potential
meaning and significance of “lawful presence” in this context. As a
general matter, terms like “lawful presence”
and “unlawful presence” play a considerably more limited role—and a
much less consistent and unitary role—in both the immigration statute
and other federal, state, and local laws than Judge Smith’s
characterization would suggest. Indeed, with respect to the
rights, benefits, and obligations of deferred action recipients, the
significance of “lawful presence” and “unlawful presence” is more
limited still.
For
example, while individuals may be potentially deportable under 8 U.S.C.
§ 1227(a)(1)(B) if they are “present in the United States in violation
of [the INA] or any
other law of the United States,” neither DAPA nor deferred action more
generally could reasonably be understood as conferring “lawful presence”
(a phrase itself not used in this particular provision in any event) in
a manner that would make deferred action recipients no longer subject to that particular deportability ground.
To the contrary, both the language of the memo establishing DAPA and the
very nature of deferred action itself make it crystal clear that
individuals who have merely been deemed lower priorities
for enforcement action—and given notice of deferred action on that
basis—remain fully subject to all of the statute’s deportability
grounds, including this one.
Moreover,
while Judge Smith characterizes “lawful presence” as a concept that
carries a consistent and unitary legal meaning, in reality terms like
“lawful presence” and
“unlawful presence” are neither phrased in textually consistent ways
nor given uniform definitions across the various federal, state, and
local statutory provisions in which they are used. Indeed, DHS itself
expressly emphasizes this point on its website,
cautioning deferred action applicants that “[a]part from immigration
laws, ‘lawful presence,’ ‘lawful status,’ and similar terms are used in
various other federal and state laws” but do not necessarily mean the
same thing in all of those various provisions.
For example, under 8 U.S.C. § 1611, individuals may be statutorily
excused from certain prohibitions on receiving federal public benefits
if they are “determined by the Attorney General” to be “lawfully present
in the United States.” Deferred action recipients
constitute one of several different categories of individuals who have
been deemed “lawfully present” for purposes of that provision under
regulations adopted (using notice-and-comment rulemaking) by the Clinton
administration soon after Congress adopted the
provision in 1996.
By
contrast, the clearest and most prominent discussions of “unlawful
presence” in the OLC memo concern an entirely different use of a
slightly different term found in
8 U.S.C. § 1182(a)(9)(B), which imposes two waivable, time limited bars
on future admissibility for individuals who have been “unlawfully
present” in the United States, have departed the United States, and then
subsequently seek admission. That provision contains
its own section-specific definition that is not identical to its use
elsewhere. Under that definition, 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”—a phrase that the statute in turn leaves undefined—or are
“present in the United States without being admitted or paroled.” As the
OLC memo discusses, “unlawful presence” for purposes of these bars on
future admissibility does not accrue for a number
of different categories of individuals who lack lawful immigration
status in the United States, including deferred action recipients. As
with the interpretation of 8 U.S.C. § 1611, that interpretation derives
not from the guidance documents establishing DACA and DAPA, but collaterally from agency interpretations of the statute
that long predate the two deferred action action initiatives.
If
the agency’s interpretation of 8 U.S.C. § 1182(a)(9)(B) were somehow
deemed to be incorrect—as Kagan seems to believe—that might well have
concrete legal consequences
for some deferred action recipients and others potentially subject to
those inadmissibility bars. (Although as Kagan correctly notes, the
significance of 8 U.S.C. § 1182(a)(9)(B) for DAPA-eligible individuals
as a practical matter is quite limited: since DAPA’s
eligibility criteria require continuous residence in the United States
since January 1, 2010, most individuals eligible for deferred action under DAPA already have accrued sufficient unlawful presence to be
subject to these prospective admissibility bars.)
But a conclusion that the government has misinterpreted that provision
might or might not have any bearing upon the interpretation of similar
but not identical language in other statutory provisions. Nor should it
have any effect on the validity of the guidance
establishing DACA and DAPA themselves, since those documents are not
themselves the source of the agency’s interpretation of this statutory
provision. The same would be true concerning the interpretation of any
other statutory provision using similar terms.
In any event, the plaintiffs are not challenging the application of 8
U.S.C. § 1611, 8 U.S.C. § 1182(a)(9)(B), or any other specific provision
carrying collateral legal consequences for individuals granted deferred action. Rather, they seek to invalidate the
ability of immigration officials to grant deferred action altogether in
the first place to individuals who may be eligible under the DAPA guidance.
III.
Understood
in this context, the aggregated, uniform meaning and broad,
undifferentiated significance that Judge Smith affords to the phrase
“lawful presence”—based in
significant part on the same abstract reference to the term in the DAPA memo that Kagan worries about—becomes that much more puzzling. As noted
above, the DAPA memo states in passing that “[d]eferred action ...
simply means that, for a specified period of
time, an individual is permitted to be lawfully present in the United
States.” The sentence does not appear in the operative section of the
guidance, but rather in its preliminary discussion. How should we
understand that stray reference? Does it transform deferred action, as Judge Smith concludes, into something other than a
mechanism to exercise prosecutorial discretion? The reference is not
tied to any specific statutory references to terms like “lawful
presence” and “unlawful presence,” and it does not have
any operative effect as part of the memo’s guidance to agency
officials. Indeed, it is difficult to see how that kind of vague,
offhand reference to “lawful presence”—untethered from any particular
statutory provision that actually uses that phrase—actually
could have any operative meaning and significance. Nor is any
discussion or guidance about “lawful presence” even necessary to
implement an initiative like DAPA—recall that the memo issued by
Secretary Napolitano to establish DACA does not contain any analogous
reference to “lawful presence” at all.
In
this context, the reference that concerns Kagan seems best understood
as merely offhand and colloquial, rather than legally substantive and
operative in any manner
that would justify the outsized legal significance that Judge Smith
attempts to ascribe to it. Indeed, especially when read together with
the OLC memo, the best understanding of this particular reference to
“lawful presence” in the DAPA memo may well be that
it is simply an erroneous and gratuitous misstatement. In a short
discussion concerning the nature of deferred action, the OLC memo points
out that deferred action involves a decision “to openly tolerate an
undocumented alien’s continued presence in the United
States” (emphasis added). The OLC memo observes that while any
discretionary forbearance of immigration enforcement action “necessarily
carries with it a tacit acknowledgment that the alien will continue to
be present in the United States without legal status,” deferred action arguably goes further “by expressly communicating to
the alien that his or her unlawful presence will be tolerated for a
prescribed period of time” (emphasis added).
Notice
what this discussion in the OLC memo does not say. While it emphasizes
the manner in which deferred action involves toleration of continued
presence of individuals
who lack lawful immigration status, and communication of that
toleration to those individuals, it does not state that deferred action transforms that continued presence into something “lawful.” And with
good reason—for if the OLC memo did say something along
those lines, it would be diametrically at odds with well-established
understandings and longstanding agency practices concerning deferred action that have prevailed for decades. Nor is the OLC memo’s discussion
limited to deferred action under DAPA; to the
contrary, what the OLC memo describes is true about deferred action more generally. Note finally that there’s also a huge difference between
saying that deferred action tacitly tolerates someone's “unlawful
presence,” as the OLC memo observes here, and saying
that it affirmatively confers “lawful presence,” as Judge Smith and the
plaintiffs insist.
It
seems likely that in the offhand reference to which Kagan points, the DAPA memo was trying to communicate a similar idea about deferred action to that conveyed in the
OLC memo—not that deferred action actually permits someone to be
“lawfully present,” and therefore possibly immune from deportability
under 8 U.S.C. § 1227(a)(1)(B), but rather that it simply tolerates that
continued presence notwithstanding the individual’s
potential deportability under that provision. Ultimately, the OLC memo
does not treat this tacit “toleration of unlawful presence” as having
any determinative legal significance—because it doesn’t have any. If
Judge Smith disagrees and believes that mere “toleration
of unlawful presence” and communication of that toleration in the form
of deferred action purports to transform an individual’s presence
without lawful immigration status into something lawful, he certainly
does not offer any rationale to justify that conclusion.
And of course if that is true about deferred action under DAPA, it must
be true about deferred action more generally—which Judge Smith
expressly states that he is not calling into question.
IV.
Properly
understood, therefore, “lawful presence” should be regarded as a red
herring in this litigation. To the extent that specific statutory
provisions under federal,
state, or local law make terms like “lawful presence” or “unlawful
presence” relevant to particular legal consequences that might result
for individuals who have been given notice of deferred action, those
provisions operate collaterally and must be analyzed
specifically and separately. Given the disaggregated manner in which
undocumented immigrants are recognized as legal subjects, the
interpretation and application of those specific statutory provisions
have no bearing upon the validity of the guidance establishing
eligibility criteria and processes for deferred action under DAPA. On
the other hand, to the extent that the plaintiffs, like Judge Smith,
seek to treat “lawful presence” as a broader, aggregated, and unitary
legal category that is tightly intertwined with deferred action under DAPA—and within which all of these other specific
statutory provisions are somehow subsumed—what the plaintiffs seek to
construct does not in fact exist.
Kagan
is correct in highlighting the potential for confusion in the DAPA memo’s offhand reference to “lawful presence.” But any such confusion
can be resolved in a relatively
straightforward manner. Regardless of what DHS officials might have
been thinking when they included that offhand reference—and quite apart
from any issues that might have arisen if that language had been
included in the operative part of the memo in some
fashion—it seems fairly clear that the reference does not have any
independent legal meaning that makes deferred action under DAPA somehow
different from deferred action under DACA or traditional agency
practices. As I previously noted when discussing the
Fifth Circuit’s May 2015 opinion, while Judge Smith makes a point of
tacking on an “emphasis added” when he quotes that language from the DAPA memo—and when he quotes other references to “lawful presence” in
his opinion that serve his argument—italics cannot
give legal effect to words that have none. As such, despite Judge
Smith’s effort to recharacterize “lawful presence” as a central feature
of DAPA, the memo’s stray reference to the term cannot serve as a
plausible basis for calling the validity of the DAPA guidance, writ large, into question.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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