Comprehensive White House Immigration Reform: President Obama is Missing the Boat and Leaving Millions of Immigrants Stranded. 1

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1 CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW 256 SOUTH OCCIDENTAL BOULEVARD LOS ANGELES, CA Telephone: (213) Facsimile: (213) April 8, 2015 Comprehensive White House Immigration Reform: President Obama is Missing the Boat and Leaving Millions of Immigrants Stranded. 1 With relatively small changes to formal regulations, President Obama can quickly achieve major immigration reform, helping millions of immigrants and their communities, with no action needed by Congress. There is no question President Obama would have liked to sign into law a comprehensive immigration reform law. However, Congress failed to act because there is nothing close to consensus on what comprehensive immigration reform should look like. Since at least 1996, when President Bill Clinton signed possibly the most repressive law (the IIRAIRA 2 ) in U.S. immigration history, there have been two camps when it comes to migration policy: A camp of moderates- to- liberals in favor of some short- term improvements, and a pro- border security/anti- amnesty camp. The anti- amnesty group has nurtured a portion of the voters easily convinced that immigrants threaten U.S. jobs and the nation s purity and values. Realistically, this situation will not change in the near future. Furthermore, neither camp has suggested anything close to what experts say is required for real immigration reform: A careful examination of the root causes of undocumented migration in major sending countries, and development of realistic and humane policies that begin to address those root causes. No one in Congress is addressing the heart of the matter. 1 Report by Peter Schey, President, Center for Human Rights and Constitutional Law (Los Angeles, CA). The positions that follow are based upon many years of successfully litigating major class action cases in the federal courts, including the U.S. Supreme Court, involving millions of immigrant class members and past participation in drafting federal legislation and administrative policies. 2 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub.L , 110 Stat , enacted September 30,

2 So, for the moment, we are left with an opportunity to advocate for comprehensive administrative reform. President Obama has tried his hand at administrative reform primarily by issuing two programs to give some immigrants temporary deferred action status and work permits for two to three years if they have U.S. citizen children and have resided here since January 2010 (DAPA), 3 or if they were brought here as children (DACA and expanded DACA). 4 For now, implementation of DAPA and expanded DACA has been blocked by the federal courts, primarily because the DHS failed to publish DAPA/expanded DACA as proposed regulations, and give the public 30 days to comment before implementing the directives as agency regulations. This report argues that President Obama s immigration reform ship is sinking, but has not yet sunk. To date his policies have resulted in record numbers of deportations and separation of families, and a deferred action program blocked by the courts. His policies have left millions of immigrants stranded in the same underworld they were in when his presidency started. At a town hall meeting in Miami on February 25, 2015, the President announced that he would not be deterred by one federal judge (i.e. federal district court Judge Andrew S. Hanen in Texas who has enjoined the DAPA/ expanded DACA programs). He told the crowd that his administration will become even more aggressive in the weeks and months to come We re going to be as aggressive as we can. 5 There are several critically important steps President Obama could take to better protect immigrants and at 3 The Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) was announced by DHS Secretary Johnson on November 20, 2014, and grants deferred action status and temporary work permits for three years to most parents of U.S. citizens and lawful permanent residents provided they have lived in the United States continuously since January 1, 2010, and pass required background checks. 4 In 2012, the Deferred Action For Childhood Arrivals program (DACA) was implemented by then DHS Secretary Janet Napolitano. The program permits young adults born outside the United States, but raised in this country, to apply for deferred action status (temporary legal status) and work permits for two years. On November 14, 2015 DHS Secretary Johnson announced a policy expanding the population eligible for the DACA program to people of any current age who entered the United States before the age of 16 and lived in the United States continuously since January 1, 2010, and extending the period of DACA and work authorization from two years to three years. 5 Obama says he won t be deterred by one federal judge on immigration, Washington Times, 2

3 February 25,

4 the same time address head- on the federal court s blocking of his efforts at immigration reform. 1. To protect immigrants rights under DAPA/DACA, and to overcome the primary reason for the injunction now blocking DAPA/expanded DACA, President Obama should promptly issue formal regulations on DAPA/DACA. The Administration decided to issue DAPA/DACA as a policy (basically a privilege for applicants) that can be changed overnight by any future Administration, rather than as a formal regulation (also called a substantive rule ) that extends real rights to applicants and cannot be cancelled overnight. Under the Administrative Procedures Act (APA), a federal agency must first publish a substantive rule in proposed (draft) form and the public must be given 30 days to comment before the regulation is finally adopted. The Administration s refusal to issue DAPA/DACA as a DHS regulation has negative legal and practical consequences for millions of potential applicants. If President Obama published DAPA/DACA as a formal regulation: (1) the legal basis for the current injunction blocking DAPA/expanded DACA would be wiped out without risking lengthy appeals, (2) DAPA/DACA would become a substantive right instead of a privilege giving applicants and recipients stronger enforceable legal rights, and (3) a formal regulation will make it more difficult for a future Administration, without advance notice or the public s opportunity to comment, to terminate the DAPA/DACA programs (and to place DAPA/DACA recipients in deportation proceedings). The President should show his support for DAPA/DACA and issue these programs in a formal regulation. 2. President Obama should adopt regulations allowing all immigrants eligible for family or employment- based visas under existing law, and the parents of DACA recipients, to apply for and be granted advance parole (permission to travel abroad and return to the U.S.) for personal or business purposes. Probably one to two million immigrants are eligible for visas under existing law but cannot adjust their status only because they entered the country illegally many years ago. President Obama should promptly issue a formal regulation allowing brief trips abroad for personal reasons (e.g. to visit relatives) and return to the U.S. on parole status allowing several million immigrants to be granted lawful permanent resident (LPR) status under existing laws. Since many undocumented immigrants go home for personal reasons and return to the U.S. without inspection, this program would minimize illegal re- entries, but it would also grant lawful permanent resident status to a massive number of people who cannot now legalize only because their entries many years ago were without inspection. No other administrative reform step would lead to as many 4

5 immigrants becoming eligible for lawful permanent resident status as granting advance parole (permission to briefly travel abroad) to all immigrants with visa applications pending or approved, as well as the parents of DACA recipients. 3. President Obama should immediately reverse his policy of detaining Central American mothers and their children in response to the temporary 2014 surge in Central American minors entering the U.S. The temporary surge completely subsided later in The Center for Human Rights and Constitutional Law is currently challenging Obama s detention policy in federal court as a clear violation of the 1997 nationwide settlement reached in the Flores case (which generally requires that minors not be held in secure unlicensed detention facilities for more than 72 hours). It is irrational for the Obama Administration to release immigrant children apprehended alone, or with a father, uncle, aunt, sibling, grandparent or any other adult, but detain a child indefinitely (supposedly on national security grounds) if apprehended with her or his mother. Targeting only mothers with children for lock- down detention is highly discriminatory, extremely harmful to the children, and does not in any way, as the Obama Administration argues in court, protect the national security. 4. The Administration should promptly adopt regulations allowing thousands of Central Americans and Haitians who have been residing continuously in the U.S. for over 25 years on Temporary Protected Status (TPS) to obtain lawful permanent resident status At least two federal courts have now issued rulings reversing the Obama Administration s position that having TPS status may not be considered a parole status wiping out the person s original illegal entry many decades ago. Simply by issuing regulations consistent with the court rulings, tens or hundreds of thousands of TPS recipients with relatives or jobs through which they can immigrate could immediately apply for and be granted lawful permanent resident status. This will substantially reduce USCIS s workload going forward (as TPS recipients routinely must re- register) and thousands of immigrants will be better able to hold more secure and higher- paying jobs than possible with temporary work permits. 5. President Obama should modify the terms of the recently issued Priorities Enforcement Program (PEP) (involving priorities for deportation) and adopt the policy as a formal regulation. Immigrants who are not security threats or have not been convicted of serious crimes should be granted stays of deportation until the 5

6 Administration has eliminated the backlog of cases involving national security threats and serious criminal convictions. Deportation officers continue processing thousands of non- priority cases involving immigrants with U.S. citizen and lawful resident family members or long- term residence without criminal activity because the Obama policy does not require that these cases not be processed by deportation officers, but basically only says to give priority to the national security and criminal cases. The Priorities Enforcement Program (PEP) should be formalized into a regulation and make clear that non- priority cases are not to be processed for deportation proceedings until the backlog of priority cases is cleared. Having the policy issued as a regulation will extend enforceable rights to immigrants down the road who may be processed for deportation in violation of the regulation. 6. Adopt regulations to increase the number of immigrants granted waivers of inadmissibility. An Application for Waiver of Grounds of Inadmissibility is an application filed by an immigrant who is inadmissible (ineligible for a visa) on one or more grounds. Current regulations say that applicants must show that a U.S. citizen spouse or parent would experience extreme hardship if the immigrant is denied lawful resident status. The Obama Administration has refused to change how USCIS determines extreme hardship. (Provisional Unlawful Presence Waivers Proposed Rule by the Homeland Security Department on 04/02/2012). To help legalize the status of thousands of immigrants, the Administration should issue regulations setting forth a humane standard for showing and presumption of extreme hardship based on the potential separation of long- term family units, economic loss that would be faced if a visa is denied, and the political, economic, and social conditions in the country of removal where the immigrants U.S. citizen or lawful resident family members would be forced to move (if the waiver is denied) to preserve family unity. DETAILED ANALYSIS OF THE DAPA/DACA LITIGATION AND ADMINISTRATIVE STEPS PRESIDENT OBAMA SHOULD TAKE Mr. Obama s immigration policy continues to come under fire from both sides, with Republicans accusing the president of playing partisan games with the issue, and some activist groups urging the White House to go even further and stop many more deportations. The recommendations set out in this report are intended for consideration by both the Administration and by immigrant communities and their supporters. The analysis and proposals outlined below are rational, humane, and reasonably likely to withstand attacks in the courts by those who oppose administrative immigration reform. 6

7 This report examines both the Administration s handling of the Texas v. United States case, which has blocked implementation of the DAPA/expanded DACA programs, and additional steps the Administration could now take to substantially improve the current unacceptable and destructive status of national immigration policy. BACKGROUND ON DAPA/DACA On November 20, 2014, Department of Homeland Security (DHS) Secretary Johnson issued a memorandum to DHS officials instructing them to implement the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and expand the Deferred Action for Childhood Arrivals program (DACA) program in three areas. 6 DAPA was designed to provide temporary legal presence to several million parents of U.S. citizens and lawful permanent residents who have lived in the country illegally for at least three years. The rationale for the Administration s DAPA/DACA programs is not new and was expressed over 30 years ago by former (Republican) Attorney General William French Smith in testimony before the Senate Judiciary Committee: "ʺWe have neither the resources, the capability, nor the motivation to uproot and deport millions of illegal aliens, many of whom have become, in effect, members of the community. By granting limited legal status to the productive and law- abiding members of this shadow population, we will recognize reality and devote our enforcement resources to deterring future illegal arrivals."ʺ7 Despite the obvious economic benefits to communities and to U.S. workers of granting temporary status to a few million long- term resident immigrants, 8 twenty- six 6 In 2012, DACA was implemented by then DHS Secretary Janet Napolitano. DACA provides that those who were under the age of 31 on June 15, 2012, who entered the United States before June 15, 2007 (5 years prior) as children under the age of 16, and who meet specific educational and public safety criteria, are eligible for deferred action status and temporary work permits. The Complaint in the Texas case does not include the actions taken by Secretary Napolitano, which have to date formalized the status of approximately 600,000 youth and young adults. 7 Joint Hearing before the Subcommittee on Immigration, Refugees, and International Law of the House Committee on the Judiciary and the Subcommittee on Immigration and Refugee Policy of the Senate Committee on the Judiciary, 97th Cong., 1st Sess., 9 (1981). 8 Sen. Jeff Sessions, R- Ala., is one of many elected officials who have described the administration s action as showing no concern about the employment prospects of lawful immigrants, green card holders and native- born Americans. Sen. Sessions says [t]he first 7

8 states filed suit in a federal court in Brownsville, Texas, challenging DAPA and the expanded DACA programs. 9 The plaintiffs have not sought to block implementation of the DACA program that started in On February 16, U.S. District Judge Andrew Hanen (same judge who allowed the border wall to be built despite legal challenges we brought showing DHS had violated several laws in the process of seizing private lands to build the wall) issued a preliminary (temporary) injunction blocking implementation of the DAPA/expanded DACA programs until a trial is conducted regarding the plaintiffs claims. 10 Based on several decades of experience in many of the most significant federal court cases involving the rights of immigrants, I believe that the Obama administration has roughly a fifty percent chance of winning the Texas case on the merits. We support the Administration s emergency appeal of Judge Hanen s refusal to stay his preliminary injunction. However, the steps recommended below go far beyond the Administration s current course of action of simply pursuing an appeal in the DAPA/DACA case. Understanding Alleged Standing of States in the Texas v. United States Case Texas and the 25 other states seeking to block implementation of DAPA/expanded DACA must show that they have standing to bring their case. Three of the 25 States have developed a factual showing that under DAPA they would incur unreimbursed costs associated with issuing driver s licenses and therefore claim they have standing to challenge DAPA/expanded DACA. The U.S. argues that nothing in DAPA/DACA requires a State to issue licenses to aliens accorded deferred action [status]. 11 thing we should do is be focusing on getting jobs for Americans that are unemployed. See judge- gets- tough- with- defiant- obama/#yri19142mst74kpm.99. This criticism of the Administration is misplaced. Granting work permits to undocumented workers makes them less exploitable and decreases any unfair competition with US workers created by their undocumented status. 9 The plaintiffs suing to block DAPA/DACA include Texas, Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, Tennessee and Nevada, the Michigan Attorney General, and the Governors of Mississippi, Maine, North Carolina and Idaho. 10 State of Texas v. United States, Civil No. B , United States District Court For The Southern District of Texas Brownsville Division, Memorandum and Order, Document 145, filed 02/16/15 ( Preliminary Injunction ). 11 Texas v. US, Appellants Reply To Opposition To Emergency Motion For Stay Pending 8

9 Showing how easily parties can switch sides, earlier when Arizona refused to issue drivers licenses to DACA recipients, advocates supported by the Obama Administration successfully argued that Arizona could not constitutionally deny drivers licenses to similarly situated individuals [DACA recipients] without a rational basis for the distinction. 12 The Arizona law was preempted because it accepted federal employment authorization documents as proof of authorized presence for certain immigrants (as do most states) but not for similarly situated DACA recipients. See ADAC, 757 F.3d at 1067). The US argued that refusing drivers licenses to DACA recipients conflicted with the rule that States enjoy no power with respect to the classification of aliens. 13 The U.S. now argues [a] State suffers no cognizable injury from the application of federal law by complying with a constitutional mandate to issue licenses rationally under state law. 14 The U.S. doesn t really argue there is no injury, but rather that the injury is self- inflicted because Texas and other states could amend their rules so no one with deferred action or a work permit is eligible for drivers licenses! 15 It would hardly be a victory for immigrants if the appellate courts agree with the Administration that Texas has no standing because it could simply make all immigrants with deferred action status or work permits ineligible for drivers licenses (not just DAPA/DACA people). There is another area of concern regarding costs. The federal Government requires that states run data checks on immigrant drivers license applicants and bills the states to run these background check inquiries. The states complain that this is a hard and federally mandated cost they must absorb solely if DAPA/DACA are implemented. The U.S. argues that the states have no financial injury because there are substantial financial benefits that the States will gain from the implementation of the Appeal, Case: (5th Cir.) Document: Page: 1, Filed: 03/26/2015 (US 5th Cir. Reply Brief ). 12 See Arizona DREAM Act Coalition v. Brewer ( ADAC ), 757 3d 1053 (9th Cir. 2014). ADAC, 2015 WL , at *9 (D. Ariz. Jan. 22, 2015). 13 Plyler v. Doe, 457 U.S. 202, 225 (1982). 14 US 5th Cir. Reply Brief at The States respond to this position pointing out that Arizona refused to give licenses to anyone with deferred action. The U.S. Government (perhaps not looking forward to how it would later defend DAPA) successfully argued in the Ninth Circuit Court of Appeals that the federal courts should block Arizona s rule. See Order and Permanent Injunction 5, Ariz. Dream Act Coalition v. Brewer, No. 12- cv (D. Ariz. Jan. 22, 2015) (enjoining Arizona from denying driver s licenses to people granted deferred action status). 9

10 Guidance, such as increased tax revenues. 16 Numerous studies show that the states almost certainly will have a net gain if immigrants are granted work permits through increased wages, sales tax, income tax, etc. Nevertheless, the appellate courts could find that these new revenue streams are relatively speculative, while the driver s license costs the States complain about are fixed and fairly easily determined. 17 Finally, the U.S. Government has offered a back- up position to the Court of Appeals under which some immigrants would get DAPA/DACA and others would not, depending on where they live. In a brief filed March 26, 2015, with the Court of Appeals, the Obama Administration argues that if the Court agrees that issuing drivers licenses is an injury that gives some states standing to challenge DAPA/expanded DACA, and if the Court of Appeals agrees Judge Hanen properly issued a preliminary injunction because the Administration failed to publish DAPA/expanded DACA as a proposed regulation, then [b]ecause the district court only found Texas to incur financial injury from issuing driver s licenses, the injunction should be stayed with respect to all aliens who do not reside in Texas, or at the very least, to all aliens who reside in non- plaintiff States. We do not support this back----up argument as it provides the courts with an opening to issue a compromise ruling that wipes out DAPA/expanded DACA in about 26 states. There s a reasonable possibility the appeals courts will conclude a state should not have to amend its rules (for the worse for immigrants) to get around the drivers license 16 Id. at 3. In an earlier case, when various states sued the US for failing to enforce the immigration laws, and claimed it was suffering financial losses through education, medical and prison costs, the Fifth Circuit Court of Appeals concluded the States did not have standing because those costs are attributable to States laws. Texas v. United States, 106 F.3d 661, 666 (5th Cir. 1997), squarely holds that costs associated with providing educational, medical, and penal services to unlawful aliens are attributable to States laws and their constitutional duties rather than to federal law. 17 The States also argue that (1) they have standing because they will suffer parens patriae injuries from economic discrimination against their citizens (relying on the Supreme Court s decision in Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592 (1982)), and (2) that implementation of DAPA/expanded DACA would leave States police powers preempted by federal actions that do not comport with bicameralism and presentment, citizens (relying on the Supreme Court s decision in Wyeth v. Levine, 555 U.S. 555 (2009)). See Plaintiffs Motion for Preliminary Injunction at (Dec. 4, 2014) [ECF No. 5]; Plaintiffs Reply in Support of Motion for Preliminary Injunction at (Jan. 7, 2015) [ECF No. 64]. These are secondary standing arguments that may be important in the appeals process but will not be discussed here because they re less likely to succeed to establish standing than the States fiscal loss argument.. 10

11 costs involved with DAPA/DACA. Given that the standing issues are complex, the U.S. Government has recently switched positions, and the highly political nature of the case, whether the appellate courts agree with Judge Hanen that the states have standing is an open question that could come out either way. 18 Understanding the Merits of the DAPA/DACA Legal Challenge Brief overview of deferred action status It is important to understand some background regarding deferred action status, the status that DAPA/DACA extend to certain immigrants. The laws created by Congress in the Immigration and Nationality Act (INA) do not directly grant anyone deferred action status. However, Congress has passed laws that do reference the administrative practice of deferred action status. 19 Nor have the requirements for deferred action status been included in agency regulations. Instead, the criteria for deferred action status were included in the former INS s Operations Instructions (OIs). 20 The OIs made clear that deferred action status is an act of administrative choice to give some cases lower priority and in no way an 18 Judge Hanen also found that the States could bring suit under abdication standing. The court described abdication standing as a situation when the federal government asserts sole authority over a certain area of American life and excludes any authority by a state; yet subsequently refuses to act in that area. In its appeal to the 5 th Circuit, the Administration points out why this basis for the State s standing is baseless: Over the past six years, DHS has removed 2.4 million immigrants and focused substantial additional resources on border security. We agree. There is little basis for granting standing to States on the basis of abdication. Unfortunately, this Administration has detained and deported millions of people. 19 For example, in 8 U.S. Code 1227(d)(2) entitled Deportable aliens the law states: The denial of a request for an administrative stay of removal under this subsection shall not preclude the alien from applying for a stay of removal, deferred action, or a continuance or abeyance of removal proceedings under any other provision of the immigration laws of the United States. (Emphasis added). Nevertheless, no federal statute appears to directly authorize deferred action status or discuss its requirements. 20 The following were factors for the INS District Director to consider: (1) The likelihood of ultimately removing the alien; (2) The presence of sympathetic factors; (3) The likelihood that because of sympathetic factors a large amount of adverse publicity will be generated; and (4) Whether the individual is a member of a class of deportable aliens whose removal has been given high enforcement priority (e.g. terrorists, drug traffickers). 11

12 entitlement (Emphasis added) 21 These Operations Instructions were withdrawn on June 24, However, the relief continues to be available to certain visa applicants and to undocumented immigrants with significant medical conditions or close U.S. citizen or lawful resident relatives with significant medical conditions. The vast majority of cases in which deferred action is granted involve medical grounds. 22 An existing immigration regulation at least recognizes the existence of deferred action status. 8 C.F.R. Section 274a.12(c)(14) states that certain immigrants may be granted employment authorization, including an immigrant who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment. Important to the analysis discussed below, it is widely accepted that because the deferred action status program has never been formalized into agency regulations, and exists only as DHS s administrative choice to give some cases lower priority, there is virtually no judicial review of decisions concerning deferred action status. Reno v. American Arab Anti----Discrimination Comm., 119 S.Ct. 936 (1999). The States argument that the DAPA/DACA program is unconstitutional and violates the Administrative Procedures Act (APA) Texas and the other states argue that the DAPA/DACA programs violate the Take Care Clause of the U.S. Constitution, Article II, 3. This provision requires that the President take care to faithfully execute the laws of the United States and prevent him from rewrite[ing] them under the guise of executive discretion. 23 I will review this argument even though Judge Hanen did not rely on it to issue his preliminary injunction. However, if the appellate courts find that the States (or some of them) do have standing, but still set aside Judge Hanen s preliminary injunction because they don t agree that DAPA- DACA should have been issued as regulations, it is fairly clear that Judge Hanen will quickly issue a second injunction, this time relying on the States constitutional Take Care Clause argument. The Administration will then have to appeal that injunction to the Court of Appeals. So a brief review of the constitutional issue is important as it may provide the basis for a future new injunction. 21 See former O.I (a)(22). See also Standard Operating Procedures for Enforcement Officers: Arrest, Detention, Processing, and Removal (Standard Operating Procedures), Part X.; Meissner, Comm, Memo, HQOPP 50/4 (Nov. 17, 2000) [Regarding prosecutorial discretion]. 22 USCIS response to CIS Ombudsman (Dec. 18, 2006). 23 First Amended Complaint,

13 Texas argues the President cannot unilaterally, consciously[,] and expressly adopt[] a general policy of non- enforcement [of the deportation laws] that applies across---- the----board. See Motion for Prelim. Injunction, page 9 (emphasis added). 24 [T]he [US Government] violated the Take Care Clause [of the Constitution] by unilaterally creating a massive federal program that is divorced from individualized, case----by----case enforcement discretion. It is well settled that a federal agency can make a single- shot non- enforcement decision... in the context of an individual case. But it is equally well settled that the President cannot adopt a general policy of non- enforcement... Id. at 9-10 (emphasis added) (citations omitted). Regarding DAPA, the States argue that DHS s policy directly contravenes the will of Congress because Congress has taken several steps to curtail the reunification of undocumented immigrants and their documented family members, by adopting statutory restrictions such as the 10- year unlawful presence (ULP) bar precisely because it was concerned that undocumented immigrants would have children in the U.S. and use those children to obtain lawful status for themselves. 25 Judge Hanen agrees that no statute gives the DHS the power it attempts to exercise in the DAPA/expanded DACA programs. 26 As evidence of rubber- stamping, the States argue that [o]ut of 727,164 DACA applications, [USCIS] issued a Notice of Intent to Deny in only 6,496 cases (less than 1%) Even more remarkably, Defendants can point to only two [Notices of Intent to Deny] NOIDs that were allegedly based on discretionary considerations (less than %). 27 In both of those allegedly discretionary cases, the DACA applicant violated DHS s eligibility criteria by commit[ing] multiple felonies Id. Judge Hanen concluded that [o]bviously, any government program with an approval rate that rounds to 100% is not dependent on case- by- case analysis. Id. Public statements issued by President Obama when DAPA was announced do not help his Administration s argument that the program simply grants a discretionary case- by- case decision to certain immigrants. The President announced that it was the failure of 24 The preliminary injunction notes that about 50-67% of potentially- eligible DAPA recipients have probably violated 8 U.S.C (illegal entry), and the remaining 33-50% have likely overstayed their non- immigrant visas. Preliminary Injunction at page Motion for Prelim. Injunction, page Preliminary Injunction at page Motion for Prelim. Injunction, page

14 Congress to pass comprehensive immigration reform that prompted him to change the law. 28 While he does not rely on this finding to issue his preliminary injunction, Judge Hanen makes clear that if his injunction is overturned, and the case is returned to him, he would then issue a new injunction based on what he sees as DHS having violated the Constitution: [W]hen Congress intended to delegate to the [DHS] Secretary the right to ignore what would otherwise be his statutory duty to enforce the removal laws, it has done so clearly... The DHS cannot reasonably claim that, under a general delegation [of power] to establish enforcement policies, it can establish a blanket policy of non- enforcement that also awards legal presence and benefits to otherwise removable aliens. 29 Neither immigrant advocates nor the Administration should provide overly optimistic assessments in the area of the President s powers in areas covered by statutes enacted by Congress. There are numerous cases in which the courts, including the Supreme Court, have ruled that executive actions were inconsistent with acts of Congress: Under our system of government, Congress makes laws and the President, acting at times through [federal] agencies, faithfully execute[s] them. The power of executing the laws necessarily includes both authority and responsibility to resolve some questions left open by Congress that arise during the law'ʹs administration. But it does not include a power to revise clear statutory terms that turn out not to work in practice. 30 The Supreme Court has said that [a]n agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate. 31 Under Article I and the separation of powers, the lawmaking function belongs to Congress and may not be handed off to or appropriated by another branch or entity. 32 Important for the preliminary injunction that was issued, the States argue that the absence of case- by- case discretion in the granting or denial of DAPA/expanded DACA means that the policy if implemented would grant substantive rights to recipients and therefore should have been published as a proposed regulation, the public given 30 days to 28 Press Release, Remarks by the President on Immigration Chicago, IL, The White House Office of the Press Secretary (Nov. 25, 2014). See also President Obama s statement I just took action to change the law. Id. See also DHS website re DACA: [Y]ou are considered to be lawfully present in the United States deferred- action- childhood- arrivals- process/frequently- asked- questions. 29 Preliminary Injunction at pages Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2446 (2014) (UARG). 31 Id. 32 Loving v. United States, 517 U.S. 748, 758 (1996). 13

15 comment, and the policy then issued as a formal regulation. The Obama Administration responds that DAPA/DACA involve nonsubstantive rules and therefore do not have to be published as formal regulations. Judge Hanen agrees with the States and relies upon this point of law to issue his preliminary injunction: [R]ules that award rights, impose obligations, or have other significant effects on private interests [are] considered substantive [rules]. 33 The Administration s arguments why it has not issued DAPA/DACA as regulations are troubling for immigrants in this case, and in general. Vulnerable communities and their advocates almost universally want positive policies implemented into regulations because, as explained below, regulations provide greater protection against arbitrary treatment or a policy being unilaterally cancelled. In its Motion for an Emergency Stay to the Court of Appeals, the Obama Administration argues that the [DAPA/expanded DACA program] leaves the Secretary s agents with discretion regarding issuance of deferred action The Guidance expressly provides that even when the threshold criteria are satisfied, the ultimate judgment as to whether an immigrant is granted deferred action will be determined on a case- by- case basis 34 Judge Hanen disagreed: [T]he only discretion that has been or will be exercised is that already exercised by Secretary Johnson in enacting the DAPA program and establishing the criteria therein. That criteria is binding [on USCIS agents] With that criteria set, from the President down to the individual USCIS employees actually processing the applications, discretion is virtually extinguished. 35 Judge Hanen concluded that DAPA is a substantive rule that should have undergone the notice- and- comment rule making procedure mandated by 5 U.S.C. 553 [the APA]. 36 Understanding the Appeal of Judge Hanen s Preliminary Injunction For the moment, Judge Hanen has refused to stay (put on hold) his preliminary injunction while the Administration appeals that injunction. On March 9, the district court issued an Order that postpones action on any pending motions. On March 12, 2015, the U.S. Government asked the 5 th Circuit Court of 33 Id. at page Appellants Motion for Emergency Stay Pending Appeal, page Preliminary Injunction at pages Id. at page

16 Appeal for an emergency stay of the injunction pending appeal, in addition to a motion for an expedited appeal. The government argued: The Secretary of Homeland Security (Secretary) seeks to effectively prioritize the removal of aliens who have recently crossed the border, committed crimes, or threaten public safety and national security by, inter alia, establishing guidelines for considering requests for temporarily deferring removal of other aliens who pose no such threats and have longstanding and close family ties to the United States. The preliminary injunction restrains the exercise of that prosecutorial discretion, a quintessentially executive function that is traditionally unreviewable. 37. The law on what is a substantive rule that must be published in proposed form and open to public comment for 30 days before being adopted as a formal regulation is not very clear. The States have offered evidence that USCIS officers did not really exercise discretion when implementing DACA and the DHS Secretary s memorandum on DAPA/expanded DACA makes clear those programs should be implemented in the same manner as DACA. Public statements by the Administration to the effect that DAPA is a new law have not helped the Administration s position. However, as discussed below, I see no reason why the Administration should not, even now, publish DAPA/expanded DACA as proposed regulations. As explained, this would better protect immigrants and it would remove the immediate reason why Judge Hanen issued his injunction. There are therefore both strong policy and legal reasons why the Administration should now publish DAPA/expanded DACA as regulations. Looking forward at the Texas case and likely outcomes Looking forward, if the Fifth Circuit or the Supreme Court find that some of the States have standing to sue, but disagree with Judge Hanen that DHS was required to publish DAPA/expanded DACA as a regulation and reverse his preliminary injunction, he most likely will quickly issue a new preliminary injunction, this time, he would say, because President Obama allegedly violated the Take Care clause of the U.S. Constitution. As discussed above, Judge Hanen has already clearly said that he believes these programs violate the Constitution. A new preliminary injunction based on alleged violation of the Constitution would again take several months to be reviewed by the appeals courts. 37 Appellants Emergency Motion for Stay Pending Appeal, page 1. 15

17 A trial to decide whether the lower court should issue a permanent injunction, and subsequent appeals, could easily take an additional few years. There are several considerations regarding possible outcomes in the Texas case and alternative administrative actions that may be taken (discussed in detail below). First and most important- - as is obvious from the Congressional and media response- - DAPA and DACA are political hot button issues. The Fifth Circuit Court of Appeals is known as a conservative court of appeals and the Supreme Court could be evenly divided with four Justices voting that Texas has standing and Obama over- stepped his authority, four justices possibly voting in the Administration s favor, and Justice Kennedy being the swing vote. Whatever else may be involved in the legal equation, this is a very political case and the politics of the judicial path are unfavorable to the Administration. Second, the early focus of the case will only be on whether the plaintiff States are entitled to a preliminary injunction to maintain the status quo while the merits of the case are addressed. For now, what the courts must decide is only whether a preliminary injunction should put the DAPA/expanded DACA programs on hold until a final decision is reached on the merits of the case. The appeals courts traditionally give deference to lower court s preliminary injunctions and will only reverse such decisions if the lower court abused its discretion. Given the political nature of the case discussed above, and the fact that all the Fifth Circuit must decide for now is whether Judge Hanen abused his discretion when he issued the preliminary injunction (or refused to stay his injunction), there is probably a possibility that the Fifth Circuit will set aside or refuse to set aside the preliminary injunction pending a trial and a decision by Judge Hanen on whether a permanent injunction should be issued. On the other hand, in the past few days, the U.S. Supreme Court issued a unanimous decision in a case finding that that a federal agency is not required to use the APA s notice- and- comment procedures when it issues a new interpretation of a regulation that deviates significantly from a previously adopted interpretation. 38 This recent decision may assist the Administration s appeal of Judge Hanen s preliminary injunction regarding compliance with the APA. The Administration also has strong arguments that 8 U.S.C. 1103(a) ( 103(a) of the Immigration and Nationality Act empowers the DHS to make choices about immigration enforcement. That section provides: The Secretary of Homeland Security 38 Perez v. Mortgage Bankers Assoc., No , decided March 9,

18 shall be charged with the administration and enforcement of this Act and all other laws relating to the immigration and naturalization of aliens In addition, 6 U.S.C. 202(5) charges the Secretary of DHS with establishing national immigration enforcement policies and priorities, 40 and DHS has increasingly prioritized enforcement against targeted groups using funds appropriated by Congress. Finally, there is no question that deferred action is a longstanding form of prosecutorial discretion recognized by the Supreme Court. 41 Whatever the strengths or weaknesses of the Administration s legal position defending DAPA/expanded DACA, this is clearly a political case and time is working against the Administration. President Obama waited for several years to address administrative reform hoping that Congress would adopt comprehensive legislative reform, a strategy many advocates questioned because the consensus in Congress needed to enact positive reform is not present. In the end, to its credit, the Administration issued its DAPA/expanded DACA programs. It then, however, fanned opposition to its program by appearing to inflate the number of people who may qualify. By this time the Administration knew that its program would be challenged in court, and knew that the fate of its program could easily land up in the hands of the next Administration a few years down the road. The Administration has also downplayed the reality that if the next Administration is fundamentally hostile to immigrants, or believes a significant number of voters would endorse a tough on immigrants new President, people issued work permits under DAPA/DACA could face being placed in deportation proceedings. This risk could be reduced if DAPA/DACA were issued as substantive rules rather than merely as agency policy. ALTERNATIVE ADVOCACY AND ADMINISTRATIVE ACTIONS 1. To best protect immigrants who may qualify if DAPA/expanded DACA is ever implemented, and to overcome the preliminary reason for Judge Hanen s injunction, President Obama should promptly issue proposed regulations on DAPA/DACA, give the public 30 days to comment, and then adopt final regulations implementing DAPA and DACA U.S.C. 1103(a) U.S.C. 202(5) Reno v. American----Arab Anti----Discrimination Committee, 525 U.S. 471 (U.S. 1999). 42 The proposed regulations should also consider extending deferred action status to parents of DACA- eligible immigrants and to immigrants with an approvable visa petition pending or with a visa petition already approved under current laws. 17

19 There is a part of Judge Hanen s decision that curiously points out the weakness of President Obama s DAPA and DACA programs in terms of protecting the rights of potential applicants. Judge Hanen points out that if President Obama issued DAPA and DACA as regulations, they would then have the force and effect of law. 43. The Administration argues that DAPA/expanded DACA are only interpretive rules or agency policies and do not have the force and effect of law. 44 Indeed, the Administration has argued before Judge Hanen "ʺthe Deferred Action Guidance is not a rule [it is a policy ] [U]nlike substantive rules, a policy is one 'ʹthat does not impose any rights [on recipients] 45 If the DAPA/DACA programs are in fact only general statements of policy and not issued as a substantive rule, the Government has argued in other cases that the policy extends no rights to an immigrant arbitrarily denied benefits. 46 Regardless of the Administration s legal position, DAPA and DACA applicants have a strong interest in these programs being treated as substantive rules rather than just agency policy. If they are arbitrarily denied benefits, they want to be able to argue that the rule is substantive and they therefore have a right to fair and equal treatment under the rule. If the rule is only a policy, as the Obama Administration has argued in order to avoid publishing the proposed rule for public comment, then the DAPA/DACA policy does not have the force and effect of a law or agency regulation, and applicants denied benefits will have very limited and difficult remedies. Finally, in published regulations the Obama Administration could weaken the States constitutional arguments against DAPA/DACA by making clear that USCIS agents can exercise discretion in certain areas when implementing the programs. 43 Chrysler Corp. v. Brown, 441 U. S. 281, Shalala v. Guernsey Memorial Hospital, 514 U. S. 87, 99 (1995) 45 See Texas v. US, Doc. No. 38 at For example, in Romeiro De Silva v. Smith, 773 F.2d 1021 (9th Cir. 1985) the Government successfully argued and that court agreed that the [deferred action policy] vests the regional commissioner with unfettered discretion to determine whether to grant an informal administrative stay of deportation to an otherwise deportable alien, it creates no protectable liberty interest in deferred action, nor does it create a protectable interest in being considered for deferred action status. ). See also Phromvipha v. U.S. INS, 1992 U.S. App. LEXIS ( We do not have jurisdiction to hear Phromvipha'ʹs objections to the INS 18

20 District Director'ʹs handling of his deferred action application ). 19

21 In short, the Administration should publish the rules of the DAPA/DACA programs in the Federal Register for 30 days public comment, and then formally adopt the programs as substantive rules President Obama should adopt regulations allowing all immigrants eligible for family or employment- based visas under existing law, and the parents of DACA recipients, to apply for and be granted advance parole (permission to travel abroad and return to the U.S.) for personal or business purposes. 48 This remedy should be adopted immediately regardless of what happens in the Texas v. US case involving DAPA/DACA. Allowing a few million immigrants to briefly depart the country and return with advance parole will wipe out their earlier illegal entries. By wiping out their earlier illegal entries, the Administration would wipe out the bars these immigrants now face that prevent them from legalizing their status (now or in the future) unless they return to their home countries for ten years (something very few will ever do). 49 There are probably one to two million undocumented immigrants with U.S. citizen children or U.S. citizen or lawful resident spouses who could be granted lawful permanent resident status immediately but for the ten year bar. Several more million 47 If the Administration is prepared to issue the DAPA/expanded DACA programs as substantive rules it must publish the proposed rules in the Federal Register and must give interested persons an opportunity to [submit] written data, views, or arguments. 5 U.S.C. 553(c). An agency must consider and respond to significant comments received during the period for public comment. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 416 (1971). 48 Historically, parole has been granted in cases to permit an undocumented immigrant to depart the U.S. for family, medical, or business reasons and return lawfully rather than without inspection. "ʺParole- in- place"ʺ has been used from time to time to create the fiction that the immigrant departed the U.S. and returned lawfully (wiping out a previous illegal entry) even though the immigrant never actually left the U.S. To avoid use of this fiction, this report recommends that a significant portion of the undocumented immigrant community be granted parole so they can actually travel and return lawfully to the U.S. 49 In an administrative decision issued by the Board of Immigration Appeals (BIA) in 2012 (Matter of Arrabally Yerrabelly, 25 I&N Dec. 771 (BIA 2012)) the Board decided that an undocumented immigrant who entered the United States illegally, but was later granted "ʺadvance parole"ʺ and briefly traveled abroad and returned lawfully pursuant to the grant of advance parole, did not constitute a "ʺdeparture"ʺ from the U.S. that would trigger 20