DAPA’s Unlawful Presence Problem, by Michael Kagan

by Michael Kagan — Saturday, Feb. 6, 2016@MichaelGKagan

Like many immigration law professors, I have long thought that President Obama’s deferred action programs are within the Executive’s statutory and constitutional authority. But as I re-read the Fifth Circuit opinion and the briefs in US v. Texas, I am becoming persuaded that the states challenging DAPA may have a valid point about one aspect of the program.


In short, deferred action is a well-established form of prosecutorial discretion in immigration enforcement that the Court has long accepted. But DAPA may go a step too far by declaring that beneficiaries of prosecutorial discretion should be considered “lawfully present” in the United States even though they are removable according to the Immigration and Nationality Act (INA). Texas’ strongest arguments against DAPA are about this lawful presence provision, not about deferred action.


Unless it dismisses the case on standing grounds, US v. Texas will force the Supreme Court to consider the meaning of its footnote in Heckler v. Chaney, where the Court said vaguely that some forms of prosecutorial discretion might be “so extreme as to amount to an abdication of [the Executive’s] statutory responsibilities.” The Court has never explained exactly where this line should be drawn, but the lawful presence provisions of DAPA may fall on the wrong side of it. It seems as if the Executive Branch is trying to make lawful something that Congress has made unlawful. That goes beyond prosecutorial discretion.


It would be quite unfortunate if DAPA were to die in court for this reason. As the dissenting judge at the Court of Appeals noted, the lawful presence provision actually has little practical importance for most beneficiaries. Thus, the Solicitor General should be considering carefully how to save DAPA even if a majority of the justices are convinced by Texas’ arguments regarding lawful presence.


In order to flesh this thought out, I need to (briefly) address three issues that are at the heart of DAPA: employment authorization, deferred action, and (un)lawful presence. I will then try to conclude with some thoughts about how the Solicitor General might handle this challenge.


Employment Authorization

I want to deal with employment first, because in my view it is actually a distraction from the main issues in US v. Texas, even though it is probably the most important practical benefit that the DAPA program offers to immigrants. The way DAPA is constructed, employment authorization is really a secondary benefit of deferred action. If the deferred action program is legal, then so is the employment authorization. (The reasons are explained in far more detail by Marty Lederman here.)


In short, Congress has treated work authorization for immigrants separately from lawful presence. In 1981, the Reagan Administration issued regulations allowing work authorization for people who were not a high priority for deportation. Since 1986, the INA has said that employers may only hire people who are “authorized to be . . . employed by this chapter or by the [Secretary].” 8 U.S.C. § 1324a(h)(3). That phrase clearly indicates that the Department of Homeland Security can authorize employment for immigrants whose employment is not authorized by the statute. In 1987, the Reagan Administration issued a new regulation, 8 CFR 274a, stating that recipients of deferred action may receive employment authorization. The Obama Administration not changed that policy.


The real question is about who can receive deferred action.


Deferred Action

The DHS Memorandum that is at issue in Texas describes DAPA first and foremost as a form of prosecutorial discretion. It states:

Deferred action is a form of prosecutorial discretion by which the Secretary deprioritizes an individual’s case for humanitarian reasons, administrative convenience, or in the interest of the Department’s overall enforcement mission.

As the name suggests, deferred action is notice to the effect that we could take action to deport you, but we have decided not to, for now.


In Heckler, the Supreme Court found that agency decisions whether to enforce a law rigidly in every cases is normally unreviewable. The Court has twice affirmed prosecutorial discretion in immigration cases, in Arizona v. US, and in Reno v. American-Arab Anti-Discrimination Committee (AADC). TheAADC decision is especially explicit about deferred action: “[T]he INS may decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation. . . . A case may be selected for deferred action treatment at any stage of the administrative process.”


Texas has tried to argue that deferred action depends on statutory authorization in the INA, which exists only for a few narrow categories. But Congress has not enacted any provisions that explicitly limit deferred action in that way, and the Court has already indicated that explicit statutory authorization is not required. As the Solicitor General has already argued:

The INA did not even mention deferred action when this Court described it as a “regular practice” and “commendable exercise in administrative discretion, developed without express statutory authorization.” (quoting AADC) (emphasis added).

So far, so good for DAPA and the Obama Administration.


(Un)Lawful Presence

Unfortunately, the DHS Memorandum does not stop with prosecutorial discretion. The Memorandum goes on to state that “deferred action … means that, for a specified period of time, an individual is permitted to be lawfully present in the United States.”

Texas directs most of its fire at this aspect of DAPA. Texas opened its brief opposing certiorari by stating the following:

The Executive Branch unilaterally created a program that will grant “lawful presence” and eligibility for a host of benefits to over four million aliens present in this country unlawfully. This program, which is called DAPA, goes far beyond prioritizing which aliens to remove.

This is a compelling argument because it highlights an apparent difference between DAPA and prosecutorial discretion as normally understood. By analogy, a traffic cop might decide not to pull me over for driving 65 in a 55 MPH zone. But the highway patrol cannot declare that it is now lawful for me to do so. The Solicitor General has already conceded much of the force of this argument,acknowledging: “If a person commits a crime … that conduct remains unlawful … Similarly, people with deferred action remain subject to the INA’s civil consequence – removal.”


The Solicitor General has argued that lawful presence is defensible because it is revocable. That is unconvincing; if the Executive has stepped beyond its authority, it matters little whether it has done so only temporarily or if it can reverse course. The question is whether the Executive had the authority in the first place.


The best argument in defense of this provision is that is that in immigration law “lawful presence” might be granted by DHS alone. For example, Stephen Legomsky argues that DHS has statutory authority under 8 USC § 1182(a)(9)(B)(ii) to authorize a “period of stay” during which the person’s presence will be lawful. Some justices might be willing to allow this on the theory that “lawful presence” is a term of art. But I would not want the fate of DAPA riding on convincing five justices of that. Other justices might find it difficult to accept that someone’s presence could be considered “lawful” even though the Administration concedes she is removable.


Moreover, I am not sure Legomsky is actually right. The statutory provision he is citing appears to be referring to temporary visitors (tourists, students, temporary workers etc.), who are admissible to the United States under specific provisions of the INA. These temporary visitors are known in immigration law as “nonimmigrants,” and the statute provides that “the admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe.” 8 USC § 1184(a)(1). By contrast, deferred action beneficiaries are typically not eligible for these kinds of visas. Thus, it is not actually clear that DHS can authorize a lawful “period of stay” for DAPA recipients under the statute.


The shame of this is that it is not really that important in practice. The main import of lawful presence is that a person who has been unlawfully present for more than 6 months is subject to a three or ten-year bar on re-entry. But most DAPA beneficiaries are subject to that anyway. A person could get deferred action, employment authorization and even a temporary social security card even if she is not lawfully present according to the INA.


In other words, the aspect of the DAPA that is most vulnerable to attack is the provision that matters least for beneficiaries.


What should the Solicitor General Do?

My thesis has been that deferred action and employment authorization are on stronger legal ground than lawful presence for DAPA recipients. The worry is that many justices on the Supreme Court may be persuaded that this aspect of DAPA goes too far. However, my thesis is also that the lawful presence provision does not need to be there anyway. The problem in the Texas litigation so far is that the deferred action and lawful presence aspects of DAPA have been bound together, so that once judges became convinced that lawful presence goes too far, they thought that all of DAPA goes too far. In other words, the Department of Justice has been fighting this battle on the terrain that is most favorable to its opponents. That must change.


There is no good reason for the Administration fight a last stand to save something that does not even matter much in practice. The Solicitor General needs to refocus this case on deferred action, not lawful presence.


One tempting option would be to simply reissue the policy, removing the lawful presence bit. This approach would fit easily with my co-blogger Daniel Hemel’s idea to moot the notice and comment objection to DAPA. But it is not entirely clear that would work. And even if the Supreme Court agreed that a revised DAPA rendered some of the Court of Appeal’s reasoning moot, this approach would probably lead to a remand that would keep DAPA in limbo until long after President Obama leaves office.


A better approach would be to stress to the Supreme Court that deferred action and lawful presence are actually two separate things, and to stress that most of Texas’ arguments are really about lawful presence. Suggest to the court, as at least a back up argument, that it can strike down one part of DAPA, without killing the whole program. Texas can thus have a partial victory. It has raised a valid objection to DAPA. But the injunction should be narrowed to that aspect of the program to which the objection actually applies.


By arguing that Texas’ arguments really only justify a more narrow injunction, the Solicitor General can shift the real fight to more favorable terrain. Affirm the Court of Appeals in part, but vacate the injunction with regard to deferred action and employment authorization.


Michael Kagan is Associate Professor at the University of Nevada, Las Vegas, William S. Boyd School of Law.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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About Michael Kagan

Michael Kagan is Professor of Law at the University of Nevada, Las Vegas, William S. Boyd School of Law. He tweets @MichaelGKagan.

2 thoughts on “DAPA’s Unlawful Presence Problem, by Michael Kagan

  1. Prof. Lederman

    Prof. Kagan: I believe your concern is based upon a legal error. Being offered deferred action status–and what DHS infelicitously calls “lawful presence”–does not affect the legality of any conduct by the aliens in question; it is not, in other words, and to use your example, analogous to the highway patrol declaring that it is now lawful for you to drive 65 in a 55 MPH zone. As I wrote at http://balkin.blogspot.com/2016/01/notes-on-texass-nominal-brief-in.html:

    The DAPA policy does not purport to “deem lawful” any unlawful conduct by aliens. Texas’s brief [in opposition] repeatedly argues that the case is not only about work authorization and related benefits incident to work (such as Social Security), but also about the agency’s alleged conferral of a new status upon the aliens in question–“lawful presence.” And, according to Texas, this new status has the legal effect of altering what is legal and what is unlawful. The DAPA policy, it claims, is an effort “to deem unlawful conduct as lawful,” or to “pronounce ‘that otherwise-prohibited conduct will not violate the Act’” (quoting Utility Air Reg. Group v. EPA). And thus, at the end of its brief, Texas ominously warns: “[I]f petitioners’ arguments are accepted, there is nothing stopping this Executive or future Executives from invoking resource constraints to declare conduct lawful in other areas—such as environmental, tax, criminal, campaign finance, and civil-rights laws.”

    This simply mischaracterizes the effect of deferred-action status. That status does not declare, or deem, that any previously unlawful conduct by aliens is now lawful. It does, of course, trigger application of the underlying, decades-old work authorization regulation, which makes it lawful for employers to hire such aliens. But Texas’s argument here is that deferred-action status also purports to affect the legality of the aliens’ own conduct. And that’s mistaken. Such status does not afford aliens an immunity from culpability for, or a defense to, any unlawful conduct they might have engaged in, or a legal “green light” to violate the law. It does not, for instance, immunize aliens against criminal penalties for past violations of the law, such as for entering the U.S. without authorization. Nor does it offer a defense to the civil consequence of continued presence: A deferred-action alien remains removable, and DHS has the discretion to remove the alien at any time. See the government reply brief at 7.

    As the government explains in its petition: “[I]nsofar as deferred action itself is concerned, ‘lawful presence’ is simply the label for the consequence of memorializing a decision to forbear from enforcement action for a designated time: A decision to forbear from removing a person results in ‘lawful presence’ in the sense that DHS has decided to countenance that person’s continued presence in the United States so long as DHS continues to forbear.”

    You are correct that being designated as “lawfully present” can have one legal effect under the Act. Section 1182(a)(9)(B)(i)(II) provides that if an alien was “unlawfully present” in the United States for more than a year, and then leaves the U.S. and returns seeking admission within ten years of departure, that alien is inadmissible upon return. Deferred action status thus tolls the accrual of such “unlawful presence” for purposes of that ten-year ban on admission. Such tolling, however, is irrelevant for virtually all individuals who would be afforded deferred action status under DACA or DAPA, because they already have lived in the U.S. for more than a year. That is to say, they will be ineligible for admission if they leave and try to return within ten years, regardless of whether they are deemed to be “lawfully present” under DAPA.

  2. Guest Blogger

    Prof. Lederman, thank you for your comment. The difficulty that I see is that DHS wrote in the DAPA memorandum that beneficiaries would be “permitted to be lawfully present in the United States.” It is difficult to square that text with the proposition that DAPA is not actually deeming the unlawful to be lawful. The text seems to be saying explicitly that people who pre-DAPA were unlawfully present will be “permitted” to be “lawfully present” in the United States lawfully, at least temporarily.

    I may not be able to convince you on this point. However, I think you and I agree about most of the DAPA issues. In light, I would make the case to DAPA supporters generally that it does not really matter whether I am right on the lawful presence question. All that matters is that this is a needless legal vulnerability of a worthy program, in the sense that it convinces some judges (as we have seen already in the Court of Appeals). I would suggest that there are two possible diagnoses of the problem, and they both lead in the same direction:

    1) The lawful presence provision is actually not legal.
    2) The lawful presence provision is technically within DHS’ authority, but it is sufficiently confusing to judges that it is putting all of the DAPA program at risk.

    Either way, lawful presence is a problem, and I think the Solicitor General needs to find a way to do something about it before it is too late.


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