The canard of "lawful presence" status in the Texas challenge to the DAPA policy

Marty Lederman

You can listen here to yesterday's Fifth Circuit oral argument (before Judges Smith, Elrod and Higginson) in Texas's challenge to DHS's “Deferred Action for Parents of Americans" (DAPA) immigration policy.  The argument ranged widely over virtually all of the issues in the case.  Here, a short word on only one of them, involving the question that engendered the greatest confusion and misunderstanding in the argument:

The judges repeatedly questioned counsel about whether deferred action status is merely a decision not to remove an alien, or whether it additionally confers a new legal "status" upon the alien, one that would transform unlawful conduct of the alien into lawful conduct (or, at a minimum, that would confer an "immunity" from government prosecution or removal authority).

At one point, for instance, Judge Higginson asked Texas Solicitor General Keller why DHS's DAPA  "enforcement priority" policy--that is, a decision generally not to "enforce" removal against a class of aliens--should be subject to APA notice and comment procedures, when so many other, apparently analogous, governmental nonenforcement policies are not.  For example, the judge pointed to the "Petite policy" in the U.S. Attorney's Manual, which "precludes the initiation or continuation of a federal prosecution, following a prior state or federal prosecution based on substantially the same act(s) or transaction(s)," except where, inter alia, the state prosecution has left a substantial federal interest "demonstrably unvindicated."  There is nearly 100% adherence to this policy, by all 200,000 or so Assistant U.S. Attorneys, noted Judge Higginson:  They never prosecute in such cases except in the rare circumstances described in the policy.  Accordingly, on Texas's theory, why wasn't it necessary for DOJ to subject the "Petite policy" to notice and comment review?

SG Keller's response was that under the Petite policy, when the government declines a prosecution "it’s not saying that your unlawful conduct is now lawful,” whereas--allegedly by contrast--DAPA does confer some sort of "lawful presence" status upon the covered aliens, making lawful some conduct that previously was unlawful.  (The relevant colloquy is at approximately 1:34:00-1:40:20 of the audio file.)

As I have previously explained in much greater detail, this is simply wrong.  Deferred action status does not make any unlawful conduct lawful, or confer any immunity from the force of federal law.  The aliens in question presumably have violated the law, by entering the United States without authorization or overstaying a visa.  Accordingly, they can be prosecuted for such a violation; and because they lack authorization to be present in the country, they also can be removed from the United States.  Deferred action status does not change any of that.  It does not immunize the aliens from being prosecuted for past unlawful entry (or any other violation of federal law); nor does it even guarantee that they will not be removed based upon their lack of authorization.  As the government put the point in its most recent brief (p.46):  "What the district court described as 'lawful presence' is nothing more than the inevitable consequence of any exercise of prosecutorial discretion: remaining free of the government’s coercive power for so long as the government continues to forebear from exercising that power."  DAPA does not, however, immunize the covered aliens from the exercise of that coercive power.
Posted 12:24 PM by Marty Lederman [link]