Tuesday, November 25, 2014

Concerns about a Troubling Presidential Precedent and OLC’s Review of Its Validity

Guest Blogger

David A. Martin

For the Symposium on Administrative Reform of Immigration Law

            The OLC opinion on new enforcement priorities for the Department of Homeland Security probably will serve to establish the terrain for battles over the legitimacy of prosecutorial discretion for a long time to come.  And there will be other battles. You can bet that Republican Presidents someday will try to invoke President Obama’s actions to undercut other regulatory programs they don’t like.  

            The opinion actually raises significant questions about the Obama Administration’s own signature exercise of expansive prosecutorial discretion, the 2012 DACA program that shields childhood arrivals from deportation.  And it is disingenuous about key elements of its reasoning and its analysis of the new programs in operation.  OLC’s decision factors are fine, but they should be – and should have been – applied with more rigor, lest prosecutorial discretion become a vehicle to “rewrite the laws.”  (This in-the-weeds slipperiness is why I am not at all confident that the precedent can be confined in the way, for example, that Marty Lederman opines.)

            OLC’s four-factor test distills the main questions that should be asked:
1.     The decision to decline enforcement should reflect factors peculiarly within the enforcing agency’s expertise.
2.     A program may not effectively rewrite the laws in the guise of exercising enforcement discretion; the action must be consonant with broad congressional policy underlying the regulatory statute.
3.     The program cannot be so extreme as to amount to abdication of statutory responsibilities (a variant on factor 2).
4.     Non-enforcement decisions are “most comfortably” sustained when they are done on a case-by-case basis.
             Using these tests, the opinion first reaffirms the use of centralized prosecutorial discretion guidelines to promote uniformity and sound alignment with leadership policy. That is worth reaffirming, especially given the claim by certain ICE officers, accepted in dicta by a district court, which challenges the legality of centralized guidance and essentially argues that line officers can defy their superiors in order to arrest and charge any entrant without inspection they encounter.  (I analyzed the errors in that claim here.)
            But it is the deferred action programs, rather than quiet daily application of charging discretion, that command center stage.  Systematic class-based forms of prosecutorial discretion, especially if they rely on applications from prospective beneficiaries, raise sharper constitutional questions, the opinion notes, because they can more easily “cross the line between executing the law and rewriting it” (p. 24). But these concerns are not fatal if the system is well-designed.  The key is retaining genuine case-by-case review.
            The opinion ostensibly proves the bona fides of its insistence on limits by blessing one proposed form of deferred action (for parents or spouses of US citizens and lawful permanent residents (LPRs)), while rejecting a second (for parents of DACA recipients).  The reason for distinguishing the two rests on alignment with congressional policies.  In OLC’s telling, the former program “uses deferred action as an interim measure for a group of aliens to whom Congress has given a prospective entitlement to lawful immigration status” (p. 29).  But with regard to the latter, “[s]uch parents have no special prospect of obtaining visas” (p. 32), because DACA did not give its recipients any kind of lawful status.
            By this analysis, DACA itself is drawn into question. (Ahilan Arulanantham flags this issue in his post, but from a different angle.)  DACA cannot at present be seen as an interim measure; Congress so far has refused to pass the DREAM Act.  And it’s hard to see how DACA aligns with earlier policies that Congress has implicitly blessed.  The opinion cryptically acknowledges this difficulty in its footnote 8 (p. 18), which says that OLC gave oral advice on DACA before it was launched, and then mumbles about DACA resting on “humanitarian concerns . . . consistent with the types of concerns that have customarily guided . . . enforcement discretion.”  What kind of legal guidance is this?  Humanitarian concerns are certainly involved with the proposal to let DACA parents stay – indeed with almost any proposal for expansive use of deferred action.  (In my view, DACA was a valid exercise of prosecutorial discretion, largely because it covers only a small percentage of removable aliens and because it shields only those not culpable for the initial immigration law violation.)
            It’s almost as though OLC felt it had to draw a line in the legal sand somewhere or else there would be no end to the pressures on the executive branch to add new groups to the deferred action list.  In any event, the OLC opinion will prove useful to the President in this respect.  He has never been good about saying No to the immigrant advocacy community and then standing by that answer. (He should have said firmly at the time of DACA that DACA is as far as he is going to go using executive action, and insisted then that any further relief will have to be won in Congress.  By failing to do so, he kept much of the advocates’ advocacy and anger directed at himself rather than Congress. The OLC opinion may give him what he needs to deflect future demands.)
            Further, OLC’s application of its tests to the now-adopted proposal giving deferred action to parents of citizens and LPRs is disingenuous at several points.  Peter Margulies has effectively shown how the opinion ignored or mischaracterized the barriers and delays deliberately built into current law before a child’s citizenship can result in legal status for the parents.  Long-standing congressional policy, clearly fixed in statute, disallows immediate relative petitions for parents until the child reaches age 21. A test looking to consonance with congressional policy (factor 2) has to be more candid about all the elements of that policy.
            The opinion also finds justification in a form of relief from deportation called cancellation of removal, which OLC says “offers the prospect of receiving [LPR] status immediately” (pp. 27-28).  This is remarkably misleading.  In 1996 Congress greatly tightened the standards for cancellation, which, with minor exceptions, is available only from an immigration judge in removal proceedings.  Mere relationship to a US citizen or LPR family member is not enough.  The applicant has to prove that removal would cause “exceptional and extremely unusual hardship” to the family member (OLC even misstates and softens this test, p. 27).  Congress also capped grants of cancellation at 4,000 a year.  A large backlog has developed.  By congressional design, there is nothing immediate about cancellation relief.
            But perhaps most inaccurate is OLC’s assessment of factor 4. A class-based program, the opinion says, has to leave room for individualized denial “even if the applicant fulfills all the program criteria.”  It is “the guarantee of individualized, case-by-case review” (p. 23) that keeps a class-based program from amounting to a rewrite of the laws.  In actual operation, however, the new deferred action programs will function so that anyone who meets the class-based criteria will be virtually guaranteed a grant.
            The DHS memos setting up the program dutifully recite the words “case-by-case,” but as OLC acknowledges, they do not specify what would count as a factor that “would make the grant of deferred action inappropriate” (p. 29). OLC sees this vagueness as giving the deciding officer substantial discretion.  But in the real world, vagueness means that officers will be deeply reluctant to deny deferred action to someone who meets the class-based criteria (which already include disqualification for most criminal offenses). Throughout the Obama administration, advocates have been vigilant in raising hell whenever an individual officer’s charging decision seems to depart from internal guidance, even in the application of the normal ad hoc prosecutorial discretion priorities.  If officers are going to deny someone who meets the class-based requirements, they need to know what enforcement-linked factors will be accepted by their supervisors as a valid basis for doing so. The DHS memos provide no such fortification.
            This discussion reveals what may be the biggest disappointment with the overall set of executive branch initiatives.  They say virtually nothing about a commitment to or justification for enforcement, unless the charged alien is involved in serious criminal activity or is caught at the border engaging in illegal entry or fraud.  In fact, the revised enforcement priorities just issued by DHS substantially shrink the pool of valid interior enforcement targets (but in technical and nonobvious ways).
            It pains me to write such a critical review of these initiatives. The 1996 tightening of cancellation relief (like many other restrictive 1996 amendments) enacted bad policy, which definitely ought to be changed.  And I heartily favor a broad statutory legalization program that would cover the people the new deferred action covers, as well as many others who have resided here for a long time.  In my position as DHS Deputy General Counsel for the first two years of the Obama administration, I worked hard on early drafts of possible legislation that would have accomplished those ends. But those drafts also included significant improvements in enforcement, especially interior enforcement – which is the truly broken part of our current system.  Legalization is important not only for humanitarian reasons, but because it can empower resolute immigration enforcement in the future. The recent executive initiatives, in addition to setting a dangerous precedent that will be used by future Presidents to undercut other regulatory regimes, have made balanced legislative solutions to our immigration mess that much more difficult to accomplish.
            David Martin is the Warner-Booker Distinguished Professor of International Law at the University of Virginia.  He can be reached at

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