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 dam3r@virginia.edu.