For the Symposium on Administrative Reform of Immigration Law
Much of the initial
reaction to the President’s newly-announced administrative relief program will
likely focus on the decision not to
extend relief to the parents of individuals who have obtained relief under the
Deferred Action for Childhood Arrivals (DACA) program, even though it does
extend relief to parents of children who are U.S. citizens or lawful permanent
residents. At first blush the decision appears quite curious. After all, the
President expanded DACA as part of the new program, and he offered strong
support for the Dreamers in his remarks, referring to “the courage of students
who, except for the circumstances of their birth, are as American as Malia or
Sasha.” But apparently he did not think the Dreamers are quite American enough
to save their parents from deportation.
While the President’s
speech offered no explanation for that apparent anomaly, the Office of Legal
Counsel’s memo defending the legality of the President’s program concludes that
he would have lacked authority to provide relief to the parents of DACA
recipients. While we may never know whether the tail wagged the dog or vice
versa, exploring the strength of the distinction drawn by the memo provides a
fruitful entry point into understanding the rationales behind the President’s
new program as a whole.
Several of the
rationales offered by the memo to support the relief program obviously would
apply to both groups – beneficiaries would have to qualify as low removal
priorities under the prioritization scheme announced by the memo, adjudications
of their applications would have to occur on a case-by-case basis (whatever
that may actually mean), and granting relief would promote family unity. But
the parents of DACA recipients differ from the other parents granted relief in
one critical respect – they do not have a path to eventual legalization through
their children, because their children are not U.S. citizens or lawful
residents. According to the memo, Congress intended that individuals with
citizen or lawful resident children would eventually be able to legalize (which
they can generally do when their citizen children turn 21), and given that it
has not allocated sufficient resources to deport them while their children grow
up, the relief program is consistent with the statute’s intent insofar as it
provides them deferred action in the short term, to promote family unity.
While that rationale
makes sense on its own terms (although, as I will argue in my next post, more may
be needed to justify the program as a whole), it begs the question of why DACA
itself is lawful. After all, DACA recipients also have no path to eventual
legalization under existing immigration law. And the memo actually highlights
this deficiency, arguing that relief for the parents of DACA recipients would
be unlawful in significant part because it “would not operate as an interim
measure for individuals to whom Congress has given a prospective entitlement to
lawful status.” But, obviously, the same is true of the Dreamers themselves!
The memo’s only attempt
to answer this apparent inconsistency appears in a somewhat-cryptic footnote,
which reveals that OLC had provided an oral opinion concluding DACA was lawful
at the time of its creation. What apparently made the DACA program permissible
was the unique humanitarian concern
at issue - a concern comparable to those deemed sufficient for prior prosecutorial
discretion decisions.
Thus, while it requires
some extrapolation from the short footnote and the last few pages of the OLC
memo, we can discern two quite distinct, narrow rationales at work in the two
programs. Both arise against a background of insufficient prosecutorial
resources, thus requiring prioritization, and both provide relief to
individuals who are low priorities for removal and therefore have strong
equities counseling against deportation. But there are many individuals who fit
that description who do not benefit under either program. Two further
rationales are at work.
DACA rests critically on
the unique humanitarian justification for providing relief to a class of individuals
brought here as children, who for
that reason cannot be held responsible for their lack of immigration status. In
this sense, they are comparable to individuals granted protected status because
of earthquakes, civil conflict, and the like. In contrast, beneficiaries of the
new program cannot make that claim. They are no more deserving of relief on
that basis than are the parents of DACA recipients, who “are as American as
Malia or Sasha” but nonetheless lack status.
However, beneficiaries
of the new program have a distinct rationale supporting their relief, because
they already have a path to
legalization. As a group, they will inevitably obtain legal status through
their children, and the government does not have the resources to deport them
in the interim. Thus, it is uniquely efficient to provide them relief now, thus
bringing them out of the shadows (and into the income tax base) sooner rather
than later. The same is not true of the parents of DACA beneficiaries.
While the number of
individuals who could benefit under these two rationales is quite large, the
rationales themselves are quite narrow, as the harsh decision not to extend the
program to parents of DACA recipients reveals.
Ahilan Arulanantham is the Deputy Legal
Director of the ACLU of Southern California and a Senior Staff Attorney at the
ACLU Immigrants’ Rights Project. The views expressed here are his own, and not
those of the ACLU.