Tuesday, November 25, 2014

Why Can't Deferred Action Be Given to Parents of the Dreamers?

Guest Blogger

Steve Legomsky

For the Symposium on Administrative Reform of Immigration Law

Most of the OLC opinion is the model of careful research, sound analysis, and clear expression.  And then you get to the third section, in which they declare that deferred action could not legally be granted to a class of individuals consisting of the parents of DACA recipients.

I have to say I found this section of the opinion simply extraordinary.  Their conclusion rests entirely on a legal premise that they invent out of thin air and make no serious attempt to – and cannot – support.

Their starting premise is that the law prohibits the grant of deferred action to a group based on family ties unless those family members “are legally entitled to live in the United States.”  DACA recipients, while lawfully present, have no immigration “status” (and, admittedly, no path to LPR status, which I think is what OLC meant).

But where do they get that legal principle to begin with?  Well, they explain, at page 32, “”[m]any provisions of the INA reflect Congress’s general concern with not separating individuals who are legally entitled to live in the United States from their immediate family members.”  Indeed, there are several such provisions.  But that does not signal, as they assume, a congressional intention to preclude discretionary relief based on relationships to other family members.

First, the INA contains a host of discretionary relief provisions, including many that don’t depend on family at all.  Examples include section 212(h)(1)(A), which waives inadmissibility based on criminal convictions when the relevant activities occurred at least 15 years earlier; section 208 (asylum); and section 249 (registry, for people who have lived in the U.S. since 1972).  None of these (or various other) discretionary relief provisions require family ties at all, much less family ties to U.S. citizens or LPRs; rather, they reflect other humanitarian and practical reasons for granting relief, independently of family.

Second, suppose it were otherwise.  Suppose, contrary to fact, that 100% of all the INA provisions that authorize permanent discretionary relief from removal (and typically LPR status) required family relationships to U.S. citizens or LPRs.  Why would it follow that the Administration could not take other humanitarian considerations into account when formulating its enforcement priorities and providing temporary reprieves from removal?  The OLC conclusion thus requires more than a distortion of the INA.  It also requires a nonsequitur.

OLC makes one last-ditch attempt to come up with a reason.  There is “no precedent” for granting deferred action to a class of individuals based on family ties to people who have no right to live (permanently, they must be assuming) in the United States..  And that is true.  Of course, there was also “no precedent” for granting deferred action to a class based on their having been brought here as children, but that did not prevent OLC from blessing DACA itself.  Almost every time deferred action or a functional equivalent is granted to a large group, it is a group that has not received it before.  Does that make it illegal?  And if it does, then even when there is such a precedent, would the precedent itself have been illegal, since there had been no precedent the first time it was done?

It gets worse.  The OLC’s unsupported conclusion spawns several anomalies.

First, OLC approved DACA itself, a program that doesn’t require any family ties at all, much less ties to family with LPR paths.  How can it be that it’s legal to grant deferred action to those with no family ties, but illegal to grant it to those with family ties to people who live in the U.S., are now lawfully present, and for all practical purposes are likely to remain for the long haul, but who have no path to LPR status?  One can certainly make a convincing policy argument that the DACA recipients – brought here as children - have a stronger case for discretionary relief than their parents do.  But if OLC truly means to suggest that a family relationship to an LPR-path family member is a legal prerequisite to deferred action, then how does it explain its recent approval of DACA itself?  And if such a relationship is not a prerequisite, then what, exactly, is the problem?  Is it simply OLC’s policy view that keeping parents and children together is not a strong enough humanitarian concern to justify deferred action when the children lack an LPR path?  Is that really their call?

Second, OLC in the same memo approves all of the prosecutorial discretion guidelines.  One of those guidelines is that DHS will normally not remove those who have lived in the United States more than a year.  But even for the parents of U.S. citizens and LPRs, the Administration conditioned deferred action on the parents having lived in the U.S. at least 5 years.  One can safely assume that, if it were otherwise willing to grant deferred action to the parents of DACA recipients, it would therefore impose at least as rigorous a durational residence requirement for them.  So the result of the OLC memo is this:  It’s legal to grant prosecutorial discretion to those who have been here a year, even with no family ties, but it is illegal to grant deferred action to people even when they have been here at least 5 years and have children living in the United States, most likely indefinitely – apparently because those children have no current immigration status or perhaps because they lack a path to LPR status.

Granted, deferred action gets you more than prosecutorial discretion alone – lawful presence, eligibility for a work permit, etc.  As a policy matter, therefore, there might well be groups whose equities are thought to be strong enough to justify prosecutorial discretion but not at a level that would warrant deferred action.  Again, however, where is the legal principle that permits prosecutorial discretion for a particular group but simultaneously precludes deferred action for the very same group – or, more strikingly as in this case, precludes deferred action even for a particularly compelling subset of that same group, i.e., those who have 5 years of residence rather than just one and children living here under a grant of DACA?

There is a third problem.  Would OLC find it illegal to grant deferred action to a group based on X years of residence?  If it really believes that having LPR-eligible family members is a prerequisite to deferred action, then it would logically have to say yes.  That result, of course, would overturn decades of administrative guidance expressly listing duration of residence as an important factor (admittedly not necessarily a sufficient condition by itself) in deciding deferred action cases.  It seems doubtful OLC would go that far.  But if they don’t, then would OLC decide what the minimum number of years would have to be, or, as one would hope, would that be a policy call for the Administration?  On the latter assumption, suppose the Administration offered deferred action to all who have been here 5 years (absent criminality and other negatives).  Would that be legal?  To say no would require OLC to decide either (a) deferred action can never be granted based on X years of residence (doubtful, as noted above) or (b) that they consider 5 years too little but that a higher number of years is OK – a policy call that OLC has no authority to make and a legal conclusion for which there is no principled basis.  Yet if they acknowledge that such a deferred grant is permissible, they would need to explain how it can be legal to offer deferred action to those with 5 years of residence and nothing else, but simultaneously illegal to offer it to those who have 5 years of residence plus children living in the U.S. with DACA approvals.

These inconsistencies and anomalies are troubling consequences of OLC’s conclusion about DACA parents, but they should not distract from the more fundamental problem.  The OLC conclusion rests on a premise that they pull out of thin air.  It assumes that deferred action cannot rest on family ties (at least not for a group) unless those family members have a current immigration status (or perhaps they mean paths to LPR status, again it is not clear).  As explained at the beginning of this message, they provide not one iota of legal support for that premise.  I would submit that is because none exists.  And without it, they have no case.

Steve Legomsky is John S. Lehmann University Professor, Washington University School of Law. You can reach him by e-mail at Legomsky at

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