Friday, April 03, 2015

Opening DOJ appellate brief on "deferred action" immigration policy in the Fifth Circuit, confirming that DAPA will not establish "new benefits" not separately authorized by statute and reg

Marty Lederman

Back in February, I explained here that Judge Hanen's analysis of DHS's new “Deferred Action for Parents of Americans" (DAPA) program depends crucially on the notion that the program entails not only DHS's exercise of prosecutorial discretion to remove certain aliens, but not others, from the United States (a "nonenforcement" discretion that the immigration statutes confer upon the Secretary), but also the agency's bestowal of several alleged affirmative “benefits” on those aliens.  That assumption of the way in which the new program will operate was the basis not only of the judge's skepticism of the substantive merits of the DAPA program, but also of his holding at the preliminary injunction stage that the program cannot be implemented except pursuant to notice and comment rulemaking.  It was also at the heart of a prominent defense of Judge Hanen written by Professor Michael McConnell in the Wall Street Journal.  As I further explained, however, Judge Hanen and Professor McConnell were simply mistaken in their assumption that DHS would bestow upon DAPA-eligible aliens certain “benefits” that are not authorized by statute and by pre-existing regulations that have themselves been promulgated pursuant to the notice-and-comment rulemaking process.

The Department of Justice has now filed its initial brief in the U.S. Court of Appeals for the Fifth Circuit, seeking a reversal of the preliminary injunction.  Part II-B of the government's Argument (pp. 36-50) addresses the "merits," in the context of arguing that the APA does not require notice and comment rulemaking here.  That argument tracks, and elaborates upon, the analysis I offered in my February post.  In particular, it explains why the new DHS policy will not confer any new "benefits" upon DAPA-eligible aliens, apart from those--in particular, work authorization--that the statute and longstanding regulations authorize the Department to confer.

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