Wednesday, April 20, 2016

Texas’s radical argument on work authorization--and its inconsistency with the 1990 Family Fairness program

Marty Lederman

Monday’s oral argument in the DAPA case confirmed what I’ve tried to explain in several previous posts about the substantive merits of the case:  Although Texas's lawsuit was originally focused on the alleged illegality of DHS’s provisional decision not to remove DAPA-qualified aliens, Texas now concedes that such forbearance of removal is lawful, at least as long as Congress only appropriates funds for DHS to remove 400,000 of the eleven million removable aliens in the United States:  “We admit that they could do forbearance from removal,” conceded the Texas SG.  The gist of Texas’s challenge, therefore, is now on whether the Secretary can also grant work authorization to those DAPA-qualified aliens—individuals who have long been in the country, are not leaving any time soon, and most of whom are already in the “underground” economy because they need to provide for their children, who are U.S. citizens or lawful permanent residents.[1]

Texas’s implausible reading of the work authorization statute

Texas’s reading of the work authorization provision of IRCA (8 U.S.C. § 1324a(h)(3)) is that it allows the Secretary to grant such authorization—which in turn permits employers to hire the aliens in question—only to categories of aliens that Congress has specifically identified, in the statute, as eligible or potentially eligible for work authorization.  As we explain in an amicus brief on behalf of former agency officials, in the Reagan Administration the INS specifically rejected this reading, both in its post-IRCA rulemaking proceeding and in response to a petition urging precisely that limited construction of the statute.  Moreover, Congress thereafter repeatedly ratified the INS’s rejection of that narrow reading.

And for good reason.

Many of the longstanding categories of aliens eligible to receive work authorization are not based upon any specific statutory provision.  See, e.g., 8 C.F.R. §§ 274a.12(a)(6), (9), (11), (c)(3), (5)-(7), (9)-(11), (14), (16)- (17), (21), and (25).  Therefore, as Solicitor General Verrilli stressed in rebuttal on Monday, Texas’s reading of the statute would mean that many millions of aliens who have been authorized to work over the past 30 years pursuant to these provisions would no longer be able to work lawfully.  For example, according to the government, in a recent six-year period DHS "granted nearly 5.5 million initial applications and renewals for work authorization to aliens in these categories, averaging approximately 750,000 per year."  This includes not only many aliens in deferred action status apart from DAPA aliens, but also aliens in proceedings for adjustment of status (some of whom will not have their status adjusted), as well as some aliens who are much more likely to leave the United States than the DAPA aliens are, such as those trying to have their orders of removal cancelled.  As the SG said to the Court:  “None of those people qualify under [Texas’s] reading of the statute. That is why in 1987, when ­­INS had a rulemaking proceeding about this, they rejected [that reading].  It would completely and totally upend the administration of the immigration laws, and, frankly, it's a reckless suggestion.”[2]

Faced with that stark reality about how their reading would so fundamentally upend many decades of past practice, Texas and the House of Representatives tried at oral argument to suggest that DAPA work authorization would be different in kind from past work authorizations.  They have failed to explain, however, why many of those authorizations, such as for the millions of aliens who have applied for adjustment of status, would be permissible under their reading of IRCA, which purports to turn on whether Congress has specifically identified the class of aliens in question as eligible for work authorization.

Texas’s failure to distinguish the 1990 “Family Fairness” program

Perhaps the most dramatic and relevant analogy undermining Texas’s reading of the work authorization statute is President Bush’s 1990 “Family Fairness” program.

When Congress enacted IRCA in 1986—the very law that includes the work authorization provision at issue—it established lawful status (temporary resident status with the prospect of eventual permanent resident status and naturalization) to a large category of aliens who satisfied certain residency and other requirements.  That category was limited, however, and it resulted in stark distinctions within families, because Congress specifically chose not to extend that conferral of lawful status to most of the covered aliens’ spouses and children.  

In 1987, the INS Commissioner responded by establishing a “Family Fairness” policy, pursuant to which the agency deferred deportation of some such relatives of the new lawful-status aliens, and made those relatives eligible for work authorization—despite the fact that the statute did not specifically identify those individuals as eligible for work authorization (nor, for that matter, specifically authorize the agency to defer their deportation).

In 1990, the INS expanded the Family Fairness policy dramatically, to provide what it called “extended voluntary departure” for all of the spouses and minor children of the individuals who had been granted new status under IRCA, as long as they were residing in the U.S. prior to IRCA, had not been convicted of a felony or three misdemeanors, and had not assisted in persecution.  The INS Commissioner explained that “we can enforce the law humanely,” and that “[t]o split families encourages further violations of the law as they reunite.”  As Justice Sotomayor stressed at oral argument, this 1990 initiative had the potential to prevent deportation of, and to grant work authorization to, as many as 1.5 million people—approximately forty percent of the undocumented population at the time.  And again, critically, this was despite the fact that the statute did not specifically identify the individuals in question as eligible for work authorization (nor specifically authorize the agency to defer their deportation).

Texas and the House strove to distinguish the 1990 Family Fairness initiative from DAPA on two grounds.  But neither is persuasive.

First, the Texas SG argued to the Court that “the Family Fairness Program . . . was done pursuant to statutory authority:  It was a voluntary departure program; it was not an extra-statutory deferred action program.”  Likewise, counsel for the House told the Court that Family Fairness was done pursuant to “statutory authority” in that “there was a statute on the books at the time that permitted extended voluntary departure.” 

This is mistaken—or, at a minimum, it is misleading, because the statutory authority for granting relief from deportation and work authorization to the aliens covered by the 1990 Family Fairness program was exactly the same as the statutory authority for DAPA and its attendant work authorization.  

For starters, in 1990 there was not a specific “statute on the books” that permitted the Secretary to grant “extended voluntary departure” (EVD)—a form of removal forbearance, like deferred action—to the Family Fairness aliens . . . or to any other aliens, for that matter.  EVD authority, like deferred action authority, was expressly predicated upon the Secretary’s general immigration authority under 8 U.S.C. 1103(a).  See 43 Fed. Reg. 29,526, 29,528 (July 10, 1978).  As Judge Mikva explained:  “The Attorney General enjoys broad latitude in enforcing the immigration laws.  See 8 U.S.C. § 1103(a) (authorizing Attorney General to establish such regulations and perform such other acts as he deems necessary to carry out his authority).  The decision to grant or to withhold EVD falls within this broad mandate.”  Hotel & Rest. Emps. Union, Local 25 v. Smith, 846 F.2d 1499, 1510 (D.C. Cir. 1988) (en banc) (opinion of Mikva, J.) (emphasis added).[3]  So, too, does the Secretary’s decision to grant deferred action, including under the DAPA policy.  (Indeed, today the Secretary also has an additional and more specific authority that was not present in the law of 1990:  In 2002 Congress conferred upon him the express responsibility to “establish national immigration enforcement policies and priorities.”  6 U.S.C. 202(5).)  

More to the point, regardless of whether the forbearance from deportation under the 1990 Family Fairness policy was authorized by a specific statute or by the general section 1103(a) authority, there was no specific statutory authority for work authorization for the Family Fairness aliens—or for any other aliens afforded EVD.  Therefore, on Texas’s reading of the work authorization provision of IRCA, the INS acted unlawfully in authorizing those Family Fairness aliens to work.

Second, Texas and its amici have invoked a "bridge to lawful status" argument for distinguishing Family Fairness from DAPA.  Counsel for the House, for example, argued to the Court that neither Family Fairness nor any other “past deferred action program” was “for a category of individuals that had no path to lawful status.”  (The transcript reads "no path to loss of status," but I heard Erin Murphy to say "lawful status," which makes more sense.)  This picks up on an argument in the House’s brief, which says that “[t]he 'Family Fairness' program applied only to individuals who were on track to receive a visa.”  To similar effect, the Cato Institute amicus brief argues that whereas the aliens who were granted legal status under IRCA could petition for the admission of their “Family Fairness” spouses and children “‘through the already existing immigration system’” (quoting Adam Cox & Cristina Rodríguez, 125 Yale L.J. at 121 n.39), “there is no ancillary statutory relief awaiting beneficiaries of DAPA after the three-year grant of deferred action.”  In its brief, Texas, too, appears to concede that the Secretary has in the past granted work authorization to aliens who had an ill-defined "bridge to lawful status"; therefore the State is compelled to offer a qualification to its general rule:  The Secretary's authority to grant work authorization to aliens granted deferred action, writes Texas, "is limited to statutorily-identified classes of deferred-action recipients—or, at most, uses of deferred action that bridge lawful status." 

It is something of an exaggeration to say that the Family Fairness aliens were "on track to receive a visa":  Obtaining a visa would, at best, be many years off for them, and there was no guarantee that the tracks of that particular INA "train" would ever cross the distant "bridge" to adjustment of status.  But even if one accepts the idea that the Family Fairness aliens had a "bridge to lawful status," there are at least three problems with this alleged ground for distinguishing Family Fairness from DAPA.  
First of all, it is inconsistent with Texas’s and the House’s own formalist reading of IRCA, which requires a specific statutory authorization for any work authorization:  There is no statutory provision stating that the Secretary can grant work authorization to “aliens who might ‘bridge’ into an authorized status.”

Second, it does not address historical examples of work authorization for aliens who have no obvious path to a statutorily-specified work authorization status, such as aliens who are in the process of trying to have their orders of removal cancelled, or the 2009 policy affording deferred action (and thus work authorization) to certain widows and widowers of U.S. citizens who had no avenue of immigration relief.

Third, and perhaps most importantly, it does not do the work of distinguishing Family Fairness from DAPA.  It is true that, under Family Fairness, once the “primary” individual (the person whose status was altered by IRCA) became a lawful permanent resident—which would ordinarily take at least five years—she could then petition for her spouse or child to obtain an "immediate relative" visa.  Yet DAPA aliens also (in the words of the House brief) “already have an existing statutory path to lawful status,” and it’s very similar to the path that was available to the Family Fairness spouses and children.  As the U.S. explains in its opening brief:
Parents of U.S. citizens qualify for “immediate relative” visas—the “most favored” visa category, Cuellar de Osorio, 134 S. Ct. at 2197 (opinion of Kagan, J.)—as soon as their child turns 21.  8 U.S.C. 1151(b)(2)(A)(i).  And parents of lawful permanent residents obtain the same treatment once their child becomes a U.S. citizen, which ordinarily may occur after five years or less.  See 8 U.S.C. 1427(a).  An immigration judge also may grant lawful permanent residence through “[c]ancellation of removal,” under certain circumstances, because of the impact of removing an alien parent on a U.S.-citizen or lawful permanent resident child.  8 U.S.C. 1229b(b)(1)(D); see 8 U.S.C. 1182(a)(3)(D)(iv), (g)(1)(B), (h)(1)(B), and (i)(1), 1227(a)(1)(H).
* * * *

Accordingly, if the Court finds that Texas has Article III standing (in an earlier post I offered a couple of reasons why it does not), the Court should hold that the Secretary does have authority to confer work authorization on the DAPA aliens, all of whom have already demonstrated that they are likely to remain in the United States, and most of whom are already working, albeit not "above board."

[1] At oral argument, the Texas Solicitor General also repeatedly complained that DHS affords such aliens eligibility to receive Social Security and Medicare benefits—something else that comes with deferred action, pursuant to a 1996 regulation.  As I’ve explained, however, Texas clearly lacks standing to challenge those benefits, which have nothing to do with its drivers’ license practices; and, in any event, the lawfulness of giving Social Security and Medicare benefits to all deferred-action aliens (not only DAPA aliens) is, as the U.S. Solicitor General noted, a trivial side-show in the litigation--a "flea on the tail of the dog."  The question of work authorization, by contrast, is of great and central importance in the dispute.

[2] As convulsive as Texas’s reading would be, Justice Alito offered an even more radical suggestion:  “How is it possible to lawfully work in the United States without lawfully being in the United States?,” he asked.  This betrays a fundamental misunderstanding of the immigration laws and practice over many decades.  All of the parties agree that IRCA permits many aliens, including some deferred action aliens, to work lawfully, even if they are not authorized to be in the United States.  The parties’ dispute is merely about which classes of such aliens are eligible to work.  (David Isaacson offers more details on Justice Alito's misunderstanding of immigration law here.)

[3] The Texas SG suggested that relief from deportation under Family Fairness was an exercise of "voluntary departure,” which was a form of deportation relief prescribed by a specific statute (8 U.S.C. 1254(e)) as of 1990.  The confusion is understandable, because the government itself has, on occasion, suggested that "extended voluntary departure" was based on the "voluntary departure" statute.  The type of deportation relief at issue in Family Fairness relief, however, could not have been an exercise of the statutory "voluntary departure" authority under section 1254(e), which allowed an alien “under deportation proceedings” to “depart voluntarily” “in lieu of deportation.”  The relief at issue in Family Fairness was accorded before deportation proceedings were underway--indeed, the regulation in question was entitled "Voluntary Departure Prior to Commencement of Hearing" (43 Fed. Reg. 29,526); and it was premised on the assumption that the aliens in question would not "voluntarily depart" for one-year increments, id. at 29,528 (establishing 5 C.F.R. 242.5(a)(2)(viii), (a)(3)).  That explains why the agency cited only the general authority under section 1103(a)--and not the voluntary departure statute--when it promulgated the rule.  43 Fed. Reg. at 29,258.  Tat same general immigration authority in section 1103(a) is also the source of authority for deferred action relief from removal, at issue in DAPA.

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