Symposium: Back to immigration basics – Why the DAPA/DACA case is simpler than it seems

Melissa Crow is Legal Director at the American Immigration Council.

The Supreme Court’s decision to grant certiorari in United States v. Texas signals an important and hopeful turning point in the case and provides a long-overdue opportunity to set the record straight on the scope of executive authority in the immigration arena. The case concerns a challenge by Texas and twenty-five other states to the lawfulness of President Barack Obama’s deferred action initiatives – Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA) – which were announced in November 2014, but enjoined before they could be implemented.

While the twenty-six states challenging the initiatives concede that the secretary of Homeland Security has unreviewable discretion to set immigration enforcement priorities (which the Supreme Court affirmed most recently in Arizona v. United States), they contend that the Obama administration has attempted to “effectively rewrite the laws” through this particular use of its discretion. In particular, they argue that the Obama administration has exceeded the bounds of its authority on the basis that beneficiaries of DAPA and expanded DACA would be lawfully present and eligible for employment authorization while these initiatives are in effect. But the reality is that neither DAPA nor expanded DACA creates or grants legal status, and prospective beneficiaries’ eligibility for employment authorization would derive from longstanding federal law. Simply put: nothing about DAPA or expanded DACA is new or involves unlawful legislating by the executive branch.

Deferred action has long been recognized as a discretionary decision by the Department of Homeland Security (DHS) to grant a temporary, time-limited reprieve from deportation to a non-citizen in the United States without authorization in order to focus limited enforcement resources on higher priority targets. An individual with deferred action is by definition lawfully present in the United States. But just because someone is lawfully present does not mean that he or she has a lawful immigration status – a term of art that refers to being in the United States in a specific immigrant or non-immigrant visa classification and complying with its terms. As the government explained in its petition for certiorari, “lawful presence” is merely a reflection of its decision to grant a favorable exercise of prosecutorial discretion:

[I]nsofar as deferred action itself is concerned, “lawful presence” is simply the label for the consequence of memorializing a decision to forbear from enforcement action for a designated time: A decision to forbear from removing a person results in “lawful presence” in the sense that DHS has decided to countenance that person’s continued presence in the United States so long as DHS continues to forbear.

Despite the fact that “lawful status” is a distinct concept under our immigration laws, the twenty-six states use the term interchangeably (and incorrectly) with “lawful presence”. They suggest that the intended beneficiaries of DAPA and expanded DACA would acquire a lawful immigration status that would confer certain benefits and negate previous violations of the immigration law. That is simply not true.

A grant of deferred action does not confer any other type of lawful immigration status, enforceable legal rights, or an ability to remain permanently in the United States. Notably, the only reference to “lawful status” in the Immigration and Nationality Act (INA) appears in 8 U.S.C. § 1255, which provides, among other things, that non-citizens who have failed to continuously maintain a “lawful status” since entering the United States are ineligible to apply for lawful permanent residence from within the United States. By definition, prospective beneficiaries of expanded DACA and DAPA have failed to maintain lawful status and typically would not qualify to apply for permanent residence.

But other, well established legal authority makes eligibility for employment authorization automatic for people who receive deferred action. The states’ argument that the government overstepped its bounds by rendering deferred-action beneficiaries eligible to work ignores the fact that eligibility stems not from DAPA or expanded DACA, but rather from longstanding, independent legal authority. Under a regulation in place when Congress enacted the 1986 Immigration Reform and Control Act (IRCA), deferred-action beneficiaries are eligible for employment authorization if they can show economic need.

Since the late 1990s, a revised version of that same regulation – 8 C.F.R. § 274a.12(c)(14) – has enabled numerous categories of deferred action beneficiaries under both Republican and Democratic administrations to apply for employment authorization. Those categories include certain victims of domestic violence under the Violence Against Women Act (under President Bill Clinton); victims of human trafficking and certain other crimes who are eligible for “T” and “U” visas, along with their family members (under President George W. Bush); foreign students affected by Hurricane Katrina (under President George W. Bush); certain widows and widowers of U.S. citizens (under President Obama); and most recently, beneficiaries of initial DACA (under President Obama). Without employment authorization, such individuals would have no lawful way to support themselves and their families and would be at great risk of exploitation by unscrupulous employers.

Perhaps the most striking historical parallel to DAPA and expanded DACA is the “Family Fairness” policy implemented by Presidents Ronald Reagan and George H. W. Bush. IRCA provided a path to legal status for up to three million undocumented immigrants who had been continuously present in the United States since January 1, 1982. But it excluded non-qualifying spouses and children who did not independently qualify, prompting harsh criticism from the U.S. Conference of Catholic Bishops and immigration advocates. In response, the Reagan administration announced a blanket deferral of deportation for children under eighteen who were living in a two-parent household with both parents legalizing, or living with a single parent who was legalizing. The first Bush administration expanded this program in 1990 to cover all ineligible spouses and children under eighteen of legalizing family members, assuming they met certain criteria. Publicly available estimates at the time were that “Family Fairness” could cover as many as 1.5 million family members, which was approximately forty percent of the then-undocumented population. Beneficiaries of that program were also eligible to apply for employment authorization. Similar generally applicable laws may allow individuals with deferred action and work authorization to qualify for certain federal or state programs such as Social Security, Medicare, and the Earned Income Tax Credit during the period that deferred action is in effect. Again, the authority for these benefits stems not from DAPA or expanded DACA, but from pre-existing laws and regulations that are not at issue in the case pending before the Court.

The collateral benefits of deferred action to which the twenty-six states object – such as employment authorization – are authorized by statutes and regulations that were promulgated long before DAPA and expanded DACA. These provisions are not being challenged in this case, and they do not affect the government’s well-established authority to set national immigration enforcement priorities and grant deferred action. Nearly two decades ago, the Supreme Court found in Reno v. American-Arab Anti-Discrimination Committee that deferred-action decisions are not subject to judicial review – even though deferred action at that time automatically triggered eligibility for work authorization. The Court should bear that in mind here.