IMPACT OF TEXAS v. USA ON OTHER EXECUTIVE ACTIONS INVOLVING EMPLOYMENT AUTHORIZATION

By Cyrus D. Mehta

Although the Fifth Circuit in Texas v. USA ruled against the Administration on November 9, 2015 by upholding the preliminary injunction against implementation of President Obama’s program to grant deferred action to certain groups of undocumented persons, the ruling may impact other executive actions that President Obama had announced on November 20, 2014, especially relating to skilled immigrants. It is thus important for the the Supreme Court to reverse this erroneous decision to not only allow the Administration to implement Deferred Action for Parental Accountability program  and the expanded Deferred Action for Childhood Arrival program (collectively referred to as DAPA in the decision), but to also allow the Administration to grant other kinds of administrative relief such as interim employment authorization to immigrants who face great hardship and are deprived of the benefits accorded to them under the Immigration and Nationality Act. 

The majority’s ruling in the Fifth Circuit went even further than Judge Hanen’s decision in the lower district court by holding that DAPA was not authorized under any INA provision. Judge Hanen’s ruling suggested that if the Administration had followed the notice and comment procedure under section 553 of the Administrative Procedures Act, DAPA could have survived judicial scrutiny. The Fifth Circuit, on the other hand, held that since DAPA implicated “questions of deep economic and political significance,” Congress would have expressly authorized DHS, which it did not do. Hence, DAPA was a substantive APA violation under section 706(2) as it was not authorized under the INA. Thus, promulgating a rule at this juncture will not help to save DAPA.   

One of the INA provisions relied on by the government to implement DAPA is INA section 274(h)(3), which provides: 

As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General.  

While the ability to of INA 274A(h)(3) to provide authority to the Administration was  completely overlooked in Judge Hanen’s decision (and his flawed decision is discussed in David Isaacson’s excellent blog entitled IGNORING THE ELEPHANT IN THE ROOM: AN INITIAL REACTION TO JUDGE HANEN’S DECISION ENJOINING DAPA AND EXPANDED DACA), the Fifth Circuit took notice of INA 274(h)(3), but gave it short shrift by observing that this provision, which is listed as a miscellaneous definitional provision is an unlikely place to find authorization for DAPA. 

Contrary to the Fifth Circuit’s gloss, INA 274A(h)(3)  gives the Attorney General, and now the Secretary of Homeland Security, broad  flexibility to authorize an alien to be employed, thus rendering the alien not an “unauthorized alien” under the INA.  Indeed, INA 274(h)(3) was invoked by the DHS in promulgating a rule providing employment authorization for H-4 dependent spouses of H-1B visa holders in the US who are caught in the employment based second and third preference backlogs. INA 274A(h)(3) will also most likely be invoked when the DHS promulgates a rule to grant work authorization to beneficiaries of approved employment-based I-140 petitions who are waiting for their green cards in the backlogged employment preferences.

Indeed, if INA 274A(h)(3) is discredited, as suggested by the Fifth Circuit,  many other justifications for providing an employment authorization document (EAD) would collapse.  The reason the EAD regulations are principally located in 8 CFR 274a, after all, is that the authority for most of them has always been thought to stem from INA 274A. While many of the 8 CFR 274a.12(a) EADs have some specific statutory authorization outside of INA 274A(h)(3), which is why they exist incident to status, many 8 CFR 274a.12(c) EAD categories are based on INA 274A(h)(3) in just the same way that  8 CFR 274a.12(c)(14) EADs for deferred action are.  People with pending adjustment applications under 8 CFR 274a.12(c)(9), including the “class of 2007” adjustment applicants, pending cancellation applications under 8 CFR 274a.12(c)(10), pending registry applications under 8 CFR 274a.12(c)(16), all get EADs based on that same statutory authority.  Even the B-1 domestic workers and airline employees at 8 CFR 274a.12(c)(17) have no separate statutory authorization besides 274A(h)(3). Some (c) EADs have their own separate statutory authorization, such as pending-asylum 8 CFR 274a.12(c)(8) EADs with their roots in INA 208(d)(2), and 8 CFR 274a.12(c)(18) final-order EADs with arguable roots in INA 241(a)(7), but they are in the minority.  And even some of the subsection (a) EADs have no clear statutory basis outside 274A(h)(3), such as 8 CFR 274a.12(a)(11) for deferred enforced departure.  If the Fifth Circuit’s theory is taken to its logical conclusion, it would destroy vast swathes of the current employment-authorization framework.

It is thus important for the Supreme Court to uphold the Administration’s authority to implement DAPA as part of its broad authority to exercise prosecutorial discretion, without the need to undermine INA 274A(h)(3). As I have advocated in FIFTH CIRCUIT PRECEDENT ON PREEMPTION CAN PROVIDE OBAMA WITH PATH TO VICTORY IN TEXAS v. UNITED STATES, the government’s authority to exercise prosecutorial discretion, which includes deferred action, is non-justiciable and notwithstanding the Fifth Circuit decision, never required rule making. The dissenting opinion in the Fifth Circuit decision thankfully held that deferred action, which is a quintessential exercise of prosecutorial discretion, is non-justiciable.  Indeed, one of the principal reasons why state regulations have been held to  conflict with federal immigration law is because they interfere with the Administration’s ability to exercise prosecutorial discretion. While on first brush Texas v. USA is not a preemption case, it would still provide a basis for any cantankerous state politician to sue the federal government, under the broad and dubious standing theory  that the Fifth Circuit provided to Texas, whenever the federal government chooses to exercise prosecutorial discretion. While the DACA program of 2012 will be the most vulnerable, if the Supreme Court were to uphold the Fifth Circuit's majority decision, another court would hopefully reach another conclusion with respect to INA 274A(h)(3) as providing the authority to the Administration to grant work authorization in many other contexts. 

The Supreme Court in Arizona v. United States, 132 S.Ct. 2492, 2499 (2012), articulated the federal government’s authority  to exercise prosecutorial discretion rather elaborately:

A principal feature of the removal system is the broad discretion exercised by immigration officials…... Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal….

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state maybe mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.

The majority of the Supreme Court  justices ought to  latch onto the dissenting opinion, which is the correct opinion, and should reverse the preliminary injunction on the ground that the President’s executive actions regarding DAPA are non-justiciable, and thus leave alone INA 274A(h)(3). The Administration ought to be provided flexibility to provide ameliorative relief, especially EAD under INA 274A(h)(3) to a number of non-citizens needing relief. The prime example are those who have to wait for decades in the India EB-2 and EB-3 backlogs for their green card, even though they have otherwise fulfilled all the conditions. Due to the lack of a current priority date, beneficiaries who are otherwise approved for permanent residence ought to be able to obtain EADs, and the same also should apply to H-4 spouses of H-1B visa holders who are caught in the employment based backlogs. Also, researchers, inventors and founders of startup enterprises ought to be paroled into the US and issued EADs under the broad authority provided in INA 274A(h)(3), and this too is one of the initiatives contemplated in the President’s  November 20, 2014 executive actions.  There are many good reasons why the Administration should be allowed to issue work authorization to noncitizens, and INA 274A(h)(3) ought not be reinterpreted to curtail this flexibility.

 

 

OBAMA'S PARADOXICAL DEPORTATION POLICIES

By Cyrus D. Mehta

President Obama has been called the Deporter in Chief as he has presided over nearly 2 million deportations during his presidency – higher than that of any other President. On the other hand, President Obama has also rolled out some of the most innovative prosecutorial discretion policies, which include granting deferred action to hundreds of thousand immigrants who came to the United States when they were young.

A revealing article in the Los Angeles Times shows that the high number of deportations is largely misleading. The likelihood of an undocumented individual already in the United States who has developed ties being deported has lessened considerably under President Obama. Even people with removal orders can seek a stay of removal if they establish that they are deserving of prosecutorial discretion under the Morton June 17, 2011 Memo.  Young immigrants who arrived in the United States prior to the age of 16 and who meet other conditions can apply for deferred action, along with work authorization, under the Deferred Action for Childhood Arrivals (DACA) program.

The people who are being deported, and are part of the increased statistics, are those who recently crossed the border without inspection and are apprehended within 100 miles from the border. Under previous administrations, such people were informally bused back outside the United States in what was known as “voluntary returns.” Under the Obama administration, these people are fingerprinted and issued formal deportation orders. INA section 235(b)(1), which was enacted by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, granted authority to expeditiously remove persons at the border who are deemed inadmissible under INA sections 212(a)(6)(C) for making a material misrepresentation or 212(a)(7) for not possessing valid visa documents. On August 11, 2004, DHS promulgated a rule to expand expedited removal to persons who are present in the United States without having been admitted or paroled and who are apprehended within 100 miles from the southern border and who also cannot prove that they were physically present in the country continuously for the preceding 14 days. This rule was expanded to all borders on January 30, 2006.

This is not to suggest that the increased use of expedited removal to recent border crossers does not have devastating effects and should not be remedied through immigration reform measures, since many of these crossers are entering the United States to join family members. Still, it is the expanded use of expedited removal that has resulted in an increase of deportations, when under prior administrations, such persons were informally returned from the United States without terming them as deportations. Once a recent border crosser is expeditiously removed, a reentry into the United States also carries severe criminal penalties unlike a ‘voluntary return.” On the other hand, a person who has been in the United States for a longer period is less likely be placed in the removal proceedings, and even if this person is issued a Notice to Appear before an Immigration Judge, he or she can have a shot at requesting prosecutorial discretion under President Obama’s administration than before, which will result in either administrative closure or termination of the case. Unfortunately, the majority of people who came to the attention of the immigration enforcement authorities within the interior, resulting in deportation proceedings,  are those who got arrested for minor offenses. 

As an aside and consistent with the topic of this article, there are instances when it can be more beneficial for a person to be placed in removal proceedings than not. Pursuant to INA section 240A(b), an individual who meets 10 years of physical presence, good moral character for this entire period and can demonstrate exceptional and extremely unusual hardship to qualifying relatives who are either citizens or permanent residents can obtain cancellation of removal, leading to lawful permanent resident status. The hardship standard is extremely high and needs to be substantially beyond the hardship that would ordinarily be expected to result from the alien’s deportation, as demonstrated in cases such as Matter of Monreal, 23 I&N Dec. 53 (BIA 2001); Matter of Andazola, 23 I&N Dec. 319 (BIA 2002) where cancellation was denied; and Matter of Recinas, 23 I&N  Dec. 467 (BIA 2002) where it was granted. Another advantage of being in removal proceedings is to escape the 3 year bar based on unlawful presence of more than 180 days but less than 1 year pursuant to INA section 212(a)(9)(B)(i)(I). Departing the United States under a grant of voluntary departure, which is issued prior to the alien accruing 1 year of unlawful presence, and after the commencement of proceedings, may allow this alien to reenter the United States without being subject to the 3-year bar. Finally, another tactical advantage to being placed in removal proceedings is when an application for adjustment of status is denied, and the best way to get a second chance is to have an Immigration Judge review the adjustment application de novo in proceedings. The irony is that ICE is often  reluctant to put a person under these circumstances in removal proceedings because it is does not have the resources, and is also of the view that as an enforcement agency,  it is contrary to the agency’s mission to place someone in removal so that he or she can ultimately secure an immigration benefit.  One note of caution is that those who came into the United States on a visa waiver should not consider requesting a removal proceeding as they have waived their right to a removal hearing under INA section 217(b). 

President Obama used the increased deportation statistics to show that he was enforcing the law, but this has backfired among his critics. Those who favor stricter enforcement are not satisfied with the record increase in deportations by pointing to the Administration’s expanded prosecutorial discretion policies that has resulted in the deferring of thousands of deportations. Enforcement advocates in Congress use the President’s expanded prosecutorial discretion policies, while conveniently ignoring the spike in deportations, as an excuse to delay immigration reform and cooperating with the President.  At the same time, immigration advocates and allies have criticized President Obama for increasing deportations without truly bringing about genuine immigration reform. After the passage of the S. 744, the Senate’s immigration reform bill last year, there is now a stalemate where the prospects of immigration reform in the House have almost evaporated despite unanimous agreement that the immigration system is broken.

If President Obama desires to cement his legacy with respect to immigration reform, he may not be able to achieve it through this Congress. In the past, President Obama has indicated that he does not have the authority to further expand prosecutorial discretion, but this may have to change. The only way for the President to fulfill the promise he has made to so many who voted for him is to go about it on his own through administrative policy changes. The Executive branch can expand deferred action to a broader group of people, which could include family members of DACA recipients and those who have US citizen children. The prosecutorial discretion guidelines under the Morton Memo ought to be further strengthened to ensure that they are not ignored by ICE officials, as many are wont to do. The parole in place policy for relatives of military personnel can be expanded to benefit those who are on the pathway to permanent residency if they are beneficiaries of employment and family immigrant visa petitions. In an eloquent New York Times editorial entitled Yes He Can, On Immigration, the following is worth extracting:

Mr. Obama may argue that he can’t be too aggressive in halting deportations because that will make the Republicans go crazy, and there’s always hope for a legislative solution. He has often seemed like a bystander to the immigration stalemate, watching the wheels spin, giving speeches and hoping for the best.

It’s hard to know when he will finally stir himself to do something big and consequential.

The President must no longer fear doing something big and consequential on the immigration front. Some may justifiably fear that if the President ameliorates the plight of undocumented people through administrative reform measures, another President can quickly undo them; and therefore it is best for Congress to enact immigration reform. Administrative remedies are clearly no substitute for comprehensive immigration reform passed through Congress, but it would be hard for a future President to undo wise administrative reform measures that provide a fix to a broken immigration system. For example, DACA benefits have already been granted to hundreds of thousands of young immigrants who have been able to graduate from college and find jobs. It would be politically imprudent for a future President to undo DACA. Indeed, S. 744, the bipartisan reform bill that was passed by the Senate, incorporates DACA and places DACA recipients on a faster track to permanent residency. If President Obama implements bold administrative measures, it would be difficult for a future administration to undo them, and it is likely that a future Congress will have no choice but to readily adopt them into law.

THEY STILL HAVE THEIR DREAM: LAWSUIT AGAINST DREAMERS WILL GO NOWHERE

By Gary Endelman and Cyrus D. Mehta

“The arc of the moral universe is long but it bends towards justice.” Dr. Martin Luther King

As if the non-recognition by the governors of Arizona, Nebraska, Texas and Mississippi of Obama’s Consideration of Deferred Action for Childhood Arrivals (DACA) program was not enough, a lawsuit filed by disgruntled ICE agents further reveals the misguided hate against a most vulnerable and sympathetic immigrant population in the US – young  people who entered the US before they turned 16, and who are not in a lawful status through no fault of their own.

The lawsuit, Crane v. Napolitano, has been filed by 10 ICE agents in a federal court in Texas who are being represented by Kris Kobach – the architect of the anti-immigrant state laws of Arizona and Alabama. It is being bank rolled by NumbersUSA, an anti-immigrant organization, which has been called a hate group. Even the head of the AFL-CIO has slammed the plaintiffs as not representing legitimate union grievances (as 9 out of the 10 plaintiffs belong to the ICE Union) but as “working with some of the most anti-immigrant forces in the country, forces that have long sowed division and destruction.”

The lawsuit alleges that the recent prosecutorial discretion policies enunciated in the Memo by ICE Director John Morton  and DACA command ICE officers to violate federal law. In essence, ICE officers, according to plaintiffs,  are required to remove non-citizens who are not here legally while DACA prohibits an officer from doing just that, which among other things, requires the individual to have entered the US under the age of 16;  been continuously residing in the US from June 15, 2007 until June 15, 2012, and was present on June 15, 2012;  is currently in school, has graduated from high school or obtained a GED or has been honorably discharged from the Armed Forces or the Coast Guard;  and is not above the age of 30. Also, the qualified individual should not have been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses, and does not otherwise pose a threat to national security or public safety.

The lawsuit invokes provisions from the 1996 Immigration Act. The complaint alleges as follows:  “8 U.S.C. § 1225(a)(1) [INA § 235(a)(1)] requires that “an alien present in the United States who has not been admitted…shall be deemed for purposes of this chapter an applicant for admission.” This designation triggers 8 U.S.C. § 1225(a)(3) [INA § 235(a)(3)] which requires that all applicants for admission “shall be inspected by immigration officers.” This in turn triggers 8 U.S.C. § 1225(b)(2)(A)  [INA § 235(b)(2)(A)] which mandates that “if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.” The proceedings under 8 U.S.C. § 1229a [INA § 240] are removal proceedings in the United States immigration courts.”

Deferred action is neither recent nor radical. Widows of US citizens have been granted this benefit. Battered immigrants  have also known its sheltering arms.  Never has the size of a vulnerable population been a valid reason to say no. Knowing this, the extension of such relief to DACA applicants is less a leap into the unknown justified by some wild, lawless ideology than a sober reaffirmation of an existing tool for remediation in prior emergencies. Moreover, many EWIs are also eligible for adjustment of status under special provisions of the law, but they are not routinely detained under INA § 235(b)(2)(A).  While they may be entitled to admission beyond a clear doubt, such a determination is not been made upon the mere filing of the adjustment application. Moreover, this argument is clearly not applicable to individuals who enter the US on a valid visa and overstay, which is the case with many DACA applicants.

Also, Kobach's lawsuit conveniently omits to mention INA § 103(a)(1), which charges the DHS Secretary with the administration and enforcement of the Act, which in turn implies that the DHS can decide when to and when not to remove an alien. He also fails to mention INA 274A(h)(3)(B), which excludes from the definition of “unauthorized alien” any alien “authorized to be so employed . . . by the Attorney General.” After all, 8 CFR 274a.12(c)(14),  which authorizes the grant of employment authorization to one who has been granted deferred action, has been around for several decades. The only new thing about DACA is that the guidance memorandum set forth criteria for the grant of deferred action, and work authorization under 8 CFR 274a.12(c)(14).  

Congress too has recognized “deferred action” in § 202(c)(2)(B)(viii) of the REAL ID Act as a status,  which can allow an alien to receive a driver’s license.  This stands in marked contrast to the stated refusal of the Republican gubernatorial quartet noted supra to allow issuance of state driver’s licenses. Texas Governor Perry apparently does not realize that current Texas law already allows deferred action beneficiaries who have an employment authorization document to get a one-year Texas license.

There is a direct conflict between these Governors and the provisions of the Real ID act that, as of January 1, 2013, will sanction issuance of state driver’s license to deferred action grantees, This has been brought out vividly in Nightmare in Arizona: Governor Brewer’s Nonsensical And Mean-Spirited Executive Order Against Dreamers, and is a classic example of conflict pre-emption that is constitutionally impermissible under Arizona v. United States, 132 S. Ct. 2492, 183  L.Ed.2d  351 (2012). Whatever state executives may think, when confronted with the expressed intent of Congress in the Real ID Act, their opposition to deferred action having state driver’s licenses must give way. State law cannot “stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz,  312 U.S. 52, 67 (1941). We suggest that the enemies of Dream Act relief tread softly and with great care. Gary Endelman & Cynthia Lange, The Perils of Preemption: Immigration and the Federalist Paradox, 13 Bender's Immigr. Bull. 1217 (Oct. 1, 2008).

We refer our readers to the excellent Immigration Impact blog on why Kobach and the plaintiffs will likely lose. One compelling argument that the blog makes is that the court will dismiss for lack of jurisdiction since a federal case cannot be made out of a difference of opinion between government employees and their superiors. The blog’s author Ben Winograd draws this apt analogy: “ICE agents hauling the head of the Department of Homeland Security (DHS) into court is like a law clerk suing a judge for writing a decision with which she disagrees—or Kobach’s own subordinates in Kansas seeking an injunction requiring him to perform his actual job as Kansas Secretary of State. It’s just not how the legal system works.”

We propose further suggestions why the law suit may have no merit. We now revive the argument that we made in The Tyranny of Priority Dates that the courts will most likely give deference to the administration’s interpretation of INA provisions in the event that it grants benefits, such as work authorization, through executive action. Indeed, in the recent past, another restrictionist group filed a similar law suit against an administrative measure, which failed. In Programmers Guild v. Chertoff,  08-cv-2666 (D.N.J. 2008), the Programmers Guild sued DHS challenging the regulation extending Optional Practical Training from 12 months to 29 months for STEM (Science, Technology, Engineering and Math) students. The plaintiffs in seeking a preliminary injunction argued that DHS had invented its own guest worker program without Congressional authorization. The court dismissed the suit for injunction on the ground that DHS was entitled to deference under Chevron USA, Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984). Under the oft quoted Chevron doctrine, courts will pay deference to the regulatory interpretation of the agency charged with executing the laws of the United States when there is ambiguity in the statute. The courts will step in only when the agency’s interpretation is irrational or in error. Similarly, the Supreme Court in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005), while affirming Chevron, held that if there is an ambiguous statute requiring agency deference under Chevron,  the agency’s interpretation will also trump a judicial decision interpreting the same statute. The court in dismissing the Programmers Guild lawsuit discussed the rulings in Chevron and Brand X to uphold the DHS’s ability to extend the student F-1 OPT regulation. Programmers Guild appealed and the Third Circuit also dismissed the lawsuit based on the fact that the Plaintiffs did not have standing. Programmers Guild, Inc. v. Chertoff,  338 Fed. Appx. 239 (3rd Cir. 2009), petition for cert. filed, (U.S. Nov. 13, 2009) (No. 09-590). While the Third Circuit did not address Chevron or Brand X – there was no need to – it interestingly cited Lorillard v. Pons, 434 U.S. 575, 580 (1978), which held that Congress is presumed to be aware of an administrative interpretation of a statute and to adopt that interpretation when it reenacts its statutes without change. Here, the F-1 practical training regulation was devoid of any reference to the displacement of domestic labor, and Congress chose not to enact any such reference, which is why the Programmers Guild lacked standing.

In the ICE agents’ case against DACA, the same arguments can be forcefully made. In the event that the court finds jurisdiction, a similar argument can be made that the DHS be given deference in interpreting INA § 103(a)(1), which would allow the DHS Secretary to set forth policies regarding the exercise of prosecutorial discretion as in the Morton Memo and under DACA. Surely, the “body of experience” and the “informed judgment” that DHS brings to the Dream Act provide its interpretations with  “ the power to persuade.” Skidmore  v. Swift  & Co., 323 U.S. 134, 140 (1944). As Justice Elena Kagan famously noted when she served as the Dean of the Harvard Law School, the increasingly vigorous resort to federal regulation as a tool for policy transformation by all Presidents since Ronald Reagan has made “the regulatory activities of the executive branch agencies more and more an extension of the President’s own policy and political agenda.” Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2246 (2001).   

Kobach and his clients might profitably peruse Randolph J. May, Defining Deference Down: Independent Agencies and Chevron Deference, 58 Admin. L. Rev. 429 (2006) if they really want to know why they are wrong.  Writing for the Brand X majority, Justice Thomas noted that, in Chevron itself, the Supreme Court deferred to the reversal by the Reagan EPA in 1981 as to the meaning of “statutory source” in the 1977 Clean Air Act amendments. Id. at 440, n. 66.   If  Kobach does not know if the DHS has the power to act, or what the constitutional wellsprings of the DACA memoranda are, we suggest that the Supreme Court does. The very notion of Chevron-deference is “premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gap.” FDA v. Brown & Williamson Tobacco Corp., 529 US 120, 159 (2000).  That is precisely what the DHS has done. Moreover, INA § 274A(h)(3)(B) provides authority to the Executive Branch to grant employment authorization  to whomever it wants. Deferred action has also been around for decades, and Congress has been aware of this administrative benefit, which it recognized when enacting the Real ID Act. Until now, Chevron, and Brand X in particular, have been feared by the immigration bar and immigration advocates for its negative potential as a legitimization of government repression. Yet, it has a positive potential by enabling the Executive to expand individual rights and grant benefits sua sponte. We do not need to live in fear of Brand X. We can make it our own – at least in this law suit challenging DACA.

It is also worth mentioning that while the lawsuit may argue that there is no express Congressional authorization for the Obama Administration to implement such measures, the President may act within a “twilight zone” in which he may have concurrent authority with Congress. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring). Unlike Youngstown Sheet and Tube Co. v. Sawyer, where the Supreme Court held that the President could not seize a steel mill to resolve a labor dispute without Congressional authorization, the Administration under through the Morton Memo and DACA is well acting within Congressional authorization. In his famous concurring opinion, Justice Jackson reminded us that, however meritorious, separation of powers itself was not without limit: “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” Id. at 635. Nativist lawyers look in vain for explicit authority in the INA that supports DACA relief. They can stop searching:

Congress …may not have expressly delegated authority to…fill a particular gap. Yet,it can still be apparent from the agency’s generally conferred authority that Congress will expect the agency to speak with the force of law when it addresses ambiguity in the statute…even one about which Congress did not actually have an intent as to a particular result.   United States v. Mead, 533 U.S. 218, 229(2001)

Finally, one cannot separate the vitriol against DREAMers in states like Arizona and the law suit challenging DACA. They emanate from the same xenophobia against immigrants without being able to see that the deserving beneficiaries of DACA are out of status for no fault of their own, and even if one pinpoints the blame on their parents, the reason for such a huge undocumented population is because of a broken immigration system that does not provide sufficient avenues to legalize oneself. This law suit challenging DACA, along with the opposition to DACA by the Arizona and other states, essentially challenges the federal government’s authority to exercise prosecutorial discretion. We think this is a losing proposition. In the Arizona v. USA decision, the Supreme Court acknowledged the federal government’s role in exercising prosecutorial discretion, where Justice Kennedy writing for the majority in that decision noted, “A principal feature of the removal system is the broad discretion exercised by immigration officials…Federal officials as an initial matter, must decide whether it makes sense to pursue removal at all.”  Kobach wants the Dreamers kicked out; neither he nor his ICE agents get to make that call; it is up to DHS to decide when, or whether, to initiate such an enforcement campaign.  Heckler v. Chaney, 470 U.S. 821, 835 (1985).  The reason is not hard to figure out;   inherent in the exercise of discretion is the bedrock truth that there is simply “no law to apply.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410(1971). The good sense and fundamental decency of the American people, guided by the continuing truth of the Constitution, will have to make due. It has served us pretty well so far.

DREAMING IN ARIZONA: CAN PROSECUTORIAL DISCRETION CO-EXIST WITH SHOW ME YOUR PAPERS?

By Gary Endelman and Cyrus D. Mehta

In our blog, From Madison to Morton: Can Prosecutorial Discretion Trump State Action In USA v. Arizona?, we speculated whether the federal government’s ability to decide not to remove certain non-citizens from the US would be its trump card in Arizona v. USA, 567 U.S ___ (2012). A few days prior to Arizona v. USA, the Obama administration announced deferred action for young persons via a June 15, 2012 memorandum, which will prevent the deportation of over a million people who fell out of status of no fault of their own while Arizona’s SB 1070 aims at driving away these very people through an attrition policy. These young people who will benefit under administrative deferred action would have otherwise been eligible under the DREAM Act, which narrowly failed to pass Congress in December 2010.  

We were almost correct. In a 5-3 ruling (with Justice Kagan recusing), the Supreme Court invalidated most of the provisions of SB 1070 on the grounds that they were preempted by federal law such as criminalizing the failure to carry registration documents (section 3), criminalizing an alien’s ability to apply for or perform work (section 5(c)), and authorizing state officers to arrest a person based on probable cause that he or she has committed a removable offense (section 6). On the other hand, the Supreme Court, 8-0, narrowly upheld section 2(B), the “show me your papers” law,  which requires state officers to make “a reasonable attempt….to determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Section 2(B) further provides that “[a]ny person who is arrested shall have the person’s immigration status determined before the person is released.”

Before we analyze the Court’s narrow upholding of section 2(B) and how it would impact the federal government’s prosecutorial discretion policies, the following extract from Justice Kennedy’s majority opinion acknowledging the federal government’s ability to exercise prosecutorial discretion is worth noting:

A principal feature of the removal system is the broad discretion exercised by immigration officials…... Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal….

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state maybe mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.

 Arizona v. USA, supra, Slip Op. at pages 4-5.

It is indeed unfortunate that despite noting the role of the federal government in formulating immigration policy, the Court did not, at least for the moment, invalidate 2(B), which essentially legalizes racial profiling. See US v. Brignoni-Ponce, 422 US 873 (1975) (Mexican ancestry on its own cannot be an articulable fact to stop a person). The Court was obviously mindful of concerns relating to racial profiling, but the case that the United States brought against Arizona is more about whether federal immigration law preempts 2(B) and the other provisions of SB 1070. Both conservative and liberal justices did not think so since 2(B) was not creating a new state immigration law as the other invalidated provisions did. All that 2(B) does is to allow Arizona police officers to determine if someone was unlawfully present in the context of a lawful stop by inquiring about that person’s status with the federal Department of Homeland Security, and such communication and exchange of information has not been foreclosed by Congress.

The question is whether 2(B) will interfere with the federal government’s dramatic new prosecutorial initiative to not deport over a million young undocumented people if they met certain criteria. The June 15 memorandum on deferred action directs the heads of USCIS, CBP and ICE to exercise prosecutorial discretion, and thus grant deferred action, to an individual who came to the United States under the age of 16, has continuously resided in the US for at least 5 years preceding the date of the memorandum and was present in the US on the date of the memorandum, and who is currently in school, or has graduated from school or obtained a general education certificate, or who is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States. Moreover, this individual should not be above the age of thirty and should also not have been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety. This directive further applies to individuals in removal proceedings as well as those who have already obtained removal orders. The grant of deferred action also allows the non-citizen to apply for employment authorization pursuant to an existing regulation, 8 CFR § 274a(c)(14).

Even though the new deferred action policy has not been implemented, the memorandum instructs ICE and CBP to refrain from placing qualified persons in removal proceedings or from removing them from the US. How does this very explicit instruction to ICE and CBP officials square with Arizona’s section 2(B)?  While Justice Scalia, who fiercely dissented and blasted the Obama administration from the bench, saw no need for preemption of any of Arizona’s provisions based on the federal government’s ability to exercise prosecutorial discretion, the majority, fortunately, were more mindful of this factor. Suppose a young DREAMer who prima facie qualifies under the deferred action program was stopped for jaywalking in Tuscon, and the Arizona police officer had a reasonable suspicion that her presence was unlawful, would it be reasonable for the police officer to detain this person even though she would not ordinarily be detained for the offense of jay walking? Even if the Arizona officer could query ICE about her status, how long would it take for ICE to respond? Moreover, even though she may qualify for the deferred action program, how would ICE be able to tell if there is no record of her application at all? DHS has yet to even create an application process, but it has instructed its officers from immediately refraining placing such persons in removal proceedings or removing them from the US. Even once an application is lodged, it may take weeks or months before the DHS is able to grant deferred action. While this person should not be apprehended by the federal government under its deferred action policy, Arizona could potentially hold her.

But not for long. The majority explicitly held that 2(B) should be read to avoid the hold of a person solely to verify his or her immigration status. The Court noted in connection with the jaywalker hypothetical, “The state courts may conclude that unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry.” Slip Op. at 22 (citation omitted). Even in a case where a person is held in state custody for a non-immigration offense, the Court cautioned that the delay in obtaining verification from the federal government should not be a reason to prolong that person’s detention. The Court also suggested that 2(B) ought to be “read as an instruction to initiate a status check every time someone is arrested…rather than a command to hold the person until the check is complete no matter the circumstances. Slip Op. at 23. This temporal limitation harkens back to the Court’s rationale for justifying warrantless stops by roving patrols in the border regions with Mexico in Brignoni-Ponce:

The intrusion is modest. The Government tells us that a stop by a roving patrol "usually consumes no more than a minute." Brief for United States 25. There is no search of the vehicle or its occupants, and the visual inspection is limited to those parts of the vehicle that can be seen by anyone standing alongside…(citation omitted) . According to the Government ;"[a]ll that is required of the vehicle's occupants is a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States.  422 US at 880.

Finally the Court noted that its opinion did not foreclose other preemption and constitutional challenges as the law as interpreted and applied after it goes into effect. This is particularly the case if delay in the release of a detainee flowed from the requirement to check their immigration status. Indeed, it is only if such status verification took place during a routine stop or arrest and could be accomplished quickly and efficiently could a conflict with federal immigration law be avoided.

As for Justice Scalia, who concurred with the majority on 2(B), but also dissented as he would have upheld all of the other provisions, it is ironic that he is willing to have Arizona add to penalties imposed by Congress but not willing to let the President, a co-equal branch whose role in federal immigration policy is certainly less subject to challenge than that of the states, relieve the harsh impact of such penalties for a discretely delineated protected class. It is also ironic that the Administration is actively moving ahead to find an administrative solution to our broken immigration system by granting DREAM act relief while Arizona seeks to uphold its right to put in place an enforcement mechanism it may not seek to enforce, if only to avoid further constitutional challenge.

It does not require a crystal ball to imagine that 2(B), if enforced,  will cause mayhem for young DREAMers and their ability to remain in the US through further administrative remedies, despite the Court’s narrow upholding of the provision. It will be difficult, if not impossible, for ICE to communicate with certainty to overzealous Arizona officials like Sheriff Joe that a young person who qualifies for the deferred action program is not unlawfully present. In fact, such a person continues to be unlawfully present even though he or she may qualify for deferred action presently, prior to the filing of the application. Moreover, even after an application is filed, it is not clear how long DHS will actually take to grant deferred action and such a person will still remain unlawfully present during the pendency of the application. Although the grant of deferred action stops unlawful presence for purposes of the federal 3-10 year bars to reentry, it is not clear whether the Arizona definition of lawful presence would recognize someone who has an outstanding removal order but who has also been granted deferred action.  This situation, and many others, such as a potential US citizen being detained for being suspected of being unlawfully present, will result in further challenges to 2(B), which hopefully, the next time around, will be successful.

The Court upheld 2(B) because there was no evidence that Arizona was yet enforcing it. Indeed, for all practical purposes, it had yet to go into effect. Given the natural judicial reluctance to fray the bonds of federalist comity, the Supreme Court stayed its hand for now so that state courts could determine whether SB 1070 could be consistently administered within the straitjacket of the Supreme Court’s ruling. So, in this sense, the issue was not ripe for a determination on pre-emption.  When will this change? How many will have to suffer the consequences before the Supreme Court will act? For this reason, knowing what the future will bring, the nation and its liberties would have been better served if 2(B) had been invalidated.   It is hard to imagine how Section 2(B) can survive if and when Arizona tries to make it come alive. Let us not forget that, despite Arizona Governor Brewer’s protestation to the contrary, the real guts of this law, the warrantless arbitrary arrest powers granted by Section 6, did not survive today. The rule of law did. The status check authorized by Section 2(B) can only happen after there is probable cause to believe that a non-immigration law violation has taken place, and they happen very quickly so as not to prolong any stop or detention. For all our concerns, and despite our fondest hopes for a more sweeping victory, the Supreme Court has reaffirmed our oldest national tradition, that here in America, there is still much room to dream- in Arizona and beyond.

DEFERRED ACTION: THE NEXT GENERATION

By Gary Endelman and Cyrus D. Mehta

President Obama at last came through with a bold memorandum on June 15, 2012, executed by DHS Secretary Janet Napolitano, granting deferred action to undocumented people. The Administration has always had authority to grant deferred action, which is a discretionary act not to prosecute or to deport a particular alien. While critics decry that Obama has circumvented Congress, the Administration has always had executive branch authority to exercise prosecutorial discretion, including deferred action, which is an expression of limited enforcement resources in the administration of the immigration law. It makes no sense to deport undocumented children who lacked the intention to violate their status and who have been educated in the US, and who have the potential to enhance the US through their hard work, creativity and determination to succeed.

We have always advocated that the Administration has inherent authority within the INA to ameliorate the hardships caused to non-citizens as a result of an imperfect and broken immigration system. In Tyranny of Priority Dates, we argued that the Administration has the authority to  allow non-citizens who are beneficiaries of approved family (I-130) or employment-based (I-140) petitions affected by the crushing backlogs in the priority date system to remain in the US through the grant of parole under INA 212(d)(5) based on “urgent humanitarian reasons or significant public benefits.” When the DREAM Act passed the House in 2010, but narrowly failed to garner the magic super majority of 60 in the Senate, we proposed that the President could also grant similar parole to DREAM children as well as deferred action in our blog, Keeping Hope Alive: President Obama Can Use His Executive Power Until Congress Passes The Dream Act.

 The new memorandum directs the heads of USCIS, CBP and ICE to exercise prosecutorial discretion, and thus grant deferred action, to an individual who came to the United States under the age of 16, has continuously resided in the US for at least 5 years preceding the date of the memorandum and was present in the US on the date of the memorandum, and who is currently in school, or has graduated from school or obtained a general education certificate, or who is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States. Moreover, this individual should not be above the age of thirty and should also not have been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety. This directive further applies to individuals in removal proceedings as well as those who have already obtained removal orders. The grant of deferred action also allows the non-citizen to apply for employment authorization pursuant to an existing regulation, 8 CFR § 274a(c)(14).

While this memorandum is indeed a giant step in providing relief to a class of immigrants who have been out of status for no fault of their own, we propose other incremental administrative steps so that such individuals, even after they have been granted deferred action and work authorization, can obtain permanent residence. We are mindful, as the accompanying FAQ to the memorandum acknowledges, that the grant of deferred action does not provide the individual with a pathway to permanent residence and “[o]nly the Congress, acting through its legislative authority, can confer the right to permanent lawful status.”  But just as people were skeptical about our ideas for administrative action when we first proposed them, some of which has come to fruition, we continue to propose further administrative steps that the President can take, which would not be violative of the separation of powers doctrine.

There are bound to be many who have been granted deferred action to also be on the pathway to permanent residence by being beneficiaries of approved I-130 or I-140 petitions. Unless one is being sponsored as an immediate relative, i.e. as a spouse, child or parent of a US citizen, and has also been admitted an inspected, filing an application for adjustment of status to permanent residence will not be possible for an individual who has failed to maintain a lawful status under INA § 245(a). Such individuals will have to depart the US to process their immigrant visas at a US consulate in their home countries. Although the grant of deferred action will stop unlawful presence from accruing, it does not erase any past unlawful presence. Thus, one who has accrued over one year of unlawful presence and departs the US in order to process for an immigrant visa will most likely face the 10 year bar under INA § 212(a)(9)(B)(i)(II). While some may be able to take advantage of the proposed provisional waiver rule, where one can apply in the US for a waiver before leaving the US, not all will be eligible under this new rule.  A case in point is someone who is sponsored by an employer under the employment-based second preference, and who may not even have a qualifying relative to apply for the waiver of the 10 year bar.

We propose that the USCIS extend the holding of the Board of Immigration Appeals in Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012) to beneficiaries of deferred action. In Arrabelly and Yerrabelly, the BIA held that an applicant for adjustment of status, who leaves the US pursuant to a grant of advance parole, has not effected a departure from the US in order to trigger the 10 year bar under INA § 212(a)(9)(B)(i)(II). If a beneficiary of deferred action is granted advance parole, this person’s trip outside the US under this advance parole ought not to be considered a departure. Such facts would square with Matter of Arrabelly and Yerrabelly if the individual returned back to the US under advance parole. However, here, the individual may likely return back on an immigrant visa and be admitted as a permanent resident. That might be hard to sell to the government – how can you apply for a visa at a consulate in a foreign country and still not leave USA? Still, this idea has merit as it is the initial “departure” under advance parole that would not be a trigger for the bar to reentry, not the subsequent admission as an immigrant. In the leaked July 2010 memorandum to USCIS Director Mayorkas, the suggestion is made that the USCIS “reexamine past interpretations of terms such as ‘departure’ and ‘seeking admission again’ within the context of unlawful presence and adjustment of status.” Using  Matter of Arrabally and Yerrabelly in the manner we propose seeks to do just that. Once again, as with the concept of parole, we seek to build on past innovation to achieve future gain.

As an alternative we propose, as we did in The Tyranny of Priority Dates, that the government, in addition to the grant of deferred action, also grants parole in place on a nunc pro tunc or retroactive basis under INA 212(d)(5).  For instance, the USCIS informally allows spouses of military personnel who would otherwise be unable to adjust under INA § 245(a) if they were neither “inspected and admitted or paroled” to apply for “parole in place.” The concept of parole in place was also proposed in the leaked memo. Interestingly, in this memo, a prime objective of granting parole in place was to avoid the need for consular processing of an immigrant visa application: “By granting PIP, USCIS can eliminate the need for qualified recipients to return to their home country for consular processing, particularly when doing so might trigger the bar to returning.”  This would only be the case, however, where the adjustment applicant is  married to a US citizen, or is the minor child or parent of a US citizen,  and need not be barred due to lack of an inspection or admission. Because we advocate a much wider extension of parole in place, the need for retroactivity, both for the parole and companion employment authorization becomes readily apparent. The use of parole in place, while not common, is certainly not without precedent and, as the leaked memo recites, has been expansively utilized to promote family unity among military dependents. For our purposes, “applicants for admission who entered the US as minors without inspection” were singled out as a class for whom parole in place was singularly suitable.

 Upon such a grant of parole in place retroactively, non-immediate relatives who have not maintained status may also be able to adjust status.   Such a retroactive grant of parole, whether in the I-130 or I-140 context, would need to be accompanied by a retroactive grant of employment authorization in order to erase any prior unauthorized employment.  We acknowledge that it may be more problematic for the individual to be eligible for adjustment of status through an I-140 employment-based petition rather than an I-130 petition, since INA § 245(c)(7), requires an additional showing of a lawful nonimmigrant status, in the case of an employment-based petition under INA § 203(b).  Still,  the grant of nunc pro tunc parole will wipe out unlawful presence, and thus this individual can leave the US and apply for the immigrant visa in the US Consulate in his or her home country without the risk of  triggering the 3 or 10 year bar.

One conceptual difficulty is whether parole can be granted to an individual who is already admitted on a nonimmigrant visa but has overstayed. Since parole is not considered admission, it can be granted more readily to one who entered without inspection.  But this impediment can be overcome: It may be possible for the government to rescind the grant of admission, and instead, replace it with the grant parole under INA § 212(d)(5). As an example, an individual who was admitted in B-2 status and is the beneficiary of an I-130 petition but whose B-2 status has expired can be required to report to DHS, who can retroactively rescind the grant of admission in B-2 status and be retroactively granted parole.

There may be other obstacles for individuals in removal proceedings or with removal orders, but those too can be easily overcome. If the individual is in removal proceedings, if he or she is also eligible for deferred action, such removal proceedings can be terminated and he or she can also receive a grant of nunc pro tunc parole, thus rendering him eligible for adjustment of status in the event that there is an approved I-130 or I-140 petition. Even a person who already has a removal order can seek to reopen the removal order through a joint or consent motion with the government for the purposes of reopening and terminating proceedings, and this person too could potentially file an adjustment application, if he or she is the beneficiary of an I-130 upon being granted  nunc pro tunc parole, and the beneficiary likewise could travel overseas for consular processing without risking the 10 year bar.  

We of course would welcome Congress to act and pass the DREAM Act, as well as Comprehensive Immigration Reform, so that this memorandum does not get reversed or discontinued in the event that a new Administration takes over from January 2013. However, until Congress does not act, the June 15, 2012 memo does provide welcome relief for young people, but it still leaves them in a limbo with only deferred action. The elephant in the room may be whether the USCIS has the capacity to deal with hundreds of thousands of requests for deferred action. In the absence of congressional action, the agency lacks the capacity to charge special fees for this purpose. Consequently,  all relevant federal agencies, including ICE and CBP, must willingly but swiftly reassign existing personnel now devoted to less urgent tasks so that the President’s initiative of last Friday does not become a dead letter. Our proposal for an additional grant of nunc pro tunc parole in place to individuals who have already been conferred deferred action will at least allow them to enter the regular immigration system and hope to adjust status to permanent residence, or consular process, and thus on the path to citizenship, should they become the beneficiaries of approved family or employment-based petitions. Again, as we noted earlier, and as we noted in Tyranny of Priority Dates, we are not asking for the executive branch to create new forms of status. We are only asking for the Executive to remove barriers to the ability of otherwise deserving applicants for permanent residents to take advantage of the existing system. We want to emphasize there is nothing in the INA that prevents the immediate adoption of our recommendations just as there was nothing in the INA that prevented last Friday’s memorandum. We also want to emphasize that I-130’s and I-140s will still be necessary. We do not want to create a new system, only to allow the old one to work more effectively. The future is ours to shape. For those who lack faith, we remind them of Tennyson’s injunction in Ulysses: “Come my friends, ‘tis not too late to seek a newer world.”

FROM MADISON TO MORTON: CAN PROSECUTORIAL DISCRETION TRUMP STATE ACTION IN ARIZONA v. USA?

By Gary Endelman and Cyrus Mehta

Warning against the danger of faction in his famous Federalist Paper No. 10, James Madison sought to moderate the impact through the diffusion of power amongst the three branches of the federal government as well as between state and federal authority. This coming Wednesday, the United States Supreme Court will hear oral argument over the most contentious provisions of Arizona SB 1070. It is perhaps no small exaggeration to say that the outcome of this case will determine if prosecutorial discretion as a tool of immigration enforcement can survive.

In an age of finite resources, to govern is to choose. That is why ICE Director John Morton decided this past June 2011 to exercise prosecutorial discretion in removal cases involving non-citizens who demonstrate favorable factors, such as their length of presence in the US, the person’s ties to the community, including the presence of immediate relative who may be US citizens or permanent residents, the circumstances of the person’s entry into the US, particularly if he or she was brought in as a young child and whether the person is likely to be granted permanent residency in the future, to name a few. Mr. Morton in a separate policy memo also included the victims and witnesses of crime, including domestic violence, and those persons who were plaintiffs in non-frivolous lawsuits or otherwise engaged in action to protect their civil rights. Director Morton elected to concentrate on deporting national security concerns or those non-citizens with a serious criminal history. This was not the first time that those who were charged with enforcement of our immigration laws embraced the virtues of prosecutorial discretion. On November 17, 2000, then INS Commissioner Doris Meissner explained it this way:

Prosecutorial Discretion is the authority of an agency charged with enforcing a law to decide whether to enforce, or not to enforce, the law against someone. The INS, like other law enforcement agencies, has prosecutorial discretion and exercises it every day…The favorable exercise of prosecutorial discretion means a discretionary decision not to assert the full scope of the INS’s enforcement authority as permitted under the law…It is important to recognize not only what prosecutorial discretion is but also what it is not. The doctrine of prosecutorial discretion applies to law enforcement decisions whether, and to what extent, to exercise the coercive power of the Government over liberty and property, as authorized by law in cases when individuals have violated the law..The distinction is not always an easy bright-line rule to apply… Like all law enforcement agencies, the INS has finite resources, and it is not possible to investigate and prosecute all immigration violations

It is an oversimplification, but still an insightful one, to conclude that, thanks largely to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ( IIRAIRA), the importance of prosecutorial discretion has increased in inverse measure to the shrinking remedial actions left open to immigration judges whose ability to grant relief from removal, especially in the context of criminal convictions, has been dramatically curtailed. If the consequences of deportation can no longer be avoided or ameliorated, then the decision on whom to target and how to punish become a moments of surpassing criticality. While prosecutorial discretion is not the answer to a legislature run amuck, it may serve to limit the damage. As Assistant Attorney General Robert Raban wrote to Congressman Barney Frank on January 19, 2000, it is in bad times, more than good, when justice needs prosecutorial discretion the most:

Consequently, the IIRAIRA rendered the exercise of prosecutorial discretion by the INS the only means for averting the extreme hardship associated with certain deportation and/or removal cases…

The State of Arizona, it would seem, has other priorities. While ICE may feel the need to choose, Arizona manifestly does not. Indeed, the four provisions of SB 1070 are precisely the ones that most flagrantly impose burdens on ICE in the absence of federal selection. In the absence of a matching federal mechanism, SB 1070 requires Arizona law enforcement officers to check the immigration status of anyone they stop, arrest or detain if they have a “reasonable suspicion “ the person is unlawfully present. SB 1070 complete disregards the Morton prosecutorial discretion policy, which now allows an ICE official to grant a stay of removal to a person who even has a removal order. While SB 1070 may still consider this person to be unlawfully present, under the federal prosecutorial discretion policy, this individual who has been granted a stay of removal, along with an order of supervision, may even apply for a work permit. Furthermore, ignorant or indifferent to federal policies that implicitly tolerate or openly protect the undocumented, SB 1070 criminalizes a failure to carry immigration registration documentation. It has already been pointed out that a battered woman who has obtained discretionary deferred action after filing an I-360 self-petition under the Violence Against Women Act will not be conferred with a registration document. Yet, such a person is allowed to remain and even work in the US until he or she obtains permanent residence. While neither the Immigration Reform Control Act of 1986 or the INA as a whole consider unauthorized employment as criminal conduct, SB 1070 does; even to apply for or solicit work is no less felonious. In the absence of federal warrant or any expression of federal interest in prosecution, SB 1070 sanctions warrantless arrest based on probable cause that the alien in question has committed a deportable offense. The New York Times recently but accurately termed this “an invitation to chaos:”

While Arizona says its law merely empowers law enforcement to work cooperatively with federal officers, that is demonstratively false. The four provisions at issue go beyond federal law, turning federal guidelines into state enforcement rules and violations of federal rules into state crimes. They transform a federal policy that allows discretion in seeking serious criminals among illegal immigrants into a state mandate to target everyone in Arizona illegally…

This concern is at the core of the pre-emption argument against SB 1070, though it has not received much ink in the popular press. In effect, Arizona seeks to impose an unfunded mandate on Washington, precisely the reverse of what is the norm. As Judge Paez wrote for the Ninth Circuit Court of Appeals in United States v. Arizona, 641 F. 3d 339, 352-53 (9^th Cir.2011):

By imposing mandatory obligations on state and local officers, Arizona interferes with the federal government’s authority to implement its priorities and strategies in law enforcement, turning Arizona officers into state-directed DHS agents…the threat of 50 states layering their own immigration enforcement rules on top of the INA weighs in favor of preemption…

It is for this reason that the United States devoted a full 7 pages of it’s appellate brief to the Supreme Court ( pp.17-23) on this very issue. The curtailment of prosecutorial discretion is the negation of federal priorities. On pp. 22-23, we get to the heart of the matter:

The framework that the Constitution and Congress have created does not permit the States to adopt their own immigration programs and policies or to set themselves up as rival decision makers based on disagreement with the focus and scope of federal enforcement. Yet that is precisely what SB 1070 would do, by consciously erecting a regime that would detain, prosecute and incarcerate aliens based on violations of federal law but without regard to federal enforcement provisions, priorities and discretion. SB 1070 cannot be sustained as an exercise in cooperative federalism when its very design discards cooperation and embraces confrontation.

It is not hard to understand or appreciate why or how Arizona is frustrated, for good people of diverse views share this same conviction that ours is a broken immigration regime. It is the particular manner in which Arizona has elected to manifest this dissatisfaction that places the prosecutorial discretion of federal authorities at risk. We must not sacrifice constitutional verities to contemporary passions. Let us return to Madison Federalist No. 51:

Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary…

In an increasingly complex, hyper-technical system, the need for discretion as a way to make intelligent choices seems more open and obvious than ever. It is widely acknowledged that we have a dysfunctional immigration system whose systemic dislocation has contributed to the buildup of the undocumented population. In the absence of Congressional intervention to restore a permanent balance, the Administration can and must exercise discretion, devoid of ideology or sentiment, to cobble together interim solutions as the need for them arises. Despite SB 1070, rhetoric is not reality and the targeted exercise of discretion to reconcile divergent and often competing interests is something that the Supreme Court should endorse. James Madison would.

(The views expressed by guest author, Gary Endelman, are his own and not of his firm, FosterQuan, LLP)