Thursday, June 28, 2012
“It is the right thing to do.” These seven words emanated from my office computer as I watched President Obama broadcast the most significant immigration policy since his career at the White House. On June 15, President Obama announced that the Department of Homeland Security (DHS) would allow certain undocumented youth with strong intellectual promise and ties to the United States to request temporary relief from deportation proceedings and apply for work authorization. While many of the details are yet to be revealed, a memorandum from the DHS indicates that “deferred action” will be available to eligible youth who came to the United States under the age of sixteen; have continuously resided in the United States for at least five years preceding June 15, and are present in the United States on June 15; are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States; have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; and are not be above the age of thirty.
The new policy provides a temporary safety valve for future beneficiaries of the DREAM Act which is a piece of legislation that has been introduced by Congress for multiple years, and generally provides a more specific immigration status, path to permanent residency and eventual citizenship for certain young people who have lived and been educated in the United States and expect to contribute to the United States in meaningful ways. In the wake of a legislative stalemate over the DREAM Act, thousands of “DREAMers” have come out of the shadows and called for the Administration to consider tools within its authority to protect them from detention and deportation.
The announcement by President Obama was a rare combination of good politics and good policy. Prosecutorial discretion recognizes both the limited resources of the immigration agency and the compelling humanitarian reasons for why this discretion matters. The agency’s first prosecutorial discretion policy was revealed when the lawyer for music legend John Lennon sued the immigration agency (then INS) for the details. At one time, prosecutorial discretion was called “nonpriority status” and later “deferred action,” but today, prosecutorial discretion is associated with many different actions by the government. For example, a DHS officer can exercise favorable discretion by granting a temporary stay of removal, joining in a motion to terminate removal proceedings, granting an order of supervision, cancelling a Notice to Appear, or granting deferred action. Deferred action is one of the more precious forms of prosecutorial discretion to the extent that it allows eligible individuals to apply for work authorization. While select members of Congress were quick to label President Obama’s policy as an “amnesty” for law breakers, the scope of the June 15 Memorandum is in fact consistent with the longstanding features of the deferred action program and has further been identified by more than 90 law professors as a potential administrative remedy for DREAM Act eligible individuals.
President Obama has used this existing authority to address a humanitarian need and for this deserves recognition. Currently, there is no formal deferred action application form or fee. Upon receiving deferred action, the person may remain in the United States and may apply for work authorization unless, and until, the agency decides to target the person for enforcement under the immigration laws. Specifically, the regulations governing immigration contain a specific subsection for individuals applying for work authorization on the basis of deferred action. Historically, the Department has not kept public records about deferred action grants, nor has it made information about the program available on its website, forms, or memoranda. Breaking with its tradition of silence and informality, early signs show that DHS will keep open channels of communication with stakeholders about how the deferred action program for certain young people will operate. DHS has only 60 days to implement the new program, and for this reason will use a limited set of tools to create a design specific to the individuals eligible. Beyond this 60-day period and program however, DHS should take a serious look at the deferred action program in the long run. Below are my personal thoughts on the deferred action program at large and recommendations for the next generation of the program.
Transparency about deferred action matters. Transparency about the deferred action process promotes consistency by directing potential applicants to a similar procedure at the front end, and ensuring more consistent outcomes at the back end. From the agency’s perspective, transparency about deferred action and publication of a regulation may be more trouble than it is worth. “Transparent rules tend to spotlight a value choice. Opponents of that choice will attack the agency's action, forcing the agency to expend its own resources for defense. Rules having low transparency thus become more attractive, since they conceal value choices.” The agency might argue that transparency by the Department about prosecutorial discretion and deferred action in particular could result in a storm of objections by restrictionists and other members of the public who equate deferred action to an “amnesty” that received no support by Congress. In response to any concern that a published rule on deferred action is akin to a “backdoor legalization” program, I would opine that a legislative scheme is distinguishable and more generous in both its application and its benefits. For example, the published rule proposed in this article would be limited to non-citizens who possess specific qualities and criteria and enable the individual to be legally present in the country and apply for work authorization. In contrast, a legalization program includes the benefits of temporary residence, work authorization, permission to travel, and a path to green card status and eventual citizenship.
Deferred action should be published as a rule in the Federal Register. The regulation should be subject to a 120-day public notice and comment period. The regulatory language as proposed must recognize both the humanitarian and economical bases for deferred action. The advantages of rulemaking promotes the values that are so interconnected with principles of administrative law, including but not limited to transparency, consistency, acceptability, and accountability. As described by Professor Stephen H. Legomsky: “[R]ulemaking has tremendous advantages over adjudication as a vehicle for policy formation. These advantages include broader public input, notice to Congress, avoidance of adjudicative hearings to resolve issues of legislative fact, avoidance of litigating the same issues repeatedly, more enforceable rules, clearer advance notice of allowable and prohibited conduct, fairer applicability of the rules to similarly situated individuals at different points in time, and the opportunity for affected individuals to make policy submissions before the rule is adopted.”
In addition to advancing various process values, rulemaking would assist with narrowing the various factors used by adjudicators to determine whether deferred action should be granted. An analysis of the data on deferred action cases indicate that decisions are based on distinguishable criteria and that a single regulation would only bolster the application of this criteria in like cases, and stave the inevitable abuse of discretion that stems from a system where cases are decided by different regional officers and without accountability. The benefit of using rules to guide discretionary decisions is not a new argument and has been affirmed by scholars in various other immigration contexts.
Rulemaking is also cost-effective. I believe the costs associated with rulemaking would be recovered by enabling immigration adjudicators to follow a clear rule. Clearer rules on deferred action could also remove the costs associated with documenting every rationale and factor in a particular A-file, gaining approval from a supervisor before granting deferred action, or ICE attorneys having to review every NTA for sufficiency under the prosecutorial discretion guidelines. Interestingly enough, the internal checks and balances created by the Morton Memo on Prosecutorial Discretion, however important, are a costly endeavor that could be streamlined by crafting a rule limited to deferred action cases. I also believe that implementation of a regulation would not particularly increase litigious costs but, to the contrary, infuse a level of internal quality control and incentive for immigration adjudicators to apply the rule faithfully.
The proposed rule should include information about the scope of deferred action, namely that it is a temporary benefit available to eligible non-citizens who meet specific criteria and who warrant deferred action as a matter of discretion. The agency should create a form for deferred action requests, and attach a nominal fee for processing the form. An applicant who is unable to pay a filing fee should be eligible to fill out a fee waiver form. The application should be filed to the Vermont Service Center or another regional Service Center. By maintaining all applications at a specific service center, it will be easier for DHS to keep statistics and also adjudicate related requests for work authorization. The rule should be discretionary and place the burden on the non-citizen to present substantial equities that may include: continuous residence in the United States for at least ten years; presence of a USC or LPR child, spouse, or parent in the United States; serious mental health condition or physical disability; and/or tender or elderly age.
While my proposal provides concrete guidelines, it offers flexibility for the Department to consider equally compelling factors not listed. That said, my goal is not to “codify” previous memoranda like the Morton Memo on Prosecutorial Discretion, but instead to create a discreet remedy in the form of deferred action that is based on an identifiable set of factors that (as illustrated by the data) the agency has relied upon for more than thirty years. The Department will and should continue to follow the current memoranda on prosecutorial discretion when making prosecutorial decisions. Deferred action is merely one slice of the scores of decisions that currently serve as an exercise of prosecutorial discretion.
Those who are denied deferred action should receive a written decision with reasons for the denial. Written decisions promote accuracy, consistency, and acceptability by allowing the applicant to be heard. While written decisions would likely add costs onto the agency, these costs could be offset by the fees that accompany the new deferred action form and the current costs associated with the internal checks and reviews that accompany deferred action processing. Those who are successful in obtaining a deferred action grant should be granted temporary residence for a renewable three-year period, work authorization, and permission to travel for good cause. A grant of deferred action should not lead to permanent residency, but neither should it prohibit a grantee from applying for a more permanent legal benefit if she is otherwise eligible. The period during which an individual is in deferred action status should be recognized as a lawful status as is currently the case. If the newly proposed regulation on deferred action needs alteration, the Department should make adjustments to the regulation “relying on exceptions, time extensions, variances, and waivers.”
The concern that a published rule on deferred action may attract future illegal migration is a legitimate one, but this concern can be addressed by catering the rule to people who meet specific qualifying criteria and, if appropriate, setting an annual numerical cap. Since the agency already employs specific criteria for considering deferred action cases, spelling out the criteria in a published rule would not necessarily create a new or objectionable policy for the Department, but would advance the goals of equal justice, accuracy, consistency, efficiency, and acceptability. Achieving these values in the long run requires transparency about how deferred action works as well as a new regulation.
The Department of Homeland Security should train immigration employees about the new rule. Moreover, DHS should create a system whereby every case that is brought to the Department’s attention is automatically considered for deferred action. Alternatively, individuals who are facing removal before EOIR or DHS should be notified about their right to apply for deferred action before USCIS. Information about deferred action should be posted on the relevant DHS websites. This information should include a step-by-step process about how to apply for deferred action, basic eligibility requirements, and related benefits. If a policy is implemented whereby DHS automatically considered cases for deferred action, then such policy should be posted on the various DHS websites and also accompanied by a “Fact Sheet” in user-friendly English. Even if the procedures themselves are not codified as regulations, they should be published in the Federal Register.
Finally, DHS must publish the facts of individual cases as well as decisions about deferred action and keep statistics about the cases in which deferred action is considered, denied, and/or granted. Such statistics must be made part of the annual statistics published by DHS and also posted on the various websites. DHS must publish the training officers receive on deferred action. Cumulatively, publishing information about the deferred action process, related decisions, statistics, and training programs will advance transparency and acceptability, while also providing the public with tools for measuring efficiency, accuracy, and consistency in deferred action cases.
About the Author: Shoba Sivaprasad Wadhia is the founder/director of Penn State’s Center for Immigrants’ Rights, an immigration policy clinic where students produce practitioner toolkits, white papers, and primers of national impact on behalf of client organizations. Professor Wadhia researches the role of prosecutorial discretion in immigration law; the association between detention, removal and due process; and the intersection between immigration, national security, and race. Professor Wadhia teaches or has taught asylum and refugee law, immigration law, and a clinical course on immigration law and policy. Professor Wadhia serves on the ABA Commission on Immigration and is a member of the American Immigration Lawyers Association and National Immigration Project of the National Lawyers’ Guild. She is a graduate of Georgetown University Law Center. The substance of this report is drawn from Shoba Sivaprasad Wadhia, Sharing Secrets: Examining Deferred Action and Transparency in Immigration Law (2011) University of New Hampshire Law Review, Vol. 10, No. 1; http://ssrn.com/abstract=1879443 or http://dx.doi.org/10.2139/ssrn.1879443, which also houses the relevant citations and sources.