Tuesday, November 24, 2015
Immigration Article of the Day: Presidential Legitimacy Through the Anti-Discrimination Lens by Catherine Y. Kim
Presidential Legitimacy Through the Anti-Discrimination Lens by Catherine Y. Kim, University of North Carolina (UNC) at Chapel Hill - School of Law November 12, 2015 Chicago-Kent Law Review, Forthcoming
Abstract: The Obama Administration’s deferred action programs granting temporary relief from deportation to undocumented immigrants have focused attention to questions regarding the legitimacy of presidential lawmaking. Immigration, though, is not the only context in which the President has exercised policymaking authority. This essay examines parallel instances of executive lawmaking in the anti-discrimination area. Presidential policies relating to workplace discrimination, environmental justice, and affirmative action share some of the key features troubling critics of deferred action yet have been spared from serious constitutional challenge. These examples underscore the unique challenges to assessing the validity of actions targeting traditionally disenfranchised groups – be they noncitizens, racial or ethnic minorities, or members of the lesbian, gay, bisexual, and transgender (LGBT) communities, for example. Just as prior generations grappled with the unique legitimacy concerns raised by judicial interventions to protect these interests, the current era of presidential lawmaking suggests the need for a distinct theory of legitimacy when the President acts to protect vulnerable populations.
In Matter of Y-S-L-C, the Board of Immigration Appeals has issued what really should be an obvious directive for immigration judges: IJs should not bully noncitizen respondents (especially children seeking asylum), and IJs should not twist the Federal Rules of Evidence by purporting to apply the standards for qualifying expert witnesses to asylum applicants themselves. The opinion is worth reading, as a troubling example of how one IJ conducted the proceedings. From the opinion:
“At a hearing before the Immigration Judge, the respondent’s counsel attempted to question him regarding the effect that his experiences in Guatemala had on him. The following colloquy occurred:
[COUNSEL] TO [THE RESPONDENT] Q. These events that you suffered and endured in Guatemala, have they caused you any psychological issues; nightmares─
JUDGE FOR THE RECORD We’ll qualify him as an expert witness.
JUDGE TO [THE RESPONDENT] Q. Sir, how far have you gone in school? A. How far did I go in school? The 6th grade. Q. Have you ever lectured on a professional level on psychology?
[COUNSEL] TO JUDGE Your Honor, I’m not trying to qualify him as an expert. All I’m asking is questions about his personal answers. He can tell us if he’s had nightmares. He can tell us if he’s had terrors.
JUDGE TO [COUNSEL] You can ask specific questions. You can’t ask leading questions. You asked him what psychological problems. I’m getting the background to understand whether he can testify as to psychological problems.
[COUNSEL] TO JUDGE Well, Your Honor, he’s not─
JUDGE TO [COUNSEL] If you’re willing to stipulate that he has never lectured at the university or professional level, he’s never written any professional journals, and he’s never had any training on psychology, then I will allow him to testify as a lay witness. But he’s not going to testify as to vague psychological problems. You can ask him if he has experienced difficulties because of what he saw when he was 4 years old in Guatemala and questions like that. But you cannot ask him the psychological impact."
As the opinion itself acknowledges, criticisms of IJ conduct are not new, especially in the federal courts of appeal. One might still be disturbed that the BIA found it necessary to provide the following elementary guidelines on IJ behavior:
“Courts have stressed that a respondent in immigration proceedings should expect dignity, respect, courtesy, and fairness in a hearing before an Immigration Judge. . . . Conduct by an Immigration Judge that can be perceived as bullying or hostile can have a chilling effect on a respondent’s testimony and thereby limit his or her ability to fully develop the facts of the claim.”
In Matter of Y-S-L-C, the child respondent was represented by counsel. But what if he or she had appeared for the asylum merits hearing without a lawyer, as have scores of children who have been denied asylum in the past year? We can imagine that the IJ might have exhibited even more troubling behavior with no third party advocates in the courtroom, and that the chances of an appeal presenting itself before the BIA would have been minimal. The decision highlights the need for ongoing litigation in J-E-F-M- v. Holder, the class-action lawsuit filed in federal district court in Washington State, which alleges constitutional and statutory violations resulting from the federal government’s refusal to provide appointed counsel to children in removal proceedings.
Given the Executive Office for Immigration Review’s plans to hire more IJs across the country (which we blogged about here), hopefully this decision will serve as a reminder for EOIR to apply rigorous standards in the hiring and retention of IJs.
Just the Facts: Syrian Immigrant Population in the United States Is a Small One; Vast Majority Comes Via Family Reunification, Not Humanitarian Route
The Syrian immigrant population in the United States is a tiny one, its 86,000 people representing 0.2 percent of the U.S. foreign-born population of 42.4 million in 2014, according to a new Migration Policy Institute (MPI) fact sheet that uses U.S. Census Bureau and other federal data to offer a snapshot of the population’s growth, socioeconomic characteristics and settlement patterns in the United States.
The population grew from 17,000 in 1960 to 55,000 in 2000, rising a further 9 percent by 2010, and witnessing a 43 percent increase between 2010 and 2014 (the Syrian civil war began in 2011). Eighty-one percent of Syrian immigrants obtaining legal permanent residence in 2013 did so on the basis of family ties, according to the most recently available Department of Homeland Security (DHS) data; 8 percent came on employment-based preferences and another 8 percent as refugees and asylees; the remainder came as a result of the diversity visa lottery or other category. By comparison, 65 percent of the overall U.S. immigrant population receiving a green card in 2013 did so based on family ties, 16 percent as a result of employer-based preferences, 12 percent as refugees and asylees, 5 percent diversity visa lottery winners and 1 percent other category.
A total of 2,261 Syrian refugees were resettled in 36 states between the start of fiscal year 2012 and November 20, according to data from the State Department’s Worldwide Refugee Admissions Processing System, with California, Texas and Michigan the top resettlement states. Around two-thirds have been resettled in 23 states where governors have opposed accepting new Syrian refugees. Eight states whose governors have declared they will block such resettlement have not yet received any resettled Syrian refugees. Beyond the refugee resettlement program, a growing number of Syrians are filing for asylum status (successful applicants receive refugee status). The number of Syrian asylum recipients rose from 60 in FY 2011 to 811 in FY 2013, according to DHS data. Asylum approval rates were high, rising from 72 percent in 2012 to 83 percent in 2015.
California is the top destination for Syrian immigrants, accounting for 30 percent, followed by New York, Illinois and New Jersey, each with 7 percent. Los Angeles, New York, Chicago and Detroit are the top metro areas for Syrian immigrants, according to U.S. Census Bureau data.
In 2014, 64 percent of Syrian immigrants were naturalized U.S. citizens, a rate well in excess of the 47 percent naturalization rate for the overall immigrant population. And Syrians were more likely in 2014 than both the native and foreign-born populations to have higher education, with 39 percent holding a four-year college degree, compared to 30 percent and 29 percent for the U.S.-born and overall immigrant populations; they also were more likely to have graduate or professional degrees.
The fact sheet also notes that Syrian immigrants are on average older than the overall immigrant and U.S.-born populations; have higher English proficiency than other immigrants; participate in the labor force at lower rates, due to much lower female workforce participation; work in skilled occupations at higher rates than U.S. and immigrant populations; and report higher family earnings than other immigrants even as they have a larger share with incomes below the federal poverty level, in part due to larger family size.
Read the fact sheet here.
It was only a matter of time.
Indiana Governor Mike Pence was joined by more than 25 other governors — all Republican expect for one — in stating that they would bar Syrian refugees from their states. The Washington Post reports that yesterday the political debate deepened when the American Civil Liberties Union announced it was suing Pence for his decision.
In a lawsuit filed in federal court on behalf of Exodus Refugee Immigration, the nonprofit that had planned to help the Syrian family of three resettle in Indiana, the ACLU claimed that Pence’s decision to bar Syrian refugees violated the Constitution, the 1964 Civil Rights Act and the federal government’s exclusive authority over immigration.
Here is the ACLU of Indiana's news release about the suit. The case, Exodus Refugee Immigration, Inc. v. Mike Pence, was filed in the U.S. District Court for the Southern District of Indiana, Indianapolis Division. Click here to download a copy of the lawsuit.
Texas Seeks Extension to Respond to Cert Petition in Texas v. United States, Trying to Run Out the Clock?
Photo courtesy of the U.S. Supreme Court website
Lyle Denniston on SCOTUSBlog reports that the Texas Attorney General has sought a 30 day extension to January 20, 2016 to respond to the U.S. government's petition for certiorari in Texas v. United States. "Delay has the potential to slow down a case that U.S. officials very much want decided during the Court’s current Term." If the case is not heard not heard this Term, it is possible that the case will not be decided -- and deferred action program may not go into effect -- before the end of President Obama's presidency.
Texas Solicitor General Scott A. Keller wrote to the Court seeking an extension to file the states’ response on January 20, thirty days after it is currently due. Keller cited a long list of other legal tasks faced by lawyers in the case.
A Justice Department spokesman said “we intend to oppose Texas’s request for a full 30-day extension,” adding that the government believes the case “should be considered expeditiously.”
As Denniston explains the significance of the extension request,
"Normally, if the Court has not acted by the end of January to grant review of a case, its chances of being briefed, argued, and decided in that Term are significantly diminished. If Texas is granted the extension, that would make it difficult for the Court to get the remaining filings in hand and meet the usual timeline for a case to be heard in April — usually, the last month for oral arguments.
Even if the request is granted, the government has a number of options it could attempt to try to ensure that the case gets moved along to a decision before the Term ends, likely in late June. It could ask the Court to put the case on an expedited schedule, before it is granted and after. And it could encourage those who support its side to rush their filings of amicus briefs.
Moreover, if the Court did agree to hear the case, and deemed it sufficiently important to speed up consideration, it could schedule oral argument after April, although it does not like to do so.
Normally, a request for more time to answer a new case is granted routinely by the Court’s Clerk, but if it is opposed — as is the case this time — the opposing party can ask that a Justice or the full Court act on the plea. The Court has complete discretion as to how it handles such matters.
If the case were not granted and decided by the Court in the current Term, it would go over until the next Term, which begins in October 2016, and might not be decided before a new president, elected in November 2016, takes office in January 2017.
. . . .
A new president, if opposed to the policy, would have the option of undoing it by simply ordering aides to withdraw the guidelines announced last November on how the delayed deportation plan was to work."
Here is the Associated Press report on the importance of timing in the Court's review of Texas v. United States.
Ireland's long history as a country of emigration seemed to reverse in the 1990s as the country became a booming destination for immigrants drawn by the vitality of the "Celtic Tiger." Yet as the global financial crisis dealt Ireland a particularly devastating blow, the country reverted to its emigration history, and indeed the emigration rate in 2014-15 exceeded even the highest rates of the 1950s and 1980s.
But as a new report for the Migration Policy Institute’s Transatlantic Council on Migration explores, today’s outflows differ significantly from those of the past. Rather than overwhelming numbers of Irish citizens departing, a significant share of those leaving today are immigrants returning home or migrating elsewhere. And, in another point of contrast, most of the Irish who are emigrating are well educated, with an over-representation of university graduates.
In The Re-emergence of Emigration from Ireland: New Trends in An Old Story, researcher Irial Glynn and his co-authors use data and interviews from the EMIGRE project to disaggregate outflows of Irish nationals from those of immigrants—and to shed light on who is emigrating, where they are going, and what is motivating their departure—something government data do not permit.
Sixty-two percent of recent Irish emigrants ages 25 to 34 held a tertiary qualification of three years or more, compared to 47 percent of the overall Irish public, suggesting fears of “brain drain” are not misplaced. The report also finds that 47 percent of recent emigrants were employed in full-time jobs before departure, contrary to what many might expect. Underemployment was a factor for many of the remaining 53 percent. Irish men also have left in larger numbers than women, the likely result of the collapse of the construction industry.
The authors examine Ireland’s diaspora engagement and return policies, finding that despite notable improvements in government relations with Irish citizens abroad, the lack of voting rights for Irish emigrants stands as a notable exception, with Ireland a rare country in not permitting its overseas citizens the right to vote in national elections.
Today’s report is the third in a series from the Transatlantic Council focused on the scale and implications of the emigration of talented young people and the concrete actions governments and societies can take to mitigate the costs of emigration and capture more of its potential benefits. Earlier reports in the series can be read here.
Today’s report can be read online here.
The Center for American Progress has released a new report looking at the innovative solutions that different states, localities, and other institutions across the country are creating—within the existing legal framework and given the current stalling of executive actions on immigration and comprehensive immigration reform—to provide all individuals, including unauthorized immigrants, with access to some form of valid government-issued identification, or ID.
“Providing Identification to Unauthorized Immigrants” surveys the state and local landscape of identification for unauthorized immigrants and looks at the societal benefits that expanding access to and acceptance of identification cards and driver’s licenses for unauthorized immigrants would bring to the United States. The report looks at three main types of identification: driver’s licenses, municipal ID cards, and consular IDs.
As the report details, there are currently 12 states—California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Nevada, New Mexico, Utah, Vermont, and Washington—in addition to Puerto Rico and the District of Columbia, that issue cards that give driving privileges to unauthorized immigrants, while many other states are debating these types of laws. Since January 2015, for example, California has issued more than 510,000 driver’s licenses to individuals who cannot prove legal presence, and its law includes an anti-discrimination provision.
Municipal ID cards provide access to a range of services: They can be used to open bank accounts, as debit cards, at parking meters, and to access library cards. Many cities and municipalities—such as New York City, which has issued more than 570,000 IDNYC cards—are looking into municipal ID programs to make their communities more inclusive.
For their part, consular IDs give individuals an additional option for identification—sometimes, the only option—allowing them to open bank accounts and get birth certificates. In total, 371 counties, 356 financial institutions, and 1,036 police departments accept Mexican consular IDs as a valid form of ID.
The report also includes a set of policy recommendations for states, cities, and localities implementing or seeking to implement these types of solutions:
- States should issue driver’s licenses to all eligible individuals, regardless of immigration status.
- States with REAL ID-noncompliant driver’s licenses marked with a recognizable feature need to ensure through regulation that there is no discrimination based on the marks.
- Localities should pursue municipal ID card programs, while also raising awareness and acceptance of the cards.
- Countries that issue or plan to issue consular IDs should improve security and awareness to increase their acceptability.
- States and localities should establish policies to bar officials from inquiring about an individual’s immigration status.
- Federal lawmakers should pass immigration reform that includes a pathway to citizenship.
Access the full report, “Providing Identification to Unauthorized Immigrants,” here.
Monday, November 23, 2015
Guest blogger: Dylan Recht, third-year law student, University of San Francisco
On Thursday November 19, 2015, the House of Representatives voted 289-137 in favor of a bill that would limit Syrian and Iraqi refugees entering the United States. The bill was incited largely by the terrorist attacks on Beirut and Paris in the first two weeks of November 2015.
The limits imposed by this legislation would subject refugees from Iraq and Syria to extra vetting procedures by the FBI and Department of Homeland Security. This is in addition to the processes that already take about two years to satisfy which includes screening by: (1) the U.N. High Commissioner, (2) Interpol, (3) the U.S. Bureau of Population, Refugees and Migration, (4) the U.S. State department Lookout Support System, (5) Local law enforcement, (6) the National Counterterrorism Center, (7) the U.S. Department of Defense, (8) U.S.C.I.S., and (9) U.S. Customs and Border Patrol. This legislation will effectively bar Syrian and Iraqi refugees from entry. This bill does not comport with the humanitarianism embodied in our nation’s principles of freedom and liberty.
The bill would still have to pass the Senate, and President Obama has said that he will veto the bill if it does pass. If somehow this bill or any of the other proposed bills that prevent Syrian and Iraqi refugees from seeking shelter in the United States do pass, the judiciary will likely be unable to invalidate the laws. Congress has been given deference in immigration and foreign policy laws under their “plenary power” over regulation of immigration matters. In many areas of immigration law, limits based on national origin are imposed as a matter of routine. For example, the visa bulletin and priority dates limit the allocation of visas to people based on their national origin. In the realm of immigration law, the Supreme Court has failed to uphold conventional constitutional protections by merely accepting federal legislation if it touches on the subject matter of foreign policy or immigration. Any constitutional challenge to a law that limits the number of refugees based on national origin will likely fail to achieve meaningful redress in U.S. courthouses due to this wholesale deference.
By passing this bill in the House, both Republicans and Democrats have been swept up in a reactionary assault on liberty and social justice. By pandering to both latent anxiety from 9/11 and reinvigorated panic from recent events, the Congressmen who introduced and passed this bill are pushing an agenda that is largely self-serving: they wish to cement their seats in Congress, painting a portrait of themselves as defenders of the nation’s safety and security. Their constituency is frightened, but the fear cannot be harnessed for Congressmen’s personal gain via their constituents’ support. In times like this, fear cannot be a vehicle to further any person’s career, but should be evaded altogether. As a global community we need to dispel fear and unify in the face of terror, and we cannot allow terror to incapacitate our nation’s humanitarianism and intellect.
Congress cannot let fear override the fundamental values encapsulated in our nation. Our values of freedom and liberty must overshadow any visceral trepidation caused by terrorists. Following the ISIS attacks on the global community in Paris and Beirut last week, our nation and others like it must hold fast to the principles that lead refugees to our open arms. We must be willing and able to help those in need in the face of terrorism and unrestrained killing. Punishing those fleeing from bloodshed and tyranny in the name of safety is impulsive and harmful. The discrimination against Muslims and others from nations being torn apart by radicals is wrought with bigotry, racism, and xenophobia. That practice will only marginalize and ostracize them in our globalized society, and perpetuate the cycle of violence through a shift of attitude that vilifies all the people trapped in volatile homelands.
We cannot let our elected representatives abandon refugees in the wake of this recent epidemic of terrorism. Our society must preserve compassion and altruism even during some of the world’s darkest moments.
(Richard H. Chambers Federal Courthouse, Pasadena, CA)
The Ninth Circuit Court of Appeals is offering a training designed specifically for attorneys who practice immigration law before the Ninth Circuit. The presenters will be Judges and staff from the Court of Appeals, and experienced immigration practitioners from both the private sector and from the Office of Immigration Litigation.
When: January 14, 2016
Where: Richard H. Chambers United States Courthouse, 125 Grand Street, Pasadena, CA
Time: Registration will begin at 8:45; Program will conclude by 4:30 with a reception to follow
Topics: Jurisdiction & Motions Practice; Mediation; Prosecutorial Discretion & Remand; Preparing Your Brief; Oral Argument; Hot Topics in Immigration Law; After the Decision; Resources.
RSVP: Send name and contact information to Immig_Train_PAS@ ca9.uscourts.gov
A similar program will be held in San Francisco at the James R. Browning United States Courthouse, 95 Seventh Street, San Francisco, CA 94103. The tentative date is March 24, 2016.
The Coalition to Abolish Slavery and Trafficking (CAST), a Los Angeles-based nonprofit that advocates for trafficking survivors, is hiring for two staff attorney positions! Brief summaries are below, and more detailed job descriptions available here.
1. The Emergency Response Attorney (ERA) will be responsible for responding to urgent calls from law enforcement, agencies, and survivors themselves for legal assistance and advice. The ER Staff Attorney will also provide ongoing comprehensive legal services to survivors of human trafficking including assisting clients seek immigration, criminal and civil relief, with an emphasis on criminal victim-witnesses advocacy and United States citizen survivors. This is a full- time, exempt position.
2. Staff Attorney: Under the supervision of the Policy and Legal Services Director, the Staff Attorney will be responsible for providing comprehensive legal services to foreign national survivors of human trafficking including assisting clients seeking immigration, criminal and civil relief with an emphasis on immigration assistance. The Staff Attorney will also participate in the legal program’s emergency response to breaking cases and developing and providing training on the issue of human trafficking to partner organizations, law firms, and law enforcement. This is a full- time, exempt position.
Despite the fact that the security checks on persons seeking admission as refugees to the United States are rigorous (and here), many states have registered objections to the admission of Syrian refugees. For CNN, Jeremy Diamond reports that "those responses ignore one very important fact: the refugee program is quite simply the toughest way for a foreigner to legally enter the United States. There are other security gaps that would be easier for would-be terrorists to exploit."
On the Insightful Immigration blog, Cyrus D. Mehta outlines the legal reasons why states have no legal basis for refusing to accept refugees from Syria. In so doing, Metha touches on the issue of state standing in Texas v. United States:
"This makes it all the more important that the Supreme Court overturns the Fifth Circuit decision in Texas v. United States, which upheld Texas’s standing to sue the federal government over its implementation of deferred action programs. Texas dubiously relied on Massachusetts v. EPA for claiming standing by analogizing greenhouse gas pollutants that Massachusetts would be harmed by due to EPA non-action with deferred action recipients who would request driver’s licenses and thus make it more financially burdensome for Texas. Just like Texas claimed that it would be injured due to additional expenses it would incur in granting licenses to non-citizens granted deferred action, a state may also sue the federal government for being harmed for resettling refugees within its boundaries due to security reasons. Whether the state can succeed is a different matter, especially since there are strong precedents against it by way of Traux v. Raich and Edwards v. California, but a state can still try. It may raise a novel theory that these two precedents involved economic issues, while a state’s ability to protect its citizens from terrorist attacks is distinguishable from economic issues. The government in its recent petition for certiorari correctly states that if the Fifth Circuit majority decision prevailed “Texas could claim standing to sue the government for making an individual decision to grant asylum and would clearly have standing to sue the government any time it adopted immigration policies providing relief to a substantial number of aliens in Texas in any of these categories.” States should not get standing in another law suit against the federal government on another manufactured theory of harm if refugees still settle within their boundaries in defiance."
Sunday, November 22, 2015
The CARA Project -- which provides limited legal representation and assistance to women detained with their children at the South Texas Family Residential Center (STFRC) and the Karnes Residential Center -- is hiring a managing attorney for a temporary (3-month) position. The position begins January 1, 2016 and the announcement is available here.
On-Line Symposium on Texas v. United States -- Michael Kagan, The Uses and Abuses of Notice and Comment
Michael Kagan provides the latest installment in ImmigrationProf Blog's On-Line symposium on Texas v. United States.
In this Symposium post, I would like to focus on the question of whether DACA and DAPA should have gone through a notice and comment process under the Administrative Procedure Act (APA). This contention was the primary basis for Judge Hanen’s injunction against the deferred action programs, although the Fifth Circuit’s November 9 decision added an alternative ground – the claim that the Department of Homeland Security does not have the statutory authority to implement these programs.
I would like to make the case that notice and comment is not required and that notice and comment would contribute little to democratic governance in the context of President Obama’s deferred action policies. It is difficult to imagine how any executive branch policy could have been announced with more transparency or subject to more vigorous public discussion than DACA and DAPA. The main impact of requiring notice and comment would be to empower unelected and unaccountable frontline DHS employees who happen to disagree with the elected President about how the immigration enforcement discretion should be used. That would not be a good thing for American democracy.
I would also like to suggest that the Department of Justice has made a questionable strategic choice by trying to convince the Fifth Circuit that DAPA and DACA are not really binding on frontline DHS officials. DOJ has in essence argued a question of fact when the lower courts have primarily erred on a question of law. The Fifth Circuit has erred in the way it has defined “binding” rules, and in so doing it has made it more difficult for the President to perform as Chief Executive when frontline public employees disagree with the President’s policy choices. While conservative legal thinkers (and judges) may generally oppose President Obama's immigration policies, they should be concerned about an approach to administrative law that makes it difficult for a President to direct federal agencies that are staffed by people with contrary policy preferences.
As I explain in a forthcoming article, the APA challenge to DACA/DAPA involves a longstanding problem of administrative law: What is the difference between a “legislative rule” and a “nonlegislative rule?” Section 553 of the APA requires a notice and comment process for “rulemaking.” However, the notice and comment process is time consuming and burdensome. It also results in rules that significantly constrain an agency’s flexibility because the agency would have to go through a new notice and comment process to rescind or change them. But agencies need not always go through this process because notice and comment is not required for “general statements of policy,” sometimes called non-legislative rules.
The resolution of Texas v. United States depends on whether DACA/DAPA are legislative rules or not. The trouble is that the Supreme Court has said relatively little to help make the distinction – a void the Court could fill in this case. But for now, this void is filled by a muddled body of case law from the D.C. Circuit, which said in 1974 that “the distinguishing feature of a policy statement is that it …[is not] a binding norm.” In 1987, the D.C. Circuit elaborated on this definition with a two-part test in Community Nutrition Institute v. Young (CNI) to determine whether a rule is binding. First, a general statement of policy “is one that does not impose any rights or obligations.” That is not a problem for DACA and DAPA, which were established by a memorandum from Secretary Jeh Johnson that states “this memorandum confers no substantive right.” The trouble is with the second part of the CNI test: A policy statement “genuinely leaves the agency and its decision-makers free to exercise discretion” (emphasis added). The leading Fifth Circuit case on point, Professionals & Patients for Customized Care v. Shalala (1995), adopted this language verbatim. That sentence is the doctrinal foundation for the Fifth Circuit’s decision in Texas.
The Texas case highlights the fact that there are two different ways to understand this test. The correct way, in my view, is that if an agency is free to deviate from a general statement of policy at its own discretion, it is not a binding rule. Thus, so long as the Secretary of Homeland Security is free to rescind the policy at a moment’s notice or to decide not to follow it in an individual case, the rule is not binding and need not go through notice and comment. DACA and DAPA would survive under this interpretation of the APA.
But in Texas, Judge Hanen and the majority of the Fifth Circuit panel have applied a very different understanding. They have reasoned that a rule is binding if it deprives frontline officers – not the agency as a whole – of discretion. To prove this, they have relied on the low rate of denials of DACA applications, and on statements by leaders of DHS employee unions that “applications are simply rubberstamped if the applicants meet the necessary criteria.”
The linchpin of the argument is the D.C. Circuit’s phraseology in CNI: does a rule leave “the agency and its decision-makers free to exercise discretion.” The entire argument hinges on those three words. But as I show in my article, both the D.C. Circuit and the Fifth Circuit have been inconsistent about this phrasing, sometimes referring to the agency as a whole, while elsewhere referring to the agency “and its decision-makers.” In its most recent case on this issue, Association of Flight Attendants-CWA v. Huerta (the 2015 case that gave us all the freedom to use tablet computers during take off and landing on commercial airplanes) the D.C. Circuit found that instructions given to frontline inspectors about how to interpret a pre-existing regulation did not need to go through notice and comment. All of this suggests that it is an error to base an important decision on these three stray words in CNI.
This argument as not been emphasized by the Department of Justice so far. Instead, DO’s primary strategy has been to try to show that frontline officials do actually have some discretion in DACA and DAPA. There are valid points to be made here, but I think this should be at best a fallback argument. One of the great virtues of DACA and DAPA is that the eligibility standards are quite clear-cut, and that they do take much decision-making power away from DHS employees who might not exercise it the way the President wants. I would argue that even assuming the “rubberstamp” depiction of DACA and DAPA, notice comment would not be required.
It’s not just a question of careless phraseology. There are good reasons not to require notice and comment in order for a cabinet secretary to direct his subordinates how to exercise the agency’s discretionary enforcement powers. One of President Obama’s problems is that frontline DHS officers have opposed his immigration policies from the outset. This is evident in the Texas case itself, given that the central evidence relied on by Judge Hanen came from the unions representing ICE and USCIS employees. With the Morton Memos, the Obama Administration tried a system governed by a loose, open-ended guidance document under which the decisive decisions had to be made case-by-case. The results were disappointing, because ICE officials simply have different ideas than the President about when and how prosecutorial discretion should be exercised. The more rigid, categorical nature of DACA and DAPA corrected this problem. They maintain the discretionary power of the agency, while stripping most decision-making power away from agency employees who disagree with the way the President wants to use that power.
Conservative jurists may not like President Obama’s immigration policies, but they should be sympathetic with an elected president trying to implement policy through an agency staffed by nominal subordinates who are hostile to his policy preferences. As Linda Greenhouse recently noted, this was a significant problem for President Ronald Reagan, which led conservative thinkers to favor stronger president control over executive branch agencies. A Republican president in the future might regret it if President Obama loses this fight, because it would make it much harder for any President to direct public policy at the frontlines. As the Fifth Circuit noted in Professionals & Patients, “All statements of policy channel discretion to some degree – indeed, that is their purpose.”
Think of what it would mean if notice and comment were required in order for a head of an agency to tell his or her nominal subordinates how to exercise discretion. It would become much harder for nominal heads of agencies – and ultimately the President – to carry out their policies. More power over public policy would shift to unelected public employees and their unions, and it would become harder for the public to either hold the President to account or to change policy by electing a new President.
In a previous Symposium post, Peter Margulies argued that there is value in requiring notice and comment because “input from a spectrum of stakeholders would improve regulatory outputs.” I believe these benefits are vastly overstated and more relevant in other policy contexts. There would be a stronger argument to insist on notice and comment if President Obama had launched a large scale change in immigration policy in secret. But that is not the case here. Involvement of stakeholders through a formalized process would also have value where Congress has insisted that technical or scientific considerations take priority over political calculations. But as the Supreme Court said in Arizona v. Untied States (2012), “Discretion in the enforcement of immigration law embraces immediate human concerns.” How to weigh those concerns is ultimately subjective. Some people think certain groups of immigrants are sympathetic, while others see them as unsympathetic. The best way in a democracy for this call to be made is for it to be attributable to an elected official, rather than to an anonymous agency employee.
In Lincoln v. Vigil (1993), the Court said that general statements of policy can be useful because they “advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.” This is a call for transparency, which is a prerequisite for the voting public to be able to hold the President accountable. It is hard to think of how a series of notices in the Federal Register would have enhanced public information beyond what President Obama and Secretary Johnson actually did – high profile presidential speeches, detailed memoranda published on official websites, user-friendly web guides, and so on.
The insistence on notice and comment appears to suggest that there are some constituencies that want to speak up about deferred action who have not been able to do so far. But it would be more correct to say that there are constituencies who loudly oppose President Obama’s policy choices, that these people are frustrated because they have not gotten their way, and that some of these people work for the Department of Homeland Security. The more democratic response to these people would be to say, if you don’t like the current deferred action policies, elect a new president who will change them.
Indeed, there are a number of candidates offering to do just that.
In today’s New York Times, Nicholas Kristof asks how today’s Congress would have treated the infant Jesus when Mary and Joseph were fleeing persecution in Egypt: “According to the Gospel of Matthew, after Jesus’ birth they fled to save Jesus from murderous King Herod (perhaps the 2,000-year-ago equivalent of Bashar al-Assad of Syria?). Fortunately Joseph, Mary and Jesus found de facto asylum in Egypt — thank goodness House Republicans weren’t in charge when Jesus was a refugee!” Kristof is referring specifically to Matthew 2:13-18 (“[An] angel of the Lord appeared to Joseph in a dream. ‘Get up,’ he said, ‘take the child and his mother and escape to Egypt. Stay there until I tell you, for Herod is going to search for the child to kill him.’”)
The opposition to the admission of Syrian refugees to the United States has appeared in multiple, ugly variations, from a Syrian refugee family being rerouted from Indiana to Connecticut after the State of Indiana declared that it would ban Syrian refugees, to Roanoke, VA mayor David Bowers favorably citing the Japanese internment camps from WWII in his comments about barring Syrian refugee admissions (remarks for which he later apologized).
But a broad coalition of US spiritual leaders – including evangelical Christians – have condemned proposals to ban Syrian refugees and have invoked similar scriptural bases for extending compassion to Syrian refugees. The National Association of Evangelicals has, for instance, issued a statement supporting the continued admission of Syrian refugees to the US. And on Friday, the Evangelical Immigration Table – an evangelical Christian coalition that has supported comprehensive immigration reform - held a national conference call for faith leaders across the country to receive information and resources on the refugee crisis.
Many commentators have pointed out the absence of rationality at the heart of many recent reactions to the Syrian refugee crisis. US politicians who purport to follow Christianity might also recall the following words of Jesus Christ, from Matthew 25:
42 For I was hungry and you gave me nothing to eat, I was thirsty and you gave me nothing to drink, 43 I was a stranger and you did not invite me in, I needed clothes and you did not clothe me, I was sick and in prison and you did not look after me.’
44 “They also will answer, ‘Lord, when did we see you hungry or thirsty or a stranger or needing clothes or sick or in prison, and did not help you?’
45 “He will reply, ‘Truly I tell you, whatever you did not do for one of the least of these, you did not do for me.’
Donald Verrilli, Solicitor General of the United States
As reported last week on ImmigrationProf, the United States has petitioned for certiorari in Texas v. United States. Solicitor General Donald Verrilli is counsel of record on the petition. The petition is here. Lyle Denniston's report on the petition on SCOTUSBlog is here.
The "Questions Presented" by the United States are as follows:
The Department of Homeland Security has long engaged in “a regular practice * * * known as ‘de-ferred action,’ ” in which the Secretary “exercis[es] [his] discretion” to forbear, “for humanitarian reasons or simply for [his] own convenience,” from removing particular aliens from the United States. Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 483-484 (1999). On November 20, 2014, the Secretary issued a memorandum (Guidance) directing his subordinates to establish a process for considering deferred action for certain aliens who have lived in the United States for five years and either came here as children or already have children who are U.S. citizens or permanent residents.
The questions presented are:
- Whether a State that voluntarily provides a sub-sidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA), 5 U.S.C. 500 et seq., to challenge the Guidance because it will lead to more aliens having deferred action.
- Whether the Guidance is arbitrary and capricious or otherwise not in accordance with law.
- Whether the Guidance was subject to the APA’s notice-and-comment procedures
The United States argues that
I. Respondents do not have Article III standing or a cognizable claim under the APA.
A. A State’s voluntary decision to extend a subsidy to aliens accorded deferred action does not give it standing to challenge federal deferred-action policies.
B. Respondents lack a cognizable APA claim.
II. The Secretary had ample statutory authority to issue the Guidance.
III. The Guidance is exempt from notice-and-comment requirements.
In arguing for the Supreme Court to review the case, the petition argues that "The great and immediate significance of the Secretary’s Guidance, the irreparable injury to the many families affected by delay in its implementation, and the broad importance of the questions presented, counsel strongly in favor of certiorari now."
The ImmigrationProf blog has been publishing a symposium on the Fifth Circuit's ruling in Texas v. United States. Here is the latest installment. Stay tuned for more analysis.
Mr. Trump, I’m used to standing out in the crowd. That’s why I’m ready for my special Muslim ID card
NPR offers important facts about the security measures in the U.S. refugee admissions process. Last week, to try to calm state governors' concerns with the admission of Syrian refugees, White House officials hosted a call with 34 governors to better explain current security screening measures. Some members of Congress have called on the Obama administration to stop or at least pause the resettlement program until refugees can be properly vetted.
Here are four things to keep in mind about the current refugee vetting process and concerns over security:
1. Refugees are screened by several different agencies. Their first point of a refugee's contact is with the U.N. High Commission for Refugees. The UNHCR refers people to countries based on whether they have any family members there and where resettlement makes the most sense, say U.S. officials. If that's the U.S., then refugees are vetted by the National Counterterrorism Center, the FBI's Terrorist Screening Center, and the Departments of State, Defense and Homeland Security. Fingerprints are taken, biographical information is collected. They are then each individually interviewed by U.S. officials trained to verify that they're bona fide refugees.
Refugees from Syria are then subject to additional screening that looks at where they came from and what caused them to flee their home, stories that are checked out. All of this occurs before a refugee is allowed to set foot in the country.
2. It's a lengthy process. On average, officials say it's 18 to 24 months before a refugee is approved for admission to the U.S.The U.S. has admitted some 1,800 Syrian refugees in the past two years, and President Obama wants to allow 10,000 more. The administration says half of those who have been admitted are children and about a quarter of them are adults over 60. Officials say 2 percent are single males of combat age.
3. Physical resettlement.There are nine different nonprofit groups, six of them faith-based, that help refugees settle in the U.S. Volunteers with the groups help refugees find homes, furniture, school supplies and jobs.
3. Objections of governors and members of Congress. Some officials worry there are "gaps" in the vetting process. Experts say U.S. intelligence in Syria isn't very good, because the U.S. lacks much of a presence on the ground. So there's no way to compile a thorough watch list of possible terrorists from Syria against which refugees can be checked. Administration officials are briefing governors and members of Congress about the process, but lawmakers may try to pass legislation calling on the administration to suspend its refugee resettlement efforts.