ImmigrationProf Blog

Friday, November 27, 2015

On-Line Symposium on Texas v. United States: Jason Cade, On Categorical Nonenforcement Decisions in Immigration Law

Here is the latest installment in ImmigrationProf Blog's On-Line symposium on Texas v. United States.

Jason Cade, On Categorical Nonenforcement Decisions in Immigration Law

For my contribution to this symposium, I wish to focus on a point of convergence between the Fifth Circuit majority and dissent in Texas v. United States. Both opinions find critical the inquiry whether front-line agency officials retain authority to deny deferred action on a discretionary basis. Judge Smith’s opinion for the majority, like the district court, extrapolated from DACA’s high approval rate to find that DAPA would not “genuinely” leave DHS agents free to exercise discretion. Judge King’s dissent distinguished DAPA from DACA largely on the grounds that DAPA bakes individualized discretionary determinations into the program’s enumerated criteria. Her reasoning implicitly suggests that she would at least have found the President’s authority to implement DACA without rule-making to be a much closer question.

Thus, although DACA was not squarely before the Fifth Circuit, both opinions decision throw that specific program’s continuing validity into significant uncertainty. More generally, the opinions raise questions about the propriety of categorical nonenforcement in immigration law. In this post I set out a tentative defense of categorical nonenforcement decisions like those reflected in the DACA program.

First, I must briefly describe the broader context of the system in which the President’s deferred action programs have arisen. In the late twentieth century, Congress passed a series of wide-reaching amendments to the immigration code, which collectively made vastly increased numbers of noncitizens presumptively deportable and ineligible for back-end discretionary relief from immigration judges based on a balancing of positive and negative factors. At the same time, longstanding acquiescence by both political branches in the unauthorized migration and employment of noncitizens, among other factors, has resulted in a massive unauthorized population in the United States. The breadth and severity of these modern immigration rules, along with the scale of the removable noncitizen population, consolidates tremendous power over the equitable implementation of immigration law in enforcement actors. If considerations of proportionality and fairness are to play a part in deportation, they do so almost entirely through the discretionary decisions of enforcement actors, as I explain in a recent article and forthcoming essay.

The Supreme Court has come a long way towards recognizing the primacy of enforcement-based equity in the modern deportation scheme. In Arizona v. United States, the Court struck down on preemption grounds state immigration laws that might interfere with the Executive’s enforcement priorities, including decisions not to pursue some individuals for equitable reasons. Most recently, during oral argument in this term’s Torres v. Lynch, the justices yet again grappled with a potentially overbroad construction of a criminal ground of removal. At one point Chief Justice John Roberts matter-of-factly asserted that even if the challenged provision is over-inclusive, the executive branch could simply refrain from enforcing the law in situations where it would unjustly sweep in minor offenders. Arguably, this is the system that Congress created (or at least has long acquiesced to), through explicit and de facto delegations of immigration authority to the President.

Against this backdrop, DACA can be conceived as an effort to implement the Department of Homeland Security’s categorical proportionality concerns, as I suggest in my article. Recall the criteria required to receive a favorable grant of deferred action under DACA: long residence in the United States, being brought to the United States at a young age, earning a high school diploma or equivalent, and no criminal record or other indicia of undesirability. The nature of these equitable factors brings the current deportation system’s potential for disproportionality into sharp relief. On the one hand, the underlying offense triggering the sanction of deportation for these noncitizen youth – and a ten-year bar on lawful reentry – is their presence in the United States without authorization, and, in some cases, unlawful entry. On the other hand, their personal mitigating factors point toward lack of (or at least significantly diminished) culpability, full acculturation as Americans, strong community ties, high potential for economic productivity, respect for penal laws, and lack of any indications of dangerousness.

Accordingly, for noncitizen youth falling within this group proportionality concerns loom especially large and discretionary nonenforcement can be defensibly applied in a more generalized fashion. In a system lacking back-end proportionality review, DHS might reasonably determine that deporting DACA-eligible persons (or at least those whose cases lack other indicia suggesting undesirability) is by definition going to be categorically inequitable. Although they do not use the lens of proportionality, Adam Cox and Cristina Rodríguez have persuasively argued the related point that the agency’s discretionary judgment concerning the removal of DACA-eligible noncitizens has not been eliminated, but rather has simply been relocated from DHS’s front line operatives to the agency’s policy heads.

To be clear, I do not assert that enforcement-based equitable determinations through programs like DACA and DAPA are an ideal route to proportionality in immigration law. It would be far better for Congress to enact legislation providing a path to lawful status for or at least some of the undocumented population in this country and restoring discretionary power to immigration judges to balance equities in making deportation decisions. But, sadly, Congress has been unwilling or unable to pass significant immigration reform for many years, leaving us with a system in which enforcement officials wield the bulk of equitable responsibility.

Seen in this light, DACA and DAPA represent the current administration’s most ambitious efforts to ensure that we do not banish those for whom such a life-altering penalty would be unjust in light of their conduct and circumstances. To be sure, whether deportation is fair or proportional in particular circumstances is a complex and inevitably contestable determination. Nevertheless, for the youth who would benefit from DACA, the determination seems almost unassailable. For the law-abiding, long-present parents of U.S. citizens who would benefit from DAPA, it is at least reasonable.

Perhaps those generalized discretionary determinations amount to substantive rules that should have gone through the APA’s notice and comment rules. In a previous post in this symposium Michael Kagan thoroughly addresses that question. Perhaps DHS’s strategic errors in this litigation have led us to this point, as Shoba Wahdia and others have observed. In any event, however, the bottom line is that in a humane immigration system, sanctions as severe as deportation and bars on reentry would be commensurate with the noncitizen’s underlying conduct and mitigating factors. DACA and DAPA reflect important if imperfect attempts by the current administration to manage the responsibility it bears to implement immigration law in a consistent, transparent, and proportional way. I fear the take-away lesson from these efforts for future administrations will be to throw equitable discretion to the wind, or, at best, to return to the secretive and inconsistent processes of earlier decades.