Thursday, November 12, 2015

On-Line Symposium on Texas v. United States: Commentary of Professor Stephen H. Legomsky

This is the second installment of the ImmigrationProf blog on-line symposium on the Fifth Circuit's ruling on Monday in Texas v. United States, which enjoined the Obama administration's expanded deferred action program.  The author is Stephen Legomsky, John S. Lehmann University Professor Emeritus, Washington University School of Law, and former Chief Counsel, USCIS and former Senior Counselor to the Secretary of Homeland Security.


Stephen H. Legomsky

After an extraordinary delay that dissenting Judge Carolyn King rightly called “unjustifiable,” the Fifth Circuit on November 9 finally handed down its decision in Texas v. United States.  The ultimate outcome didn’t surprise anyone on either side of the DAPA debate.  The two judges in the majority had long ago signaled their feelings about DAPA generally and the legal issues it raises.

Still, there were a few things about the decision that I think worth highlighting:

The most obvious point is that the Fifth Circuit went even further than Judge Hanen, who had based the preliminary injunction solely on the procedural ground that DAPA could not be implemented without formal notice-and-comment rulemaking. In contrast, the Fifth Circuit found Texas likely to prevail on both the notice-and-comment issue and the substantive legal authority issue.

Silver linings are hard to find in this decision, but in ruling on both issues the Fifth Circuit might have done DHS a favor. Had the court affirmed Judge Hanen’s order solely on notice-and-comment grounds, it would have been exceptionally risky for DHS to issue a Notice of Proposed Rulemaking.  Doing so would have jeopardized the chances of the Supreme Court granting certiorari, since it would have been much harder to convince four Justices that the issuance of an NPRM would not render the case moot.

By affirming on both grounds, the Fifth Circuit has dramatically changed that calculus. Now, initiating the notice-and-comment process would still not enable DHS to implement DAPA unless and until the Supreme Court reverses the Fifth Circuit on one of the other issues --  standing, justiciability, or substantive legal authority.  While it is still possible for an NPRM to render those other issues moot (for example, if the content of the regulation differs substantially from the content of DAPA), it is now less likely to jeopardize the granting of certiorari than it would have been had the Fifth Circuit relied solely on the notice-and-comment argument.  As a result, the Fifth Circuit has given DHS a strategic option that a narrower opinion based solely on notice-and-comment would not have afforded.

A second observation is that, like the district court, the two judges in the Fifth Circuit majority conflated what should have been two separate, albeit related, issues. One issue is whether DHS has the authority to implement DAPA itself.  The other issues are whether, once deferred action is granted, DHS has the authority to deem the person lawfully present and/or the authority to grant work authorization.  The latter consequences flow from preexisting legal authority (statutory in the case of lawful presence, and statutory, regulatory, and judicial in the case of work permits) that the DAPA memo does not change in any way.  DAPA itself is simply a specific vehicle for prosecutorial discretion, which the court did not question.  So if the court felt that DAPA itself would be legal but for these other consequences, it should have approved the DAPA memo and only then proceeded to decide whether the Secretary had the authority to deem the recipients lawfully present and grant them work permits.  Each of these issues generates its own set of competing legal arguments and competing policy considerations.  By conflating them, the court abdicated its duty to explain why these preexisting authorities did not permit DHS to deem the recipients lawfully present and grant them permission to work.

A third observation, which follows from the preceding one, specifically concerns the concept of “lawful presence.” ‘This was a dominant theme in the majority opinion.  The majority repeatedly says or implies that there is no statutory authority for deeming millions of undocumented immigrants lawfully present.  I found it striking that the majority would rely so heavily on that assertion without even mentioning INA § 212(a)(9)(B)(ii), which at least on its face seems to provide precisely that authority.  This provision recognizes that the Attorney General (now the Secretary of Homeland Security) may authorize a period of stay for “an alien” (it does not limit this authority to particular subclasses of “aliens”), even when such periods of stay are not already authorized by the statute itself.  The same provision explicitly defines unlawful presence so as to exclude any such authorized periods.

Perhaps one can argue that this provision doesn’t mean what it says. If that’s what the Fifth Circuit thought, then it could and should have acknowledged this provision and explained why it fails to supply the necessary authority.  But the Fifth Circuit did not do even that.  Instead, like Judge Hanen, their preferred path was to ignore this provision entirely.  Since both the government and amici had cited section 212(a)(9)(B)(ii) in their briefs, and since the dissent cited it as well (the majority surely had the opportunity to read the dissenting opinion in draft before finalizing its opinion), this omission is inexplicable – unless the majority felt it could not persuasively explain this provision away and hoped no one would notice.

Finally, the Fifth Circuit majority approved Judge Hanen’s “finding” that, if DAPA were to be implemented, the DAPA adjudicators would defy the Secretary’s clear and repeated instructions to evaluate each case individually and to exercise discretion even when the threshold criteria are met. I would submit that this is not even a case in which the evidence to support that speculation was merely flimsy; it was nonexistent.

As Judge King cogently pointed out in her dissent, the burden of proof on all the issues before the court rests with the plaintiffs. Yet none of the considerations that led Judge Hanen to his conclusion amount to probative evidence that USCIS adjudicators will fail to exercise true discretion.  He emphasized, for example, that the approval rates for DACA were high.  (He actually overstated them, saying that they are somewhere between 95% and 99.5%.  USCIS’s actual data showed a 95% approval rate.  The 99.5% figure was based solely on the unsupported and wildly inaccurate assertion of USCIS employee Kenneth Palinkas, the President of the employee’s union.)

Well, of course the DACA approval rates are high. If you’re undocumented, and in addition you have some other negative conduct in your background, the last thing you’re likely to do is initiate contact with the immigration authorities and say “This is my name, this is where I live, I’m undocumented, I have this other misconduct you should know about, and here are my fingerprints so that the FBI can do further investigation on me.  And also, here’s a check for $465 for a benefit that I know I’m unlikely to receive.”  So this is a highly self-selected group.  The leap from “the approval rate is 95%” to “therefore the decisions are being rubber-stamped” is a nonsequitur.

Judge Hanen had also relied on Palinikas’s other assertion – also unsupported – that because the adjudications are being performed in the regional Service Centers on the basis of a paper record (and FBI investigation) rather than with personal interviews, the decisions must be getting rubber-stamped. Never mind that an interview could either help or hurt any given applicant.  Never mind that this is how USCIS conducts the vast majority of its adjudications, not just DACA requests.  Never mind that the guidance encourages the DACA adjudicators to refer individual cases to the local offices for personal interviews in cases where they think interviews would be helpful.  And never mind the surprise that the more than 40,000 DACA requestors who have already been denied on the merits will feel when they read that DACA requests are rubber-stamped.

Judge Hanen also stated that USCIS had been unable to identify any cases in which DACA requestors had been found to have met all the threshold criteria but denied nonetheless in the exercise of discretion. First, that is not true.  In his sworn affidavit to the court, Associate Director for Service Centers Donald Neufeld had identified several such cases.  Some critics have said that his only cited examples were ones in which the adverse discretionary factors also eliminated eligibility under the threshold criteria.  That too is incorrect.  For example, fraud in prior dealings with DHS (not just fraud in the DACA requests themselves) accounted for some discretionary denials, even though such prior fraud did not negate any of the threshold criteria.  Perhaps more important, as Judge King noted in her dissent, the adjudicators exercise additional broad discretion in applying some of the threshold criteria themselves, especially those relating to public safety and national security.

But most unnerving of all was the assumption that, if DACA adjudicators were rubber-stamping approvals (a premise for which, again, there was no evidence in any event), DAPA adjudicators will do the same. Since DAPA has not begun yet, that assumption is speculative.  Moreover it is speculation that is both unsupported by the evidence (keeping in mind, again, that Texas has the burden of proof) and irrational.  The court’s only asserted basis for this speculation was the Secretary’s statement that the DAPA process would be “similar” to the DACA process.  As Judge King pointed out, “similar” does not mean “identical.”  Since the substantive threshold criteria for DAPA bear little if any resemblance to those for DACA, the assumption that a high approval rate for DACA (whose beneficiaries were brought here as children) augurs a similar result for DAPA has no basis in the evidence.

There are many other flaws in the Fifth Circuit opinion, but I’ll stop with that list. DHS immediately announced it would seek Supreme Court review, and I hope the extraordinary delay by the two judges in the Fifth Circuit majority will not prevent the Court from hearing the case during the current term.  I would expect DOJ to file its certiorari petition with unusual speed to minimize the chances of missing the relevant deadlines.  Given the national importance of the issue, the short time left for implementation if the injunction is vacated, and the divergence of views from judge to judge and state to state, I fully expect the Court to take the case.

Will the government ultimately prevail? Justice Kennedy is the most likely swing vote, and the government has three alternative paths to victory.  It needs to prevail on (a) the standing issue; or (b) the justiciability issue; or both the notice-and comment issue and the substantive legal authority issue.  Although the comments in this blog go only to the substantive issue, I think the government has a strong case on all of those issues and remain optimistic as to the ultimate outcome.  If that prediction pans out, millions of our long-term neighbors and their families will achieve what they have craved for so many years – a recognition of their human dignity, a sense of hope, the freedom from fear, and meaningful life opportunities for themselves and their children. As so many others have observed, our nation will benefit even more.


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