Thursday, April 21, 2016

Peter Margulies -- DAPA and a Pragmatic View of Work Authorization and Family Fairness: Reply to Marty Lederman

Prof. Peter Margulies Roger Williams University School of Law

            Just as Solicitor General Donald Verrilli was off-base at Monday’s SCOTUS argument on DAPA in claiming that asylees lack a pathway to citizenship (see my post here), the usually careful SG (and the usually careful Marty Lederman here) failed to “get” current practice regarding work permits. The SG, seconded by Marty, claimed that current regulations allow “[m]illions” of people to get work permits without a lawful status, so that DAPA is not a major departure. Marty’s take on the Bush 41 Family Fairness program, wrongly cited as a precursor to DAPA, also showed little appreciation for how immigration law works in practice. As a longtime practitioner, I recognize immigration law includes many traps for the unwary – indeed, I’ve learned some lessons on the Immigration and Nationality Act (INA) since Monday myself! The following, based in part on the amicus brief I filed for ex-DHS Assistant Secretary for Policy Stewart Baker and others in U.S. v. Texas, seeks to demystify both work authorization and Family Fairness from a practitioner’s perspective.

            First, consider the SG’s claim at the close of his rebuttal (Tr. 90) that “[m]illions” of people without a lawful status routinely receive work permits. The government’s brief, seconded by Marty, cites to the work permit regulation, 8 C.F.R. § 274a.12. A closer look at that very provision proves that it typically benefits aliens who already have a legal status. Alternatively, the regulation serves as a bridge for aliens with a colorable application for a legal status pending. Seee.g., 8 C.F.R. § 274a.12(a)(6) (authorizing a work permit for an alien engaged to a U.S. citizen; a fianceé or fiancé benefited by this subsection has a legal status pursuant to 8 U.S.C. § 1101(a)(15)(K)(i)). There’s more: 8 C.F.R. § 274a.12(a)(9) (work authorization for the spouse of a U.S. citizen awaiting approval of a petition for a visa as an Immediate Relative pursuant to 8 U.S.C. § 1101(a)(15)(K)(ii)). No need to stop now: see 8 C.F.R. § 274a.12(c)(6) (authorizing work permits for F-1 (student) visa-holders for a one-year period of practical training), and, finally, id. § 274a.12(c)(9) (authorizing work permits for noncitizens seeking adjustment to lawful permanent resident (LPR) status based on family, employment, persecution abroad, etc., who have "properly filed" a petition for such status).

            The SG and Marty are right that these and similar cases add up to millions of work permits. However, the individuals who receive these work permits enjoy the imminent prospect of a legal status, without the daunting obstacles facing a prospective DAPA recipient. The vast cohort of people cited above either have a legal status, or will receive one within months.  The relevant analog to DAPA under the work permit regulation is an individual who lacks a clear path to a legal status. In 1987, immigration officials assured Congress and the public that the total number of work permits granted to this cohort was so small that it was “previously considered to be not worth recording.” (See our brief at 11).

            As we explain in our brief (p. 15), an unlawful entrant and prospective DAPA recipient (let’s call our client Gil) with a six-year-old U.S. citizen child will have to wait 25 years for a legal status. Immigration lawyers know this scenario well, but let’s play it out. For starters, client Gil will have to wait 15 years, until his six-year-old child turns 21. Senators Bobby Kennedy and Sam Ervin agreed in 1965 to keep this age floor on citizen sponsors, to prevent the “anchor baby” scenario tirelessly invoked by opponents of birthright citizenship. See 8 U.S.C. § 1151(b)(2)(A)(i). But that’s only phase 1 in Gil’s waiting game. In phase 2, Gil will have to leave the country to obtain a visa, since he was never inspected, admitted, or paroled. See 8 U.S.C. § 1255(a). When he leaves, if he was unlawfully present in the U.S. for at least a year (DAPA recipients must have lived in the U.S. since 2010), Gil will be subject to an additional 10-year bar on admission. See 8 U.S.C. §1182(a)(9)(B)(i). That’s a total of 25 years, including ten years abroad. (Some prospective DAPA recipients may have overstayed a tourist or student visa and not entered unlawfully, so the unlawful presence bars will not apply to them if they can adjust to LPR status in the U.S.; but well over half of prospective DAPA recipients are unlawful entrants subject to the bars.)

            This scenario is harsh, as every immigration lawyer knows who has had to explain it to a client in Gil’s position. But the obstacles, in Congress’s view, serve immigration policy, by channeling foreign nationals toward legal immigration, which Congress expanded in 1965 and 1990. DAPA undermines that policy by making the precious asset of work authorization available to unlawful entrants whom Congress singled out for formidable obstacles.  

            Mention of the Immigration Act of 1990 highlights Marty’s stylized account of the Bush 41 Family Fairness program, which aided the spouses and children of 1986 Immigration Reform and Control Act (IRCA) legalization grantees. Marty cites the excellent Yale Law Journal article by Adam Cox and Cristina Rodriguez acknowledging that Family Fairness’s beneficiaries could obtain a lawful status under ordinary immigration law as IRCA grantees’ spouses and children, once those IRCA grantees became LPRs. However, Marty then second-guesses Cox and Rodriguez’s conclusion, asserting that IRCA grantees would have to wait a full five years for LPR status. Here, Marty falls victim to the same immigration gremlins who were at Monday’s argument, when the SG stated wrongly that asylees have no path to citizenship (they do; it’s five years from the grant of asylee status: see 8 U.S.C. § 1159(b)). In reality, pace Marty, IRCA grantees only had to wait a short one and a half years for LPR status. See id. § 1255a(b)(1)(A). That short time-frame, plus the 1990 Act’s huge increase in the numbers of visas for spouses and children of LPRs, set the stage for timely receipt of legal status by Family Fairness beneficiaries.   

            One could argue that the 1990 Act was signed into law (in November of that year) after Family Fairness, and so is irrelevant to immigration officials’ power when Family Fairness was announced (in February of 1990). However, as our brief explains (pp. 18-19) that view fails to understand the nature of Congress’s delegation of discretion to immigration officials. At its heart, deferred action serves as a stay of removal, preserving the status quo when a change would be disruptive or inefficient and a legal status is within the beneficiaries’ reach. To this end, immigration officials rolled out Family Fairness against the backdrop of extraordinary legislative-executive collaboration on immigration reform, which contrasts with today’s impasse between the political branches.

            Prior to Family Fairness’s roll-out, both the House and Senate had voted separately to bar deportation of the children and spouses of IRCA grantees. See Josh Blackman’s Georgetown Law Journal Online piece here (pp. 121-25). By February, 1990, the dispute between the House and Senate was solely about the cut-off date for entry into the U.S. of those children and spouses – some legislators wanted a 1986 cut-off date, while others pressed for a later date that would shield more people. Informed observers, including immigration officials, knew that Congress would resolve this issue, and enact relief for this class. In the interim, rushing to deport children and spouses who already had a path to a legal status under existing immigration law seemed both harsh and disruptive. After all, those spouses and children would be able to obtain visas within a short period of time regardless, particularly when officials factored in the likelihood of further legislative immigration reform.

            That’s a compelling case for a stay of removal to preserve the status quo, not unlike the analysis of Chief Justice Roberts in the 2009 stay of removal case, Nken v. Holder. Family Fairness was yet another variation on this traditional theme. Nken was a case about the equitable discretion of federal courts, while deferred action involves the equitable discretion of an administrative agency. But that distinction is immaterial. The crucial point is that deferred action that acts as a bridge to a legal status that is available within a reasonable time fits within Congress’s delegation of discretion to immigration officials. In contrast, DAPA grants a stay and the valuable asset of work authorization to individuals whose access to a legal status is highly contingent (because of the effect of the ten-year bar) and at best lies “far in the future,” as professors Cox and Rodriguez acknowledge in their Yale Law Journal article. (Indeed, even the Justice Department Office of Legal Counsel’s memo supporting DAPA concedes that “in most instances” (p. 29 n. 14) prospective DAPA recipients who were unlawful entrants would be subject to either a 3- or 10-year bar that would require them to spend years outside the United States.)

            Family Fairness beneficiaries also did not have to contend with the bars on admission to the U.S. triggered by past unlawful presence, since Congress enacted those bars in 1996. Marty  maintains that there was no "guarantee" Family Fairness beneficiaries would obtain visas after IRCA grantees became LPRs. That's literally true – immigration officials have rarely been in the business of issuing "guarantees" to foreign nationals under the INA.  However, based on almost ten years of day-to-day supervision of immigration cases and fifteen more years spent writing and teaching in the field, I can say that spouses and children of LPRs not subject to one of the unlawful presence bars virtually always get visas if they apply abroad, assuming they submit appropriate identification and do not have a criminal record or an analogous disqualifying circumstance such as membership in a terrorist organization. Today, the three- and ten-year bars complicate matters for spouses or children who entered unlawfully and accrue unlawful presence in the United States. DHS can be very demanding about the “extreme hardship” required for spouses and children of LPRs and citizens to waive the bars. See 8 U.S.C. § 1182(a)(9)(B)(v). But the bars were not in effect in 1990, so this issue is irrelevant to discussion of Family Fairness. 

            In sum, I agree with Marty that comprehensive immigration reform is vital – I’ve called Congress’s failure to enact it a “national disgrace” (see my post here). But efforts to improve the current situation will founder if they fail to address the practical context of immigration law. Marty and the SG have substituted a stylized account for the statutory building blocks that practitioners work with daily. Those daily encounters demonstrate DAPA’s marked departure from settled practice under the INA.


Current Affairs | Permalink


Thank you for responding, Peter. I have to confess, however, that I don't quite understand the statutory interpretation you're advancing -- that the INA affords the AG/Secretary the authority to grant work authorization to a group of aliens whenever he or she is fairly confident that the *current* Congress will (probably) afford them lawful status, but otherwise not? How would one derive such a principle from the statute? What about if the Secretary is "merely" fairly certain that Congress will confer such lawful status some time before the aliens in question would ever be removed -- as (I think you'd agree) is plainly true of the DAPA aliens?

Posted by: Marty Lederman | Apr 21, 2016 12:46:49 PM

Post a comment