Today we review the guidance the Department of Homeland Security will use to implement the President’s directives.
An important first stop on the way to understanding the DHS Immigration Policy Guidance is to recognize that it does not have the force of law in any way that imposes a burden on the public. Only a regulation duly promulgated under the Administrative Procedure Act can do that. There are numerous examples of agencies attempting to regulate via guidance. See, for example, the famous 2001 case of Appalachian Power Co. v. EPA, in which the Court of Appeals for the District of Columbia Circuit struck down EPA’s Periodic Monitoring Guidance for Title V Operating Permits Programs because it imposed regulatory burdens on the public:
The phenomenon we see in this case is familiar. Congress passes a broadly worded statute. The agency follows with regulations containing broad language, open-ended phrases, ambiguous standards and the like. Then as years pass, the agency issues circulars or guidance or memoranda, explaining, interpreting, defining and often expanding the commands in the regulations. One guidance document may yield another and then another and so on. Several words in a regulation may spawn hundreds of pages of text as the agency offers more and more detail regarding what its regulations demand of regulated entities. Law is made, without notice and comment, without public participation, and without publication in the Federal Register or the Code of Federal Regulations. With the advent of the Internet, the agency does not need
these official publications to ensure widespread circulation; it can inform those affected simply by posting its new guidance or memoranda or policy statement on its web site. An agency operating in this way gains a large advantage… The agency may also think there is another advantage–immunizing its lawmaking from judicial review.
In 2007, the Office of Management and Budget published government-wide guidance on the use of guidance. This guidance document is worth reading in its entirety, but several key provisions apply here:
- Federal agencies are required to establish and follow written procedures for the approval of significant guidance documents. Sec. II(1).
- Guidance documents must not include mandatory language such as “shall,” “must,” “required” or “requirement,” unless the agency is using these words to describe a statutory or regulatory requirement, or the language is addressed to agency staff and will not foreclose agency consideration of positions advanced by affected private parties. Sec. II(2)(h).
- Federal agencies are required to establish and clearly advertise on its website a means for the public to submit comments electronically on significant guidance documents.
- For economically significant guidance, agencies are generally required to publish a notice of availability of the draft version in the Federal Register and invite public comment. Sec. IV(1). “economically significant” guidance, DHS has not complied with this provision. (There is an exception to this provision if an agency head, in consultation with the Administrator of OMB’s Office of Information and Regulatory Affairs, deems these public notice and comment provisions “not feasible or appropriate.” Sec. IV(2).)
With respect to the Immigration Policy Guidance, DHS has not complied with the procedural steps required by OMB. However, the Guidance does comply with its primary substantive requirement: it relieves existing burdens on some people and imposes no new direct regulatory burdens on anyone.
Moreover, it supersedes and rescinds several previously issued Obama administration guidance documents:
- John Morton, Civil Immigration Enforcement: Priorities for the Apprehension, Detention , and Removal of Aliens, March 2, 2011
- John Morton, Exercising Prosecutorial Discretion Consistent with the Civil Enforcement Priorities of the Agency for the Apprehension, Detention and Removal of Aliens, June 17, 2011
- Peter Vincent, Case-by-Case Review of Incoming and Certain Pending Cases, November 17, 2011
- John Morton, Civil Immigration Enforcement: Guidance on the Use of Detainers in the Federal, State, Local, and Tribal Criminal Justice Systems, December 21, 2012 (reprinted)
- John Morton, National Fugitive Operations Program: Priorities, Goals, and Expectations, December 8, 2009
These guidance documents appear to have been the subject of general news reporting and congressional controversy, including bills specifically intended to override them.
MAIN PROVISIONS OF THE DHS IMMIGRATION POLICY GUIDANCE
The Guidance is divided into four sections.
A. Civil Immigration Enforcement Priorities
The Guidance establishes three tiers for enforcement priority.
Priority 1 consists of unlawful aliens who pose “threats to national security, border security, and public safety.” This includes”
- aliens engaged in or suspected of terrorism or espionage
- aliens apprehended at the border or a port of entry while attempting to unlawfully enter the US
- of any age convicted of an offense “for which an element was active participation in a criminal street gang” or
- 16 or older who “intentionally participated in an organized criminal gang to further the illegal activity of the gang”
- aliens convicted of an offense classified as a felony “other than a state or local offense for which an essential element was the alien’s immigration status”
- aliens convicted of an “aggravated felony” (see 8 USC 1101(a)(43))
The meaning of the exception in the fourth bullet (“other than a state or local offense for which an essential element was the alien’s immigration status”) is not obvious. While it appears to create a loophole of sorts, the key word in the text is essential. Thus, the only state or local felonies exempted are those for which an alien’s immigration status was an essential element of the crime.
Priority 2 consists of “misdemeanants and new immigration violators.” This includes:
- aliens convicted of three or more misdemeanor offenses, with exceptions for
- minor traffic offenses or
- “state or local offenses for which an essential element was the alien’s immigration status, provided the offenses arise out of three separate incidents”
- aliens convicted of a “significant misdemeanor” defined as an offense of
- domestic violence
- sexual abuse or exploitation
- unlawful possession or use of a firearm
- drug distribution or trafficking
- driving under the influence
- or an offense “for which the individual was sentenced to [and actually served] time in custody of 90 days or more”
- “aliens apprehended anywhere … after unlawfully entering or re-entering the United States and who cannot establish to the satisfaction of an immigration officer that they have been physically present in the United States continuously since January 1, 2014”
- aliens who designated senior government officials say have significantly abused the visa or visa waiver programs
Priority 3 consists of “other immigration violations.” It encompasses all unlawful aliens not in Priority 1 or 2 who have been issued a final order of removal on or after January 1, 2014. Presumably it excludes those who have been issued such orders prior to that date.
The Guidance gives designated senior government officials the authority to exempt from any of the three categories any individual for whom there are “exceptional factors that clearly indicate the alien is not a threat to national security, border security, or public safety and should not therefore be an enforcement priority.”
People may disagree with how this discretion is exercised in practice, but no evaluation is possible until they do. At the same time, to the extent that privacy laws apply, there may be no practical means to conduct this evaluation. Presumably Congress could (and likely, will) assign the evaluation task to the Government Accountability Office. Additional text in the Guidance suggests that liberal use of administrative discretion is intended and expected, thus creating the possibility that exceptions will swallow he rules.
Analysis of President Obama’s enforcement priorities
The Department of Justice Executive Office for Immigration Review publishes annual reports that include useful statistics on the work of federal immigration courts. The FY 2013 report shows a range of numbers from about 250 thousand in FY 2009 to about 200 thousand in FY 2013. Almost all cases are removals, a term that includes both the prevention of unlawful entry to the US and the involuntary repatriation of aliens determined to be unlawfully present. Historically, there was a difference between exclusion and deportation. Exclusion referred to preventing persons from unlawful entry; deportation meant expelling persons determined to be unlawfully present. These terms were replaced in 1996 with the all-purpose term removal. A recent Washington Post op-ed by law professor Anna O. Law explains how the language has changed and why the public is confused. The fact that her article had to be corrected shows that even experts can be confused.
The key statistic to understand is that these figures (rounded off to 300k per year) are a small fraction of the number of unlawful aliens present in the US (an uncertain quantity rounded off to 10 million). Even if the flow of unlawful entries permanently declined to zero, it would take over 30 years to process the existing stock. For that reason alone, DHS has no choice but to set enforcement priorities. And, because attempted unlawful entry will not stop as long as the US is a superior place to live and work than many other countries, resources can be spent on preventing unlawful entry or involuntarily repatriating unlawful aliens already present, but not both.
B. Apprehension, Detention, and Removal of Other Aliens Unlawfully in the United States
This section reiterates that persons unlawfully present in the US remain subject to the immigration laws and its attendant sanctions:
Nothing in this memorandum should be construed to prohibit or discourage the apprehension, detention, or removal of aliens unlawfully in the United States who are not identified as priorities herein. However, resources should be dedicated, to the greatest degree possible, to the removal of aliens described in the priorities set forth above, commensurate with the level of prioritization identified. Immigration officers and attorneys may pursue removal of an alien not identified as a priority herein, provided, in the judgment of an ICE Field Office Director, removing such an alien would serve an important federal interest.
This section directs that limited DHS detention resources be used to support the new enforcement priorities. Moreover:
Absent extraordinary circumstances or the requirement of mandatory detention, field office directors should not expend detention resources on aliens who are known to be suffering from serious physical or mental illness, who are disabled, elderly, pregnant, or nursing, who demonstrate that they are primary caretakers of children or an infirm person, or whose detention is otherwise not in the public interest.
The Guidance provides additional insight concerning how senior agency officials are expected to exercise the discretion noted above in implementing the new enforcement priorities:
In making such judgments, DHS personnel should consider factors such as: extenuating circumstances involving the offense of conviction; extended length of time since the offense of conviction; length of time in the United States; military service; family or community ties in the United States; status as a victim, witness or plaintiff in civil or criminal proceedings; or compelling humanitarian factors such as poor health, age, pregnancy, a young child, or a seriously ill relative. These factors are not intended to be dispositive nor is this list intended to be exhaustive. Decisions should be based on the totality of the circumstances.
It appears that President Obama, acting through DHS leadership, wants DHS field staff to exercise discretion quite liberally. This can be gleaned from the fact that each of the factors listed argues for exemption, and the list of factors warranting exemption “is not intended to be exhaustive.” The text invites immigration counsel to devise additional factors as needed to support exemption, and it deters DHS personnel from resisting.
Even if there are no objections to the way the Guidance classifies unlawful aliens for enforcement, it is easy to object to a management instruction to exempt as many unlawful aliens as possible from the application of the enforcement classification. Congress may want to ensure that accurate data are collected that document how discretion is actually exercised.
The Guidance becomes effective on January 5, 2015, with DHS personnel trained prior to that data. If training indicates that DHS personnel are expected to exercise administrative discretion liberally, we can expect to hear about it from unhappy DHS employees.
This section directs the relevant DHS components to “collect, maintain, and report to the Secretary” various data related to implementation. Data collection and reporting are essential; that which is not measured is not important. According to the Guidance, DHS Secretary Johnson “intends” to report these data to the public annually. This is not the same thing as a commitment.
As previously noted, Congress may want additional data other than what Secretary Johnson seeks. It can direct the collection and reporting of these data in the FY 2015 Continuing Resolution.
G. No Private Right Statement
Some unlawful aliens (and likely many activists on their behalf) may want to read this Guidance as providing new legal rights. The Guidance does not do so; rather, it explicitly denies any private right of action to enforce its provisions.
HOW MANY UNLAWFUL ALIENS ARE EXPECTED TO BENEFIT FROM THIS CHANGE IN ENFORCEMENT PRIORITIES?
Unfortunately, the Guidance offers no insight on this question. Had OMB required DHS to comply with its own guidance on the use of guidance, such estimates might have been required as a condition for publication. We cannot tell from the public record whether OMB reviewed this Guidance before it was published. Even if it had done so, there is no chance that OMB would have been able to compel the production of such estimates.