Today we review the Department of Homeland Security’s guidance implementing President Obama’s decision to extend “deferred action” beyond those who were brought to the US as children, a group he directed be exempted from removal in June 2012 (“deferred action for childhood arrivals, or DACA). The justification given is the same as that for the companion Enforcement Priorities Guidance analyzed in Part 4: (1) the need for priority-setting due to limited resources and (2) the authority to exercise prosecutorial discretion.
The Expanded DACA Guidance is the main source of political controversy only in part because it dramatically expands the number of covered persons. The Guidance is controversial mainly because deferred action is inherently controversial. Congress has never statutorily unauthorized it, so DHS is acting in constitutionally contested territory.
GOOD GUIDANCE PRACTICES
Like its companion guidance setting new enforcement priorities, DHS did not comply with the procedural requirements of OMB’s Bulletin on Good Guidance Practices before issuing the Expanded DACA Guidance. The text complies in part with the Bulletin’s substantive provisions because it relieves burdens on certain members of the public and imposes no new direct regulatory requirements. However, the Expanded DACA Guidance may impose new legal and regulatory burdens on third parties, as indicated below.
WHAT IS “DEFERRED ACTION”?
“Deferred action” is the term of art used to describe an administrative determination not to enforce applicable immigration laws. DHS’ Deferred Action Guidance describes it as having originated in an “operating instruction” manual published in 1975 by the Immigration and Naturalization Service, the precursor of the US Citizenship and Immigration Services.
It appears that this seemingly ancient history is cited to establish a the notion that deferred action is a longstanding and uncontroversial practice, but that would be an incorrect inference. The 1975 INS operating instruction manual had uncertain statutory authority from the outset. It was subject to a significant litigation by unlawful aliens claiming a legal right of eligibility, and subsequent to courts opining that it was effectively an entitlement to otherwise qualifying aliens, it was rescinded in 1997.
A recent Congressional Research Service report notes that DHS considers its deferred action guidelines discretionary; this Guidance also states that it “confers no substantive right, immigration status or pathway to citizenship,” and that “[o]nly an Act of Congress can confer these rights.” But some courts (notably the Ninth Circuit) have a history of ruling otherwise, interpreting previous guidance documents such as the 1970s vintage operating instruction as binding on the government. CRS concludes that whether DHS has statutory authority to issue deferred action guidance remains a contentious matter:
The extent to which Congress can constrain the Administration’s exercise of discretion in the DACA context, in particular, may depend on whether a reviewing court characterizes the underlying authority for the implementation of the program as constitutionally or statutorily based. Congress has broad authority to restrict discretionary acts taken pursuant to statutory delegations, while arguably limited authority, under the doctrine of Separation of Powers, to restrict the President’s exercise of constitutionally based discretion. In addition, the degree of intrusion into executive enforcement decisions may also impact a court’s review of any congressional response. For example, legal precedent suggests that Congress probably cannot directly limit the President’s exercise of discretion by requiring that the executive branch initiate enforcement actions against particular individuals.166 On the other hand, Congress would appear to have considerable latitude in establishing statutory guidelines for immigration officials to follow in the exercise of their enforcement powers, including by “indicat[ing] with precision the measures available to enforce the” [Immigration and Nationalities Act], or by prohibiting DHS from considering certain factors in setting enforcement priorities (footnotes omitted).
As used in this Guidance:
Deferred action is a form of prosecutorial discretion by which the Secretary deprioritizes an individual’s case for humanitarian reasons, administrative convenience, or in the interest of the Department’s overall enforcement mission. As an act of prosecutorial discretion, deferred action is legally available so long as it is granted on a case-by-case basis, and it may be terminated at any time at the agency’s discretion. Deferred action does not confer any form of legal status in this country, much less citizenship; it simply means that, for a specified period of time, an individual is permitted to be lawfully present in the United States. Nor can deferred action itself lead to a green card. Although deferred action is not expressly conferred by statute, the practice is referenced and therefore endorsed by implication in several federal statutes (footnote omitted).
Additional controversy arises because the Guidance states that DHS is expanding deferred action case-by-case in the same manner that prosecutorial discretion is normally invoked. However, the text also indicates that it will be implemented wholesale. The expanded DACA Guidance is to case-by-case adjudication what a class action is to a civil lawsuit.
WHAT THE GUIDANCE DOES
The Guidance expands deferred action substantially–to
adults who have been in this country since January 1, 2010, are the parents of U.S. citizens or lawful permanent residents, and who are otherwise not enforcement priorities…
The Guidance explicitly must requires that eligibility be determined case-by-case. However, it does not explain how this is to be done given the 5 million unlawful aliens reported by the White House to qualify and the stated justification of limited resources.
Deferred action is accompanied by the issuance of a work permit in addition to the temporary suspension of legal risk of removal.
The text is divided into two parts.
A. Expanding DACA
The June 15, 2012 DACA guidance extended deferred action for two years to unlawful aliens “who were under the age of 31 on June 15, 2012, who entered the United States before June 15, 2007 (5 years prior) as children under the age of 16, and who meet specific educational and public safety criteria.” Each application of the guidance required a case-by-case determination. In June 2014, the period of time was extended to four years on request.
The Expanded DACA Guidance:
- removes the age limitation such that any unlawful alien who entered prior to age 16 qualifies, regardless of the date on which entry occurred
- extends deferred action to three years instead of two for initial applicants effective November 24, 2014 (with a directive to USCIS to “consider” ways to extend existing deferred actions)
- moves the deadline for unlawful entry from June 15, 2007, to January 1, 2010
As noted earlier, how case-by-case review is expected to occur isn’t clear. Each applicant must be shown not to belong to any of the three enforcement priority categories established by the DHS Enforcement Policy Guidance. These determinations cannot be made wholesale and be consistent with the Expanded DACA Guidance.
B. Expanding Deferred Action
The Guidance directs USCIS to “establish a process, similar to DACA,” to extend deferred action to unlawful aliens who
- have a child who is a US citizen or lawful permanent resident
- has continuously resided in he US since January 1, 2010
- were physically present in the US on November 20, 2014
- are not an enforcement priority under the DHS Enforcement Policy Guidance
- “present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate”
The Guidance requires eligible unlawful aliens to apply, “submit biometrics [i.e., fingerprints] for USCIS to conduct background checks similar to the background check that is required for DACA applicants,” and pay $465 to cover the cost of a work authorization and obtaining fingerprints. The cost of conducting the background check apparently would be borne by USCIS.
Budget constraints may not matter. Information obtained through the Freedom of Information Act suggests that under the original, much smaller, DACA program, USCIS has been waiving fees and conducting only cursory background checks.
The Guidance directs DHS component organizations to immediately identify unlawful aliens in custody who may be eligible for expanded deferred action, “whether or not the individual is already in removal proceedings or subject to a final order of removal.”
Not all unlawful aliens who apply for deferred action under either the original or the expanded program will need work authorization to become gainfully employed. An unknown number already are employed, albeit in violation of law. Circumstances vary; some employers knew that they were hiring unlawful aliens, and others did not. When an illegally employed unlawful alien seeks deferred action status, identity as an unlawful alien will become known. This could occur, for example, at any time from the unlawful alien’s application for deferred status to the (newly lawful) alien’s request for a valid Social Security Number (which presumably would replace the invalid SSN used to secure illegal employment).
At some point the employer is going to either discover or be forced to admit that the employee had been working illegally. This will expose the employer to penalties for violating immigration law. Laura Foote Reiff, a Washington lawyer with extensive experience at the intersection of employment and immigration law, writes:
Employers are particularly vulnerable when a current employee comes forward and reveals that s/he has been working for the company under a false identity and asks the employer to provide evidence of his/her employment history in order to take advantage of Executive Relief. An employer faces civil and potentially criminal liability for past hiring of unauthorized workers and also may face discrimination charges for hiring newly documented workers who previously presented fraudulent documents. Additionally, employers who do provide documentation to unauthorized workers may be identified as a target for future government enforcement activity.
Reiff believes that legislation is needed to address this issue, but given the constitutional and political controversies over the President’s actions, that seems unlikely any time soon.
State and local governments
State and local governments may be substantially affected if deferred action enables unlawful aliens to qualify for public benefits. None of the White House documents speaks to this issue despite its obvious importance. According to the DHS Expended DACA Guidance:
Deferred action does not confer any form of legal status in this country, much less citizenship; it simply means that, for a specified period of time, an individual is permitted to be lawfully present in the United States.
If the legal status of unlawful aliens granted deferred status does not change, it is not obvious how they would qualify for public benefits.
BENEFITS, COSTS AND OTHER EFFECTS
The Guidance includes no information germane to the question, nor does it include any analysis. The Guidance qualifies as a “significant regulatory action” under Executive Order 12866. The public docket indicates that OMB did not review the Guidance before it was published, and in any case, DHS has not provided any estimates of its likely or potential effects.
The White House published talking points and a fact sheet that provide estimates of the number of unlawful aliens expected to be eligible for expanded deferred action (“nearly 5 million”). None of the estimates provided is documented.
Robert Rector of the Heritage Foundation has been quoted as claiming that the Guidance will trigger net taxpayer outlays of $2 trillion the program beneficiaries’ lifetimes. This estimate is said to be based on a 2013 report published on the Heritage website. However, that methodology does not appear to apply to the subset of unlawful aliens who would be eligible for deferred status (e.g., recent arrivals and children would not be covered), and as noted above, the Guidance does not change unlawful aliens’ legal status.
Work authorizations accompanying deferred action will have substantial effects on the US labor market, particularly at the low end. The supply of authorized low- and unskilled workers will increase and, at least in the short run, depress market wages. It also may substantially reduce the supply of unauthorized workers, as unauthorized workers take advantage of deferred action to become authorized. To the extent that the wages of unauthorized workers are depressed because employers take advantage of such workers’ illegal status, wage rates in the unauthorized labor market should rise.
If DHS and its component agencies competently implement President Obama’s executive actions, the US will experience an extraordinary, large-scale uncontrolled social and economic experiment.