by Ryan Campbell | November 16, 2013
The purpose of this memorandum is to analyze agency discretion as a form of law, as well as the legality of the Obama Administration expanding DACA to cover additional immigrants in lieu of congressional legislation, and then apply this analysis to the current political situation.
America, a nation which was founded after the initial immigration and colonization of the British, Dutch, French and Spanish, has long celebrated the fact that it was founded and sustained by waves of immigrants.
These immigrants have come from every corner of the world, and theirs were the journeys that have made ports like Ellis Island, along with that first view of the Statue of Liberty that greeted travelers, part of the fabric of our culture that still draws tourists and imaginations long after it has shut its doors.
From the Germans and British who formed one of the earliest true immigration waves in the early 1800’s, to the Irish who arrived during the Great Famine of the 1840’s; the Chinese who suffered under laws like the Chinese Exclusion Act to the Mexicans who were deported en masse under the Mexican Repatriation Act; the Jewish refugees who fled persecution from the Holocaust and, later, from the Soviet Union, to the earthquake refugees of Haiti the United States continues to accept as an empathetic nation, every group and generation of immigrants has a story to tell.
Although the history of immigration has been one of a compromise that fluctuates greatly, stories of Lady Liberty welcoming the tired, poor, huddled masses yearning to breathe free have yielded to tales of an impossible maze of antiquated regulations that require a lifetime to navigate as of late, and often denies many opportunities to exceptional young people for their entire lives.
Perfectly encapsulating both the contention and historical perspective of the argument around immigration reform was an exchange between Joe Heck (R-NV) and a constituent in a town hall meeting:
“We do an awful lot of legal immigrant visa casework in my office. And we have folks that have been in the queue waiting for a visa to bring their spouse from the Philippines for 15 years…I think it’s ridiculous… As the grandson of Italian immigrants who came through Ellis Island . . .” 1
A woman in the town hall audience cut him off, saying, “But they didn’t come illegally.”
“I understand that,” replied Rep. Heck. “And that’s because they didn’t have to wait 15 years back in Italy. It’s not easy, but it’s something we have to address.”
Therein lies the dilemma: While the human dynamics of parents struggling to cross borders to give their families the opportunities that they themselves were denied remain largely unchanged, our laws have steadily become outdated and less up to the task of tackling the challenges presented to a nation which continues to be a magnet for immigrants the world over.
For that reason, it is necessary to look toward methods other than legislation to use as a stopgap measure until Congress can muster the political will to directly address the situation legislatively.
On June 15, 2012, at the direction of President Obama, the Secretary of the Department of Homeland Security (DHS), Janet Napolitano, issued a memorandum to U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services (USCIS) entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.” This memorandum, which became the Deferred Action for Childhood Arrivals (DACA) policy, explained how prosecutorial discretion should be applied to individuals who came to the United States as children, do not pose a risk to national security or public safety and meet certain criteria, making them eligible to receive deferred action for two years and apply for work authorization: “By this memorandum, I am setting forth how, in the exercise of our prosecutorial discretion, the Department of Homeland Security (DHS) should enforce the Nation’s immigration laws against certain young people…” 2
In this policy memorandum, I will analyze memorandums as the legal background of DACA, how the DACA program could be expanded completely within existing law at the discretion of the Obama Administration, and why now is the time for the Obama Administration to take such action.
Agencies, such as ICE and DHS, are within the Executive Branch of government, and thus fall within the Obama Administration. Agencies have discretion in the application of the law that they are responsible for. Exercise of this discretion is not only legal, but also required. The general authority for deferred action exists under the Immigration and Nationality Act 103(a), 8 U.S.C. 1103(a), granting the Secretary of Homeland Security the authority to enforce immigration law. 3 Although no statutes or regulations outline deferred action in specific terms, the Supreme Court has clearly ruled that decisions to initiate or terminate enforcement proceedings fall squarely within the authority of the Executive, and can thus be heavily influenced via deferred action by President Obama. 4 This discretion must be practiced within the confines of the law and subject to the chain of command of the agency. If an agency memorandum comes from the top of the chain of command, such as the Secretary of Homeland Security, it becomes the policy for the agency, subject only to extremely narrowly-tailored limitations of the law.
In a memorandum entitled “Exercising Prosecutorial Discretion,” Doris Meissner, former Commissioner of Immigration and Naturalization Services, gave a good summation of what prosecutorial discretion means to her (as well as every other) agency: “’Prosecutorial discretion’ is the authority of an agency charged with enforcing a law to decide whether to enforce, or not to enforce, the law against someone…” 5
In another memorandum written by John Morton, unanimously appointed by the U.S. Senate in 2009 to his position as director of ICE, agency discretion is explained in a very pragmatic way: “Because the agency is confronted with more administrative violations than its resources can address, the agency must regularly exercise ‘prosecutorial discretion’ if it is to prioritize its efforts. In basic terms, prosecutorial discretion is the authority of an agency charged with enforcing a law to decide to what degree to enforce the law against a particular individual.” 6
Meissner’s memo states that discretion is to be exercised “subject to their chains of command and to the particular responsibilities and authority applicable to their specific position;” 7 Essentially, so long as the prosecutorial discretion order comes from the top of the chain of the agency’s command within the confines of the law, it becomes the guidelines for the entire agency, including all of it’s law enforcement activities.
Meissner’s memo goes on to name the legal authority upon which her opinion rests:
Courts recognize that prosecutorial discretion applies in the civil, administrative arena just as it does in criminal law. Moreover, the Supreme Court ‘has recognized on several occasions over many years that an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.’ Heckler v. Chaney, 470 U.S. 821, 831 (1985). Both Congress and the Supreme Court have recently reaffirmed that the concept of prosecutorial discretion applies to INS enforcement activities, such as whether to place an individual in deportation proceedings. INA section 242(g); Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999).
Although prosecutorial discretion is broad, it is certainly not unqualified: “The ‘discretion’ in prosecutorial discretion means that prosecutorial decisions are not subject to judicial review or reversal, except in extremely narrow circumstances.” 8
Once again, Meissner’s memo provides articulate, on-point guidance, showing what would and would not be an acceptable exercise of discretion:
As a law enforcement agency, the INS generally has prosecutorial discretion within its area of law enforcement responsibility unless that discretion has been clearly limited by statute in a way that goes beyond standard terminology. For example, a statute directing that the INS ‘shall’ remove removable aliens would not be construed by itself to limit prosecutorial discretion, but the specific limitation on releasing certain criminal aliens in section 236(c)(2) of the INA evidences a specific congressional intention to limit discretion not to detain certain criminal aliens in removal proceedings that would otherwise exist. 9
The specific language referenced, which pertains to the release of certain undocumented immigrants in custody, is:
Release – The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides pursuant to section 3521 of title 18, United States Code, that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. A decision relating to such release shall take place in accordance with a procedure that considers the severity of the offense committed by the alien. 10
Clearly, this language refers to only a very specific situation, and tailored to the “extremely narrow circumstances” standard which the former INS Commissioner wrote of.
In Christopher L. Crane et al. v. Janet Napolitano in her official capacity as Secretary of Homeland Security, et al., a U.S. district court in Texas dismissed Kris Kobach’s lawsuit on behalf of ICE agents against DACA, which they felt violated their obligation as ICE agents. This helps to illustrate how hesitant the courts have been in overturning agency discretion, demonstrates a clear precedent relevant to our issue at hand, and affirms the degree to which legislative language must be tailed to the aforementioned “extremely narrow circumstances” to compel an agency to enforce a law over which it has discretion.
Clearly, the court has found, time and time again, that for agency discretion to be overturned, it requires a compelling legal reason, along with narrowly-tailored legislation.
With Speaker Boehner’s (R-OH) refusal to take up immigration legislation, a comprehensive immigration bill which addresses the underlying issues that have led to the Obama Administration deporting more undocumented immigrants than any other seems unlikely any time soon, and all but impossible before the end of 2013.
The Gang of 8 legislation took roughly 6 months and the input from many different organizations ranging from the AFLCIO to the US Chamber of Commerce. Considering how much effort it took from all of these organizations to allow this bill to get as far as it did legislatively, a solution from Congress is unlikely to come before the end of the year, at which point immigration reform will lose much of the momentum it has built up this year.
Speaker Boehner, who is responsible for determining which bills get to the floor of the House, recently said of the House “We should not be judged on how many new laws we create. We ought to be judged on how many laws we repeal.” 11
In addition to embracing the dysfunction in Washington, Boehner has confirmed that he will not bring the Gang of 8 bill to the floor: “…frankly, I’ll make clear we have no intention of ever going to conference on the Senate [Gang of 8] bill.” 12 This all happens at a time that Congress has broken records for low approval ratings and unproductivity, and has recently led us into a government shutdown and yet another debt ceiling showdown that harmed our credit rating.
Not only is there a precedent for prosecutorial discretion, rather, there is an unmistakable need for at least some discretion. As a succinct summation on prosecutorial discretion, Meissner’s memo states “INS officers may decline to prosecute a legally sufficient immigration case if the Federal immigration enforcement interest that would be served by prosecution is not substantial.” 13
If the Obama Administration were to find that the prosecution of an entire group of immigrants (perhaps those they believe should qualify for the benefits of a reasonable immigration reform) were not a “substantial interest,” they could issue a memorandum and change the way in which the United States government enforces immigration law, as the Administration has done with DACA. If the Administration were to expand DACA, it would only be subject to extremely narrowly-tailored laws restricting their discretion.
These narrowly tailored laws could easily come from Congress: any legislation they pass could specifically address the issues brought up by an expansion of DACA and reverse the policy.
Expanding DACA would force the holdouts in the GOP House to the negotiating table, and in a much weaker position as their constituents demand they address the issues which prosecutorial discretion covers. This would force the GOP to go on the record on immigration reform, something which they have done their best to avoid as a party.
Most of all, we must remember that the record deportations under the Obama Administration continue to weigh heavily on the immigrant community. While we understand that President Obama wishes to wait for a legislative solution, mixed-status families do not have enough time to wait for another, more reasonable Congress to be voted in: we deal with record-shattering deportations every day, these deportations take place under the authority of the agencies of the Obama Administration, and it is time for Barack Obama to take responsibility for it.[divide] 1 O’Keefe, Ed, On Immigration Reform, Nobody’s Happy with Republican Joe Heck, Washington Post, July 4, 2013, available at: http://articles.washingtonpost.com/2013-07-04/politics/40368939_1_immigration-reform-immigration-system-house-republicans
6 Morton, John, ‘Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention and Removal of Aliens, US Immigration and Customs Enforcement Memorandum, June 17, 2011
11 O’Brien, Michael, ‘Boehner: Judge Congress by how many laws it repeals, not passes,’ NBC News, July 21, 2013, available at: http://nbcpolitics.nbcnews.com/_news/2013/07/21/19596802-boehner-judge-congress-by-how-many-laws-it-repeals-not-passes?lite