In a legally sound and blistering statement made public on Friday, 104 legal scholars and instructors of immigration law described Texas Judge Andrew Hanen’s decision to block President Obama’s immigration executive action as “deeply flawed.”
The programs at issue are the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and Deferred Action for Child Arrivals (DACA) These programs would have shielded millions of people from deportation and provided them with permission to work.
The statement identifies several problems in Judge Hanen’s decision beginning with his claim about the legal basis for DACA and DAPA. Hanen asserts “there is no specific law or statute to authorize DAPA”. However, the group of lawyers point to the statutory basis for deferred action in general, then address the specifics of Hanen’s claim about DAPA as a form of deferred action.
In the Texas decision, Judge Hanen declares that “The Government must concede that there is no specific law or statute that authorizes DAPA. However, the government need not concede anything here, because there is strong legal authority for deferred action in general, and for DAPA and DACA in particular as forms of deferred action.
The group goes on to point to a Supreme Court ruling about deferred action as one of many forms of prosecutorial discretion.
To explain why his reasoning is erroneous, it is crucial to understand that deferred action is a longstanding form of prosecutorial discretion. In its decision in Reno v. AADC, the U.S. Supreme Court explicitly recognized “deferred action” as a form of prosecutorial discretion—namely, a choice to interrupt or abandon efforts of trying to deport someone by offering them temporary protection from deportation.
The group also faulted Hanen for equating deferred action with work authorization. While deferred action provided such authorization in the past, they are not one and the same thing.
Judge Hanen also confuses deferred action with work authorization, which is based on an independent statute and governing regulations. He goes to great pains to distinguish prosecutorial discretion in immigration law through “nonenforcement” from deferred action because it comes with “other benefits” like work authorization. But the deferred action program has operated for decades in this way, and among other things, has provided qualifying grantees the opportunity to apply for work authorization upon a showing of economic necessity.
According to the group, Hanen also erred when he suggested that a person cannot obtain a “lawful presence” through programs like DACA and DAPA. He erroneously conflated “lawful status” and “lawful presence.
The source of his mistake is overlooking the difference between “lawful presence” and “lawful status.” The lawful presence awarded to deferred action recipients is a modest aspect of deferred action with its own statutory basis. The limited significance of unlawful presence is that it determines whether the person’s presence will trigger future inadmissibility when he or she departs. In contrast, lawful status, which neither DAPA nor DACA would grant, is associated with whether a person’s status is secure or liminal.
Hanen’s misunderstanding of the difference between “lawful presence” and “lawful status” begins in the very first paragraph of his ruling. ”This program is designed to provide legal presence to over four million individuals who are currently in the country illegally and would enable these individuals to obtain a variety of both state and federal benefits.”
All of these are serious technical errors, especially for a judge with Hanen’s lengthy experience in immigration law. However, there is something else Hanen did to compromise the legitimacy of his ruling. Contrary to his assertion that public opinions and perceptions of the country’s policies do not have a place in resolving a judicial matter, he let his own opinions and perceptions about the President’s policies cloud his judgement.