Professor Blackman: Obama Administration’s Legal Justification for Amnesty Is “Misleadingly Superficial” and “Demonstrably False”

February 2, 2015

Concurrent with the Obama Administration announcing its latest executive action on amnesty, the Deferred Action for Parental Accountability (DAPA) directive, the Office of Legal Counsel (OLC) publicly released a 33-page legal analysis of the program setting out its list of justifications.  Besides the Homeland Security Department only having “limited resources” to conduct removals, central to the opinion are the propositions that DAPA’s merely an extension of Congressional policy towards family-unity and that Congress has shown “acquiescence” when the Executive implemented deferred action programs in the past. In a recent article in the Georgetown Law Review, however, South Texas College of Law professor, Josh Blackman, rebukes the OLC opinion saying both propositions are “misleadingly superficial” and “demonstrably false.”

 

In his article, Professor Blackman agrees that there’s a general policy of family-unity in the INA, for instance, in its provision of family-based immigrant visas. But the law, he says, does not extend nearly as far as OLC states. Not only are caps placed on most family visa preference categories, but Congress has mandated strict limits on the parents of citizen children, the group DAPA gives amnesty to. In an effort to curb the exploitation of birthright citizenship, citizen children cannot petition for a visa on behalf of their parents until they turn 21. This means that the parents can be and often are deported when found to have entered illegally, an intentional limitation on the INA’s scope for “family unity.”

 

Even when the child turns 21, those parents who’ve been residing as illegal aliens must depart before becoming eligible. The process generally involves leaving the US, applying from their home country, and then re-entering, that is, if they are not already subject to a bar (which would stretch out their ineligibility even further). As Blackman writes, while deferred action may appeal to “humanitarian concerns”, it is “the exact opposite of the policy Congress designed.” The INA “not only contemplates possible separation during the minority of the citizen child, it may even require it before a visa is granted.” As Blackman concludes, DAPA acts to “circumvent” Congress’s “stated preference for parents of citizens to wait for their relief.”

 

Further, when this limitation on parents was installed, reports from both the House and Senate show that Congress explicitly rejected a draft that would have permitted a petition to be filed regardless of the age of the citizen child. Congress contemplated expanding “family-unity”, but affirmed that it was a bad policy choice.

Meanwhile, says Blackman, the parents of legal permanent residents (LPRs), who also fall under DAPA’s relief provisions, were never contemplated by Congress and have no right to obtain a visa based on family relationship under the INA.

OLC also indicated that the INA contemplates family-unity by providing for cancellations of removal, a “remarkably misleading” argument according to one of Blackman’s sources. The “extreme hardship caused to a family member”-standard for cancelling an alien’s removal is an “onerous burden that is rarely met” and annual grants are capped at 4,000. All of this, Blackman writes, is “at odds with a too-rosy overbroad view of the type of family unity contemplated” by the OLC.

 

OLC’s opinion puts much emphasis on their argument that DAPA comports with past grants of deferred action which Congress acquiesced to. But as Blackman notes, Congress has not enacted a general provision in the INA giving the Secretary authority to exercise deferred action. Although Congress has at times approved such programs through statute, any asserted scope of Congress’s acquiescence is “far more constrained than the OLC Opinion suggests.”

 

As “proof” of Congress’s acquiescence, OLC cites USCIS’s grant of deferred action to 5,500 foreign students who would have been unable to comply with the requirements of their visas because their school was impacted by Hurricane Katrina. But like other examples they cite, not only was this action sanctioned by Congress, these students had been in the country lawfully. Further, under the Violence Against Women Act, also cited by OLC, illegal alien spousal-abuse victims were allowed to have lawful status and, before their visa became available, could be granted deferred action. But here, Blackman writes, the applicant had “an immediate prospect of lawful presence” and the deferred action merely served as a “temporary bridge” for those to receive that permanent status.

 

Strangely, OLC also uses DACA as a precedent for the expansion of deferred action, although as Blackman writes, that program’s on even “shakier” legal footing than DAPA. Unlike DAPA, there was no family-unity element under DACA and its beneficiaries weren’t required to have any familial relationship with any citizen or LPR. As OLC itself admits, DACA “was predicated on humanitarian concerns that appeared less particularized and acute than those underlying certain prior class-wide deferred action programs.” Finally, OLC conveniently avoids the fact that the DREAM Act was rejected 24 times by Congress prior to DACA by stating it refused to “draw any inference regarding congressional policy from the[] unenacted bills.”

The Obama Administration’s DAPA program is an executive rewrite of immigration policy, says Professor Blackman. As he concludes, it’s “inconsistency with Congressional policy is a strong indication that the policy is not lawful.”

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