South Texas College of Law professor Josh Blackman has published his second law review article analyzing the unconstitutionality of the Obama Administration’s Deferred Action for Parental Accountability (DAPA) program. Blackman takes aim at two justifications for DAPA outlined by the Office of Legal Counsel (OLC), namely that the program conserves DHS’s “limited resources” and that it commits to an individualized case-by-case analysis and is therefore a proper exercise of prosecutorial discretion.
Blackman rebuts OLC’s claims of “resource conservation” by analyzing the structure of both DAPA and DACA. According to former Secretary Napolitano’s memo on DACA (which used similar wording to the Johnson memos), that program applied to so-called “dreamers” who were either, “encountered by immigration officials”, “in removal proceedings”, and, crucially for Blackman, “not in removal proceedings.” Granting removal relief to the first two groupings, Blackman says, could arguably be conceived as prosecutorial discretion as they are a group already in the “removal pipeline.” But the third group, he says, “gives the game away.” Having not been “encountered” at all, this is a group (by far the majority of applicants) “who otherwise would and could not be removed” but are being brought in to be registered for benefits at a substantial administrative cost. As Blackman writes, DAPA takes a group from the “shadows” that was “unlikely to be deported” (Secretary Johnson’s words) and “brings the[m] into the enforcement process, thereby augmenting the resources necessary to deal with these four million new cases.” With respect to this category, both DACA and DAPA areonly about expanding rather than conserving resources.
Moreover, Blackman quotes numerous emails released through FOIA (attached as exhibits to Texas’s motion for a preliminary injunction reply) from USCIS officers admitting there was indeed “increased workload” and “additional work coming in from DACA-related shifts of resources” and that such a shift required “additional overtime funds” and a new “Lean & Light [sic]” process. “DACA”, he concludes, “was not about re-organizing priorities to conserve resources”; by contrast, “[a]dditional resources were focused on processing the DACA applicants.”
Regarding the case-by-case assessment issue, Blackman takes aim chiefly at how DACA was implemented, principally because how DAPA will be implemented is still unclear and the DAPA memo “direct[ed] USCIS to establish a process, similar to DACA.” Analyzing Napolitano’s initial memo regarding the program, Blackman finds that while the Secretary directed USCIS to “establish a… process for exercising prosecutorial discretion…by deferring action against individuals who meet the above criteria”, it is the Secretary, not USCIS agents, who controls the criteria and therefore it is her discretion that determines who’s granted deferred action. As her memo stated, “[b]y this memorandum, I am setting forth how, in the exercise of our prosecutorial discretion, DHS should enforce the Nation’s immigration laws.”
Moreover, only when the Secretary’s own guidance isn’t met are denials allowed. Blackman discusses a series of “standard denial templates”, again recovered through FOIA, that officers are mandated to use in their adjudications. Importantly, Blackman finds that these templates include a series of eight possible reasons for denial which are to be ticked where appropriate by officers. None of the check boxes, however, are labelled “other”, which Blackman says would be a “logical choice” if each applicant were to be analyzed on a case-by-case basis according to an officer’s individualized judgment. Further, as the guidelines read, “[a]lthough discretion to defer removal is applied on a case-by-case basis, discretion is to be applied consistently.” “Consistent discretion” is nonsensical and makes the directive “oxymoronic,” writes Blackman.
This diminished capacity for officer discretion is reinforced in the new “Lean & Light” standard of review promulgated under DACA. No longer can officers conduct full investigations or deny applications on their own, Blackman finds. As the guidelines read, if an application is found to have “discrepancies [that] still don’t add up” and the “DACA requestor’s attempts to explain fail”, the officer is not to deny the request, but “refer the case to the [Center for Fraud Detection Operations] for further research.” Further, an “officer must obtain supervisory review before entering the final determination” of a denial. By this shift in authority, Blackman concludes, “[o]fficers should take the hint that the answer should never be ‘deny’” and that individualizeddenials shall not be used.
Regarding the application process for the new DAPA program, OLC’s opinion states without elaboration that even though Secretary Johnson’s memo “does not specify what would count as a [rejection-factor]”, USCIS officers have “substantial discretion” in determining whether a rejection’s warranted. But if DAPA’s implementation is anything like DACA’s, Blackman writes, the process will entail everyone down from the Secretary “merely picking up the rubber stamp and slamming it down on the application.”