Regulatory Process

Regulations and Something Else 3: DHS “DREAM” Announcement Raises Many Administrative Law Questions

The Department of Homeland Security (DHS) this week joined the political campaign headlines by announcing that it will, by policy memorandum, defer enforcement (i.e. removal) for certain aliens who were brought to the United States as children, and “accept applications to determine whether” they qualify for authorization to work in the United States.  Rhetoric and constitutional authority issues aside for the moment, DHS leaves many administrative law issues unanswered.  The announcement is the Administration’s response to Congress’ failure to pass a “DREAM Act” to allow children brought to the United States without visas or inspection to gain some immigration status.  DHS’s announcement could be a blanket or “rule” decision, or merely an enforcement priority (and whether there is a difference).  DHS’s lack of formality raises also the fragility of DHS’ position and begs for answers.

Summary:  Without delving into the questions, the announcement (and released FAQ, Secretary Janet Napolitano’s memorandum, and U.S. Immigration and Customs Enforcement (ICE) implementation memorandum) amount to the declaration that:

Under this directive, individuals who demonstrate that they meet the following criteria will be eligible for an exercise of discretion, specifically deferred action, on a case by case basis:

Came to the United States under the age of sixteen;

Have continuously resided in the United States for a least five years preceding the date of this memorandum and are present in the United States on the date of this memorandum;

Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;

Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; and

Are not above the age of thirty.

Prosecutorial Discretion:  The announcement is predicated on DHS’ authority as the prosecutor of removal proceedings – i.e. proceedings to remove an individual from the United States on the basis that the individual is an alien who, in this case, has no legal right to be in the United States.  As the announcement points out:

The use of prosecutorial discretion confers no substantive right, immigration status, or pathway to citizenship.  Only the Congress, acting through its legislative authority, can confer these rights.

Every prosecutor – administrative or criminal – inherently exercises discretion in determine what facts violate the law and if for no other reason than resources are not sufficient for full enforcement.  Thus, the caveat invokes nothing new.  Left unanswered, however, are how a variety of other consequential issues are treated, such as the counting of time toward existing statutory benefits such as adjustment of status or cancellation of removal.  Answered certain ways, this “discretion” may be more than deferral.

In typical prosecutorial fashion, a memorandum from ICE Director John Morton is more specific:

As there is no right to the favorable exercise of discretion by the agency, nothing in this memorandum should be construed to prohibit the apprehension, detention, or removal of any alien unlawfully in the United States or to limit the legal authority of DHS or any of its personnel to enforce federal immigration law.  Similarly, this memorandum, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.

Morton’s specific rights disclaimer reiterates the ubiquitous Caceres disclaimer of Executive Orders, the Secretary’s memorandum, directives, and other such “non-rule” documents that the document itself creates and confers no rights.

Moreover, DHS might exercise its discretion by rule under Lopez v. Davis unless Congress has foreclosed rulemaking or required case-by-case decision-making.  DHS provided no answer.

Standards for Decision-making:  At the same time, DHS announced specific qualifications, quoted above, that may require a regulation.  One interpretation holds that the qualifications are merely internal guidance that someone meeting the qualifications does not merit the expenditure of scarce prosecutorial resources.  On the other hand, the announcement goes further – allowing “qualified” individuals to apply for a distinct benefit – authorization to work in the United States that currently is prohibited.

The FAQ (whether Frequently Asked, Answered, or Annoying Questions) makes clear that U.S. Citizenship and Immigration Services (USCIS) must do more:

In the coming weeks, USCIS will outline and announce the procedures by which individuals can engage in this process.  This process is not yet in effect and requests should not be submitted at this time.

Some questions implicate whether a rule (of some sort) is required.  How will the date of entry be determined when no inspection took place and no record?  What constitutes a felony offense or a “significant misdemeanor” offense?  How will DHS apply the date when an individual has reached age 30 to the announcement and application process (i.e. what immigration practitioners call “aging out”)?

Paperwork Reduction Act Issues:  Manifold subsidiary administrative questions follow, including whether a Paperwork Reduction Act (PRA) information collection has been set in motion.  The announcement appears to portend alteration and increase in the scope of an approved information collection for employment authorization document applications.  The Office of Management and Budget (OMB) approved 720,000 annual applications carrying 2,459,520 burden hours in April.  No change request appears to be pending at OMB, although press reports suggest a range from 700,000 to 1,400,000 possible new applicants.

Answers and Preambles:  Regulations routinely answer most of these questions, and preambles provide interpretive rules and guidance in filling in the ambiguities left by regulatory text, in a continuing deconstruction of general rules to specific facts.  DHS provided few here, and open questions remain whether DHS must provide answers by regulation.  Without a regulation, the fragility of DHS’ policy position is clear – as a regulation may only be changed by another regulation, so a policy pronouncement may be changed by the whim of another policy pronouncement.