Notice & Comment

DAPA, “Lawful Presence,” and the Illusion of a Problem, by Anil Kalhan

In an essay published earlier this week, Prof. Michael Kagan expresses concern that “one aspect” of the Obama administration’s executive actions on immigration might be vulnerable when the Supreme Court adjudicates United States v. Texas later this year. In particular, Kagan worries that the plaintiffs might “have a valid point” when they assert that the administration’s initiatives—Deferred Action for Parents of Americans and Lawful Permanent Residents and its predecessor, Deferred Action for Childhood Arrivals—improperly purport “to make lawful something that Congress has made unlawful.” Kagan’s concern rests principally—and possibly in its entirety—on a stray line in the memorandum issued by Homeland Security Secretary Jeh Johnson to establish DAPA and expand DACA, which states that “deferred action … means that, for a specified period of time, an individual is permitted to be lawfully present in the United States” (emphasis added).

Kagan is likely correct in predicting that the plaintiffs’ assertions about “lawful presence” may become a focal point now that the Supreme Court has granted certiorari. In both his initial May 2015 opinion denying the government’s motion for a stay pending appeal (as I discussed here ) and his subsequent November 2015 opinion affirming the district court’s preliminary injunction, U.S. Circuit Judge Jerry Smith went out of his way to characterize DAPA and DACA as affirmatively conferring their recipients with “lawful presence.” In their brief in opposition to certiorari, the plaintiffs have now followed his lead. Read superficially and in isolation, the sentence that Kagan highlights might seem to support that characterization. (By contrast, the memorandum establishing DACA issued by Johnson’s predecessor, Janet Napolitano, makes no reference to “lawful presence” or “unlawful presence” at all.)
Ultimately, however, describing DAPA and DACA as entailing a grant of “lawful presence” mischaracterizes those initiatives, relying upon a misunderstanding of both the structure and content of immigration law and the manner in which undocumented immigrants are recognized and constructed as legal subjects. Moreover, in order to characterize DAPA and DACA as something other than guidance structuring the exercise of enforcement discretion, as permitted by existing law, both Judge Smith and the plaintiffs fashion a unitary but entirely mistaken conception of “lawful presence” itself—one that constitutes an aggregated, intertwined package of benefits, in a manner that approximates conventional understandings of lawful immigration “status”—that has no actual legal basis. Kagan’s attention to the plaintiffs’ claim about “lawful presence” is amply warranted, and he is correct in suggesting that the government may have contributed to these misunderstandings. Nevertheless, there is only the illusion of a substantive problem here, because as a matter of law, “unlawful presence” simply does not carry the meaning that Judge Smith, the plaintiffs, and (possibly) Kagan himself ascribe to it.
Let’s start by clarifying precisely how the deferred action initiatives actually operate—which I have previously discussed in two essays for Dorf on Law (here and here) and an article published last summer in the UCLA Law Review Discourse—and how Judge Smith and the plaintiffs either misunderstand or disregard those realities. Both DACA and DAPA set forth eligibility criteria and processes for certain individuals falling outside the government’s articulated immigration enforcement priorities to seek “deferred action,” which for decades has been a principal mechanism by which immigration authorities operationalize their exercise of enforcement discretion. Whether under those longstanding agency practices or the memos establishing DACA or DAPA, deferred action provides its recipients with nonbinding, revocable notification that officials have deprioritized enforcement action against them—but by itself does nothing more than that. Indeed, deferred action itself confers no additional benefits of any kind. It simply memorializes and provides notification, on a form like the one shown here, that agency officials have deprioritized the individual’s removal and do not have any present intention to prioritize enforcement action against them.
As the memos establishing DACA and DAPA make unmistakably clear, notice of deferred action under the two initiatives—like notice of deferred action more generally, under the agency’s longstanding practices—does not confer immunity from removal, lawful immigration status, substantive rights, or a pathway to citizenship. When individuals receive a form I-797 providing notice of deferred action, it expressly tells them that “deferred action is an exercise of prosecutorial discretion” that “does not confer or alter any immigration status,” and that the notification itself “does not constitute employment authorization.” Indeed, it is somewhat misleading, even if not entirely inaccurate, to refer to deprioritization of enforcement action in the form of deferred action as a form of “relief” from removal at all, since it is inherently tenuous and temporary and can be revoked at any time, without any opportunity to contest that revocation. Nobody has any right to seek or obtain deferred action, and if deferred action is denied the individual cannot appeal that denial.
In his opinions, Judge Smith disregards these facts, repeatedly characterizing deferred action not as a mechanism by which agency officials exercise prosecutorial discretion, but rather as a more comprehensive, aggregated package of intertwined “benefits.” The phrase that he foregrounds to describe this aggregated package is “lawful presence,” highlighting and latching onto the same offhand reference to that phrase that Kagan identifies in the memo establishing DAPA. In his May 2015 opinion, for example, Judge Smith insisted that deferred action under DAPA

is more than nonenforcement. It is the affirmative act of conferring “lawful presence” on a class of unlawfully present aliens. Though revocable, that new designation triggers eligibility for federal and state benefits that would not otherwise be available.

“[A]lthough prosecutorial discretion is broad, it is not ‘unfettered.’” Declining to prosecute does not convert an act deemed unlawful by Congress into a lawful one and confer eligibility for benefits based on that new classification.

Using more or less the same language, Judge Smith’s November 2015 opinion similarly maintains that deferred action

is much more than nonenforcement: It would affirmatively confer “lawful presence” and associated benefits on a class of unlawfully present aliens. Though revocable, that change in designation would trigger (as we have already explained) eligibility for federal benefits—for example, under title II and XVIII of the Social Security Act—and state benefits—for example, driver’s licenses and unemployment insurance—that would not otherwise be available to illegal aliens.

In legal terms, these descriptions do not accurately reflect the true nature of DACA, DAPA, or deferred action. To begin with, the picture that Judge Smith paints—in which the Obama administration flipped a switch and affirmatively doled out an aggregated, intertwined package of goodies to large numbers of undocumented immigrants by decree in one fell swoop—misunderstands how recipients of deferred action (and for that matter, undocumented immigrants more generally) are recognized and constructed as legal subjects. To be sure, it is true that once individuals receive notice of deferred action—whether under DACA, DAPA, or otherwise—other legal consequences may result. However, it bears emphasis that any such legal consequences are disaggregated, piecemeal, and collateral to the exercise of enforcement discretion—the result of other legal authority, not the result of the guidance documents establishing DACA and DAPA. For example, as both Kagan and Marty Lederman discuss, individuals who receive notice of deferred action may become eligible to apply for employment authorization. However, unlike, say, lawful permanent residents—who are automatically eligible to work by virtue of their immigration status itself—individuals who have received notice of deferred action are eligible to apply for employment authorization not because the DACA or DAPA guidance documents directly make them eligible, but collaterally under regulations issued decades ago using notice and comment rulemaking to implement delegated statutory authority under 8 U.S.C. § 1324a(h)(3). (Indeed, because those regulations require deferred action recipients to establish “economic necessity to work,” many of those individuals will never receive employment authorization at all.)

Despite what Judge Smith maintains, the combination of rights, benefits, and obligations that recipients of deferred action bear as legal subjects is not an aggregated and inextricably intertwined package, deriving from a single source of legal authority or a single status determination. To the contrary, that combination of those rights, benefits, and obligations arises from a variety of different sources of federal, state, and even local legal authority—and in this instance is definitely not simply the function of the Obama administration’s establishment of the eligibility criteria and processes for DACA and DAPA that the plaintiffs seek to invalidate. In this context, as in others, recognition of noncitizens as legal subjects is considerably more disaggregated and piecemeal than that.
The disaggregated nature of the collateral legal consequences that may arise when individuals receive notice of deferred action accordingly demands similarly disaggregated analysis of the various sources of legal authority that govern those consequences. As I have previously explained, however, neither the plaintiffs nor the lower court judges adjudicating their claims have shown much interest in this litigation in carefully parsing and examining that legal authority. Instead, they have largely directed their fire at “DACA” or “DAPA” writ large, as if the guidance documents establishing those initiatives somehow confer something unitary and coherent that approximates lawful immigration status. Indeed, in the district court, U.S. District Judge Andrew Hanen went so far as to repeatedly insist that DACA and DAPA confer actual legal immigration status—a conclusion that is flatly incorrect. Perhaps recognizing that Judge Hanen’s conclusion is untenable, Judge Smith stopped short of that, fashioning instead a conception of “lawful presence” that on the surface might seem more plausible but in fact operates in precisely the same manner, effectively as the simulacrum of “legal status.” By treating the legal consequences of deferred action as intertwined with and flowing automatically from the guidance documents establishing DACA and DAPA, Judge Smith disregards altogether the realities of how deferred action operates and how recipients of deferred action are recognized as legal subjects, whether under these two initiatives or otherwise.
In their lawsuit, the plaintiffs therefore must be understood as squarely challenging the manner in which the agency seeks to exercise enforcement discretion to implement its enforcement priorities—because, by their terms, the memos establishing DACA and DAPA only provide guidance and structure for the exercise of enforcement discretion. At every stage of the litigation, the plaintiffs have denied that they are challenging the exercise of enforcement discretion, claiming instead that the “real” targets of their challenge are “benefits” and other legal consequences that they believe to be inherent in DAPA. Part of that denial may involve a refusal to acknowledge deferred action as a legitimate means of exercising enforcement discretion at all. But to an even greater extent, that denial also seems to rest upon an even more basic misunderstanding of the manner in which DACA, DAPA, and deferred action actually operate, along with an inability or unwillingness to directly engage, in a precise way, with the legal authority governing any of the particular legal consequences with which they purport to take issue.
Nor, for that matter, does Judge Smith’s conception of “lawful presence” properly reflect any actual legal meaning of that phrase. The disaggregated, piecemeal nature of the legal authority governing the rights, benefits, and obligations of deferred action recipients becomes central to assessing the potential meaning and significance of “lawful presence” in this context. As a general matter, terms like “lawful presence” and “unlawful presence” play a considerably more limited role—and a much less consistent and unitary role—in both the immigration statute and other federal, state, and local laws than Judge Smith’s characterization would suggest. Indeed, with respect to the rights, benefits, and obligations of deferred action recipients, the significance of “lawful presence” and “unlawful presence” is more limited still.
For example, while individuals may be potentially deportable under 8 U.S.C. § 1227(a)(1)(B) if they are “present in the United States in violation of [the INA] or any other law of the United States,” neither DAPA nor deferred action more generally could reasonably be understood as conferring “lawful presence” (a phrase itself not used in this particular provision in any event) in a manner that would make deferred action recipients no longer subject to that particular deportability ground. To the contrary, both the language of the memo establishing DAPA and the very nature of deferred action itself make it crystal clear that individuals who have merely been deemed lower priorities for enforcement action—and given notice of deferred action on that basis—remain fully subject to all of the statute’s deportability grounds, including this one.
Moreover, while Judge Smith characterizes “lawful presence” as a concept that carries a consistent and unitary legal meaning, in reality terms like “lawful presence” and “unlawful presence” are neither phrased in textually consistent ways nor given uniform definitions across the various federal, state, and local statutory provisions in which they are used. Indeed, DHS itself expressly emphasizes this point on its website, cautioning deferred action applicants that “[a]part from immigration laws, ‘lawful presence,’ ‘lawful status,’ and similar terms are used in various other federal and state laws” but do not necessarily mean the same thing in all of those various provisions. For example, under 8 U.S.C. § 1611, individuals may be statutorily excused from certain prohibitions on receiving federal public benefits if they are “determined by the Attorney General” to be “lawfully present in the United States.” Deferred action recipients constitute one of several different categories of individuals who have been deemed “lawfully present” for purposes of that provision under regulations adopted (using notice-and-comment rulemaking) by the Clinton administration soon after Congress adopted the provision in 1996.
By contrast, the clearest and most prominent discussions of “unlawful presence” in the OLC memo concern an entirely different use of a slightly different term found in 8 U.S.C. § 1182(a)(9)(B), which imposes two waivable, time limited bars on future admissibility for individuals who have been “unlawfully present” in the United States, have departed the United States, and then subsequently seek admission. That provision contains its own section-specific definition that is not identical to its use elsewhere. Under that definition, individuals are deemed to be “unlawfully present” if they are present in the United States “after the expiration of a period of stay authorized by the Attorney General”—a phrase that the statute in turn leaves undefined—or are “present in the United States without being admitted or paroled.” As the OLC memo discusses, “unlawful presence” for purposes of these bars on future admissibility does not accrue for a number of different categories of individuals who lack lawful immigration status in the United States, including deferred action recipients. As with the interpretation of 8 U.S.C. § 1611, that interpretation derives not from the guidance documents establishing DACA and DAPA, but collaterally from agency interpretations of the statute that long predate the two deferred action initiatives.
If the agency’s interpretation of 8 U.S.C. § 1182(a)(9)(B) were somehow deemed to be incorrect—as Kagan seems to believe—that might well have concrete legal consequences for some deferred action recipients and others potentially subject to those inadmissibility bars. (Although as Kagan correctly notes, the significance of 8 U.S.C. § 1182(a)(9)(B) for DAPA-eligible individuals as a practical matter is quite limited: since DAPA’s eligibility criteria require continuous residence in the United States since January 1, 2010, most individuals eligible for deferred action under DAPA already have accrued sufficient unlawful presence to be subject to these prospective admissibility bars.) But a conclusion that the government has misinterpreted that provision might or might not have any bearing upon the interpretation of similar but not identical language in other statutory provisions. Nor should it have any effect on the validity of the guidance establishing DACA and DAPA themselves, since those documents are not themselves the source of the agency’s interpretation of this statutory provision. The same would be true concerning the interpretation of any other statutory provision using similar terms. In any event, the plaintiffs are not challenging the application of 8 U.S.C. § 1611, 8 U.S.C. § 1182(a)(9)(B), or any other specific provision carrying collateral legal consequences for individuals granted deferred action. Rather, they seek to invalidate the ability of immigration officials to grant deferred action altogether in the first place to individuals who may be eligible under the DAPA guidance.
Understood in this context, the aggregated, uniform meaning and broad, undifferentiated significance that Judge Smith affords to the phrase “lawful presence”—based in significant part on the same abstract reference to the term in the DAPA memo that Kagan worries about—becomes that much more puzzling. As noted above, the DAPA memo states in passing that “[d]eferred action … simply means that, for a specified period of time, an individual is permitted to be lawfully present in the United States.” The sentence does not appear in the operative section of the guidance, but rather in its preliminary discussion. How should we understand that stray reference? Does it transform deferred action, as Judge Smith concludes, into something other than a mechanism to exercise prosecutorial discretion? The reference is not tied to any specific statutory references to terms like “lawful presence” and “unlawful presence,” and it does not have any operative effect as part of the memo’s guidance to agency officials. Indeed, it is difficult to see how that kind of vague, offhand reference to “lawful presence”—untethered from any particular statutory provision that actually uses that phrase—actually could have any operative meaning and significance. Nor is any discussion or guidance about “lawful presence” even necessary to implement an initiative like DAPA—recall that the memo issued by Secretary Napolitano to establish DACA does not contain any analogous reference to “lawful presence” at all.
In this context, the reference that concerns Kagan seems best understood as merely offhand and colloquial, rather than legally substantive and operative in any manner that would justify the outsized legal significance that Judge Smith attempts to ascribe to it. Indeed, especially when read together with the OLC memo, the best understanding of this particular reference to “lawful presence” in the DAPA memo may well be that it is simply an erroneous and gratuitous misstatement. In a short discussion concerning the nature of deferred action, the OLC memo points out that deferred action involves a decision “to openly tolerate an undocumented alien’s continued presence in the United States” (emphasis added). The OLC memo observes that while any discretionary forbearance of immigration enforcement action “necessarily carries with it a tacit acknowledgment that the alien will continue to be present in the United States without legal status,” deferred action arguably goes further “by expressly communicating to the alien that his or her unlawful presence will be tolerated for a prescribed period of time” (emphasis added).
Notice what this discussion in the OLC memo does not say. While it emphasizes the manner in which deferred action involves toleration of continued presence of individuals who lack lawful immigration status, and communication of that toleration to those individuals, it does not state that deferred action transforms that continued presence into something “lawful.” And with good reason—for if the OLC memo did say something along those lines, it would be diametrically at odds with well-established understandings and longstanding agency practices concerning deferred action that have prevailed for decades. Nor is the OLC memo’s discussion limited to deferred action under DAPA; to the contrary, what the OLC memo describes is true about deferred action more generally. Note finally that there’s also a huge difference between saying that deferred action tacitly tolerates someone’s “unlawful presence,” as the OLC memo observes here, and saying that it affirmatively confers “lawful presence,” as Judge Smith and the plaintiffs insist.
It seems likely that in the offhand reference to which Kagan points, the DAPA memo was trying to communicate a similar idea about deferred action to that conveyed in the OLC memo—not that deferred action actually permits someone to be “lawfully present,” and therefore possibly immune from deportability under 8 U.S.C. § 1227(a)(1)(B), but rather that it simply tolerates that continued presence notwithstanding the individual’s potential deportability under that provision. Ultimately, the OLC memo does not treat this tacit “toleration of unlawful presence” as having any determinative legal significance—because it doesn’t have any. If Judge Smith disagrees and believes that mere “toleration of unlawful presence” and communication of that toleration in the form of deferred action purports to transform an individual’s presence without lawful immigration status into something lawful, he certainly does not offer any rationale to justify that conclusion. And of course if that is true about deferred action under DAPA, it must be true about deferred action more generally—which Judge Smith expressly states that he is not calling into question.
Properly understood, therefore, “lawful presence” should be regarded as a red herring in this litigation. To the extent that specific statutory provisions under federal, state, or local law make terms like “lawful presence” or “unlawful presence” relevant to particular legal consequences that might result for individuals who have been given notice of deferred action, those provisions operate collaterally and must be analyzed specifically and separately. Given the disaggregated manner in which undocumented immigrants are recognized as legal subjects, the interpretation and application of those specific statutory provisions have no bearing upon the validity of the guidance establishing eligibility criteria and processes for deferred action under DAPA. On the other hand, to the extent that the plaintiffs, like Judge Smith, seek to treat “lawful presence” as a broader, aggregated, and unitary legal category that is tightly intertwined with deferred action under DAPA—and within which all of these other specific statutory provisions are somehow subsumed—what the plaintiffs seek to construct does not in fact exist.
Kagan is correct in highlighting the potential for confusion in the DAPA memo’s offhand reference to “lawful presence.” But any such confusion can be resolved in a relatively straightforward manner. Regardless of what DHS officials might have been thinking when they included that offhand reference—and quite apart from any issues that might have arisen if that language had been included in the operative part of the memo in some fashion—it seems fairly clear that the reference does not have any independent legal meaning that makes deferred action under DAPA somehow different from deferred action under DACA or traditional agency practices. As I  previously noted when discussing the Fifth Circuit’s May 2015 opinion, while Judge Smith makes a point of tacking on an “emphasis added” when he quotes that language from the DAPA memo—and when he quotes other references to “lawful presence” in his opinion that serve his argument—italics cannot give legal effect to words that have none. As such, despite Judge Smith’s effort to recharacterize “lawful presence” as a central feature of DAPA, the memo’s stray reference to the term cannot serve as a plausible basis for calling the validity of the DAPA guidance, writ large, into question.

Anil Kalhan(@kalhanis an Associate Professor of Law at the Drexel University Thomas R. Kline School of Law. A version of this essay is cross-posted at Dorf on Law.

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