Notice & Comment

Employment Authorization and Prosecutorial Discretion: The Case for Immigration Unexceptionalism, by Shoba Sivaprasad Wadhia

The exercise of prosecutorial discretion or “PD” is an important feature in the immigration system. It requires each DHS component to make decisions about whether a person legally eligible for immigration enforcement should still be allowed to reside in the United States on a temporary basis. PD recognizes that in a universe of limited resources, an individual or group may qualify as a “low priority” for enforcement and/or bear the kinds of qualities that are unsuitable for removal. This discretion functions as a form of protection from removal but provides no formal legal status. There are more than one dozen kinds of prosecutorial discretion in immigration law, but only a few of these forms offer the possibility of work authorization. Last November, President Barack Obama announced a catalogue of immigration programs aimed to administratively reform the system through a combination of rulemaking and policy guidance branded largely on DHS letterhead. Two of these programs are Deferred Action for Parents of Americans and Legal Residents (DAPA) and extended Deferred Action for Childhood Arrivals (DACA). Both programs would extend deferred action to qualifying individuals and provide the possibility for work authorization. Both programs are on hold due to litigation.

When placing the law and history of prosecutorial discretion and work authorization into the broader administrative law lens, immigration law is not exceptional. A review of the immigration statute and regulations that govern work authorization for immigrant populations generally and prosecutorial discretion beneficiaries in particular reveals that standard administrative law principles apply—statutory delegation, deference to agency interpretations when statutes are ambiguous, notice and comment rulemaking and so on. Congress has delegated to the Department of Homeland Security or DHS the legal authority for issuing work authorization to noncitizens. The Immigration and Nationality Act or INA at §103(a)(1) vests the administration and enforcement of the INA and related laws to the Secretary of DHS. Congress also delegated to DHS authority to establish regulations and policies to carry out the provisions of the INA. Another section of the INA, 274(h)(3) defines an “unauthorized alien” for employment purposes as a person who is neither an LPR nor “authorized to be . . . employed by [the INA] or by the Attorney General [now the Secretary of Homeland Security]” This language “or by the Secretary of Homeland Security” has served as one statutory basis for DHS to name people who could work. Congress placed no cap on the number of work permits that may be issued.

The presentation and paper on which this blogpost is based studies the work authorization applications processed pursuant to three types of prosecutorial discretion: deferred action, orders of supervision and parole. Formerly called “non-priority” status, deferred action was revealed publicly in the 1970’s in connection with the immigration case of former Beatle John Lennon. Deferred action can be processed by DHS and granted to the individual at any stage of the immigration process, including but not limited to the point of arrest, before detention, before a removal proceeding and after a removal order has been entered. Deferred action has been explicitly named in the immigration statuteand federal court decisions, and the regulations. The regulation at 8 CFR 274a.12(c)(14) identifies a person who is granted deferred action as one type of person who can apply for work authorization upon a showing of economic necessity.

An “order of supervision” or “OSUP” is another form of prosecutorial discretion in immigration law. Unlike deferred action (which can be granted or processed at any stage of immigration enforcement), an OSUP may be processed only after a removal has been ordered by the government. The INA 241(a)explicitly permits DHS to provide work authorization to noncitizens granted an OSUP. Furthermore, the regulation at 8 CFR 274a.12(c)(18) identify OSUP as a basis for work authorization and sets forth a series of conditions DHS may consider in deciding whether work should be granted. Finally, parole is a long-established concept in immigration law and was first codified by Congress in 1952 now atINA 212(d)(5).The regulations at 8 CFR 274a.12(c)(11) spell out parole as another basis on which person can apply for work.

To obtain the data for my research, I filed a Freedom of Information Act request and in response, received a data set from USCIS that covers applications with receipt dates ranging from 1999-2014. The data set included 233,245 work authorization applications pursuant to parole, deferred action or an order of supervision. Of this total, 87% of applications were approved. This data reveals the prevalent adjudication of work authorization applications based on a grant of PD and the degree to which applications for employment by USCIS are pending, denied or closed (canceled), even where the applicant has been granted relief in the form of prosecutorial discretion.

Looking at the data by category, 48,692 (20%) applications were based on C18 (Order of Supervision); 114,563 (49%) of the applications were based on C14 (Deferred Action); and 69,990 (30%) applications were based on C11 (Parole). In looking specifically at nationality, the largest share of work authorization applications were made by nationals of Mexico, Cuba, Guatemala, El Salvador and Honduras. More than 74% of the total number of work authorization application processed was represented by these five nationalities. With the exception of Cuba, nationals from the remaining four countries resemble the largest share of the unauthorized population overall.

What additional reforms can and should be made and can be these reforms happen without legislation? My own view is that plenty of executive branch rulemaking can be done without Congress. One popular question that has been raised by practitioners is whether work authorization should be extended to individuals who receive another type of prosecutorial discretion. There are several forms of PD in immigration law for which no independent ground for work is explicit, such as a decision to refrain from issuing, serving, or filing a NTA; a decision to cancel a Notice to Appear; and a decision not to appeal a case. Possibly, using § 274(h)(3), extending work authorization to individuals who benefit from one of the prosecutorial discretion forms listed above is a good policy. A narrower solution is to enable any person with a prosecutorial discretion grant to apply for work authorization so long as he can show “economic necessity” as is currently required for certain deferred action beneficiaries. This solution expands the pool of people who might be eligible to work but includes a limiting factor by requiring proof of economic necessity.

In crafting a solution the politics cannot be ignored. Possibly, the Administration may determine that it lacks the political space to create a broader policy that provides work authorization as an option for a greater pool of prosecutorial discretion grantees, especially in the wake of litigation. Even with the 2012 DACA program came a stream of headlines by critics expressing opposition to work permits for young people like “Work Permits for Young Immigrants Steal Jobs from Americans.” In reading briefs and listening to the oral arguments, one has to wonder how much the Texas lawsuit has to do with merit versus politics and a real opposition to a program that permits undocumented people to be employed. The controversy around work permits was well captured during oral arguments before the Fifth Circuit Court of Appeals on July 10 at which Judge Carolyn D. King asked Texas solicitor general Scott Keller “The state’s position is, what you object to here, is the granting of work authorization to these individuals. You don’t want them to have work authorization?” Judge King did not receive a clear response to her question but her question and Keller’s lack of objection to her framing speaks volumes to the role employment authorization in the debate around the President’s executive actions.

Prosecutorial discretion (and the possibility for work) might be the most powerful remedy in immigration law, but the limitations of this discretion are pronounced as is the sharp relationship between those who might qualify for a more secure benefit through legislation at some point in the future and those who bear the qualities ripe for a favorable grant of prosecutorial discretion. Indeed, understanding the announcement of broad programs like DACA or DAPA and the need for comprehensive immigration reform cannot be ignored.

Shoba Sivaprasad Wadhia is the Samuel Weiss Faculty Scholar and Director of the Center for Immigrants’ Rights Clinic at Penn State Law.

This post is part of a week-long online symposium entitled Is Immigration Law Administrative Law?, which is based primarily on a panel by the same name that was part of the 2016 Annual Meeting of the Association of American Law Schools.

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