by Shoba Sivaprasad Wadhia, the Samuel Weiss Faculty Scholar and Clinical Professor of Law, Penn State Law; author of Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press 2015)
Last November 20, 2014, President Obama announced a series of executive actions on immigration, which contained two specific programs to focus deportation resources. The first was for young people and extended “Deferred Action for Childhood Arrivals” 2 to 3 years, among other changes. The second created a new guideline called “Deferred Action for Parents of Americans and Legal Residents” for qualifying parents who have resided in the United States for at least five years. Deferred action is a form of prosecutorial discretion in immigration law which in turn, is associated with the government’s decision to refrain from bringing enforcement actions against individuals for humanitarian and resource reasons. This type of discretion has existed in immigration law for decades and is not only grounded in the immigration statute and other laws but is also inevitable in light of the limited resources the Department of Homeland Security holds to enforce these laws. The recent deferred action programs have been on hold because of litigation brought by the state of Texas and 25 states challenging the legal authority of the president’s actions.
On November 9, 2015, a majority panel at the Fifth Circuit Court of Appeals concluded ruled against the Administration, and went even further than the lower district court by concluding that even if the Deferred Action for Parents of Americans and Legal Residents (DAPA) program followed the procedural requirements, the DAPA memorandum is nonetheless contrary to the Immigration and Nationality Act and substantively violates the Administrative Procedure Act. The following day, the Department of Justice issued a statement confirming that it would appeal the decision to the U.S. Supreme Court. The Fifth Circuit’s decision was predictable in light of the panel composition (two conservative judges who previously ruled against the Administration when it filed an appeal to an emergency stay with the Fifth Circuit on the same case). Of note, Judge Carolyn King issued a sharp dissent that ran as many pages as the majority opinion and agreed with the legal foundation advanced by the Department of Justice, more than 130 law professors, and scores local government officials (including the Mayor of my own hometown State College). Possibly, the case will be heard by the Supreme Court in summer 2016, and pave the way for the Department of Homeland Security to implement the deferred action programs now on hold before the presidential election.