Private: Seeking to Understand the Fifth Circuit Ruling on Deferred Action

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.

While there is a possibility for the Supreme Court to hear the case in Texas, the political moves and legal mistakes uttered throughout this litigation cannot be ignored. Oral arguments on the merits of the injunction were held on July 10, 2015 and heard by a three-judge panel. In my commentary to this hearing, I expressed frustration about the flaws made by the plaintiffs during the oral arguments as it related to the definition of “deferred action” and the myth that the DAPA created new law. To the contrary, and as eloquently phrased by Judge King in her dissenting opinion, “Deferred action decisions, such as those contemplated in the DAPA Memorandum, are quintessential exercises of prosecutorial discretion.”   

Left untouched despite the litigation was the Administration’s priorities memo entitled “Policies for Apprehen­sion, Detention, and Removal of Undocumented Immigrants.” The priorities memo is operational today, and in six pages attempts to spell out the Administration’s priorities for removal and a refined prosecutorial discretion policy. This same memo lists more than one dozen types of prosecutorial discretion in immigration law. The implementation of this memo coupled with a four-month delay by the Fifth Circuit in issuing an opinion has inflicted great concern and fear to individuals and families who had placed their faith in the president’s deferred action programs. Judge King expressed concern for this delay in her dissent when she remarked: “I have a firm and definite conviction that a mistake has been made. That mistake has been exacerbated by the extended delay that has occurred in deciding this “expedited” appeal. There is no justification for that delay.” Whether or not the delay by the Fifth Circuit was innocent or political, the human impact of this hiatus is real.

As we approach the one-year anniversary of President Obama’s announcement on executive actions on immigration, I hope that the longstanding legal foundation for prosecutorial discretion in immigration law; the common sense need for the Administration to target its limited resources towards true enforcement priorities; and the compassion that has laced the deferred action program for decades prevail.

Immigration