On Feb 18 2015 by William A. Stock

Texas Judge Enjoins Immigration Relief for Undocumented Parents

One of the dilemmas presented by our immigration system is how to deal with undocumented immigrants who have substantial family ties to the United States, especially those with children who are U.S. citizens or permanent residents.

Representing around a third of the 170,000 people residing in Pennsylvania without lawful status, parents of U.S. citizens and green card holders present the United States with a humanitarian and economic dilemma: If the parents are deported, the U.S. citizen family members will either have to leave the United States, or will become dependent on state and local government for their economic support.

To address this situation in light of congressional failure to pass a comprehensive immigration reform bill that might have ameliorated the problem, on Nov. 20, 2014, President Obama announced that he was directing the Department of Homeland Security to use its prosecutorial discretion to prevent the deportation of such parents. The president and DHS secretary justified their decision by the limited resources allocated by Congress for immigration enforcement, saying that they wanted DHS to focus on removing criminals, terrorists and those who recently crossed the U.S. border.

The “Deferred Action for Parental Accountability,” or DAPA program, would give immigrants living in the United States without status, but with U.S. citizen or permanent resident children, a formal recognition that they did not fall within DHS’s highest enforcement priorities. The concept of “deferred action” does not have an explicit statutory basis, but has been recognized as a longstanding policy by the courts and is mentioned in some sections of the Immigration and Nationality Act. The U.S. Supreme Court recognized it as a “commendable exercise in administrative discretion,” the granting of which only means that “no action will thereafter be taken to proceed against an apparently deportable alien,” as in Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 484 (1999).

The president’s decision to create this broad category of unlawfully present parents eligible to apply for deferred action recognition from U.S. Citizenship and Immigration Services (USCIS) has been controversial. While deferring removal of parents of citizen children is one thing, opponents of illegal immigration and of any “path to citizenship” for the undocumented are focused on employment authorization of those granted deferred action. Federal regulations have long recognized that people granted deferral of their removal can be granted work authorization, if they show the economic need to work. By granting work authorization to these unlawfully present individuals, the DAPA program will also allow them to obtain other documentation necessary to live “out of the shadows,” including Social Security numbers and driver’s licenses. These documents, in turn, allow the undocumented to open bank accounts, pay taxes and receive refundable tax credits if they are low-income, obtain car insurance, and otherwise fully participate in economic life.

The state of Texas, joined by 25 other states, sued to enjoin the implementation of the DAPA program. They brought their suit in the federal court in Brownsville, Texas, where it is being heard by U.S. District Judge Andrew Hanen of the Southern District of Texas. On Monday, Hanen granted a temporary injunction barring the administration and all DHS agencies from taking any steps to implement the DAPA program (and an expansion of the already-active “DACA” program for undocumented immigrants who were brought to the United States as children), pending congressional legislation authorizing DAPA or DHS complying with the notice-and-comment requirements of the Administrative Procedure Act. The memorandum opinion accompanying the decision goes beyond current precedent in holding that the states have standing to sue the federal government with respect to an immigration enforcement program, and in holding that the DHS actions require a regulation issued by notice-and-comment rulemaking before they can be implemented.

The states’ claims to standing boil down to their assertion that, by failing to keep undocumented immigrants out of the United States, the federal government has imposed costs on the states (for education, law enforcement, health care, etc.). Their assertion is that those costs outweigh the benefits accrued to the states by the work performed, goods consumed, and taxes paid in the state. Standing has been denied to states by five circuit courts (though the issue has not yet been decided by the U.S. Court of Appeals for the Fifth Circuit, which covers Texas). In finding that the 27 states have standing to bring this suit, Hanen seized on one narrow cost as sufficient injury to Texas to justify his injunction: the cost of processing driver’s licenses in Texas that exceeds the fee paid by the applicant. In Texas, Hanen holds, DAPA beneficiaries would become eligible to apply for driver’s licenses, which would impose a cost of about $200 for each license. Since each applicant for a driver’s license in Texas pays only $24 to the state, the state would spend about $175 for each new driver’s license it issued.

By focusing on one narrow cost, Hanen ignores all the reasons why Texas might choose to spend state resources on administering its driver’s licensing regime: licensing promotes public safety, lowering medical expenses and repair costs for car accidents caused by unlicensed drivers; licensing allows for car insurance, reducing the number of unlicensed drivers on Texas’ roads; and licensing allows people to get to work, increasing economic activity and providing revenue to the state. This intertwining of costs and benefits has generally caused courts to hold that the costs and benefits of immigration (illegal or otherwise) does not provide a sufficiently particularized injury that would support standing.

Hanen’s focus on one narrow cost to Texas allows him to get around the other standing problem that frequently sinks state challenges to federal actions: the question of redressability of the harm alleged. Indeed, if the allegation is that Texas is harmed by the presence of undocumented immigrants in the state, barring the federal government from acknowledging their presence, doing background checks on them and granting them employment authorization leaves the harm in place, because nothing in the injunction requires the federal government to do more than it already has to stop illegal immigration or remove those already here.

Having held that Texas has standing, Hanen then proceeds to the basis for the injunction: He reserves the question of whether DHS has authority to set enforcement priorities or to grant deferred action in particular cases, but holds that DHS has created a “legislative rule” under the Administrative Procedure Act without going through notice-and-comment rulemaking. The distinction between “legislative rules” and statements of agency policy is one of the most difficult areas of administrative law, but in enjoining the DHS guidance on the program, Hanen relies on two normal APA factors: that the program creates detailed criteria for eligibility, thus constraining the individual discretion of DHS adjudicators and officers, and that it is a substantive change in existing law.

Hanen’s temporary injunction is, no doubt, only the first of many decisions in this legal fight over the validity of the president’s directives to DHS. The Obama administration has already stated that it will appeal the temporary injunction, and further hearings will be held on whether a permanent injunction will issue, which may take many months and require several more hearings. In the meantime, mixed-status families will continue to be left in limbo, many with no clear way to obtain legal status, but with no formal recognition that they are not a high-enforcement priority for this administration.