This blog originally appeared on Balkinization.
Much of the initial reaction to the President’s newly-announced administrative relief program will likely focus on the decision not to extend relief to the parents of individuals who have obtained relief under the Deferred Action for Childhood Arrivals (DACA) program, even though it does extend relief to parents of children who are U.S. citizens or lawful permanent residents. At first blush the decision appears quite curious. After all, the President expanded DACA as part of the new program, and he offered strong support for the Dreamers in his remarks, referring to “the courage of students who, except for the circumstances of their birth, are as American as Malia or Sasha.” But apparently he did not think the Dreamers are quite American enough to save their parents from deportation.
While the President’s speech offered no explanation for that apparent anomaly, the Office of Legal Counsel’s memo defending the legality of the President’s program concludes that he would have lacked authority to provide relief to the parents of DACA recipients. While we may never know whether the tail wagged the dog or vice versa, exploring the strength of the distinction drawn by the memo provides a fruitful entry point into understanding the rationales behind the President’s new program as a whole.
Several of the rationales offered by the memo to support the relief program obviously would apply to both groups – beneficiaries would have to qualify as low removal priorities under the prioritization scheme announced by the memo, adjudications of their applications would have to occur on a case-by-case basis (whatever that may actually mean), and granting relief would promote family unity. But the parents of DACA recipients differ from the other parents granted relief in one critical respect – they do not have a path to eventual legalization through their children, because their children are not U.S. citizens or lawful residents. According to the memo, Congress intended that individuals with citizen or lawful resident children would eventually be able to legalize (which they can generally do when their citizen children turn 21), and given that it has not allocated sufficient resources to deport them while their children grow up, the relief program is consistent with the statute’s intent insofar as it provides them deferred action in the short term, to promote family unity.
While that rationale makes sense on its own terms (although, as I will argue in my next post, more may be needed to justify the program as a whole), it begs the question of why DACA itself is lawful.
After all, DACA recipients also have no path to eventual legalization under existing immigration law. And the memo actually highlights this deficiency, arguing that relief for the parents of DACA recipients would be unlawful in significant part because it “would not operate as an interim measure for individuals to whom Congress has given a prospective entitlement to lawful status.” But, obviously, the same is true of the Dreamers themselves!
The memo’s only attempt to answer this apparent inconsistency appears in a somewhat-cryptic footnote, which reveals that OLC had provided an oral opinion concluding DACA was lawful at the time of its creation. What apparently made the DACA program permissible was the unique humanitarian concern at issue - a concern comparable to those deemed sufficient for prior prosecutorial discretion decisions.
Thus, while it requires some extrapolation from the short footnote and the last few pages of the OLC memo, we can discern two quite distinct, narrow rationales at work in the two programs. Both arise against a background of insufficient prosecutorial resources, thus requiring prioritization, and both provide relief to individuals who are low priorities for removal and therefore have strong equities counseling against deportation. But there are many individuals who fit that description who do not benefit under either program. Two further rationales are at work.
DACA rests critically on the unique humanitarian justification for providing relief to a class of individuals brought here as children, who for that reason cannot be held responsible for their lack of immigration status. In this sense, they are comparable to individuals granted protected status because of earthquakes, civil conflict, and the like. In contrast, beneficiaries of the new program cannot make that claim. They are no more deserving of relief on that basis than are the parents of DACA recipients, who “are as American as Malia or Sasha” but nonetheless lack status.
However, beneficiaries of the new program have a distinct rationale supporting their relief, because they already have a path to legalization. As a group, they will inevitably obtain legal status through their children, and the government does not have the resources to deport them in the interim. Thus, it is uniquely efficient to provide them relief now, thus bringing them out of the shadows (and into the income tax base) sooner rather than later. The same is not true of the parents of DACA beneficiaries.
While the number of individuals who could benefit under these two rationales is quite large, the rationales themselves are quite narrow, as the harsh decision not to extend the program to parents of DACA recipients reveals.
Ahilan Arulanantham is deputy legal director at the ACLU of Southern California. Follow ACLU SoCal on Twitter.