Amicus Curiae Brief — United States v. Texas, 136 S. Ct. 2271 (2016) (No. 15-674)

IN THE

SUPREME COURT OF THE UNITED STATES

UNITED STATES, ET AL.,

Petitioners,

Vv.

STATE OF TEXAS, ET AL.,

Respondents.

On Writ of Certiorari to the United States Court

of Appeals for the Fifth Circuit

BRIEF FOR FORMER HOMELAND SECURITY,

JUSTICE, AND STATE DEPARTMENT

OFFICIALS AS AMICI CURIAE

SUPPORTING RESPONDENTS

—_——__— =

PETER MARGULIES

Counsel of Record

Roger Williams Univ.

School of Law

10 Metacom Avenue

Bristol, RI 02809

(401)254-4564

pmargulies@rwu.edu

QUESTIONS PRESENTED

The question presented is:

Whether Petitioners’ proposed Deferred Action for

Parents of Americans and Lawful Permanent

Residents (DAPA) program is consistent with the

Immigration and Nationality Act (INA) and with long-

settled congressional-executive understandings

regarding the scope of executive discretion under the

statute.

i

TABLE OF CONTENTS

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TABLE OF AUTHORITIES .......................:ccceceseeeeeees iii

INTEREST OF AMICI CURIAE...................cccceceeeeee0es 1

SUMMARY OF ARGUMENT .....0000.......cccceeeceeeeeeeees 3

ITE iiterhipincnsnnieguiscnerstnnionceneaenppaiennieniedinngsenn 7

I. Deferred Action to Spouses and Children of the

September 11 Attacks’ Undocumented Victims

Was Ancillary to a Grant of Legal Status.......... 7

Il. Interstitial Discretion, in Contrast to DAPA’s

Sweeping Relief, Fits the INA’s Limits on

Undocumented Migration’s Disruption of the

EB ERIS EA Sah eS Pee 10

A. Congress Has Repeatedly Constrained

Executive Discretion to Serve the INA’s

a sceeeuenaioiineinins 12

B. DAPA Does Not Fit the Categories of

Discretion Permitted by the INA’s Purpose,

Re, CI Ds scciiccnccacenincensitenmnaiensiiniion 17

SERS aT EL EERE OEE rr ee OBE Sol Revere 23

ee ee te Gr BI cite iviscksstbntececccbncsaseacceeens a

APPENDIX B (Letter from Stewart Baker,

Assistant Secretary, U.S. Dep't of Homeland

Security, to Debra Brown Steinberg, Esq., Aug.

il

TABLE OF AUTHORITIES

Cases

Arizona v. United States,

I a A ae 10

Heckler v. Chaney,

A ND, Ue RL ae ae A 12

INS v. National Center for Immigrants’ Rights,

SEE, CIID cninccsid-casiccuasereuchvinensewcésivcsous 10

King v. Burwell,

TELS GP TS NE Se 11

Texas v. United States,

809 F.3d 134 (5th Cir. 2015) .................0....00...... passim

United States v. Moussaoui,

591 F.3d 263 (4% Cir. 2010) .....cccccesccsesssssssseeeennneee 0

Zivotofsky v. Kerry,

| RERRIERS We esee sone sane 20

Statutes

hg REC eee ne 6, 15

RR SE eens a 18

B U.S.C. § 1 LGBT) «..----.00s0..cccccc.ccecc.ccccccessee 15

ie ie I snsdnscesinsesnsoonpagunnoneinaadininenionsa 13

4 LSS RR SRE ae C3 13

a 17

i RESETS an eee oan em 14

es i i eectncstesaiegbiasnsieitelbelltastdiamaei 14

Ss 13

ULES, © TI anise ge sense 20, 21

iv

Rg RES aR ee RS Reve 20

es BT cicactcidinsisss dasiibiinsapinscusctaisssionssnadiinadbonteidioisonasiie 20

Chinese Student Protection Act of 1992..................... 21

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 .................2..:cccccccceeeeeeseeees 14

CE GS eee 18, 19

I &

Regulations

U.S. Dep’t of Justice, Immigr. & Naturalization

Service & Executive Office for Immigr. Rev.,

Inspection and Expedited Removal of Aliens;

Detention and Removal of Aliens; Conduct of

Removal Proceedings; Asylum Procedures, 62 Fed.

Reg. 10312 (March 6, 1997) .........ccccccsccssssesssseeeee 11,13

U.S. Dep’t of Justice, Immigr. & Naturalization

Service, Employment Authorization; Classes of

Aliens Eligible, 52 Fed. Reg. 46,092

RE aR a Re ee RE ae «Se Lit ee ee tiers 11

Other Authorities

Adam B. Cox & Cristina M. Rodriguez, The President

and Immigration Law Redux, 125 Yale L.J. 104

Sin iajcelchertinte tee help eleisecetalatelassibdalasnintinsiaisesseiletbi 15, 18, 19

American Immigr. Council, Reagan-Bush Family

Fairness: A Chronological History 2-3 (Dec. 2014),

available at

http://www.americanimmigrationcouncil.org/sites/d

efault/files/docs/reagan_bush_family_fairness_final

Committee on the Judiciary, U.S. House of

Representatives, 104th Cong., 2d Sess., H.R. Rep.

No. 104-469 (March 4, 1996) ..0..0.0..0.0...0.0cccceeee. passim

Conversation with Debra Brown Steinberg, Esq.,

Pa on ceseesaiionnseealinii 4,9

George H.W. Bush, President of the United States,

Statement on Signing the Immigration Act of 1990

(Nov. 29, 1990), available at

http://www.presidency.ucsb.edu/ws/index.php?pid=

19117 (hereinafter Jmmigration Act of 1990

iia cei rctaciseaduitminaiianenil 20

H.R. 10171, Rep’t No. 110-909, 110% Cong., 2d Sess.

(Feb. 15, 3007) (introduced by Rep. Maloney),

available at https://www.congress.gov/bill/1 10th-

congress/house-bill/107 1/text ..........0..ccccccccceseeeeseeeeeees 4

Letter from Stewart Baker, Assistant Secretary, U.S.

Dep’t of Homeland Security, to Debra Brown

Steinberg, Esq., Aug. 15, 2008......00.000..0.0.ece ee 3, 7-8

Peter Margulies, Deferred Action and the Bounds of

Agency Discretion: Reconciling Policy and Legality

in Immigration Enforcement, 55 Washburn L.dJ.

OUR stain ate ae RE ER (aetna 13

Peter Margulies, The Boundaries of Executive

Discretion: Deferred Action, Unlawful Presence,

and Immigration Law, 64 Am. U. L. Rev. 1183

RR aR RR Ls Ae HONE SS et ce 17

President Barack Obama, Presidential Memorandum

— Deferred Enforced Departure for Liberians (Sept.

26, 2014), available at

https://www.whitehouse.gov/the-press-

office/20 1 4/09/26/presidential-memorandum-

deferred-enforced-departure-liberians.................... 20

vl

Shoba Sivaprasad Wadhia, Beyond Deportation: The

Role Of Prosecutorial Discretion In Immigration

RSE A NIK, ER ten Tae AG Es ier 22

U.S. House of Representatives Committee on the

Judiciary Report on September 11 Family

Humanitarian Relief and Patriotism Act of 2009,

H. Rep. 111-667, 111th Cong., 2d Sess., available

at https://www.gpo.gov/fdsys/pkg/CRPT-

111 hrpt667/html/CRPT-11 lhrpt667.htm.......... 3-4,9

Univision New Transcript: Interview with President

Barack Obama, available at

http://communications-

univisionnews.tumblr.com/post/7926647 143 1/univi

sion-news-transcript-interview-with.................0.. 22

INTEREST OF AMICI CURIAE!

Amici, who have served in senior positions in the

Executive Branch on immigration and national

security issues, have acquired substantial experience

in the granting of deferred action.2, Two amici were

closely involved in a grant of deferred action or other

temporary relief to fifteen spouses and children of 9/11

victims. One of these victims had a temporary

employment visa; the other victims had worked at the

World Trade Center in New York City after having

entered or remained in the U.S. without a legal status.

Petitioners argue that actions taken by some of the

amici in previous administrations serve as precedents

for the program challenged in this case. They do not.

Amici explain in this brief that those earlier examples

of immigration relief were carefully constrained by

both law and prudence, serving only as a bridge to a

legal status authorized by a then pending Act of

' Rule 37 statements: Petitioners and Intervenors-

Respondents Jane Does were timely notified and filed blanket

consents to the filing of amicus briefs. Respondents the State of

Texas et al. consented by letter to this filing. No counsel for any

party authored any part of this brief and no person or entity other

than amici funded its preparation or submission.

2 Stewart A. Baker served as the first Assistant Secretary for

Policy in the U.S. Department of Homeland Security (DHS).

Paul Rosenzweig served as Deputy Assistant Secretary for Policy

at DHS. Nicholas Rostow served as General Counsel and Senior

Policy Adviser to the U.S. Permanent Representative to the

United Nations. Rick Valentine served as Deputy Assistant

Attorney General, supervising the U.S. Department of Justice’s

Office of Immigration Litigation. See Appendix A for further

information about amici’s government service, other relevant

experience, and publications.

Congress or by visa categories already present in the

Immigration and Nationality Act (INA).

Amici cabined the relief they provided because

they believed both that the INA limited their

discretion, and that exercises of sweeping, uncabined

discretion such as Petitioners’ proposed Deferred

Action for Parents of Americans and Lawful

Permanent Residents (DAPA) program could not be

lawfully sustained. Furthermore, amici honored

these limits because they were part of a long and

consistent course of dealing between Congress and the

Executive on the contours of immigration discretion.

That course of dealing has included programs,

such as the Family Fairness initiative of President

George H.W. Bush, that Petitioner has wrongly cited

as supporting DAPA’s sweeping relief. In submitting

this brief, amici hope to ensure that the

administration of immigration law will continue to

reflect the traditional course of dealing in which

grants of deferred action are either expressly

authorized or ratified by Congress or ancillary to a

grant of legal status. Such cabined discretion, in

amici’s view, best harmonizes Congress’s aims of

deterring unlawful immigration and ensuring the fair

and effective operation of the United States’ avenues

for legal immigration.

SUMMARY OF ARGUMENT

Amici are a group of former government officials

responsible for immigration policy in earlier

administrations. In particular, amici include officials

who authorized deferred action for the families of

workers at the World Trade Center who had

unlawfully entered or remained in the U.S. and who

died on 9/11. Congress had not expressly authorized

that relief when it was granted. As a result, amici

carefully cabined the relief provided to this small

group of 9/11 victims’ families.

Petitioners have sought to rely on 9/11-related

deferred action as a precedent for the more sweeping

discretion that DAPA embodies. See Brief for the

Petitioners, United States v. Texas, No. 15-674

(March 2016) (hereinafter Pet. Brief), at 6-7. In so

doing, Petitioners ignore the limitations that were

part of the 9/11 relief.

If ever there were a case for deferred immigration

enforcement, 9/11 created one. Several of the

individuals who lost their lives in the attack were

working illegally in the World Trade Center, and most

of their spouses and children had no legal status. In

the words of one amicus, Stewart Baker, the Assistant

Secretary for Policy of the Department of Homeland

Security (DHS), these families shared with all

Americans a “moment of loss and pain and pride that

is now a defining part of our national history.”3

3 See Letter from stewart Baker, Assistant Secretary, U.S.

Dep't of Homeland Security, to Debra Brown Steinberg, Esq.,

Aug. 15, 2008 (hereinafter Baker Letter, Aug. 15, 2008),

Appendix B (redacted to omit client information), cited in U.S.

House of Representatives Committee on the Judiciary Report on

But amici did not believe that the Executive could

by fiat simply grant them what they deserved. The

Assistant Secretary sought to tailor relief as closely as

possible to Congress’s overall plan. In particular, the

Assistant Secretary framed that relief as a bridge to a

legal status that was formally authorized by

Congress: either under pending legislation that

expressly granted legal status to the 9/11 relatives’

group,‘ or pursuant to a U visa, available to victims of

crime who cooperate with law enforcement.®

September 11 Family Humanitarian Relief and Patriotism Act of

2009, H. Rep. 111-667, 111th Cong., 2d Sess., text accompanying

n. 7, available at https://www.gpo.gov/fdsys/pkg/CRPT.

11lhrpt667/htmY/CRPT-111hrpt667.htm (last visited March 6,

2016) (hereinafter Judiciary Committee Report on September 11

Relief Act).

4 See A bill, “To provide the nonimmigrant spouses and

children of nonimmigrant aliens who perished in the September

11 terrorist attacks an opportunity to adjust their status to that

of an alien lawfully admitted for permanent residence, and for

other purposes,” H.R. 10171, Rep’t No. 110-909, 110% Cong., 2d

Sess. (Feb. 15, 2007) (introduced by Rep. Maloney), available at

https://www.congress.gov/bill/1 10th-congress/house-

bill/1071/text (last visited March 25, 2016); Judiciary Committee

Report on September 11 Relief Act, supra n. 3.

5 Judiciary Committee Report on September 11 Relief Act,

supra n. 3, text accompanying n. 7 of the Report. The 9/11

relatives received either deferred action or another temporary

form of relief, humanitarian parole. The attorney who negotiated

with DHS on behalf of the 9/11 relatives group recently

confirmed that, as of March, 2016, all of the individuals she

personally represented were awarded U visas and have either

adjusted to lawful permanent resident (LPR) status or are in the

process of adjusting to LPR status. Conversation with Debra

Brown Steinberg, Esq., (March 23, 2016) (hereinafter Steinberg

Conversation).

Amici limited the 9/11 relief for a reason. Congress

had made abundantly clear its hostility to sweeping

immigration relief that is not tied to existing law.

That hostility is grounded in experience. While

setting immigration enforcement priorities mainly

affects the fate of individual illegal immigrants,

Congress has consistently expressed concern that

illegal immigration hurts the job prospects of U.S.

citizens and lawful permanent residents (LPRs). See

Committee on the Judiciary, U.S. House of

Representatives, 104th Cong., 2d Sess., H.R. Rep. No.

104-469, at 108 (March 4, 1996) (hereinafter 1996

House Judiciary Report) (noting that “employment of

illegal aliens ... causes deleterious effects for U.S.

workers’).

In this respect, as in any matter of statutory

interpretation, amici have always taken the view that

the touchstone is Congress’s intent, not whether

economists would all agree with Congress’s analysis.

Indeed, amici themselves have a range of views on the

extent to which unlawful immigration affects the

employment of U.S. citizens and LPRs.

Amici agree, based on their experience, that

Congress closely monitors any exercise of executive

discretion under the immigration laws to ensure that

it does not exceed Congress’s intent. The 9/11

families’ relief initiated by amici and the other past

exercises of discretion were limited by this principle.

They served as short-term bridges to relief that

seemed certain to be authorized by Congress or to an

existing statutory grant of legal status.6 Had umici

6 The term, “legal status,” refers to a statutorily recognized

basis for an immigrant or nonimmigrant visa that will allow the

recipient of the status to enter or remain in the United States.

shared the legal view now urged by Petitioners — that

the executive could simply grant that relief in a bold

and uncomplicated gesture — they would have done so.

They did not.? Nor should this Court.

Given their experience, amici readily acknowledge

the distinction between granting discretionary

benefits such as employment authorization and

setting enforcement priorities. The latter is simply a

matter of prosecutorial forbearance that will

inevitably turn on available resources and other

matters appropriately left to administrative

discretion. However, DAPA’s effects are different in

kind, since DAPA clashes’ with long-settled

congressional-executive understandings on the scale

and scope of employment authorization for foreign

nationals without either a legal status or a reasonable

prospect of obtaining such a status. See Texas uv.

United States, 809 F.3d 134, 180 (5th Cir. 2015)

(noting that DAPA “would allow [undocumented

noncitizens] to receive the benefits of lawful presence

See, e.g., 8 U.S.C. § 1151(b)(2)(A)(i) (2016) (defining “Immediate

Relative” eligible for immigrant visa as, inter alia, the parent of

a U.S. citizen, provided that the citizen sponsoring a parent is “at

least 21 years of age”).

’ Indeed, two amici recall that during a wide ranging

discussion intended to canvass all possible avenues of relief for

the 9/11 relatives, one staff attorney suggested the adoption of a

DAPA-like use of extended prosecutorial discretion combined

with a work authorization. Amici (and their staff) all quickly

concluded that such a proposal was unlawful and inconsistent

with settled legislative-executive understandings. That position,

unthinkable just eight years ago, is now portrayed by Petitioners

as longstanding Executive Branch practice.

... without any of the requirements ... that Congress

has deliberately imposed”).

ARGUMENT

I. Deferred Action to Spouses and Children of

the September 11 Attacks’ Undocumented

Victims Was Ancillary to a Grant of Legal

Status

One amicus, Stewart Baker, when serving as

Assistant Secretary of DHS for Policy, authorized

deferred action and other temporary relief that was a

bridge to a legal status for a small group that shared

a special tragedy: spouses and children of noncitizens

who had either entered without inspection or

overstayed and subsequently were slain in the

September 11 attacks.

The need for deferred action arose because among

the three thousand victims of the September 11

attacks were a number of foreign nationals without a

lawful immigration status who worked at Windows on

the World or other locations in the World Trade

Center in New York City. After the attacks that cost

the lives of these victims, their spouses and children

were left with a grievous loss and no place to turn. As

then-Assistant DHS Secretary Baker said in a letter

to the relatives’ attorney, members of the group were

still “at risk of arrest and removal by immigration

authorities.” See Aug. 15, 2008 letter, supra note 3.

The human reasons for granting relief were, in

amici’s view, overwhelming. “The members of this

small group share with all Americans a moment of

loss and pain and pride that is now a defining part of

our national history.” Jd. Although the relatives were

not U.S. nationals, their lives were “linked to the

United States of America by a bond that is intimate

and unique.” Id.

But Congress had not expressly provided relief for

these victims of terror. Congress had expressly

authorized immigration relief for another cohort of

9/11 families: alien spouses and children of U.S.

citizens killed in the attacks, and alien spouses and

children who were intended beneficiaries of pending

visa petitions by slain LPRs. See USA PATRIOT ACT,

§ 423, Pub. L. No. 107-56, 115 Stat. 360-61 (giving

members of this group an opportunity to file a petition

for an immigrant visa).

Petitioners view the targeted relief that Congress

expressly authorized for relatives of LPR 9/11 victims

as precedent for the sweeping relief that Petitioners

provided in DAPA without express congressional

authorization. See Pet. Brief at 6-7. That analogy

badly misses the mark. Congressionally authorized

action cannot serve as precedent for Executive action

that has no support from Congress.

In contrast, amici saw the legislative exclusion of

the 9/11 workers from legislative relief as a limit on

executive discretion. When amici used their executive

discretion to grant the 9/11 relatives relief, legislation

to provide a formal legal status to the group was

pending and expected to pass without controversy, see

supra note 4. While prospects seemed good for

passage, the legislative process can be slow, and in the

meantime the risk of deportation loomed over the

families. In this context, amici believed that a short-

term grant of executive relief was necessary as a

bridge to statutory relief.

In case amici were wrong about Congress’s

willingness to act, however, the short term grant of

relief was also intended to allow the families time to

undergo the long and slow process of qualifying for a

U visa, which is available to victims who cooperate

with law enforcement. See Judiciary Committee

Report on September 11 Relief Act, supra note 3 (text

accompanying Report’s n. 7). U visas were a realistic

prospect in 2008, when DHS announced that it was

granting deferred action or other temporary relief to

the 9/11 relatives’ group. At the time, U.S. law

enforcement officials wished to preserve the option of

calling the relatives as witnesses in the sentencing

phase of the prosecution of Zacarias Moussaoui, who

had pleaded guilty to charges related in part to the

September 11 attacks. Id.; see also United States v.

Moussaoui, 591 F.3d 263, 299-300 (4t» Cir. 2010)

(upholding Moussaoui’s conviction and discussing

9/11-related charges).

In the end, Congress did not adopt relief for these

9/11 relatives. Instead, the relatives applied for U

visas or for another legal status. A significant number

of the 9/11 group have received a legal status as of

March, 2016, and amici are unaware of any member

of the group who has been denied a legal status. See

Steinberg Conversation, supra note 5.

Amici tailored their relief to 9/11 victims so

carefully because they believed then, and continue to

believe, that the INA limits executive discretion out of

an abiding concern for the employment prospects of

American citizens and LPRs. Congress has long

expressed the view that the “magnet” of U.S. jobs

attracts undocumented immigrants and disrupts the

U.S. labor market. See 1996 House Judiciary Report,

supra, at 108.

10

As Justice Stevens wrote for a unanimous Court in

INS v. National Center for Immigrants’ Rights, 502

U.S. 183 (1991), the “scope of ... discretion” under “the

Act as a whole” rests in large part on the INA’s

“concern with the employment of excludable aliens.”

Id. at 193 (emphasis added). In light of these

concerns, a decision to vastly increase the pool of

potential workers is no mere exercise of prosecutorial

discretion.

Past executive actions under the INA, including

the 9/11 relief granted by amici, have recognized that

constraint as a matter of law and prudence. The

cabined nature of the relief provided by DHS to the

9/11 relatives is consistent with the longtime shared

understanding of Congress and immigration officials.

Discretionary relief should be “interstitial” in

character, bounded by a robust limiting principle. It

should be expressly ratified by Congress or be a bridge

to a statutorily authorized legal status. That

commitment to interstitial discretion led Assistant

Secretary Baker and his DHS colleagues to tailor

deferred action to the unique situation of the 9/11

relatives.

IL. Interstitial Discretion, in Contrast to DAPA’s

Sweeping Relief, Fits the INA’s Limits on

Undocumented Migration’s Disruption of the

U.S. Labor Market

Amici exercised tailored discretion on behalf of the

families of 9/11 victims because the INA, read as a

“harmonious whole,” Arizona v. United States, 132 S.

Ct. 2492, 2502 (2012) (citation omitted), permits only

interstitial discretionary benefits. Congress, far from

acquiescing in uncabined exercises of discretion, has

repeatedly sought to constrain executive discretion

11

under the INA. Those constraints stem from the

“context and structure” of the statute, King v. Burwell,

135 S. Ct. 2480, 2495 (2015), and from Congress’s fear

that uncabined discretion would reinforce the

“magnet” of U.S. jobs that attracts unlawful

migration.®

Executive branch immigration officials agreed. In

1987, analyzing the very regulation relied on by

Petitioners as authority for DAPA, Pet. Brief. at 7, 42,

46, immigration officials said that the “number of

aliens authorized to accept employment is quite sma//

and the impact on the labor market is minimal.” See

U.S. Dep’t of Justice, Immigr. & Naturalization

Service, Employment Authorization; Classes of Aliens

Eligible, 52 Fed. Reg. 46,092 (Dec. 4, 1987) (emphasis

added). Indeed, officials claimed that the number of

work authorizations was so small that it was

“previously considered to be not worth recording.” Id.

at 46,093 (italics added). Government officials’

assurance that the number of work permits was too

small to count amply demonstrates the longtime

legislative and administrative commitment to

cabining this immigration benefit — a commitment

that guided amici’s consideration as well.

8 See 1996 House Judiciary Report at 108. Immigration

officials have long shared Congress’s fear. See U.S. Dep't of

Justice, Immigr. & Naturalization Service & Executive Office for

Immigr. Rev., Inspection and Expedited Removal of Aliens;

Detention and Removal of Aliens; Conduct of Removal

Proceedings; Asylum Procedures, 62 Fed. Reg. 10312, 10324

(March 6, 1997) (hereinafter Conduct of Removal Proceedings)

(conceding that, “it has long been recognized that employment

provides a magnet that draws [noncitizens] to this country”).

12

Amict have always recognized the distinction

between granting discretionary benefits such as

employment authorization and setting enforcement

priorities. Setting immigration enforcement priorities

is merely a decision to remove one person or group

first, and leave other cases for another time. See

Heckler v. Chaney, 470 U.S. 821, 831 (1985) (declining

to review agency’s “balancing ... of factors” entailed in

setting enforcement priorities).

DAPA ventures far beyond the setting of priorities.

It establishes a formal system for granting significant

immigration benefits such as work permits to fully

40% of the foreign nationals who have entered or

remain in the U.S. unlawfully. The blanket grant of

benefits to such a large proportion of the

undocumented population undermines the deterrent

effect of U.S. immigration law, by allowing individuals

who violate the law to gain a predictable, renewable

employment advantage that Congress intended to

place beyond their reach. See Texas v. United States,

809 F.3d 134, 180 (5th Cir. 2015) (noting that DAPA

“would allow [undocumented noncitizens] to receive

the benefits of lawful presence... without any of the

requirements... that Congress has _ deliberately

imposed”).

A. Congress Has Repeatedly Constrained

Executive Discretion to Serve the INA’s

Deterrent Purposes

In the last quarter-century, Congress has engaged

in myriad efforts to constrain executive discretion on

immigration. Time and again, Congress has slapped

down the Executive Branch when it adopted too broad

a view of its discretion to grant immigration relief.

Three examples of this practice are: 1) congressional

13

curbs on extended voluntary departure (EVD); 2)

Congress's restrictions on parole of undocumented

noncitizens from abroad; and, 3) rigorous

congressional constraints on the remedy of

cancellation of removal. The details of each confirm

the integral place in the INA of constraints on

administrative discretion and informed amici's

judgment in the 9/11 case.

Responding to persistent complaints of excessive

discretion, Congress in 1996 imposed a strict 120-day

time limit on the duration of EVD for noncitizens in

removal proceedings. See 8 U.S.C. § 1229c(a)(2)(A).

Congress took this action because, as immigration

officials conceded, “[t]oo often, voluntary departure

has been sought and obtained by persons who have no

real intention to depart.” See U.S. Dep’t of Justice,

Conduct of Removal Proceedings, supra note 8, at

10324. Congress’s effort to cabin executive discretion

to grant EVD would make little sense if immigration

officials could circumvent these limits with sweeping

awards of deferred action. See Peter Margulies,

Deferred Action and the Bounds of Agency Discretion:

Reconciling Policy and Legality in Immigration

Enforcement, 55 Washburn L.J. 143, 159 (2015)

(observing that, “[hjaving balked at the relatively

modest discretionary benefits provided by EVD ...

Congress would surely bridle at the cornucopia of

benefits provided by DAPA”).

Similarly, Congress required that parole of illegal

entrants occur only on a “case-by-case basis for urgent

humanitarian reasons or significant public benefit.” 8

§ 1182(d)(5)(A); see id. § 1182(d)(5)(B) (requiring a

showing of “compelling reasons in the public interest

with respect to [the] particular alien” whom the

executive branch wishes to parole into the United

14

States). Congress limited parole because it found that

parole had been “used increasingly to admit entire

categories of aliens who do not qualify for admission

under any other [immigration] category.” 1996 House

Judiciary Report at 140. If immigration officials could

accomplish the same results through deferred action,

as they have attempted to do in this case, those

congressional controls on parole would be an exercise

in futility.

In an especially telling example, Congress made

the test for cancellation of removal even more

rigorous. Cancellation of removal provides an

important frame of reference for DAPA, since

cancellation is the one remedy in the INA that is

expressly available to noncitizens who, 1) have been

unlawfully present in the U.S. for a year or more, and,

2) have no other reasonably direct path to a legal

status. See Texas v. United States, 809 F.3d 134, 180

(5th Cir. 2015) (describing the low eligibility

standards for DAPA, as compared with cancellation of

removal).

In the Illegal Immigration Reform and [mmigrant

Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-

208, 110 Stat. 3009-546, Congress mandated that a

foreign national without a legal status applying for

cancellation of removal, which Congress limited to

4,000 grants annually, 8 U.S.C. § 1229b(e)(1), must

show ten years of continuous physical presence in the

U.S. and “exceptional and extremely unusual

hardship” to a U.S. citizen or LPR spouse, parent, or

child. Jd. § 1229b(b)(1) (2015).

DAPA ignores this history and the policy

considerations that underlie it. While DAPA, unlike

cancellation of removal, would not formally grant a

15

legal status to its 4 million beneficiaries, it would

confer many of the advantages of legal status on a

cohort of noncitizens that Congress deliberately

subjected to daunting barriers. Under the law as

Congress wrote it, many unlawful entrants with post-

entry U.S. citizen children must wait decades for a

legal status that permits employment.? Under DAPA,

the limits carefully constructed by Congress are

rendered largely irrelevant; that same unlawful

entrant will now receive an indefinitely renewable

work permit and reprieve from removal.

Congress erected formidable barriers for a

purpose: to channel prospective entrants into the

INA’s avenues for legal status. Although DAPA does

not provide a formal grant of legal status, it is clear to

amici, based on their experience in administering the

INA, that DAPA’s supplying of eligibility for work

permits and a renewable reprieve from removal meets

most unlawful] entrants’ near- to intermediate-term

® Congress painstakingly devised an arduous obstacle course

to discourage unlawful entrants from using post-entry U.S..-

citizen children to gain immigration benefits. The most

formidable barriers in the INA are the ten-year bar on admission

to the U.S. of noncitizens who have been unlawfully present in

the U.S. for a year or more, 8 U.S.C. § 1182(a)(9)(B)G)(ID, and

the citizen-sponsor age floor, which requires that a U.S. citizen

be “at least 21 years of age” to sponsor a parent for an immigrant

visa. See 8 U.S.C. § 1151(b)(2)(A)(i). For an unlawful entrant

with a l-year-old U.S. citizen child, Congress’s design blocks

legal status for 30 years, with a full decade spent outside the

United States. Cf. Adam B. Cox & Cristina M. Rodriguez, The

President and Immigration Law Redux, 125 Yale L.J. 104, 124 n.

50 (2015) (acknowledging that for many prospective DAPA

beneficiaries, attainment of LPR status would occur “far in the

future”).

16

immigration goals.!° DAPA thus blots out the signal

that Congress has sought to send in ways that are

fundamentally inconsistent with amici’s

understanding of legislative limitations.

What’s more, DAPA serves as an incentive for

further illegal immigration. Foreign workers will

make the practical observation that what the United

States has done twice, it may well do again. Entering

the country to work illegally may well be rewarded in

the future, especially if that decision requires only a

President’s decision, and not a democratic consensus

expressed in legislation. If Petitioners prevail in this

case, only a veto-proof majority in both houses of

Congress could stop a future extension of DAPA

benefits.

As former executive branch officials, amici can

attest that leaving a veto-proof majority of each

legislative chamber as the sole barrier to immigration

officials’ discretion would constitute a temptation

difficult to resist. Indulging that temptation would

undermine Congress’s careful compromise between

deterrence and discretionary relief and add

momentum to illegal immigration’s “driving force”:

the lure of U.S. jobs. See 1996 House Judiciary

Report, at 108. That is a temptation that Congress, in

10 The primary tangible benefit of a grant of formal legal

immigrant status — the ability to sponsor close relatives for

admission to the United States — is to a significant extent

irrelevant to prospective DAPA gruntees. By definition,

prospective DAPA recipients’ children who have been born in the

U.S. are already U.S. citizens, who need no immigration help.

Recipients’ spouses, like recipients themselves, will also typically

qualify for DAPA grants as parents of U.S. citizens.

17

the long course of its dealing with immigration

officials, has sought to foreclose.

B. DAPA Does Not Fit the Categories of

Discretion Permitted by the INA’s

Purpose, Logic, and Structure

To be consistent with Congress’s clear history of

curbing executive discretion in the award of lawful

status, immigration benefits should be either

expressly authorized by Congress or bridges to a

status authorized by Congress.'! All of the instances

of relief that Petitioners cite as precedents for DAPA

fit within these rubrics.

For example, immigration officials granted

deferred action to applicants for U and T visas, which

are respectively available under the INA to victims of

crime generally and victims of human trafficking in

particular. Officials did so to facilitate an orderly

adjudication process for these visas; it made little

sense to remove applicants to their countries of origin

with their applications pending, since processing the

applications would require interviews at local

immigration offices in the United States.

Congress quickly ratified this common-sense

administrative measure. See 8 U.S.C. § 1227(d)(1); see

also Pet. Brief at 58-59 (noting that Congress ratified

official policy of granting deferred action to applicants

who made a “bona fide showing of eligibility” for U and

T visas).

11 See Peter Margulies, The Boundaries of Executive

Discretion: Deferred Action, Unlawful Presence, and Immigration

Law, 64 Am. U. L. Rev. 1183, 1213-22 (2015).

18

The Family Fairness Program, claimed by

petitioners as a precursor to DAPA, see Pet. Brief at

64, is actually an apt example of more narrowly

tailored relief — one that served to guide amici in their

official duties. Family Fairness, a product of close

collaboration between the Congress and immigration

officials, offered a temporary bridge to lawful status;

very quickly, however, temporary executive branch

relief was ratified by the Immigration Act of 1990.12

DAPA’s proponents concede that Family Fairness’s

beneficiaries — the spouses and children of noncitizens

legalized under IRCA — already had a pathway to legal

status that was more direct than the daunting

obstacle course that DAPA recipients must traverse.

See, e.g., 8 U.S.C. § 1153(a)(2)(A) (providing for family

second preference visa petition that could be filed once

the IRCA grantee became an LPR); Cox & Rodriguez,

The President and Immigration Law Redux, 125 Yale

L.J. at 121 n. 39 (noting that, “those legalized by ...

IRCA would become eligible to petition for the

admission of their spouses and children through the

already existing immigration system”) (emphasis

added). Family Fairness merely eased a timing

problem that exposed spouses and children of IRCA

grantees to a short-term risk of deportation as they

followed these paths to legal status.

Moreover, as even proponents of DAPA

acknowledge, Family Fairness played out against the

backdrop of imminent congressional approval. Both

12 Pub. L. 101-649, 104 Stat. 4978 (Nov. 29, 1990).

Petitioners acknowledge that the 1990 statute ratified Family

Fairness, and more. Pet. Brief at 6 (noting that “Congress

responded by enacting a statutory program with broader relief’).

19

the House and the Senate had separately approved

relief for IRCA legalization grantees’ families prior to

Family Fairness’s roll-out.'? In November, 1990, less

than 10 months after officials announced the Family

Fairness program, President George H.W Bush

signed that year’s Immigration Act, which ratified the

program by barring the deportation of Family

Fairness beneficiaries. See Immigration Act of 1990,

Tit. III, § 301(a), 104 Stat. 5029. Rushing to remove

spouses and children of IRCA grantees in that ten-

month period would have needlessly snarled legal

immigration, while producing a minimal pay-off in

deterrence.

In essence, Family Fairness bridged the gap

between IRCA and the 1990 Act. See Cox &

Rodriguez, The President and Immigration Law

Redux, 125 Yale L.J. at 120-21 (describing Family

Fairness as “a form of transitional relief’ bridging

IRCA and the 1990 Immigration Act); Pet. Brief. at 57

(conceding that the 1990 Act ratified the Family

Fairness program).

In contrast, no one can argue that DAPA is the

product of executive collaboration with Congress, or

that DAPA has any prospect of being ratified by

Congress any time soon. See Texas v. United States,

809 F.3d 134, 185 (5th Cir. 2015) (noting that

Congress “has repeatedly declined” to enact

legislation that “closely resemble[s]” DAPA).

13 See American Immigr. Council, Reagan-Bush Family

Fairness: A Chronological History 2-3 (Dec. 2014), available at

http://www.americanimmigrationcouncil.org/sites/default/files/d

ocs/reagan_bush_family_fairness_final.pdf (last visited March 6,

2016).

20

Finally, amici note that Petitioners prudently

refrain from basing DAPA on Article II power to stay

the deportation of nationals from particular countries.

It is true that Presidents, seeking to exceed the more

modest relief that Congress had expressly labeled as

“exclusive,” have asserted Article II power to protect

foreign nationals in the U.S. from risks abroad,'4 most

recently on behalf of certain Liberians who were

granted Deferred Enforced Departure (DED).'5 In the

‘4 Compare 8 U.S.C. § 1254a(g) (2015) (declaring that

Temporary Protected Status (TPS), which imposes rigorous

eligibility requirements such as risk from an “ongoing armed

conflict,” see id. § 1254a(b)(1)(A), constitutes the “exclusive

authority” for immigration officials to “permit deportable aliens

to remain in the U.S. temporarily because of their particular

nationality or region”) (emphasis added), with George H.W.

Bush, President of the United States, Statement on Signing the

Immigration Act of 1990 (Nov. 29, 1990), available at

http://www.presidency.ucsb.edu/ws/index.php?pid=19117 (last

visited March 25, 2016) (asserting that the Executive might have

constitutional power to protect otherwise deportable foreign

nationals that trumped express legislative limits); cf. Zivotofsky

v. Kerry, 135 S. Ct. 2076, 2084-96 (2015) (holding that President

has the exclusive power to recognize foreign states).

'5 See President Barack Obama, Presidential Memorandum

~ Deferred Enforced Departure for Liberians (Sept. 26, 2014),

available at https://www.whitehouse.gov/the-press-

office/20 1 4/09/26/presidential-memorandum-deferred-enforced-

departure-liberians (last visited March 6, 2016) (announcing

DED for Liberians who previously had TPS and asserting “my

constitutional authority to conduct the foreign relations of the

United States”); Pet. Brief at 50 (discussing DED for Liberians).

Immigration officials also aided Chinese students who remained

in or entered the U.S. after the 1989 post-Tiananmen Square

crackdown. See Pet. Brief. at 49-50 (citing relief). Congress

quickly ratified relief for Chinese students, although it has not

ratified relief for Liberians. See Chinese Student Protection Act

21

case of DAPA, however, the President chose not to rely

on his Article II authority.

The choice to forego Article II power as a basis for

DAPA was prudent, because no overseas risk, such as

chaos in the wake of an armed conflict or natural

disaster, prevents prospective DAPA recipients’

removal. Petitioners nonetheless now claim that past

exercises of Article II authority constitute precedents

for their sweeping claim of discretion under the INA.

See Pet. Brief at 50 (citing Liberian program).

Respectfully, this is a non sequitur. The President

has relied on Article I] power to provide relief to

foreign nationals only when the INA expressly left the

President no discretion. See 8 U.S.C. § 1254a(b)(1)(A)

(designating Temporary Protected Status (TPS) as

“exclusive”). The Article Il examples cited by

Petitioners do not rely on the INA, and thus they have

no bearing on this case. '®

In sum, earlier examples of discretion under the

INA were either expressly ratified by Congress or, like

amici’s relief for 9/11 victims’ families, served as a

bridge to a grant of legal status such as a U visa. See

Texas v. United States, 809 F.3d 134, 185 (5th Cir.

2015) (finding that Family Fairness was “interstitial

to a statutory legalization scheme”). In contrast, as

the court below noted, DAPA’s sweeping exercise of

of 1992, Pub. L. No. 102-404, 106 Stat. 1969, noted in 8 U.S.C. §

1255 (2016) (ratifying grants of deferred action).

16 Amici take no position on the scope of the President's

Article II authority to parole into the U.S. or defer the removal of

noncitizens fleeing crises abroad.

22

discretion is “far from interstitial.” Jd.'7 As a result,

DAPA is inconsistent with the INA’s structure, logic,

and purpose. It is also fundamentally inconsistent

with amici’s own experience in the executive branch

and how amici understood the limits of their

discretion. Far from being grounded in history and

experience, DAPA is from amici’s perspective a novel

expression of executive power that clashes with long-

settled congressional-executive understandings under

the INA.

'7 Fewer than 1,000 annual deferred action grants rest on

extraordinary individual hardships, including those of a medical

nature. See Shoba Sivaprasad Wadhia, Beyond Deportation: The

Role Of Prosecutoria! Discretion In Immigration Cases 69 (2015).

While harcship-based deferred action is not interstitial to a grant

of legal status, its rarity and the serious nature of the conditions

it addresses minimize its adverse impact on deterrence of

unlawful migration. Amici express no opinion on whether a

measure such as 2012’s Deferred Action for Childhood Arrivals

(DACA), which provided relief to certain aliens who were brought

to the U.S. as children, may fit under this hardship rubric.

However, amici note that even President Obama expressed

reservations about DACA’s scope. See Univision News

Transcript: Interview with President Barack Obama, available at

http://communications-

univisionnews.tumblr.com/post/7 926647 143 l/univision-news-

transcript-interview-with (March 5, 2014) (last visited March 29,

2016) (cautioning that, “until Congress passes a new law, then I

am constrained in terms of what I am able to do,” and conceding

that DACA “already stretched my administrative capacity very

far”). Amici share the hesitation that the President expressed.

Since DAPA’s potential beneficiaries exceed DAPA’s by a factor

of ten, DAPA is an a fortiori case: If DACA pushes the envelope,

DAPA tears it.

23

CONCLUSION

For the foregoing reasons, this Court should

affirm the decision of the court below.

Respectfully submitted,

PETER MARGULIES

Counsel of Record

Roger Williams Univ.

School of Law

10 Metacom Avenue

Bristol, RI 02809

(401)254-4564

pmargulies@rwu.edu

March 31, 2016

Appendix A: List of Amici

Stewart A. Baker is an attorney in Washington,

D.C. who served as the first Assistant Secretary for

Policy in the U.S. Department of Homeland Security

(DHS) during the administration of President George

W. Bush. At DHS, he created and administered the

250-person Policy Directorate, and in that capacity

participated in legislative immigration reform efforts

during 2007. He also served as General Counsel for

the National Security Agency from 1992-1994, and

General Counsel of the Commission on _ the

Intelligence Capabilities of the United States

Regarding Weapons of Mass Destruction in 2004-

2005. Mr. Baker hosts an influential podcast on law

and cybersecurity, and is author of the book, Skating

on Stilts’ Why We Aren't Stopping Tomorrow's

Terrorism (2010), and editor of a national security

blog of the same name. Mr. Baker is also a

Contributing Editor to the Lawfare and Volokh

Conspiracy blogs.

Paul Rosenzweig is an attorney in Washington,

D.C. who served as Deputy Assistant Secretary for

Policy at DHS in the administration of President

George W. Bush. He is also a Senior Advisor to the

Chertoff Group, run by former DHS Secretary Michael

Chertoff. An expert on cybersecurity and law, he is

author of the books, Winning the Long War: Lessons

from the Cold War for Defeating Terrorism and

Preserving Freedom (2005) (with James Jay

Carafano) and Cyber Warfare: How Conflicts in

Cyberspace are Challenging America and the World

(2013), co-editor (with Timothy McNulty and Ellen

Shearer) of two publications of the American Bar

Association, Whistleblowers, Leaks, and the Media:

The First Amendment and National Security, and

National Security Law in the News: A Guide for

Journalists, Scholars, and Policymakers (2012), and a

Contributing Editor to the Lawfare blog.

Nicholas Rostow served as General Counsel and

Senior Policy Adviser to the U.S. Permanent

Representative to the United Nations from 2001-2005,

Staff Director for the U.S. Senate Select Committee on

Intelligence, 1999-2000, Legal Adviser to the National

Security Council, 1987-1993, and Special Assistant to

the Legal Adviser, U.S. Department of State, 1985-

1987. He formerly served as University Counsel and

Vice Chancellor for Legal Affairs and full professor at

the State University of New York, and as University

Professor at the National Defense University. He is

currently the Charles Evans Hughes Visiting

Professor of Jurisprudence and Government at

Colgate University. Recent law review articles

include, /nternational Law and the Use of Force: A

Plea for Realism, 34 Yale J. Int’! L. 549 (2009).

Steven R. (Rick) Valentine is an attorney in

Washington, D.C. who served as Deputy Assistant

Attorney General in the administrations of Ronald

Reagan and George H.W. Bush from 1988-1993,

supervising the U.S. Department of Justice’s Office

of Immigration Litigation. He was a member of

President George W Bush’s transition team for the

Justice Department, and served as Chairman of the

Board of Visitors of the Indiana University School of

Law-Indianapolis.

Appendix B: Letter from Stewart Baker,

Assistant Secretary, U.S. Dep’t of Homeland

Security, to Debra Brown Steinberg, Esq., Aug.

15, 2008 (redacted in part)

U.S. Department of Homeland Security

Washington, DC 20528

Aug 15, 2008

Debra Brown Steinberg, Esq.

Cadwalader Wickersham & Taft LLP

One World Financial Center

New York, NY 10821

Dear Ms. Steinberg,

You and your co-counsel have asked us for

immigration relief for 16 people who lost a spouse or

parent in the 9/11 attacks. All of those people are

either in the United States unlawfully or in a status

that could be challenged at any time. As a result,

many members of the group, though they have been

in this country for years, are still at risk of arrest and

removal by immigration authorities.

The members of this small group share with all

American a moment of loss and pain and pride that is

now a defining part of our national history. The lives

of these 16 men, women, and children are linked to the

United States of America by a bond that is intimate

and unique. They have now asked to become a

permanent part of our nation.

The Department of Homeland Security was

itself created as a result of the 9/11 attacks; many of

us came to work here because of those attacks. We

feel a powerful connection — and a deep sense of

obligation — to those who died in the attacks and to the

loved ones who survived them.

We will grant your request, with two

exceptions. First, we lack authority to grant

permanent relief... [Remainder of this paragraph

redacted. |

We intend to inform Congress of our

determinations and, with your and your co-counsel’s

consent, will make available to Congress the appendix

to this letter and all the information supplied to us by

all 16 aliens, including copies of the proffers and

substantive letters and emails between me, you, my

staff, and the attorneys representing the aliens,

subject to the same constraints and assurances under

which the data was supplied to us. We expect that

Congress in turn will use the information to decide

whether permanent relief should be granted to the

members of the group.

I look forward to your response and to our

further cooperation in this matter.

Sincerely,

/ Ww r

Assistant Secretary for Policy