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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2016

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0635%3A44. Public record. Not legal advice.