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It’s been more than a week since SCOTUS halted the effort to rescind DACA, and I haven’t seen much response to the premise of Justice Thomas’ dissent—i.e., that DACA itself conflicts with federal immigration laws. That premise is badly mistaken. Here’s why. 1/
Thomas contends that because DACA recipients are deemed “lawfully present” for purposes of certain federal benefits, DACA “created a new exception to the statutory provisions governing removability.” But his conclusion doesn’t follow his premise. 2/
Whether someone is “removable” under the INA is entirely separate from whether they are “lawfully present.” A person can thus be lawfully present despite being removable. It’s counterintuitive in principle but common in practice. 3/
For example, consider someone who is found removable by an IJ but is granted protection under the Convention Against Torture. That person is subject to a final order of removal—and potentially removable to a third country—but is nonetheless lawfully present. 4/
Properly understood, the concept of removability refers solely to whether a person is inadmissible or deportable under the INA. For example, a person who enters without inspection is inadmissible for being “present in the United States without being admitted or paroled.” 5/
DACA has no effect whatsoever on that determination. Any person who was removable before receiving DACA would remain removable after receiving DACA. 6/
If DACA truly created an exception to removability, DACA grantees could not be placed in removal proceedings at all, or could ask an IJ to terminate proceedings. But as any immigration lawyer can tell you, such a request would be summarily denied. 7/
At most, a DACA grantee could ask an IJ to “administratively close” proceedings—i.e., hold the case in abeyance. But Jeff Sessions revoked the authority to administratively close cases while he was Attorney General. So even that option is unavailable. 8/
(Note: the Fourth and Seventh Circuits have since overruled Sessions’ decision (see https://www.ca4.uscourts.gov/opinions/181850.P.pdf and http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020%2FD06-26%2FC%3A19-1999%3AJ%3ABarrett%3Aaut%3AT%3AfnOp%3AN%3A2536740%3AS%3A0&fbclid=IwAR3uLRCKecUUhahaEwbY1bdzdnOuYRDl8eIakfjU7BEqy98eGRJ56u8cmuo), so DACA grantees in those circuits can again seek administrative closure. But I digress. 9/)
Thomas was also mistaken in suggesting that DACA is somehow equivalent to forms of lawful status and relief from removal mentioned in the INA—e.g. LPR status, nonimmigrant status, asylum, cancellation of removal, etc. 10/
Persons with these types of status are either not removable or have a valid defense to removal. DHS thus has no authority to remove them unless they violate their status. And if DHS improperly tried to remove them, they could seek redress in court. 11/
By contrast (and as Thomas himself acknowledges), DACA “exists at the Government’s discretion and can be revoked at any time.” And unless DHS revokes a person’s DACA for an unconstitutional reason (e.g. the person’s race or religion), there is nothing any court could do. 12/
And while Thomas doesn’t mention it, nor does granting employment authorization to DACA recipients violate the INA. In 8 USC 1324a(h)(3)(B), Congress placed no limits on the classes of noncitizens that DOJ (now DHS) can authorize to work. 13/
In fact, under existing regulations, some noncitizens can receive employment authorization even if they’re both removable *and* unlawfully present—e.g., people with orders of removal whom no country will accept. See, e.g., 8 CFR 274a.12(c)(18). 14/
Note that if Thomas’ reading of the immigration laws was correct, it would not only mean that DACA was unlawful. It would mean that individual, ad hoc grants of deferred action—e.g. for purely medical reasons—are also unlawful. He acknowledges as much in footnote 7. 15/
Which raises the question: if DHS can’t grant deferred action to any person on an ad hoc basis, can it exercise prosecutorial discretion in any respect? Can it ever decline to institute removal proceedings? Can it grant a stay of removal? /16
To ask those questions are to answer them. Just as it’s plainly permissible for DHS to grant deferred action in individual cases, so is it permissible to grant deferred action to classes of person. It’s just a difference of degree. /17
I don’t know whether Thomas’ misinterpretation of the immigration laws is why Kavanaugh declined to join his dissent. And I don’t know why none of the liberal justices wrote separately to challenge it. But people should not assume that Thomas was correct. 18/
In sum, DACA does not conflict with federal immigration laws in any respect. It is simply a non-enforceable pledge to “defer” removal against noncitizens who are—and remain—removable. Nothing more. END
