Today the Supreme Court upheld the denial of the DAPA program in a split, 4 to 4 tie decision, issuing only a one sentence ruling, "The judgment is affirmed by an equally divided Court." That means that DAPA (and also expanded DACA) will not go into effect. The current DACA program remains unaffected, however, and will continue.
With the nation's highest court ruling effectively that DAPA cannot proceed, it is now time for the administration to consider implementing an alternative, which I proposed last year, which would also lead to work permits being issued to parents of american citizens with a long residence in the United States. The alternative is the "Turn Self in for Deportation" alternative, and it is linked to a different executive power than the DACA program, and one that is less likely to fail in court like the DAPA program. The alternative is founded on current law, the "cancellation of removal" statute, and the power of the executive branch to "commence proceedings, adjudicate cases, or execute removal orders" without judicial review. The alternative, in short, requires the administration to allow the individuals who have been here for 10 years and who have a U.S. citizen or permanent resident child, spouse or parent to be issued a Notice to Appear (NTA) in immigration court, allow them to file a Cancellation of Removal application and work permit application, then Administratively Close their case so it gets out of the streamline of pending cases.
Because of the importance of this issue, I will reproduce the original blog post below in order to describe how such an alternative can work under existing law and be immune from judicial intervention.
The White House has another option to defer deportation and grant work permission for low priority undocumented immigrants - a Turn Self In for Deportation program.
How would that work? The answer lies in the laws that Congress passed in 1996. If a person in the United States without authorization can show 1) 10 years of continuous physical presence in the U.S. (with allowances for breaks of 90 days or less if totaling 180 days or less), 2) good moral character, 3) a lack of conviction for certain crimes, and 4) establishes that their removal would result in exceptional and extremely unusual hardship to the person's spouse, parent or child who is a U.S. citizen or lawful permanent resident, then that person can apply for a green card from an immigration judge, and have their deportation cancelled. The law is 8 U.S.C. 1229(b) and it is called "Cancellation of Removal." Yep, Congress said that if you have been here a long time and deportation would work a hardship on your kids, then you should be able to stay here as a lawful permanent resident. That's the law.
It is probably no coincidence, therefore, that the DAPA program was established for otherwise law abiding individuals who have been here a number of years and are parents of American citizens. If the government were to put all the estimated 4 million individuals who might qualify for DAPA into removal proceedings, a large portion of them would likely qualify for Cancellation of Removal, and would be entitled to a trial where they could prove the elements of the Cancellation of Removal claim. This would completely cripple the removal system and prevent the removal of more dangerous individuals. According to a Wall Street Journal Article, removal hearings are now being set 5 years into the future due to an already long backlog of cases waiting to be heard. With 230 immigration judges around the country already handling 375,000 cases per year, the system is at the absolute limit. Add 4 million more to the list of pending cases, including mostly those with Cancellation of Removal claims (requiring more court time to handle than many other cases), and hearing dates could be set not 5 years away, but 50 or 100 years in the future. Add to that the annual limit on 4,000 grants of Cancellation of Removal, and meritorious cases would be pending for 1,000 years.
So how would a Turn Self In for Deportation program work in place of DAPA? The Obama Administration could allow the portion of DAPA eligible individuals who had the required 10 years in the country to be issued a Notice to Appear (NTA) in immigration court, allow them to file a Cancellation of Removal application, then Administratively Close their case so it gets out of the streamline of pending cases. In the old days, the predecessor to the NTA, the Order to Show Cause (OSC) could be requested by walking an out-of-status client into investigations and having them written up. This was done to seek relief before an immigration judge. At some point the agency decided to limit the issuance of charging documents to cases they thought they could win. But DHS could certainly allow the old process to operate again, and could certainly direct the Office of Chief Counsel to join in motions to Administratively Close all cases in which the person was eligible for Cancellation of Removal and who also requested such administrative closure. This process would enable the individual to apply for a work permit, just the same result as if they had applied for DAPA. By allowing the cases to be Administratively Closed, the system would not be crippled, and removal proceedings involving individuals with serious criminal convictions could proceed.
So why don't more people just Turn Self In for Deportation? That is because Immigration and Customs Enforcement (ICE) has no process to allow for this. That's right - unless you are a priority for removal, ICE will not usually place a person in removal proceedings by issuing an NTA unless that person is a priority for removal, which at this time involves only people apprehended at the border or those arrested for crimes, and not all those otherwise law abiding individuals who may have Cancellation of Removal. Some individuals have filed asylum applications in order to be placed in removal proceedings, because denial of asylum leads automatically to an NTA being issued and the individual being placed in removal. The NTA filing, in turn, allows them to apply for Cancellation of Removal and a work permit, but the process is not without risk outside of an organized system as reported by the New York Daily News. So, because of the risk of deportation, and the fact that no Turn Self In for Deportation program exists, few of the otherwise law abiding 4 million are in removal proceedings, and cannot therefore apply for Cancellation of Removal. These are the truly "undocumented" because they are eligible for legalization but cannot apply for it unless they are in removal proceedings, and they aren't likely to get there because they are not committing crimes.
A Turn Self In (TSI) for Deportation program would also be even more shielded from judicial review than the DAPA program, because Congress has enacted laws (namely 8 U.S.C. 1252(g)) to completely insulate the decision to commence removal proceedings against someone from judicial review. When this post was originally drafted in February 2015, a few scholars commented that the TSI program would be subject to the same problems as the DAPA program in terms of jurisdiction to review in the courts. Not so, in my opinion. As the Fifth Circuit held last year (and upheld by the Supreme Court today), "DAPA amounts to the Secretary's decision - at least temporarily - not to enforce the immigration laws as to a class of what he deems to be low priority aliens. If that were all DAPA involved, we would have a different case." Slip Op., p. 23-24. The Court also held, "Unlike the claim in AAADC, the states' procedural claim does not involve a challenge to the Secretary's decision to 'decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation,' nor does deferred action pursuant to DAPA mean merely that 'no action will thereafter be taken to proceed against an apparently deportable alien.'" Slip Op., p. 25-26. The statute, 8 U.S.C. 1252(g), states that "...no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General [now DHS Secretary] to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act." Because issuing an NTA to someone is an act to commence proceedings, it is immune from judicial review, unlike DAPA. The decision to join in a motion to administratively close a case is arguably not within the jurisdictional protections of 1252(g), but if the agency were to have issued and filed several million NTAs in immigration court, it would be hard to imagine a court which would not allow the officials in charge of managing their dockets the discretion to join in admin closure motions to enable the orderly prioritization of the removal process. If millions of cases were not administratively closed, it would result in the whole system grinding to a halt, and massive multi-decades waits for court hearings. Also, the issuance of work permits is a separate process from the issuance of the NTA and the person's own application before the court for cancellation. So DHS isn't really responsible for that, it is just part of how the system already works. How could a court find any reason to stop a process that Congress itself enacted?
Now that the DAPA program has been halted by the nation's highest court, the Obama Administration could consider allowing people to turn themselves in and issuing NTAs to several million of the DAPA eligible group who have been here at least 10 years. As stated above, the commencement of removal proceedings is entirely beyond the jurisdiction of the courts to interfere with. Upon filing all those millions of NTAs with the Immigration Court, the Administration could then decide to implement an orderly policy to Administratively Close them (since keeping them in the system would crash it) and allow the system that Congress established to issue the group work permits.
A far better solution, however, would be for lawmakers to recognize that deporting parents of American citizens who have lived here for many years is not a practical strategy, setting aside for a moment even the humanitarian concerns, and work together in bipartisan fashion to come up with a logical and workable immigration system that takes this group out of the cross hairs of the deportation system. Until that time comes, however, the Administration must come up with strategies to enforce the immigration laws in a smart way, including separating out those who should not be taking up our limited removal system resources by allowing them to provide proof of their low priority status. In order to encourage people to come out of the shadows and become pre-identified as low priority for removal, the Administration must give some benefit - work authorization - for such a program to work.
The parents of Americans with lengthy U.S. residence should be allowed the decision to document themselves as low priority by requesting an NTA, and after filing a cancellation application, be issued work permits.