The lawyers for 26 GOP Governors and Attorneys General, led by Texas Attorney General Ken Paxton, filed their response brief in the case challenging President Obama’s executive actions on immigration. Like everything else about this case, the brief is politically motivated and filled with confusion and obfuscation. Quite frankly, and I don’t say this lightly, I believe that portions of the brief push the envelope on an attorney’s obligation of candor toward the tribunal.
The Texas strategy appears to rely on the Justices of the Supreme Court not knowing or understanding the intricacies of Immigration law, which, admittedly, can be complicated and confusing. The crux of Texas’ argument depends on perpetuating that confusion — initially created and exploited by their District Court Judge of choice Andrew Hanen — about what the immigration law says and, specifically, between the concept of “lawful status” and “lawful presence.” The former is a term of art that refers to formal immigrant, nonimmigrant (temporary visa classification) or parole status. The latter is Hanen’s legally sloppy reference to undocumented noncitizens who are in a period of stay authorized by the Department of Homeland Security—whether or not they also have nonimmigrant, immigrant visa or parole classification.
“Unlawful presence” refers to those undocumented noncitizens who are accruing time toward the 3/10 year bar to readmission—and not all undocumented noncitizens accrue “unlawful presence.” For example, students and exchange visitors are admitted for duration of their study programs—not for a specific period of stay authorized by DHS. If a student overstays his or her program she does not generally accrue unlawful presence toward the 3/10 year bar. To be sure, she is “out of status” and subject to deportation—but she is not accruing “unlawful presence” such that once she departs the U.S. she’ll be barred from returning for a 3 or 10 year period. These are more than legal technicalities. In the complex world of immigration law lawful status has a precise legal meaning. Lawful presence does not.
Importantly, as Professor Anil Kalhan has observed on two separate occasions, here and here, the concept of “lawful presence” does not exist as a legal concept in the sense that Hanen, the 5th Circuit, and now Texas use it. Hanen, later followed by the 5th circuit, took the concept of unlawful presence—a legal term of art which specifically refers to noncitizens who entered the country illegally, overstayed their authorized period of stay, were found to be out of status or (in certain circumstances) worked without authorization —and proceeded—without any statutory authority whatsoever—to reason that noncitizens who had been accruing “unlawful presence” were rendered “lawfully present” by DAPA or DACA+. Therefore, so Hanen reasoned, the President’s immigration executive actions unlawfully transformed an unlawfully present noncitizen into a noncitizen with lawful immigration status. This was (and is) wrong as a matter of law.
If, when reading through the Texas brief, or the lower court opinions, one substitutes “lawful status” for “lawful presence” Texas’ argument falls on its face because DAPA and DACA+ clearly state that the guidance creates no lawful status. The strongest argument they have derives from various (unwise) political statements President Obama made about changing the law. For Texas, comments made by the President at press events now serve as valid legal sources – and their strongest argument.
Of course, there’s more. Some of this gets very technical, but, again, that’s apparently part of the GOP strategy. Texas perpetuates that Hanen-created confusion between lawful presence and lawful status to make several brazen misstatements which, frankly, I find appalling—especially in a brief filed in the Supreme Court of the United States. Here a few examples:
First, on page 5 of the Texas brief, they claim that on page 38 of its brief the Administration asserts “without any statutory citation, that an alien’s designation as ‘lawfully present’ is not a defense to removal…But defendants also assert [on page 9 footnote 3 of its brief] that an alien granted lawful presence is not ‘present in the U.S. without being admitted or paroled’…That directly negates the charge that an alien is removable as present ‘without being admitted or paroled.’ Lawful presence also appears to negate the charge that an alien is removable as ‘present in the US in violation of [federal law].’”
In fact, on page 9, footnote 3, the Administration’s brief asserts aliens granted Deferred Action “cease accruing unlawful presence for purposes of [the 3/10 year bar]…An alien is deemed ‘unlawfully present’ for this purpose if he is present ‘after the expiration of the period of stay authorized by [the Department of Homeland Security] or is in present in the US without being admitted or paroled…DHS treats Deferred Action as a “period of stay authorized by the DHS” that tolls the accrual of [unlawful presence]”.
Contrary to the arguments made in the Texas brief, on page 5 of its brief the United States asserts “Deferred Action does not confer lawful immigration status or provide any defense to removal. An alien with Deferred Action remains removable at any time, and DHS has absolute discretion to revoke deferred action, without notice or process.”
On page 41 of its brief Texas argues “Nor does it matter that DAPA can be ‘[revoked].’ An alien is still deemed lawfully present—and thus eligible for valuable benefits—until any revocation. Visas too are revocable at any time in the Executive’s discretion. But that Executive acts by issuing a visa, and the alien is lawfully present while holding one.” This is flat out obfuscation—and frankly, this is one of the statements that pushes the “candor to the tribunal” envelope.
First, to compare DAPA and a visa is beyond comparing apples and oranges. DAPA has to do with a discretionary decision to temporarily forbear removal against a person who is in the U.S. without authorization under the civil immigration statute. A visa is legally nothing more than permission to apply for admission to the U.S.—it is NOT, as the lawyers for Texas likely well know, authorization to be admitted or remain in the U.S.
Second, while the executive may revoke a nonimmigrant visa, that authority has little to do with lawful immigration status. As stated, visa generally gives a person permission to apply for admission to the U.S. in a specific immigrant or nonimmigrant visa classification e.g. employment- or family-based immigrant or visitor, worker, student status etc. It does NOT give anyone permission to be in the U.S. So, a noncitizen with a 10 year visitor visa is typically admitted by U.S. Customs and Border Protection for a 6 month authorized period of stay. If the noncitizen overstays the 6 months period his valid visa is rendered void by operation of law regardless of its 10 year validity and he begins to accrue “unlawful presence” toward the 3/10 year bar.
The bald assertion that an noncitizen is “lawfully present” while holding a visa is a flat out misstatement of law and fact. Inexcusable in a SCOTUS brief.
Texas does not dispute that Obama Administration’s enforcement priorities–including his authority to forbear removal of millions of undocumented noncitizens–are solidly legal. Nor can it. But it makes the argument throughout its brief that Texas will be harmed because DAPA recipients who otherwise would have left will cost the state money. On page 14 they argue, “DAPA will cause States to incur additional…costs. The district court found, based on record evidence, that DAPA will cause aliens who otherwise would have left the country to remain and consume these costly services.” Either this is a an inappropriate political argument in favor of “self-deportation” or it’s flat out inconsistent with Texas’ concession that millions of undocumented immigrants will remain in the U.S. regardless of DAPA or DACA because of the Executive’s adherence to lawful enforcement priorities.
Texas argues that the law does not permit the DHS to grant employment authorization to deferred action recipients, other than in four specific categories authorized by statute–U visa applicants, family members of lawful permanent residents killed in the September 11 terrorist attacks, family members of U.S. citizens killed in combat and Violence Against Women Act (VAWA) applicants. Here the Texas lawyers are trying to persuade SCOTUS to agree that “the 5th circuit correctly held that the Executive’s sweeping limitless conception of its power is beyond the scope of what the INA can reasonably be interpreted to authorize.” In other words, they argue that the law does not permit the Administration to grant deferred action recipients employment authorization other than in the four specific enumerated situations. Of course Texas conveniently ignores the statutory and regulatory provisions and historical practice making noncitizens granted deferred action eligible to apply for employment authorization based on a showing of economic need. It was here that the 5th circuit went beyond what even Hanen did in his order blocking in DAPA and DACA expansion. If allowed to stand, this portion of the misguided 5th circuit holding would upend deferred action as we know it.
Finally, and most surprising, the Texas argument for standing contains little, if anything, new. They must realize, given Chief Justice Roberts strong views on standing that this is probably their biggest hurdle. But, to be honest, they don’t have much new to offer. They rely on the claim that Texas will be harmed through costs incurred by the issuance of driver’s licenses (as well as other costs incurred) as a result of deferred action. However, on the question of whether states get special standing consideration Texas is clearly arguing to the justices on the Court who previously decided in favor of standing in Massachusetts v EPA. The Texas lawyers incorrectly claim that to deny standing would require the Court to overrule Massachusetts, something courts—especially the Supreme Court—would be reluctant to do because of the hallowed tradition of stare decisis. Also, Chief Justice Roberts authored the dissent in Massachusetts, in which he offered a very strict standard for standing—an obvious problem for Texas in this case. Fortunately, the Supreme Court can dispose of this argument, as did the Administration in its brief, because the Massachusetts case–which involved a very different set of circumstances–does not support Texas’ argument here.
Texas’ response brief makes it clear their case depends on confusing the Justices about the intricacies of immigration law. That might have worked with Hanen and in the Fifth Circuit, but shouldn’t with the Supreme Court. And, with gratuitous references to President Obama’s statements at press conferences, they seem determined to show their case is political dispute, which should be fought in legislatures, not the federal judiciary.