Everyone seems to
know about DACA—but where did this presidential authority come from, and is it
valid? DACA stands for Deferred Action for
Childhood Arrivals. See the words in red, “Deferred Action?” It comes from a
president’s inherent powers under immigration law to defer deportation. It’s
somewhat similar to a prosecutor’s discretion. Prosecutors often agree to a
plea deal where the defendant takes responsibility for a lesser offense. "Deferred Action" means a person is deportable but the U.S. will hold off removal.
Until today, I never knew the origin of this power. A law
review article by Shoba Sivaprasad Wadhia, The Role of Prosecutorial Discretion
in Immigration Law (2010), gives us the following explanation (which I quote in full):
The use of
prosecutorial discretion and the “nonpriority program” specifically was
revealed by INS in 1975 as a consequence of a lawsuit involving John Lennon and
Yoko Ono. Before this time, the nonpriority
program was a secret operation of the INS. Leon Wildes represented the couple
and has since written extensively about the nonpriority program.
As described by
Wildes, John Lennon entered the United States in the summer of 1971 as a
visitor and was thereafter placed in deportation proceedings for overstaying
his visa. Lennon and his wife came to the United States in order to assume
custody of Kyoko, Yoko Ono’s daughter from a previous marriage. While Lennon
and Ono were awarded custody over Kyoko by the family court, their situation
was complicated by the fact that the child’s father had kidnapped Kyoko and
could not be found.
Because he believed
he was charged with deportation for political reasons, Lennon requested for
nonpriority status, among other forms of relief. Through his attorney, Lennon
spent more than one year trying to gather information from INS about the
nonpriority status program and related procedures. At the time, INS contended
that data on the nonpriority status program was “not compiled.” Even when
Lennon motioned his immigration judge to depose a member of the Government who
was informed about the nonpriority status program, the immigration judge denied
his request.
Ultimately, Lennon
was able to obtain information through a Freedom of Information Act (FOIA)
action. Specifically, information about the nonpriority program was available
under the INS’s “Operations Instructions” which, until the Lennon lawsuit,
remained private information on the INS “Blue Sheets.” As a consequence of the FOIA
Action, and despite the numerous statutory exceptions to the publication of
information, INS migrated information about the nonpriority program from the INS
“Blue Sheets” to the published “White Sheets,” signifying the newly public
nature and existence of the program.
The Evolution of Deferred
Action: 1975-1997
In 1975, following
the Lennon case, the INS issued guidance on deferred action under its "Operations
Instructions." The governing section stated: "(ii) Deferred action.
In every case where the district director determines that adverse action would
be unconscionable because of the existence of appealing humanitarian factors,
he shall recommend consideration for deferred action category." The
Operations Instructions also listed factors that should be considered in
determining whether a case should be designated for deferred action:
When determining
whether a case should be recommended for deferred action category,
consideration should include the following: (1) advanced or tender age; (2)
many years' presence in the United States; (3) physical or mental condition
requiring care or treatment in the United States; (4) family situation in the
United States effect of expulsion; (5) criminal, immoral or subversive
activities or affiliations recent conduct. If the district director’s recommendation
is approved by the regional commissioner the alien shall be notified that no
action will be taken by the Service to disturb his immigration status, or that
his departure from the United States has been deferred indefinitely, whichever
is appropriate.
***
If we think about President Obama’s use of DACA, he appears
to have considered “tender age,” many years of presence in the U.S., effect of
expulsion, and (lack of) criminal or subversive activities. In other words, he
followed pre-existing guidelines.
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