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Thread: Article: Yes He Can: A Reply To Professors Delahunty and Yoo by Cyrus D. Mehta and Ga

  1. #1

    Article: Yes He Can: A Reply To Professors Delahunty and Yoo by Cyrus D. Mehta and Ga



    Yes He Can: A Reply To Professors Delahunty and Yoo

    by

    Cyrus D. Mehta and Gary Endelman






    October 28, 2012


    "font-family: Times, Times New Roman, serif;"> "font-size: 12.0pt; line-height: 115%;">Article II, Sec. 3 of the
    Constitution provides that the President "shall take Care that
    the laws be faithfully executed." That being so, can President
    Obama grant
    "http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=f2ef2f19470f7310VgnVCM100000082ca60aRCRD&vgnextchannel=f2ef2f19470f7310VgnVCM100000082ca60aRCRD">
    deferred
    action for childhood arrivals
    "font-size: 12.0pt; line-height: 115%;">(DACA) whose presence
    here represents a violation of US law? Professors Robert
    Delahunty and John Yoo offer a scholarly and resounding "No" to
    this question. In their paper,
    "http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2144031">
    The Obama Administration, the DREAM Act and the Take Care
    Clause
    "font-size: 12.0pt; line-height: 115%;">(hereinafter cited as
    Delahanty & Yoo). They argue that the President must
    enforce the removal provisions of the Immigration and Nationality
    Act. Absent either express or implied authority to the contrary,
    the Obama Administration has violated its constitutional duty.
    No presidential prerogative exists that would sustain such
    non-enforcement nor has the President put forward a cogent excuse
    that would make his DACA decision constitutionally permissible.
    Professors Delahunty and Yoo offer up George Washington’s
    famous reminder in his Proclamation of September 15, 1702 that
    "it is the particular duty of the Executive 'to take
    care that the laws be faithfully executed." Such a serious
    charge requires an answer. That is why we
    write.


    "font-family: Times, Times New Roman, serif;"> "font-size: 12.0pt; line-height: 115%;">We agree with Professors
    Delahunty and Yoo that President Obama must enforce all
    provisions of the INA, including the removal sections contained
    in Section 235. We do not agree, however, that
    "http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf">
    DHS Secretary
    Napolitano's June 15, 2012 memorandum
    "font-size: 12.0pt; line-height: 115%;">, or "http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf">
    ICE Director
    John Morton's June 17, 2011
    "font-size: 12.0pt; line-height: 115%;">directive on
    prosecutorial discretion, instructed or encouraged ICE officers
    to violate federal law. At current levels of funding, it is
    manifestly impossible for ICE to deport most undocumented persons
    in the United States. Even at the historically high levels of
    removal under President Obama, some 400,000 per year, this
    amounts to only 3-4% of the total illegal population.
    Delahanty & Yoo n.21. That is precisely why the
    Obama Administration has focused its removal efforts on
    “identifying and removing criminal aliens, those who pose a
    threat to public safety and national security, repeat immigration
    law offenders and other individuals prioritized for
    removal.” Delahanty & Yoo n. 22,
    citingLetter from Janet Napolitano, Secretary,
    Department of Homeland Security, to Senator Richard Dubin
    (D-Ill
    .)(Aug. 18, 2011). Far from refusing to enforce the
    law, President Obama is actually seeking to honor his
    constitutional obligation by creating a scheme that removes some
    while deferring the removal of others without granting anyone
    legal status, something only Congress can do.


    "font-family: Times, Times New Roman, serif; font-size: 12.0pt; line-height: 115%;">
    Professors Delahanty and Yoo’s characterization of DACA
    relief as detached, even radical, suffers from a lack of an
    informed appreciation of the extent to which it has deep roots in
    existing immigration law. The truth is that deferred action is
    neither recent nor revolutionary. Widows of US citizens have been
    granted this benefit. Battered immigrants have sought and
    obtained refuge there. Never has the size of a vulnerable
    population been a valid reason to say no. The extension of DACA
    relief is less a leap into the unknown arising out of a wild,
    lawless ideology divorced from a proper respect for the Take Care
    Clause than a sober reaffirmation of an existing tool for
    remediation in prior emergencies. Professor Delahanty and Yoo
    conveniently omits any mention of INA Section 103(a)(1), which
    charges the DHS Secretary with the administration and enforcement
    of the INA. This implies that the DHS can decide when to and when
    not to remove an alien. They also fail to consider INA Section
    274A(h)(3)(B) which excludes from the definition of
    “unauthorized alien” any alien “authorized to
    be so employed …by the Attorney General.” After all,
    8 CFR 274a.12(c)(14), which grants employment authorization to
    one who has received deferred action, has been around for several
    decades. The only new thing about DACA is that the Secretary
    Napolitano’s guidance memorandum articulates limiting
    criteria without endowing deferred action grantees with any legal
    status, something reserved solely for the Congress. In fact, the
    Congress has also recognized “deferred action” in
    Section 202(c)(2) (B)(viii) of the REAL ID Act as a status
    sufficiently durable to allow the extension of driving license
    privileges.


    "font-family: Times, Times New Roman, serif;"> "font-size: 12.0pt; line-height: 115%;">Courts are loath to
    review any non-enforcement decisions taken by federal
    authorities. See,e.g., Lincoln v. Vigil, 508 U.S. 182,
    191-92 (1993); Massachusetts v. EPA, 127 S. Ct. 138, 1459
    (2007). It is up to DHS, rather than to any individual,
    to decide when, or whether, to initiate any enforcement campaign.
    Heckler v. Chaney, 470 US 821, 835 (1985). During the
    last Supreme Court term,
    "http://www2.bloomberglaw.com/public/document/Arizona_v_United_States_No_11182_2012_BL_157302_US_June_25_2012_C">
    Arizona v.
    United States
    "font-size: 12.0pt; line-height: 115%;">, "font-size: 12.0pt; line-height: 115%;">132 S.Ct. 2492, 2499
    (2012) articulated the true reason why: “(a) principal
    feature of the removal system is the broad discretion exercised
    by immigration officials…Federal officials, as an initial
    matter, must decide whether it makes sense to pursue removal at
    all…”


    "font-family: Times, Times New Roman, serif; font-size: 12.0pt; line-height: 115%;">
    Professors Delahanty and Yoo do not feel constrained by the wide
    deference that has traditionally characterized judicial responses
    to executive interpretation of the INA. Under the oft-quoted
    Chevron doctrine that the Supreme Court announced in Chevron
    USA, Inc. v. Natural Resources Defense Council, Inc.,
    467 US
    837(1984), federal courts will pay deference to the regulatory
    interpretation of the agency charged with executing the laws of
    the United States when there is ambiguity in the statute. The
    courts will intrude only when the agency’s interpretation
    is manifestly irrational or clearly erroneous. Similarly, the
    Supreme Court in Nat’l Cable & Telecomm. ’n
    v. Brand X Internet Servs.,
    545 US 967 ( 2005),while
    affirming Chevron, held that, if there is an ambiguous
    statute requiring agency deference under Chevron, the
    agency's understanding will also trump a judicial exegesis
    of the same statute. Surely the “body of experience”
    and the “informed judgment” that DHS brings to INA
    § 103 provide its interpretations with “ the power to
    persuade.” Skidmore v. Swift& Co., 323 US
    134,140(1944). As Justice Elena Kagan famously noted when she
    served as the Dean of the Harvard Law School, the increasingly
    vigorous resort to federal regulation as a tool for policy
    transformation by all Presidents since Ronald Reagan has made
    “ the regulatory activities of the executive branch
    agencies more and more an extension of the President’s own
    policy and political agenda.” Elena Kagan, Presidential
    Administration,
    114 Harv.L.Rev. 2245, 2246 (2001).
    Indeed, the very notion of Chevron-deference is
    “premised on the theory that a statute’s ambiguity
    constitutes an implicit delegation from Congress to the agency to
    fill in the statutory gap.” FDA v Brown & Williamson
    Tobacco Corp., 529 US 120, 159 ( 2000).
    That is precisely
    what the President and DHS have done with respect to their power
    to enforce the immigration laws.


    "font-family: Times, Times New Roman, serif; font-size: 12.0pt; line-height: 115%;">
    This is precisely why 100 law professors argued that the
    President had the discretionary authority to extend such relief,
    which Professors Delahunty and Yoo have acknowledged in their
    paper:


    "margin-left: .5in; text-align: justify;"> "font-family: Times, Times New Roman, serif; font-size: 12.0pt; line-height: 115%;">
    Through no statutes or regulations delineate deferred action in
    specific terms, the U.S. Supreme Court has made clear that
    decisions to initiate or terminate enforcement proceedings fall
    squarely within the authority of the Executive. In the
    immigration context, the Executive Branch has exercised its
    general enforcement authority to grant deferred action since at
    least 1971


    "font-family: Times, Times New Roman, serif;"> "font-size: 12.0pt; line-height: 115%;"> Delahanty
    & Yoo n. 38
    "font-size: 12.0pt; line-height: 115%;">.


    "font-family: Times, Times New Roman, serif;"> "color: #333333; font-size: 12.0pt; line-height: 115%; mso-fareast-font-family: "Times New Roman";">
    It is also worth mentioning that while there is no express
    Congressional authorization for the Obama Administration to
    implement such measures, the President may act within a
    “twilight zone” in which he may have concurrent
    authority with Congress. See
    "http://www.law.cornell.edu/supct/html/historics/USSC_CR_0343_0579_ZS.html">
    "color: #336699; font-size: 12.0pt; line-height: 115%; mso-fareast-font-family: "Times New Roman";">
    Youngstown Sheet & Tube Co. v.
    Sawyer
    "color: #333333; font-size: 12.0pt; line-height: 115%; mso-fareast-font-family: "Times New Roman";">
    , 343 U.S. 579, 635 (1952) (Jackson, J., concurring). Unlike
    Youngstown Sheet and Tube Co. v. Sawyer, where the Supreme
    Court held that the President could not seize a steel mill to
    resolve a labor dispute without Congressional authorization, the
    Administration under through the Morton Memo and DACA is well
    acting within Congressional authorization. We agree with
    Professors Delahunty and Yoo when they cite Youngstown Sheet,
    Delahunty & Yoo n 185.
    as a rejection of the idea that
    the President has “prerogative” power, but the
    President has not used any “prerogative power” with
    respect to DACA relief; he has indeed acted pursuant to
    Congressional authorization. In his famous concurring opinion,
    Justice Jackson reminded us that, however meritorious, separation
    of powers itself was not without limit: “While the
    Constitution diffuses power the better to secure liberty, it also
    contemplates that practice will integrate the dispersed powers
    into a workable government. It enjoins upon its branches
    separateness but interdependence, autonomy but
    reciprocity.” Id. at 635.Professors Delahanty and
    Yoo look in vain for explicit authority in the INA that supports
    DACA relief, and delve into instances when Presidents have been
    able to use “prerogative” power, which they argue
    cannot be applied in the context of DACA. They can stop
    searching:


    "margin-left: .5in; text-align: justify;"> "color: #333333; font-family: Times, Times New Roman, serif; font-size: 12.0pt; line-height: 115%; mso-fareast-font-family: "Times New Roman";">
    Congress …may not have expressly delegated authority
    to…fill a particular gap. Yet,it can still be apparent from
    the agency’s generally conferred authority that Congress
    will expect the agency to speak with the force of law when it
    addresses ambiguity in the statute…even one about which
    Congress did not actually have an intent as to a particular
    result. United States v. Mead, 533 U.S. 218,
    229(2001)


    "font-family: Times, Times New Roman, serif; font-size: 12.0pt; line-height: 115%;">
    Even if arguendo discretion is too weak a foundation for
    DACA relief, the equitable merits of such remedial action should
    be strong enough to withstand constitutional scrutiny. Indeed,
    as the Supreme Court’s Arizona opinion recognized,
    it is frequently the case that “ Discretion in the
    enforcement of immigration law embraces immediate human
    concerns.” Delahanty & Yoo, n. 222. That is why
    Section 240A of the INA endows the Attorney General with
    discretion to cancel removal. Contrary to what Professors
    Delahanty and Yoo argue, the exercise of executive compassion in
    the Dream Act context is not a constitutionally prohibited
    expression of misplaced sentiment floating without anchor in a
    sea of ambiguity but a natural out-growrth of prior initiatives
    when dealing with deferred action. Such initiative is entirely
    consistent with the Take Care Clause while scrupulously
    respectful of Congressional prerogatives to make new law. While
    Professors Delahanty and Yoo argue that equity in individual
    cases may be justified as an exception to the President’s
    duty under the Take Care Clause, they claim that the DACA
    program is not a judgment in equity but more as a statement of
    law. We disagree. The President has made clear under DACA that
    each case merits an exercise of individual discretion. Each
    application has to be supported by voluminous evidence of not
    just an applicant’s eligibility, but also evidence as to
    why the applicant merits an exercise of favorable discretion.
    Professors Delahanty and Yoo
    claim that equity divorced from reliance on another statute or
    treaty must be opposed as a breach of the President’s sworn
    oath. No such worry here need trouble them for the Administration
    not only acts in reliance on its well-settled authority under the
    INA but precisely and primarily to infuse such authority with
    relevance made ever more insistent by the lack of Congressional
    action.


    "font-family: Times, Times New Roman, serif; font-size: 12.0pt; line-height: 115%;">
    Notwithstanding our rebuttal, the deep scholarship and sincere
    reservations voiced by Professors Delahanty and Yoo must not be
    cavalierly ignored nor summarily dismissed. Indeed, they are a
    powerful justification of the need for comprehensive immigration
    reform. Only Congress can solve this problem, even though we have
    shown that the President did have authority to roll out DACA.
    The nation waits.


    "font-family: Times, Times New Roman, serif;">



    This post originally appeared on "http://blog.cyrusmehta.com/2012/10/yes-he-can-reply-to-professors.html">
    The Insightful Immigration Blog
    on October 28, 2012.





    About The Authors






    Cyrus D.Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Member of Cyrus D. Mehta & Associates, PLLC in New York City. He is the current Chair of AILA's Ethics Committee and former Chair of AILA's Pro Bono Committee. He is also the former Chair of the Board of Trustees of the American Immigration Council (2004-06) and Chair of the Committee on Immigration and Nationality Law (2000-03) of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including on administrative remedies and ethics, and is also an adjunct associate professor of Law at Brooklyn Law School, where he teaches a course entitled "Immigration and Work." Mr. Mehta received the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the immigration field.


    Gary Endelman is a Senior Counsel at FosterQuan, Houston, TX. His practice includes I-9 compliance and audits, E-Verify compliance, immigration issues related to mergers and acquisitions, employment-based nonimmigrant visas, B-1 OCS, permanent residence petitions for ability, outstanding researchers, PERM labor certification; naturalization, derivation and transmission of U.S. citizenship. Mr. Endelman graduated with a B.A. in History from the University of Virginia, a Ph.D. in United States History from the University of Delaware, and a J.D. from the University of Houston. From 1985 to 1995, he worked at one of the largest immigration firms in the country. From 1995 to 2011, he worked as the in-house immigration counsel for BP America Inc., a multinational energy company ranked as one of the top 5 largest companies in the world. Mr. Endelman is board certified in Immigration and Nationality Law by the State Bar of Texas, Board of Legal Specialization and Chair of the Examinations Committee in Immigration and Nationality Law for the Texas Board of Legal Specialization. He is a frequent national speaker and writer on immigration related topics including several columns and blogs on immigration law. He served as a senior editor of the national conference handbook published by AILA for ten years. In July 2005, Mr. Endelman testified before the United States Senate Judiciary Committee on comprehensive immigration reform. Please contact Gary Endelman at gendelman@fosterquan.com. The views expressed by Mr. Endelman in this article are his personally and not those of FosterQuan















    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

  2. #2
    gamgamcova
    Guest
    I read this artile and take issue with the beginning paragraph!

    "We do not agree, however, that DHS Secretary Napolitano's June 15, 2012 memorandum, or ICE Director John Morton's June 17, 2011 directive on prosecutorial discretion, instructed or encouraged ICE officers to violate federal law. At current levels of funding, it is manifestly impossible for ICE to deport most undocumented persons in the United States. Even at the historically high levels of removal under President Obama, some 400,000 per year, this amounts to only 3-4% of the total illegal population. Delahanty & Yoo n.21. That is precisely why the Obama Administration has focused its removal efforts on “identifying and removing criminal aliens, those who pose a threat to public safety and national security, repeat immigration law offenders and other individuals prioritized for removal.” Delahanty & Yoo n. 22, citingLetter from Janet Napolitano, Secretary, Department of Homeland Security, to Senator Richard Dubin (D-Ill.)(Aug. 18, 2011). Far from refusing to enforce the law, President Obama is actually seeking to honor his constitutional obligation by creating a scheme that removes some while deferring the removal of others without granting anyone legal status, something only Congress can do."

    Check the rolls of KROME or GLADES Facilities........YES Immigrants ARE being deported for offenses outside the guidelines set forth by this President...and the standing Immigration laws!! People are being deported for such offenses as minor traffic violations like no license, no insurance...and even having a headlight out in their car, among other things. When speaking about WHO gets deported you should add that its (no matter what anyone says) the LUCK OF THE DRAW!!!!!. People are awarded CAT etc that have been convicted of MAJOR drug offenses....crimes of moral terpitude (what ever the hell that REALLY means now days) and even child molestation! Whese people get to stay while those with a broken headlight get deported back to such dangerous places as Venezuela...Guatamala....Hondores...and I could go on. Please dont be fooled by this Deporter in chief that they are ONLY deporting the bad guys while letting those with minor offenses STAY...ITS JUST NOT TRUE!!! The system is broken..and until its fixed we will continue to see this LUCK OF THE DRAW mentality in our deportation system....thats just the way it is....but dont sugar coat it because its an election year...please....most lay people and ATTORNEYS know better than that!!

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