Closing the gap: DACA, DAPA, and U.S. compliance with international human rights law.

• Author: Thronson, David B.
• Position: Deferred Action for Childhood Arrivals, Deferred Action for Parents of Americans and Lawful Permanent Residents - New Beginnings, Resets & Pivots: The International Legal Practice of the Obama Administration

Political rhetoric and ongoing litigation that challenge the use of prosecutorial discretion and deferred action in immigration law often prominently feature claims that these initiatives demonstrate a lack of respect for the rule of law. This short essay seeks to highlight gaps between U.S. immigration law and its international human rights obligations and identify ways in which the use of discretion can advance rather than undermine the rule of law. In reconciling the ability of States to control matters of immigration with protections of family integrity, the touchstone in international law is balance. A State's right to expel a non-citizen resident for a legitimate state interest must be balanced against due consideration in deportation proceedings for a deportee's family connections and the hardship the deportation may have on the family, especially children. The non-citizen's right to remain is not absolute, but neither is the State's right to expel. U.S. immigration law's routine failure to provide any opportunity for decision makers to balance family equities against the need for enforcement violates international human rights law's demand for contextualization and nuance in the application of immigration controls. DACA and DAPA are flawed yet important mechanisms to permit the United States to inject respect for the rule of law into an otherwise rigid immigration system. Where decision makers are able to consider equitable factors in determining whether to proceed with immigration enforcement or exercise discretion, the United States moves a bit closer to compliance with its international human rights law obligations.

CONTENTS I. Introduction II. Immigration and Protections for Families in International Human Rights Law III. DACA, DAPA, and International Law I. INTRODUCTION

In 2012, the Department of Homeland Security (DHS) announced its Deferred Action for Childhood Arrivals (DACA) initiative. (1) Pursuant to this program, DHS articulated criteria under which certain noncitizens without lawful immigration status who had arrived in the United States as children could seek deferred action. Regarding the individuals eligible for prosecutorial discretion under DACA, in announcing this policy Secretary Napolitano noted:

Our Nation's immigration laws must be enforced in a strong and sensible manner. They are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Indeed, many of these young people have already contributed to our country in significant ways. Prosecutorial discretion, which is used in so many other areas, is especially justified here. (2) She further stated that DACA was "necessary to ensure that our enforcement resources are not expended on these low priority cases but are instead appropriately focused on people who meet our enforcement priorities." (3)

Two years later, DHS expanded DACA and announced a similar initiative, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), to allow certain undocumented parents of U.S. citizens and lawful permanent residents to seek deferred action. (4) In announcing this extension of DACA, Secretary Johnson noted, "Due to limited resources, DHS and its Components cannot respond to all immigration violations or remove all persons illegally in the United States. As is true of virtually every other law enforcement agency, DHS must exercise prosecutorial discretion in the enforcement of the law." (5) Parents of U.S. citizen and lawful permanent resident children who are otherwise not enforcement priorities, Johnson we went on to say, generally:

[A]re hard-working people who have become integrated members of American society. Provided they do not commit serious crimes or otherwise become enforcement priorities, these people are extremely unlikely to be deported given this Department's limited enforcement resources--which must continue to be focused on those who represent threats to national security, public safety, and border security. (6) Political rhetoric and ongoing litigation that challenge both DACA and DAPA have prominently featured claims that these initiatives represent executive power grabs and demonstrate a lack of respect for the rule of law. (7) Others have persuasively rebutted such allegations through analysis of the strong legal authority and historical precedent for the use of prosecutorial discretion and deferred action (8) and by demonstrating how DACA and DAPA actually are "anchored in rule of law values, including consistency, transparency, accountability, and nonarbitrariness." (9) This short essay will not rehearse these arguments but rather will seek to introduce another consideration into the discussion by identifying ways in which DACA and DAPA can be responsive to instances in which the enforcement of U.S. immigration law defies the nation's...