“DREAM By Fiat’s” Limited Practical Effect

In the comments to my post yesterday, my Right Honourable Friend Tom Van Dyke is arguing that, regardless of whether last week’s directive is technically constitutional and within the scope of the Executive’s powers under immigration statutes, the breadth of the directive violates the spirit of those provisions.  In support, he argues that the effect of the directive is to grant around 800,000 work permits by fiat due to the directive’s requirement that the immigration services accept and review applications for work permits submitted by those receiving deferrals.  The 800,000 figure he relies upon is the estimated number of illegal aliens who are eligible for deferral under the directive.

If that were the case, then I may well be inclined to agree with him that even if this is permissible, it is a violation of the spirit of our immigration laws.  This argument, however, is wholly incorrect.  

First, the argument assumes that the directive requires the issuance of a work permit to every single person eligible for a deferral, and that every single person eligible for a deferral will seek to obtain one.  In effect, the assumption seems to be that the directive has the effect of legalizing these aliens.

It does not do this.  Instead, all the order does is to defer deportation proceedings for this class of aliens where someone in that class actually comes within the government’s grasp and would ordinarily become subject to deportation proceedings.  The alien then needs to actually apply for a deferral. Only when the deferral is obtained will the alien be in a position to apply for a work permit, which application the directive instructs the CIS to accept and review to determine eligibility.  As I emphasized yesterday, this falls well short of an instruction to grant the application, and indeed simply restates a longstanding, duly passed, rule that immigrants subject to deportation proceedings may, in some instances, be rendered eligible to work by obtaining an Employment Authorization Document (EAD, also known as a “work permit”).

The counterargument to this point would seem to be that this is semantics, that as a practical matter we all know that these applications will be rubber stamped, and that combined with the deferral, anyone qualifying under the directive has every incentive in the world to, in effect, turn themselves in and seek a deferral.  Nothing could be further from the truth.

A close examination of the directive, as well as the rule under which EADs are reviewed, should demonstrate why, even with the directive, the only reason an alien would apply for a deferral would be where that alien has been apprehended against his will.

If you look at the criteria for granting EADs, located at 8 CFR 274a.12(c), you quickly find that

1. Someone who has a pending deportation proceeding or benefits from a deferral of prosecution is absolutely required to apply for an EAD, and cannot work at all until and unless he obtains an EAD. That’s important, since it proves the point that the provision in the directive about work permits cannot possibly be characterized as ordering that persons receiving deferrals be granted work permits. If anything, it simply reinforces the fact that receiving a deferral has no impact whatsoever on the alien’s authorization to work, and does nothing to “legalize” the alien in any way, shape, or form; and
2. Persons receiving deferrals are only eligible to receive EADs if they can demonstrate an “economic necessity for employment.” To demonstrate an “economic necessity,” the alien has the burden of demonstrating that he falls below the federal poverty line, and has to provide a detailed accounting of all of his assets, income, and expenses. I cannot imagine that the requisite forms are easy to properly complete without a lawyer, and if you can afford a lawyer, there’s a pretty decent chance that you’re not going to be able to demonstrate that you fall below the poverty line.
3. The requirements to obtain an EAD where the person faces a deferred prosecution are more stringent than the requirements to obtain an EAD in just about any other circumstance; in those other circumstances, it is generally only necessary that the applicant’s immigration status be in a particular procedural posture, and no additional facts must be proven.

Add to this the fact that, as the directive repeatedly emphasizes (and consistent with longstanding rules regarding deferrals), receiving a deferral doesn’t change an alien’s legal status, and doesn’t make him immune from deportation – the deferral is of inherently limited duration, and at any time during the deferral period, DHS has the right to change its mind at the drop of a hat for no reason at all, and is relatively likely to do so if the alien so much as gets a parking ticket.

The point here is that receiving a deferral still leaves the alien in a pretty tough spot – he’s still unauthorized to work until and unless he gets the EAD, except that now he’s “in the system,” so to speak, so he’s not going to be able to work nearly as easily without proper documentation as he could have (and presumably did) prior to getting swept up. If he is in fact eligible for an EAD and actually submits a properly-completed application for an EAD, he still can’t do any work until the EAD is granted, which is going to be at least a few weeks, and on average around 3 months. He then has to reapply for an EAD each time it is close to expiring, and EAD’s are usually of very short duration (less than a year), and from my understanding cannot exceed 2 years under any circumstances. Each time an application is submitted, there’s a new risk of it being denied, and if the application is not submitted and granted before the expiration, he’s SOL.

Finally, let’s try to get a handle on the actual numbers of people who are likely to get EADs and receive deferred prosecution as a result of this directive:

• In 2010, there were a total of about 400,000 deportations, which was a record high. Of those 400,000 deportations, about half were deported on the basis of criminal arrests or convictions ranging from DUI to murder. FWIW, some sizable percentage of this latter group are going to be lawful permanent residents or people in the country on a visa, rather than illegal aliens, though for purposes of our analysis we’ll assume they’re all illegal aliens to work the numbers in your favor as much as possible.
• There are between 7 and 20 million total illegal aliens in the US according to Wikipedia, with the Center for Immigration Studies estimating it at about 11 million as of 2008. That’s surely decreased further in recent years due to the economy, so let’s put it at 8 million illegal aliens for 2010.

What that means is that, in a given year, about 1 in 20 illegal aliens is deported, and about 1 in 40 are deported solely for being in the US illegally. Under the circumstances, it seems certain that persons qualifying for deferral under this directive are already significantly less likely than that 1 in 40 chance to be deported in a given year, since presumably an alien is most likely to get caught and deported while in the act of crossing the border, and persons qualifying for deferral are definitionally already settled in the US.

Still, to work the numbers as favorably as possible to those opposing the directive, let’s use the 1 in 40 figure. Let’s also make the unrealistic assumption, for those purposes, that the estimated 800,000 persons eligible for deferral under the directive are all as pure as the driven snow, and thus would be ineligible for deportation on the basis of criminal activity, which this directive does not affect.

800,000 divided by 40 equals a maximum of 20,000 deferrals under this directive in any given year. Since the directive is initially effective for only two years, this means that it will affect, at most, 40,000 deportation cases, and most likely far, far less than that. The number of cases resulting in a temporary work permit being granted is, as I mention above, also going to be noticeably below the number of cases affected by the directive.

There is simply no possible way that this directive can result in the granting of more than 20,000 additional work permits per year, and it’s frankly difficult to conceive it resulting in more than 10,000 additional permits per year. The US currently issues about 950,000 work permits each year. This is a drop in the bucket.  If you consider that the effect of the directive will also be that it frees up resources for the government to prosecute or expedite more cases involving criminals and/or those who knowingly entered the country illegally, even that drop in the bucket shrinks to a handful of molecules.