Judge Hanen’s Opinion Against DACA Is Legally Wrong

Federal Judge Andrew Hanen agreed Friday with Texas and similarly conservative states to strike down the  immigration program known as DACA (Deferred Action for Childhood Arrivals) or as the one for “Dreamers.” The opinion and its consequences are well and fully described in the piece by Forbes staff writer Joe Walsh (“Texas Judge Cuts Off New DACA Applicants”).

Rather, let us focus on one special portion of the 77 page opinion, that is a good deal more concrete than the rest.  Judge Hanen assails and purports to crush how DACA allows recipients to receive “advance parole.” Advance parole lets aliens leave the United States and then lawfully re-enter the country without being turned away at a port of entry. So, Dreamers granted advance parole can leave the United States for, say, Mexico, and then come to the “front door” and knock and seek legal status.

Advance parole is expressly and fully authorized by the text of the immigration act. It addresses several technicalities so that the claim of Dreamers can be addressed on their merits. Advance parole deals with the “inadmissibility bar” because the Dreamer has been allowed legally back in the United States, just what the advance parole provision anticipates will happen.

The Congressional act also allows advance parole to deal with another technicality, the “unlawful presence” bar by allowing DACA recipients, by traveling abroad and then returning, to seek a lawful presence without their years of presence in the country being held against them. 

Why dwell on this? To understand what is going on. The opinion admits that out of 1.5 million DACA members,”20,000 DACA recipients had been approved for advance parole, and of those, approximately 3,000 were subsequently granted an adjustment of status.” 3,000 is one 500^th of the DACA population, or .2%. The judge legally hammers away at the DACA program because of an administrative law dispute that relates to one 500^th of the DACA population. His argument is that “approximately 3,000” got on the path they sought, and “Although this number may seem small compared to the possible DACA population of 1.5 million people, it is not insignificant.” Actually, I would suggest that one 500^th is pretty small, maybe even not so significant. It appears his argument has goals other than trying to help administrative agencies perform their work.

A couple of things are really going on here. First, the Judge is trying hard to knock down the connections DACA has to the Administration’s powers under the immigration law, which are numerous and broad.

Normally, one expects the courts to defer to the immigration agencies on the implementation of a program like the one for “advance parole.” One does not expect the courts to pile on and assail a program like “advance parole” because one 500^th of the Dreamers win by it.

Second, the court here is basically trying to substitute its administrative judgment for that of the Administration. “Advance parole” is the place where the court draws the line and takes away discretion and interpretative authority from the Administration.

This opinion will be touted by the opponents of the Dreamers as sacrosanct writ. It is not. It is a flawed opinion that should not be followed.