Prioritizing and Deferring Removal of Certain Aliens Unlawfully Present in the United States ( 2014 )

Prioritizing and Deferring Removal of Certain
Aliens Unlawfully Present in the United States
The Department of Homeland Security’s proposed policy to prioritize the removal of
certain aliens unlawfully present in the United States would be a permissible exercise
of DHS’s discretion to enforce the immigration laws.
DHS’s proposed deferred action program for parents of U.S. citizens and legal permanent
residents would also be a permissible exercise of DHS’s discretion to enforce the im-
migration laws.
DHS’s proposed deferred action program for parents of recipients of deferred action
under the Deferred Action for Childhood Arrivals program would not be a permissible
exercise of DHS’s enforcement discretion.
November 19, 2014
MEMORANDUM OPINION FOR THE
SECRETARY OF HOMELAND SECURITY
AND THE COUNSEL TO THE PRESIDENT *
You have asked two questions concerning the scope of the Department
of Homeland Security’s discretion to enforce the immigration laws. First,
you have asked whether, in light of the limited resources available to the
Department (“DHS”) to remove aliens unlawfully present in the United
* Editor’s Note: This opinion has been withdrawn. The opinion’s principal subject, the
Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”)
policy, was preliminarily enjoined before it went into effect. See Texas v. United States,
86 F. Supp. 3d 591 (S.D. Tex.), aff ’d, 809 F.3d 134 (5th Cir. 2015), aff ’d by an equally
divided Court, 136 S. Ct. 2271 (2016). Based on the reasoning in the Fifth Circuit’s
decision, on September 4, 2017, Attorney General Sessions concluded that the related
Deferred Action for Childhood Arrivals (“DACA”) policy, which is briefly discussed in
footnote 8 of this opinion, was unlawful. See Letter for Elaine Duke, Acting Secretary of
Homeland Security, from Jefferson B. Sessions III, Attorney General (Sept. 4, 2017).
Although the Acting Secretary of Homeland Security announced the rescission of DACA
on September 5, 2017, the Supreme Court vacated that decision and remanded for further
proceedings. See Dep’t of Homeland Sec. v. Regents of Univ. of Cal., 140 S. Ct. 1891(2020). In order to maximize the Acting Secretary’s discretion on remand, and without
regard to the merits of the legal issues, Attorney General Barr withdrew Attorney General
Sessions’ September 4, 2017 letter and, for the same reason, further directed this Office to
withdraw this opinion. See Letter for Chad F. Wolf, Acting Secretary of Homeland
Security, from William P. Barr, Attorney General (June 30, 2020).
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38 Op. O.L.C. 39 (2014)
States, it would be legally permissible for the Department to implement a
policy prioritizing the removal of certain categories of aliens over others.
DHS has explained that although there are approximately 11.3 million
undocumented aliens in the country, it has the resources to remove fewer
than 400,000 such aliens each year. DHS’s proposed policy would priori-
tize the removal of aliens who present threats to national security, public
safety, or border security. Under the proposed policy, DHS officials could
remove an alien who did not fall into one of these categories provided that
an Immigration and Customs Enforcement (“ICE”) Field Office Director
determined that “removing such an alien would serve an important federal
interest.” Draft Memorandum for Thomas S. Winkowski, Acting Director,
ICE, et al., from Jeh Charles Johnson, Secretary of Homeland Security,
Re: Policies for the Apprehension, Detention, and Removal of Undocu-
mented Immigrants at 5 (Nov. 17, 2014) (“Johnson Prioritization Memo-
randum”).
Second, you have asked whether it would be permissible for DHS to
extend deferred action, a form of temporary administrative relief from
removal, to certain aliens who are the parents of children who are present
in the United States. Specifically, DHS has proposed to implement a
program under which an alien could apply for, and would be eligible to
receive, deferred action if he or she is not a DHS removal priority under
the policy described above; has continuously resided in the United States
since before January 1, 2010; has a child who is either a U.S. citizen or a
lawful permanent resident; is physically present in the United States both
when DHS announces its program and at the time of application for
deferred action; and presents “no other factors that, in the exercise of
discretion, make[] the grant of deferred action inappropriate.” Draft
Memorandum for Leon Rodriguez, Director, U.S. Citizenship and Immi-
gration Services, et al., from Jeh Charles Johnson, Secretary of Homeland
Security, Re: Exercising Prosecutorial Discretion with Respect to Indi-
viduals Who Came to the United States as Children and Others at 4
(Nov. 17, 2014) (“Johnson Deferred Action Memorandum”). You have
also asked whether DHS could implement a similar program for parents of
individuals who have received deferred action under the Deferred Action
for Childhood Arrivals (“DACA”) program.
As has historically been true of deferred action, these proposed deferred
action programs would not “legalize” any aliens who are unlawfully
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Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens
present in the United States: Deferred action does not confer any lawful
immigration status, nor does it provide a path to obtaining permanent
residence or citizenship. Grants of deferred action under the proposed
programs would, rather, represent DHS’s decision not to seek an alien’s
removal for a prescribed period of time. See generally Reno v. Am.-Arab
Anti-Discrim. Comm., 525 U.S. 471, 483–84 (1999) (describing deferred
action). Under decades-old regulations promulgated pursuant to authority
delegated by Congress, see 8 U.S.C. §§ 1103(a)(3), 1324a(h)(3), aliens
who are granted deferred action—like certain other categories of aliens
who do not have lawful immigration status, such as asylum applicants—
may apply for authorization to work in the United States in certain
circumstances, 8 C.F.R. § 274a.12(c)(14) (providing that deferred action
recipients may apply for work authorization if they can show an “eco-
nomic necessity for employment”); see also id. § 109.1(b)(7) (1982).
Under DHS policy guidance, a grant of deferred action also suspends
an alien’s accrual of unlawful presence for purposes of 8 U.S.C.
§ 1182(a)(9)(B)(i) and (a)(9)(C)(i)(I), provisions that restrict the admis-
sion of aliens who have departed the United States after having been
unlawfully present for specified periods of time. A grant of deferred
action under the proposed programs would remain in effect for three
years, subject to renewal, and could be terminated at any time at DHS’s
discretion. See Johnson Deferred Action Memorandum at 2, 5.
For the reasons discussed below, we conclude that DHS’s proposed
prioritization policy and its proposed deferred action program for parents
of U.S. citizens and lawful permanent residents would be permissible
exercises of DHS’s discretion to enforce the immigration laws. We further
conclude that, as it has been described to us, the proposed deferred action
program for parents of DACA recipients would not be a permissible
exercise of enforcement discretion.
I.
We first address DHS’s authority to prioritize the removal of certain
categories of aliens over others. We begin by discussing some of the
sources and limits of DHS’s enforcement discretion under the immigra-
tion laws, and then analyze DHS’s proposed prioritization policy in light
of these considerations.
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38 Op. O.L.C. 39 (2014)
A.
DHS’s authority to remove aliens from the United States rests on the
Immigration and Nationality Act of 1952 (“INA”), as amended, 8 U.S.C.
§ 1101 et seq. In the INA, Congress established a comprehensive scheme
governing immigration and naturalization. The INA specifies certain
categories of aliens who are inadmissible to the United States. See
8 U.S.C. § 1182. It also specifies “which aliens may be removed from the
United States and the procedures for doing so.” Arizona v. United States,
132 S. Ct. 2492, 2499 (2012). “Aliens may be removed if they were
inadmissible at the time of entry, have been convicted of certain crimes,
or meet other criteria set by federal law.” Id. (citing 8 U.S.C. § 1227);
see 8 U.S.C. § 1227(a) (providing that “[a]ny alien . . . in and admitted to
the United States shall, upon the order of the Attorney General, be re-
moved if the alien” falls within one or more classes of deportable al-
iens); see also 8 U.S.C. § 1182(a) (listing classes of aliens ineligible to
receive visas or be admitted to the United States). Removal proceedings
ordinarily take place in federal immigration courts administered by the
Executive Office for Immigration Review, a component of the Depart-
ment of Justice. See id. § 1229a (governing removal proceedings); see
also id. §§ 1225(b)(1)(A), 1228(b) (setting out expedited removal pro-
cedures for certain arriving aliens and certain aliens convicted of aggra-
vated felonies).
Before 2003, the Department of Justice, through the Immigration and
Naturalization Service (“INS”), was also responsible for providing immi-
gration-related administrative services and generally enforcing the immi-
gration laws. In the Homeland Security Act of 2002, Pub. L. No. 107-296,
116 Stat. 2135, Congress transferred most of these functions to DHS,
giving it primary responsibility both for initiating removal proceedings
and for carrying out final orders of removal. See 6 U.S.C. § 101 et seq.;
see also Clark v. Martinez, 543 U.S. 371, 374 n.1 (2005) (noting that the
immigration authorities previously exercised by the Attorney General and
INS “now reside” in the Secretary of Homeland Security and DHS). The
Act divided INS’s functions among three different agencies within DHS:
U.S. Citizenship and Immigration Services (“USCIS”), which oversees
legal immigration into the United States and provides immigration and
naturalization services to aliens; ICE, which enforces federal laws govern-
ing customs, trade, and immigration; and U.S. Customs and Border Pro-
tection (“CBP”), which monitors and secures the Nation’s borders and
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ports of entry. See Homeland Security Act §§ 403, 442, 451, 471, 116
Stat. at 2178, 2193, 2195, 2205; see also Name Change from the Bureau
of Citizenship and Immigration Services to U.S. Citizenship and Immigra-
tion Services, 69 Fed. Reg. 60,938, 60,938 (Oct. 13, 2004); Name Change
of Two DHS Components, 75 Fed. Reg. 12,445, 12,445 (Mar. 16, 2010).
The Secretary of Homeland Security is thus now “charged with the ad-
ministration and enforcement of [the INA] and all other laws relating to
the immigration and naturalization of aliens.” 8 U.S.C. § 1103(a)(1).
As a general rule, when Congress vests enforcement authority in an ex-
ecutive agency, that agency has the discretion to decide whether a particu-
lar violation of the law warrants prosecution or other enforcement action.
This discretion is rooted in the President’s constitutional duty to “take
Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3, and it
reflects a recognition that the “faithful[]” execution of the law does not
necessarily entail “act[ing] against each technical violation of the statute”
that an agency is charged with enforcing. Heckler v. Chaney, 470 U.S.
821, 831 (1985). Rather, as the Supreme Court explained in Chaney, the
decision whether to initiate enforcement proceedings is a complex judg-
ment that calls on the agency to “balanc[e] . . . a number of factors which
are peculiarly within its expertise.” Id. These factors include “whether
agency resources are best spent on this violation or another, whether the
agency is likely to succeed if it acts, whether the particular enforcement
action requested best fits the agency’s overall policies, and . . . whether
the agency has enough resources to undertake the action at all.” Id.; cf.
United States v. Armstrong, 517 U.S. 456, 465 (1996) (recognizing that
exercises of prosecutorial discretion in criminal cases involve considera-
tion of “‘[s]uch factors as the strength of the case, the prosecution’s
general deterrence value, the Government’s enforcement priorities, and
the case’s relationship to the Government’s overall enforcement plan’”
(quoting Wayte v. United States, 470 U.S. 598, 607 (1985))). In Chaney,
the Court considered and rejected a challenge to the Food and Drug Ad-
ministration’s refusal to initiate enforcement proceedings with respect to
alleged violations of the Federal Food, Drug, and Cosmetic Act, conclud-
ing that an agency’s decision not to initiate enforcement proceedings is
presumptively immune from judicial review. See 470 U.S. at 832. The
Court explained that, while Congress may “provide[] guidelines for the
agency to follow in exercising its enforcement powers,” in the absence of
such “legislative direction,” an agency’s non-enforcement determination
43
38 Op. O.L.C. 39 (2014)
is, much like a prosecutor’s decision not to indict, a “special province of
the Executive.” Id. at 832–33.
The principles of enforcement discretion discussed in Chaney apply
with particular force in the context of immigration. Congress enacted the
INA against a background understanding that immigration is “a field
where flexibility and the adaptation of the congressional policy to infinite-
ly variable conditions constitute the essence of the program.” United
States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950) (internal
quotation marks omitted). Consistent with this understanding, the INA
vested the Attorney General (now the Secretary of Homeland Security)
with broad authority to “establish such regulations; . . . issue such instruc-
tions; and perform such other acts as he deems necessary for carrying out
his authority” under the statute. 8 U.S.C. § 1103(a)(3). Years later, when
Congress created DHS, it expressly charged DHS with responsibility for
“[e]stablishing national immigration enforcement policies and priorities.”
Homeland Security Act § 402(5), 116 Stat. at 2178 (codified at 6 U.S.C.
§ 202(5)).
With respect to removal decisions in particular, the Supreme Court has
recognized that “the broad discretion exercised by immigration officials”
is a “principal feature of the removal system” under the INA. Arizona,
132 S. Ct. at 2499. The INA expressly authorizes immigration officials to
grant certain forms of discretionary relief from removal for aliens, in-
cluding parole, 8 U.S.C. § 1182(d)(5)(A); asylum, id. § 1158(b)(1)(A);
and cancellation of removal, id. § 1229b. But in addition to administering
these statutory forms of relief, “[f ]ederal officials, as an initial matter,
must decide whether it makes sense to pursue removal at all.” Arizona,
132 S. Ct. at 2499. And, as the Court has explained, “[a]t each stage” of
the removal process—“commenc[ing] proceedings, adjudicat[ing] cases,
[and] execut[ing] removal orders”—immigration officials have “discre-
tion to abandon the endeavor.” Am.-Arab Anti-Discrim. Comm., 525 U.S.
at 483 (alterations in original) (quoting 8 U.S.C. § 1252(g)). Deciding
whether to pursue removal at each of these stages implicates a wide
range of considerations. As the Court observed in Arizona:
Discretion in the enforcement of immigration law embraces immedi-
ate human concerns. Unauthorized workers trying to support their
families, for example, likely pose less danger than alien smugglers
or aliens who commit a serious crime. The equities of an individual
case may turn on many factors, including whether the alien has chil-
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dren born in the United States, long ties to the community, or a rec-
ord of distinguished military service. Some discretionary decisions
involve policy choices that bear on this Nation’s international rela-
tions. . . . The foreign state may be mired in civil war, complicit in
political persecution, or enduring conditions that create a real risk
that the alien or his family will be harmed upon return. The dynamic
nature of relations with other countries requires the Executive
Branch to ensure that enforcement policies are consistent with this
Nation’s foreign policy with respect to these and other realities.
132 S. Ct. at 2499.
Immigration officials’ discretion in enforcing the laws is not, however,
unlimited. Limits on enforcement discretion are both implicit in, and
fundamental to, the Constitution’s allocation of governmental powers
between the two political branches. See, e.g., Youngstown Sheet & Tube
Co. v. Sawyer, 343 U.S. 579, 587–88 (1952). These limits, however, are
not clearly defined. The open-ended nature of the inquiry under the Take
Care Clause—whether a particular exercise of discretion is “faithful[]” to
the law enacted by Congress—does not lend itself easily to the application
of set formulas or bright-line rules. And because the exercise of enforce-
ment discretion generally is not subject to judicial review, see Chaney,
470 U.S. at 831–33, neither the Supreme Court nor the lower federal
courts have squarely addressed its constitutional bounds. Rather, the
political branches have addressed the proper allocation of enforcement
authority through the political process. As the Court noted in Chaney,
Congress “may limit an agency’s exercise of enforcement power if it
wishes, either by setting substantive priorities, or by otherwise circum-
scribing an agency’s power to discriminate among issues or cases it will
pursue.” Id. at 833. The history of immigration policy illustrates this
principle: Since the INA was enacted, the Executive Branch has on nu-
merous occasions exercised discretion to extend various forms of immi-
gration relief to categories of aliens for humanitarian, foreign policy, and
other reasons. When Congress has been dissatisfied with executive action,
it has responded, as Chaney suggests, by enacting legislation to limit the
Executive’s discretion in enforcing the immigration laws. 1
1 See, e.g., Adam B. Cox & Cristina M. Rodríguez, The President and Immigration
Law, 119 Yale L.J. 458, 503–05 (2009) (describing Congress’s response to its dissatisfac-
tion with the Executive’s use of parole power for refugee populations in the 1960s and
45
38 Op. O.L.C. 39 (2014)
Nonetheless, the nature of the Take Care duty does point to at least
four general (and closely related) principles governing the permissible
scope of enforcement discretion that we believe are particularly relevant
here. First, enforcement decisions should reflect “factors which are
peculiarly within [the enforcing agency’s] expertise.” Chaney, 470 U.S.
at 831. Those factors may include considerations related to agency re-
sources, such as “whether the agency has enough resources to undertake
the action,” or “whether agency resources are best spent on this violation
or another.” Id. Other relevant considerations may include “the proper
ordering of [the agency’s] priorities,” id. at 832, and the agency’s as-
sessment of “whether the particular enforcement action [at issue] best fits
the agency’s overall policies,” id. at 831.
Second, the Executive cannot, under the guise of exercising enforce-
ment discretion, attempt to effectively rewrite the laws to match its policy
preferences. See id. at 833 (an agency may not “disregard legislative
direction in the statutory scheme that [it] administers”). In other words, an
agency’s enforcement decisions should be consonant with, rather than
contrary to, the congressional policy underlying the statutes the agency is
charged with administering. Cf. Youngstown, 343 U.S. at 637 (Jackson, J.,
concurring) (“When the President takes measures incompatible with the
expressed or implied will of Congress, his power is at its lowest ebb.”);
Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658
(2007) (explaining that where Congress has given an agency the power to
administer a statutory scheme, a court will not vacate the agency’s deci-
sion about the proper administration of the statute unless, among other
things, the agency “‘has relied on factors which Congress had not intend-
ed it to consider’” (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983))).
Third, the Executive Branch ordinarily cannot, as the Court put it in
Chaney, “‘consciously and expressly adopt[] a general policy’ that is so
extreme as to amount to an abdication of its statutory responsibilities.”
470 U.S. at 833 n.4 (quoting Adams v. Richardson, 480 F.2d 1159, 1162
(D.C. Cir. 1973) (en banc)); see id. (noting that in situations where an
agency had adopted such an extreme policy, “the statute conferring au-
thority on the agency might indicate that such decisions were not ‘com-
1970s); see also, e.g., infra note 5 (discussing legislative limitations on voluntary depar-
ture and extended voluntary departure).
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Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens
mitted to agency discretion’”). Abdication of the duties assigned to the
agency by statute is ordinarily incompatible with the constitutional obliga-
tion to faithfully execute the laws. But see, e.g., Presidential Authority to
Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199, 200
(1994) (noting that under the Take Care Clause, “the President is required
to act in accordance with the laws—including the Constitution, which
takes precedence over other forms of law”).
Finally, lower courts, following Chaney, have indicated that non-
enforcement decisions are most comfortably characterized as judicially
unreviewable exercises of enforcement discretion when they are made on
a case-by-case basis. See, e.g., Kenney v. Glickman, 96 F.3d 1118, 1123
(8th Cir. 1996); Crowley Caribbean Transp., Inc. v. Peña, 37 F.3d 671,
676–77 (D.C. Cir. 1994). That reading of Chaney reflects a conclusion
that case-by-case enforcement decisions generally avoid the concerns
mentioned above. Courts have noted that “single-shot non-enforcement
decisions” almost inevitably rest on “the sort of mingled assessments of
fact, policy, and law . . . that are, as Chaney recognizes, peculiarly within
the agency’s expertise and discretion.” Crowley Caribbean Transp., 37
F.3d at 676 –77 (emphasis omitted). Individual enforcement decisions
made on the basis of case-specific factors are also unlikely to constitute
“general polic[ies] that [are] so extreme as to amount to an abdication of
[the agency’s] statutory responsibilities.” Id. at 677 (quoting Chaney, 477
U.S. at 833 n.4). That does not mean that all “general policies” respecting
non-enforcement are categorically forbidden: Some “general policies”
may, for example, merely provide a framework for making individualized,
discretionary assessments about whether to initiate enforcement actions in
particular cases. Cf. Reno v. Flores, 507 U.S. 292, 313 (1993) (explaining
that an agency’s use of “reasonable presumptions and generic rules” is not
incompatible with a requirement to make individualized determinations).
But a general policy of non-enforcement that forecloses the exercise of
case-by-case discretion poses “special risks” that the agency has exceeded
the bounds of its enforcement discretion. Crowley Caribbean Transp.,
37 F.3d at 677.
B.
We now turn, against this backdrop, to DHS’s proposed prioritization
policy. In their exercise of enforcement discretion, DHS and its predeces-
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38 Op. O.L.C. 39 (2014)
sor, INS, have long employed guidance instructing immigration officers
to prioritize the enforcement of the immigration laws against certain
categories of aliens and to deprioritize their enforcement against others.
See, e.g., INS Operating Instructions § 103(a)(1)(i) (1962); Memorandum
for All Field Office Directors, ICE, et al., from John Morton, Director,
ICE, Re: Exercising Prosecutorial Discretion Consistent with the Civil
Immigration Enforcement Priorities of the Agency for the Apprehension,
Detention, and Removal of Aliens (June 17, 2011); Memorandum for All
ICE Employees from John Morton, Director, ICE, Re: Civil Immigration
Enforcement: Priorities for the Apprehension, Detention, and Removal of
Aliens (Mar. 2, 2011); Memorandum for Regional Directors, INS, et al.,
from Doris Meissner, Commissioner, INS, Re: Exercising Prosecutorial
Discretion (Nov. 17, 2000). The policy DHS proposes, which is similar to
but would supersede earlier policy guidance, is designed to “provide
clearer and more effective guidance in the pursuit” of DHS’s enforcement
priorities: namely, “threats to national security, public safety and border
security.” Johnson Prioritization Memorandum at 1.
Under the proposed policy, DHS would identify three categories of
undocumented aliens who would be priorities for removal from the
United States. See generally id. at 3–5. The highest priority category
would include aliens who pose particularly serious threats to national
security, border security, or public safety, including aliens engaged in or
suspected of espionage or terrorism, aliens convicted of offenses related
to participation in criminal street gangs, aliens convicted of certain
felony offenses, and aliens apprehended at the border while attempting to
enter the United States unlawfully. See id. at 3. The second-highest
priority would include aliens convicted of multiple or significant misde-
meanor offenses; aliens who are apprehended after unlawfully entering
the United States who cannot establish that they have been continuously
present in the United States since January 1, 2014; and aliens determined
to have significantly abused the visa or visa waiver programs. See id. at
3–4. The third priority category would include other aliens who have
been issued a final order of removal on or after January 1, 2014. See id.
at 4. The policy would also provide that none of these aliens should be
prioritized for removal if they “qualify for asylum or another form of
relief under our laws.” Id. at 3–5.
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The policy would instruct that resources should be directed to these
priority categories in a manner “commensurate with the level of prioriti-
zation identified.” Id. at 5. It would, however, also leave significant room
for immigration officials to evaluate the circumstances of individual
cases. See id. (stating that the policy “requires DHS personnel to exercise
discretion based on individual circumstances”). For example, the policy
would permit an ICE Field Office Director, CBP Sector Chief, or CBP
Director of Field Operations to deprioritize the removal of an alien falling
in the highest priority category if, in her judgment, “there are compelling
and exceptional factors that clearly indicate the alien is not a threat to
national security, border security, or public safety and should not there-
fore be an enforcement priority.” Id. at 3. Similar discretionary provisions
would apply to aliens in the second and third priority categories. 2 The
policy would also provide a non-exhaustive list of factors DHS personnel
should consider in making such deprioritization judgments. 3 In addition,
the policy would expressly state that its terms should not be construed “to
prohibit or discourage the apprehension, detention, or removal of aliens
unlawfully in the United States who are not identified as priorities,” and
would further provide that “[i]mmigration officers and attorneys may
pursue removal of an alien not identified as a priority” if, “in the judg-
ment of an ICE Field Office Director, removing such an alien would
serve an important federal interest.” Id. at 5.
DHS has explained that the proposed policy is designed to respond to
the practical reality that the number of aliens who are removable under
2 Under the proposed policy, aliens in the second tier could be deprioritized if, “in the
judgment of an ICE Field Office Director, CBP Sector Chief, CBP Director of Field
Operations, USCIS District Director, or USCIS Service Center Director, there are factors
indicating the alien is not a threat to national security, border security, or public safety,
and should not therefore be an enforcement priority.” Johnson Prioritization Memoran-
dum at 4. Aliens in the third tier could be deprioritized if, “in the judgment of an immi-
gration officer, the alien is not a threat to the integrity of the immigration system or there
are factors suggesting the alien should not be an enforcement priority.” Id. at 5.
3 These factors include “extenuating circumstances involving the offense of convic-
tion; extended length of time since the offense of conviction; length of time in the United
States; military service; family or community ties in the United States; status as a victim,
witness or plaintiff in civil or criminal proceedings; or compelling humanitarian factors
such as poor health, age, pregnancy, a young child or a seriously ill relative.” Id. at 6.
49
38 Op. O.L.C. 39 (2014)
the INA vastly exceeds the resources Congress has made available to
DHS for processing and carrying out removals. The resource constraints
are striking. As noted, DHS has informed us that there are approximately
11.3 million undocumented aliens in the country, but that Congress has
appropriated sufficient resources for ICE to remove fewer than 400,000
aliens each year, a significant percentage of whom are typically encoun-
tered at or near the border rather than in the interior of the country. See
E-mail for Karl R. Thompson, Principal Deputy Assistant Attorney Gen-
eral, Office of Legal Counsel, from David Shahoulian, Deputy General
Counsel, DHS, Re: Immigration Opinion (Nov. 19, 2014) (“Shahoulian
E-mail”). The proposed policy explains that, because DHS “cannot re-
spond to all immigration violations or remove all persons illegally in the
United States,” it seeks to “prioritize the use of enforcement personnel,
detention space, and removal assets” to “ensure that use of its limited
resources is devoted to the pursuit of” DHS’s highest priorities. Johnson
Prioritization Memorandum at 2.
In our view, DHS’s proposed prioritization policy falls within the scope
of its lawful discretion to enforce the immigration laws. To begin with,
the policy is based on a factor clearly “within [DHS’s] expertise.”
Chaney, 470 U.S. at 831. Faced with sharply limited resources, DHS
necessarily must make choices about which removals to pursue and which
removals to defer. DHS’s organic statute itself recognizes this inevitable
fact, instructing the Secretary to establish “national immigration enforce-
ment policies and priorities.” 6 U.S.C. § 202(5). And an agency’s need to
ensure that scarce enforcement resources are used in an effective manner
is a quintessential basis for the use of prosecutorial discretion. See
Chaney, 470 U.S. at 831 (among the factors “peculiarly within [an agen-
cy’s] expertise” are “whether agency resources are best spent on this
violation or another” and “whether the agency has enough resources to
undertake the action at all”).
The policy DHS has proposed, moreover, is consistent with the removal
priorities established by Congress. In appropriating funds for DHS’s
enforcement activities—which, as noted, are sufficient to permit the
removal of only a fraction of the undocumented aliens currently in the
country—Congress has directed DHS to “prioritize the identification and
removal of aliens convicted of a crime by the severity of that crime.”
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Department of Homeland Security Appropriations Act, 2014, Pub. L. No.
113-76, div. F, tit. II, 128 Stat. 5, 251 (“DHS Appropriations Act”). Con-
sistent with this directive, the proposed policy prioritizes individuals
convicted of criminal offenses involving active participation in a criminal
street gang, most offenses classified as felonies in the convicting jurisdic-
tion, offenses classified as “aggravated felonies” under the INA, and
certain misdemeanor offenses. Johnson Prioritization Memorandum at
3–4. The policy ranks these priority categories according to the severity of
the crime of conviction. The policy also prioritizes the removal of other
categories of aliens who pose threats to national security or border securi-
ty, matters about which Congress has demonstrated particular concern.
See, e.g., 8 U.S.C. § 1226(c)(1)(D) (providing for detention of aliens
charged with removability on national security grounds); id. § 1225(b),
(c) (providing for an expedited removal process for certain aliens appre-
hended at the border). The policy thus raises no concern that DHS has
relied “on factors which Congress had not intended it to consider.” Nat’l
Ass’n of Home Builders, 551 U.S. at 658.
Further, although the proposed policy is not a “single-shot non-enforce-
ment decision,” neither does it amount to an abdication of DHS’s statuto-
ry responsibilities, or constitute a legislative rule overriding the com-
mands of the substantive statute. Crowley Caribbean Transp., 37 F.3d at676–77. The proposed policy provides a general framework for exercising
enforcement discretion in individual cases, rather than establishing an
absolute, inflexible policy of not enforcing the immigration laws in cer-
tain categories of cases. Given that the resources Congress has allocated
to DHS are sufficient to remove only a small fraction of the total popula-
tion of undocumented aliens in the United States, setting forth written
guidance about how resources should presumptively be allocated in par-
ticular cases is a reasonable means of ensuring that DHS’s severely lim-
ited resources are systematically directed to its highest priorities across a
large and diverse agency, as well as ensuring consistency in the admin-
istration of the removal system. The proposed policy’s identification of
categories of aliens who constitute removal priorities is also consistent
with the categorical nature of Congress’s instruction to prioritize the
removal of criminal aliens in the DHS Appropriations Act.
51
38 Op. O.L.C. 39 (2014)
And, significantly, the proposed policy does not identify any category
of removable aliens whose removal may not be pursued under any cir-
cumstances. Although the proposed policy limits the discretion of immi-
gration officials to expend resources to remove non-priority aliens, it does
not eliminate that discretion entirely. It directs immigration officials to
use their resources to remove aliens in a manner “commensurate with the
level of prioritization identified,” but (as noted above) it does not “prohib-
it or discourage the apprehension, detention, or removal of aliens unlaw-
fully in the United States who are not identified as priorities.” Johnson
Prioritization Memorandum at 5. Instead, it authorizes the removal of
even non-priority aliens if, in the judgment of an ICE Field Office Direc-
tor, “removing such an alien would serve an important federal interest,” a
standard the policy leaves open-ended. Id. Accordingly, the policy pro-
vides for case-by-case determinations about whether an individual alien’s
circumstances warrant the expenditure of removal resources, employing a
broad standard that leaves ample room for the exercise of individualized
discretion by responsible officials. For these reasons, the proposed policy
avoids the difficulties that might be raised by a more inflexible prioritiza-
tion policy and dispels any concern that DHS has either undertaken to
rewrite the immigration laws or abdicated its statutory responsibilities
with respect to non-priority aliens. 4
4 In Crane v. Napolitano, a district court recently concluded in a non-precedential
opinion that the INA “mandates the initiation of removal proceedings whenever an
immigration officer encounters an illegal alien who is not ‘clearly and beyond a doubt
entitled to be admitted.’” No. 3:12-cv-03247-O, 2013 WL 1744422, at *5 (N.D. Tex. Apr.
23, 2013) (quoting 8 U.S.C. § 1225(b)(2)(A)). The court later dismissed the case for lack
of jurisdiction. See Crane v. Napolitano, No. 3:12-cv-03247-O, 2013 WL 8211660, at *4
(N.D. Tex. July 31, 2013). Although the opinion lacks precedential value, we have
nevertheless considered whether, as it suggests, the text of the INA categorically foreclos-
es the exercise of enforcement discretion with respect to aliens who have not been formal-
ly admitted. The district court’s conclusion is, in our view, inconsistent with the Supreme
Court’s reading of the INA as permitting immigration officials to exercise enforcement
discretion at any stage of the removal process, including when deciding whether to initiate
removal proceedings against a particular alien. See Arizona, 132 S. Ct. at 2499; Am.-Arab
Anti-Discrim. Comm., 525 U.S. at 483–84. It is also difficult to square with authority
holding that the presence of mandatory language in a statute, standing alone, does not
necessarily limit the Executive Branch’s enforcement discretion. See, e.g., Chaney, 470
52
Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens
II.
We turn next to the permissibility of DHS’s proposed deferred action
programs for certain aliens who are parents of U.S. citizens, lawful per-
manent residents (“LPRs”), or DACA recipients, and who are not removal
priorities under the proposed policy discussed above. We begin by dis-
cussing the history and current practice of deferred action. We then dis-
cuss the legal authorities on which deferred action relies and identify legal
principles against which the proposed use of deferred action can be evalu-
ated. Finally, we turn to an analysis of the proposed deferred action pro-
grams themselves, beginning with the program for parents of U.S. citizens
and LPRs, and concluding with the program for parents of DACA recipi-
ents.
A.
In immigration law, the term “deferred action” refers to an exercise of
administrative discretion in which immigration officials temporarily defer
the removal of an alien unlawfully present in the United States. Am.-Arab
Anti-Discrim. Comm., 525 U.S. at 484 (citing 6 Charles Gordon et al.,
Immigration Law and Procedure § 72.03[2][h] (1998)); see USCIS,
Standard Operating Procedures for Handling Deferred Action Requests
at USCIS Field Offices at 3 (2012) (“USCIS SOP”); INS Operating
Instructions § 103.1(a)(1)(ii) (1977). It is one of a number of forms of
discretionary relief—in addition to such statutory and non-statutory
measures as parole, temporary protected status, deferred enforced depar-
ture, and extended voluntary departure—that immigration officials have
used over the years to temporarily prevent the removal of undocumented
aliens. 5
U.S. at 835; Inmates of Attica Corr. Facility v. Rockefeller, 477 F.2d 375, 381 (2d Cir.
1973).
5 Parole is available to aliens by statute “for urgent humanitarian reasons or significant
public benefit.” 8 U.S.C. § 1182(d)(5)(A). Among other things, parole gives aliens the
ability to adjust their status without leaving the United States if they are otherwise eligible
for adjustment of status, see id. § 1255(a), and may eventually qualify them for federal
means-tested benefits, see id. §§ 1613, 1641(b)(4). Temporary protected status is availa-
ble to nationals of designated foreign states affected by armed conflicts, environmental
disasters, and other extraordinary conditions. Id. § 1254a. Deferred enforced departure,
53
38 Op. O.L.C. 39 (2014)
The practice of granting deferred action dates back several decades.
For many years after the INA was enacted, INS exercised prosecutorial
discretion to grant “non-priority” status to removable aliens who pre-
sented “appealing humanitarian factors.” Letter for Leon Wildes from
E.A. Loughran, Associate Commissioner, INS at 2 (July 16, 1973)
(defining a “non-priority case” as “one in which the Service in the
exercise of discretion determines that adverse action would be uncon-
scionable because of appealing humanitarian factors”); see INS Operat-
ing Instructions § 103.1(a)(1)(ii) (1962). This form of administrative
discretion was later termed “deferred action.” Am.-Arab Anti-Discrim.
Comm., 525 U.S. at 484; see INS Operating Instructions § 103.1(a)(1)(ii)
(1977) (instructing immigration officers to recommend deferred action
whenever “adverse action would be unconscionable because of the exist-
ence of appealing humanitarian factors”).
which “has no statutory basis” but rather is an exercise of “the President’s constitutional
powers to conduct foreign relations,” may be granted to nationals of appropriate foreign
states. USCIS, Adjudicator’s Field Manual § 38.2(a) (2014). Extended voluntary depar-
ture was a remedy derived from the voluntary departure statute, which, before its amend-
ment in 1996, permitted the Attorney General to make a finding of removability if an
alien agreed to voluntarily depart the United States, without imposing a time limit for the
alien’s departure. See 8 U.S.C. §§ 1252(b), 1254(e) (1988 & Supp. II 1990); cf. 8 U.S.C.
§ 1229c (current provision of the INA providing authority to grant voluntary departure,
but limiting such grants to 120 days). Some commentators, however, suggested that
extended voluntary departure was in fact a form of “discretionary relief formulated
administratively under the Attorney General’s general authority for enforcing immigration
law.” Sharon Stephan, Cong. Research Serv., 85-599 EPW, Extended Voluntary De-
parture and Other Grants of Blanket Relief from Deportation at 1 (Feb. 23, 1985). It
appears that extended voluntary departure is no longer used following enactment of the
Immigration Act of 1990, which established the temporary protected status program. See
U.S. Citizenship and Immigration Services Fee Schedule, 75 Fed. Reg. 33,446, 33,457
(June 11, 2010) (proposed rule) (noting that “since 1990 neither the Attorney General nor
the Secretary have designated a class of aliens for nationality-based ‘extended voluntary
departure,’ and there no longer are aliens in the United States benefiting from such a
designation,” but noting that deferred enforced departure is still used); H.R. Rep. No. 102-
123, at 2 (1991) (indicating that in establishing temporary protected status, Congress was
“codif [ying] and supersed[ing]” extended voluntary departure). See generally Andorra
Bruno et al., Cong. Research Serv., Analysis of June 15, 2012 DHS Memorandum,
Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United
States as Children at 5–10 (July 13, 2012) (“CRS Immigration Report”).
54
Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens
Although the practice of granting deferred action “developed without
express statutory authorization,” it has become a regular feature of the
immigration removal system that has been acknowledged by both Con-
gress and the Supreme Court. Am.-Arab Anti-Discrim. Comm., 525 U.S.
at 484 (internal quotation marks omitted); see id. at 485 (noting that a
congressional enactment limiting judicial review of decisions “to com-
mence proceedings, adjudicate cases, or execute removal orders against
any alien under [the INA]” in 8 U.S.C. § 1252(g) “seems clearly de-
signed to give some measure of protection to ‘no deferred action’ deci-
sions and similar discretionary determinations”); see also, e.g., 8 U.S.C.
§ 1154(a)(1)(D)(i)(II), (IV) (providing that certain individuals are “eligi-
ble for deferred action”). Deferred action “does not confer any immigra-
tion status”—i.e., it does not establish any enforceable legal right to
remain in the United States—and it may be revoked by immigration
authorities at their discretion. USCIS SOP at 3, 7. Assuming it is not
revoked, however, it represents DHS’s decision not to seek the alien’s
removal for a specified period of time.
Under longstanding regulations and policy guidance promulgated
pursuant to statutory authority in the INA, deferred action recipients
may receive two additional benefits. First, relying on DHS’s statutory
authority to authorize certain aliens to work in the United States, DHS
regulations permit recipients of deferred action to apply for work author-
ization if they can demonstrate an “economic necessity for employ-
ment.” 8 C.F.R. § 274a.12(c)(14); see 8 U.S.C. § 1324a(h)(3) (defining
an “unauthorized alien” not entitled to work in the United States as an
alien who is neither an LPR nor “authorized to be . . . employed by [the
INA] or by the Attorney General [now the Secretary of Homeland Secu-
rity]”). Second, DHS has promulgated regulations and issued policy
guidance providing that aliens who receive deferred action will tempo-
rarily cease accruing “unlawful presence” for purposes of 8 U.S.C.
§ 1182(a)(9)(B)(i) and (a)(9)(C)(i)(I). 8 C.F.R. § 214.14(d)(3); 28 C.F.R.
§ 1100.35(b)(2); Memorandum for Field Leadership from Donald
Neufeld, Acting Associate Director, Domestic Operations Directorate,
USCIS, Re: Consolidation of Guidance Concerning Unlawful Presence
for Purposes of Sections 212(a)(9)(B)( i ) and 212(a)(9)(C)( i )( I ) of the
Act at 42 (May 6, 2009) (“USCIS Consolidation of Guidance”) (noting
that “[a]ccrual of unlawful presence stops on the date an alien is granted
55
38 Op. O.L.C. 39 (2014)
deferred action”); see 8 U.S.C. § 1182(a)(9)(B)(ii) (providing that an
alien is “unlawfully present” if, among other things, he “is present in the
United States after the expiration of the period of stay authorized by the
Attorney General”). 6
Immigration officials today continue to grant deferred action in indi-
vidual cases for humanitarian and other purposes, a practice we will refer
to as “ad hoc deferred action.” Recent USCIS guidance provides that
personnel may recommend ad hoc deferred action if they “encounter cases
during [their] normal course of business that they feel warrant deferred
action.” USCIS SOP at 4. An alien may also apply for ad hoc deferred
action by submitting a signed, written request to USCIS containing “[a]n
explanation as to why he or she is seeking deferred action” along with
supporting documentation, proof of identity, and other records. Id. at 3.
For decades, INS and later DHS have also implemented broader pro-
grams that make discretionary relief from removal available for particular
classes of aliens. In many instances, these agencies have made such
broad-based relief available through the use of parole, temporary protect-
ed status, deferred enforced departure, or extended voluntary departure.
For example, from 1956 to 1972, INS implemented an extended voluntary
departure program for physically present aliens who were beneficiaries of
approved visa petitions—known as “Third Preference” visa petitions—
relating to a specific class of visas for Eastern Hemisphere natives. See
United States ex rel. Parco v. Morris, 426 F. Supp. 976, 979–80 (E.D. Pa.
1977). Similarly, for several years beginning in 1978, INS granted ex-
tended voluntary departure to nurses who were eligible for H-1 visas.
Voluntary Departure for Out-of-Status Nonimmigrant H-1 Nurses, 43
Fed. Reg. 2776, 2776 (Jan. 19, 1978). In addition, in more than two dozen
instances dating to 1956, INS and later DHS granted parole, temporary
protected status, deferred enforced departure, or extended voluntary
departure to large numbers of nationals of designated foreign states.
6 Section 1182(a)(9)(B)(i) imposes three- and ten-year bars on the admission of aliens
(other than aliens admitted to permanent residence) who departed or were removed from
the United States after periods of unlawful presence of between 180 days and one year, or
one year or more. Section 1182(a)(9)(C)(i)(I) imposes an indefinite bar on the admission
of any alien who, without being admitted, enters or attempts to reenter the United States
after previously having been unlawfully present in the United States for an aggregate
period of more than one year.
56
Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens
See, e.g., CRS Immigration Report at 20–23; Cong. Research Serv.,
ED206779, Review of U.S. Refugee Resettlement Programs and Policies
at 9, 12–14 (1980). And in 1990, INS implemented a “Family Fairness”
program that authorized granting extended voluntary departure and work
authorization to the estimated 1.5 million spouses and children of aliens
who had been granted legal status under the Immigration Reform and
Control Act of 1986 (“IRCA”), Pub. L. No. 99-603, 100 Stat. 3359. See
Memorandum for Regional Commissioners, INS, from Gene McNary,
Commissioner, INS, Re: Family Fairness: Guidelines for Voluntary
Departure Under 8 CFR 242.5 for the Ineligible Spouses and Children of
Legalized Aliens (Feb. 2, 1990) (“Family Fairness Memorandum”); see
also CRS Immigration Report at 10.
On at least five occasions since the late 1990s, INS and later DHS have
also made discretionary relief available to certain classes of aliens through
the use of deferred action:
1. Deferred Action for Battered Aliens Under the Violence Against
Women Act. INS established a class-based deferred action program in
1997 for the benefit of self-petitioners under the Violence Against
Women Act of 1994 (“VAWA”), Pub. L. No. 103-322, tit. IV, 108 Stat.
1796, 1902. VAWA authorized certain aliens who have been abused by
U.S. citizen or LPR spouses or parents to self-petition for lawful immi-
gration status, without having to rely on their abusive family members
to petition on their behalf. Id. § 40701(a) (codified as amended at
8 U.S.C. § 1154(a)(1)(A)(iii)–(iv), (vii)). The INS program required
immigration officers who approved a VAWA self-petition to assess, “on
a case-by-case basis, whether to place the alien in deferred action status”
while the alien waited for a visa to become available. Memorandum for
Regional Directors et al., INS, from Paul W. Virtue, Acting Executive
Associate Commissioner, INS, Re: Supplemental Guidance on Battered
Alien Self-Petitioning Process and Related Issues at 3 (May 6, 1997).
INS noted that “[b]y their nature, VAWA cases generally possess factors
that warrant consideration for deferred action.” Id. But because “[i]n an
unusual case, there may be factors present that would militate against
deferred action,” the agency instructed officers that requests for deferred
action should still “receive individual scrutiny.” Id. In 2000, INS report-
ed to Congress that, because of this program, no approved VAWA self-
petitioner had been removed from the country. See Battered Women
57
38 Op. O.L.C. 39 (2014)
Immigrant Protection Act: Hearings on H.R. 3083 Before the Subcomm.
on Immigration & Claims of the H. Comm. on the Judiciary, 106th Cong.
at 43 (July 20, 2000) (“H.R. 3083 Hearings”).
2. Deferred Action for T and U Visa Applicants. Several years later,
INS instituted a similar deferred action program for applicants for
nonimmigrant status or visas made available under the Victims of Traf-
ficking and Violence Protection Act of 2000 (“VTVPA”), Pub. L. No.
106-386, 114 Stat. 1464. That Act created two new nonimmigrant classi-
fications: a “T visa” available to victims of human trafficking and their
family members, and a “U visa” for victims of certain other crimes and
their family members. Id. §§ 107(e), 1513(b)(3) (codified at 8 U.S.C.
§ 1101(a)(15)(T)(i), (U)(i)). In 2001, INS issued a memorandum directing
immigration officers to locate “possible victims in the above categories,”
and to use “[e]xisting authority and mechanisms such as parole, deferred
action, and stays of removal” to prevent those victims’ removal “until
they have had the opportunity to avail themselves of the provisions of the
VTVPA.” Memorandum for Michael A. Pearson, Executive Associate
Commissioner, INS, from Michael D. Cronin, Acting Executive Associate
Commissioner, INS, Re: Victims of Trafficking and Violence Protection
Act of 2000 (VTVPA) Policy Memorandum #2—“T” and “U” Nonimmi-
grant Visas at 2 (Aug. 30, 2001). In subsequent memoranda, INS instruct-
ed officers to make “deferred action assessment[s]” for “all [T visa]
applicants whose applications have been determined to be bona fide,”
Memorandum for Johnny N. Williams, Executive Associate Commission-
er, INS, from Stuart Anderson, Executive Associate Commissioner, INS,
Re: Deferred Action for Aliens with Bona Fide Applications for T Non-
immigrant Status at 1 (May 8, 2002), as well as for all U visa applicants
“determined to have submitted prima facie evidence of [their] eligibility,”
Memorandum for the Director, Vermont Service Center, INS, from Wil-
liam R. Yates, USCIS, Re: Centralization of Interim Relief for U Nonim-
migrant Status Applicants at 5 (Oct. 8, 2003). In 2002 and 2007, INS and
DHS promulgated regulations embodying these policies. See 8 C.F.R.
§ 214.11(k)(1), (k)(4), (m)(2) (promulgated by New Classification for
Victims of Severe Forms of Trafficking in Persons; Eligibility for “T”
Nonimmigrant Status, 67 Fed. Reg. 4784, 4800–01 (Jan. 31, 2002))
(providing that any T visa applicant who presents “prima facie evidence”
of his eligibility should have his removal “automatically stay[ed]” and
58
Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens
that applicants placed on a waiting list for visas “shall maintain [their]
current means to prevent removal (deferred action, parole, or stay of
removal)”); id. § 214.14(d)(2) (promulgated by New Classification for
Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status,
72 Fed. Reg. 53,014, 53,039 (Sept. 17, 2007)) (“USCIS will grant de-
ferred action or parole to U-1 petitioners and qualifying family members
while the U-1 petitioners are on the waiting list” for visas).
3. Deferred Action for Foreign Students Affected by Hurricane
Katrina. As a consequence of the devastation caused by Hurricane
Katrina in 2005, several thousand foreign students became temporarily
unable to satisfy the requirements for maintaining their lawful status as
F-1 nonimmigrant students, which include “pursuit of a ‘full course of
study.’” USCIS, Interim Relief for Certain Foreign Academic Students
Adversely Affected by Hurricane Katrina: Frequently Asked Questions
(FAQ) at 1 (Nov. 25, 2005) (quoting 8 C.F.R. § 214.2(f)(6)), http://www.
uscis.gov/sites/default/files/USCIS/Humanitarian/Special%20Situations/
Previous%20Special%20Situations%20By%20Topic/faq-interim-student-
relief-hurricane-katrina.pdf (last visited Nov. 19, 2014). DHS announced
that it would grant deferred action to these students “based on the fact
that [their] failure to maintain status is directly due to Hurricane Katri-
na.” Id. at 7. To apply for deferred action under this program, students
were required to send a letter substantiating their need for deferred ac-
tion, along with an application for work authorization. Press Release,
USCIS, USCIS Announces Interim Relief for Foreign Students Adversely
Impacted by Hurricane Katrina at 1–2 (Nov. 25, 2005), http://www.
uscis.gov/sites/default/files/files/pressrelease/F1Student_11_25_05_PR.
pdf (last visited Nov. 19, 2014). USCIS explained that such requests for
deferred action would be “decided on a case-by-case basis” and that it
could not “provide any assurance that all such requests will be granted.”
Id. at 1.
4. Deferred Action for Widows and Widowers of U.S. Citizens. In
2009, DHS implemented a deferred action program for certain widows
and widowers of U.S. citizens. USCIS explained that “no avenue of
immigration relief exists for the surviving spouse of a deceased U.S.
citizen if the surviving spouse and the U.S. citizen were married less than
2 years at the time of the citizen’s death” and USCIS had not yet adjudi-
cated a visa petition on the spouse’s behalf. Memorandum for Field Lead-
59
38 Op. O.L.C. 39 (2014)
ership, USCIS, from Donald Neufeld, Acting Associate Director, USCIS,
Re: Guidance Regarding Surviving Spouses of Deceased U.S. Citizens
and Their Children at 1 (Sept. 4, 2009). “In order to address humanitarian
concerns arising from cases involving surviving spouses of U.S. citizens,”
USCIS issued guidance permitting covered surviving spouses and “their
qualifying children who are residing in the United States” to apply for
deferred action. Id. at 2, 6. USCIS clarified that such relief would not be
automatic, but rather would be unavailable in the presence of, for exam-
ple, “serious adverse factors, such as national security concerns, signifi-
cant immigration fraud, commission of other crimes, or public safety
reasons.” Id. at 6. 7
5. Deferred Action for Childhood Arrivals. Announced by DHS in
2012, DACA makes deferred action available to “certain young people
who were brought to this country as children” and therefore “[a]s a gen-
eral matter . . . lacked the intent to violate the law.” Memorandum for
David Aguilar, Acting Commissioner, CBP, et al., from Janet Napolitano,
Secretary, DHS, Re: Exercising Prosecutorial Discretion with Respect to
Individuals Who Came to the United States as Children at 1 (June 15,
2012) (“Napolitano Memorandum”). An alien is eligible for DACA if she
was under the age of 31 when the program began; arrived in the United
States before the age of 16; continuously resided in the United States for
at least 5 years immediately preceding June 15, 2012; was physically
present on June 15, 2012; satisfies certain educational or military service
requirements; and neither has a serious criminal history nor “poses a
threat to national security or public safety.” See id. DHS evaluates appli-
cants’ eligibility for DACA on a case-by-case basis. See id. at 2; USCIS,
Deferred Action for Childhood Arrivals (DACA) Toolkit: Resources for
Community Partners at 11 (“DACA Toolkit”). Successful DACA appli-
7 Several months after the deferred action program was announced, Congress eliminat-
ed the requirement that an alien be married to a U.S. citizen “for at least 2 years at the
time of the citizen’s death” to retain his or her eligibility for lawful immigration status.
Department of Homeland Security Appropriations Act, 2010, Pub. L. No. 111-83,
§ 568(c), 123 Stat. 2142, 2186 (2009). Concluding that this legislation rendered its
surviving spouse guidance “obsolete,” USCIS withdrew its earlier guidance and treated all
pending applications for deferred action as visa petitions. See Memorandum for Executive
Leadership, USCIS, from Donald Neufeld, Acting Associate Director, USCIS, et al., Re:
Additional Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and Their
Children (REVISED) at 3, 10 (Dec. 2, 2009).
60
Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens
cants receive deferred action for a period of two years, subject to renewal.
See DACA Toolkit at 11. DHS has stated that grants of deferred action
under DACA may be terminated at any time, id. at 16, and “confer[] no
substantive right, immigration status or pathway to citizenship,” Napoli-
tano Memorandum at 3. 8
Congress has long been aware of the practice of granting deferred ac-
tion, including in its categorical variety, and of its salient features; and it
has never acted to disapprove or limit the practice. 9 On the contrary, it
has enacted several pieces of legislation that have either assumed that
deferred action would be available in certain circumstances, or expressly
directed that deferred action be extended to certain categories of aliens.
For example, as Congress was considering VAWA reauthorization
8 Before DACA was announced, our Office was consulted about whether such a pro-
gram would be legally permissible. As we orally advised, our preliminary view was that
such a program would be permissible, provided that immigration officials retained
discretion to evaluate each application on an individualized basis. We noted that immigra-
tion officials typically consider factors such as having been brought to the United States
as a child in exercising their discretion to grant deferred action in individual cases. We
explained, however, that extending deferred action to individuals who satisfied these and
other specified criteria on a class-wide basis would raise distinct questions not implicated
by ad hoc grants of deferred action. We advised that it was critical that, like past policies
that made deferred action available to certain classes of aliens, the DACA program
require immigration officials to evaluate each application for deferred action on a case-
by-case basis, rather than granting deferred action automatically to all applicants who
satisfied the threshold eligibility criteria. We also noted that, although the proposed
program was predicated on humanitarian concerns that appeared less particularized and
acute than those underlying certain prior class-wide deferred action programs, the con-
cerns animating DACA were nonetheless consistent with the types of concerns that have
customarily guided the exercise of immigration enforcement discretion.
9 Congress has considered legislation that would limit the practice of granting deferred
action, but it has never enacted such a measure. In 2011, a bill was introduced in both the
House and the Senate that would have temporarily suspended DHS’s authority to grant
deferred action except in narrow circumstances. See H.R. 2497, 112th Cong. (2011);
S. 1380, 112th Cong. (2011). Neither chamber, however, voted on the bill. This year, the
House passed a bill that purported to bar any funding for DACA or other class-wide
deferred action programs, H.R. 5272, 113th Cong. (2014), but the Senate has not consid-
ered the legislation. Because the Supreme Court has instructed that unenacted legislation
is an unreliable indicator of legislative intent, see Red Lion Broad. Co. v. FCC, 395 U.S.
367, 381 n.11 (1969), we do not draw any inference regarding congressional policy from
these unenacted bills.
61
38 Op. O.L.C. 39 (2014)
legislation in 2000, INS officials testified before Congress about their
deferred action program for VAWA self-petitioners, explaining that
“[a]pproved [VAWA] self-petitioners are placed in deferred action sta-
tus,” such that “[n]o battered alien who has filed a[n approved] self
petition . . . has been deported.” H.R. 3083 Hearings at 43. Congress
responded by not only acknowledging but also expanding the deferred
action program in the 2000 VAWA reauthorization legislation, providing
that children who could no longer self-petition under VAWA because
they were over the age of 21 would nonetheless be “eligible for deferred
action and work authorization.” VTVPA § 1503(d)(2), 114 Stat. at 1522
(codified at 8 U.S.C. § 1154(a)(1)(D)(i)(II), (IV)). 10
Congress demonstrated a similar awareness of INS’s (and later DHS’s)
deferred action program for bona fide T and U visa applicants. As dis-
cussed above, that program made deferred action available to nearly all
individuals who could make a prima facie showing of eligibility for a T or
U visa. In 2008 legislation, Congress authorized DHS to “grant . . . an
administrative stay of a final order of removal” to any such individual.
William Wilberforce Trafficking Victims Protection Reauthorization Act
of 2008, Pub. L. No. 110-457, § 204, 122 Stat. 5044, 5060 (codified at
8 U.S.C. § 1227(d )(1)). Congress further clarified that “[t]he denial of a
request for an administrative stay of removal under this subsection shall
not preclude the alien from applying for . . . deferred action.” Id. It also
directed DHS to compile a report detailing, among other things, how long
DHS’s “specially trained [VAWA] Unit at the [USCIS] Vermont Service
Center” took to adjudicate victim-based immigration applications for
“deferred action,” along with “steps taken to improve in this area.” Id.§ 238. Representative Berman, the bill’s sponsor, explained that the
Vermont Service Center should “strive to issue work authorization and
deferred action” to “[i]mmigrant victims of domestic violence, sexual
10 Five years later, in the Violence Against Women and Department of Justice Reau-
thorization Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960, Congress specified that,
“[u]pon the approval of a petition as a VAWA self-petitioner, the alien . . . is eligible for
work authorization.” Id. § 814(b) (codified at 8 U.S.C. § 1154(a)(1)(K)). One of the
Act’s sponsors explained that while this provision was intended to “give[] DHS statutory
authority to grant work authorization . . . without having to rely upon deferred action . . .
[t]he current practice of granting deferred action to approved VAWA self-petitioners
should continue.” 151 Cong. Rec. 29,334 (2005) (statement of Rep. Conyers).
62
Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens
assault and other violence crimes . . . in most instances within 60 days of
filing.” 154 Cong. Rec. 24,603 (2008).
In addition, in other enactments, Congress has specified that certain
classes of individuals should be made “eligible for deferred action.” These
classes include certain immediate family members of LPRs who were
killed on September 11, 2001, USA PATRIOT Act of 2001, Pub. L. No.
107-56, § 423(b), 115 Stat. 272, 361, and certain immediate family mem-
bers of certain U.S. citizens killed in combat, National Defense Authori-
zation Act for Fiscal Year 2004, Pub. L. No. 108-136, § 1703(c)–(d), 117
Stat. 1392, 1694 (2003). In the same legislation, Congress made these
individuals eligible to obtain lawful status as “family-sponsored immi-
grant[s]” or “immediate relative[s]” of U.S. citizens. Pub. L. No. 107-56,
§ 423(b), 115 Stat. at 361; Pub. L. No. 108-136, § 1703(c)(1)(A), 117
Stat. at 1694. See generally Scialabba v. Cuellar de Osorio, 134 S. Ct.
2191, 2197 (2014) (plurality opinion) (explaining which aliens typically
qualify as family-sponsored immigrants or immediate relatives).
Finally, Congress acknowledged the practice of granting deferred ac-
tion in the REAL ID Act of 2005, Pub. L. No. 109-13, div. B, 119 Stat.
231, 302 (codified at 49 U.S.C. § 30301 note), which makes a state-issued
driver’s license or identification card acceptable for federal purposes only
if the state verifies, among other things, that the card’s recipient has
“[e]vidence of [l]awful [s]tatus.” Congress specified that, for this purpose,
acceptable evidence of lawful status includes proof of, among other
things, citizenship, lawful permanent or temporary residence, or “ap-
proved deferred action status.” Id. § 202(c)(2)(B)(viii).
B.
The practice of granting deferred action, like the practice of setting en-
forcement priorities, is an exercise of enforcement discretion rooted in
DHS’s authority to enforce the immigration laws and the President’s duty
to take care that the laws are faithfully executed. It is one of several
mechanisms by which immigration officials, against a backdrop of limited
enforcement resources, exercise their “broad discretion” to administer the
removal system—and, more specifically, their discretion to determine
whether “it makes sense to pursue removal” in particular circumstances.
Arizona, 132 S. Ct. at 2499.
63
38 Op. O.L.C. 39 (2014)
Deferred action, however, differs in at least three respects from more
familiar and widespread exercises of enforcement discretion. First, unlike
(for example) the paradigmatic exercise of prosecutorial discretion in a
criminal case, the conferral of deferred action does not represent a deci-
sion not to prosecute an individual for past unlawful conduct; it instead
represents a decision to openly tolerate an undocumented alien’s contin-
ued presence in the United States for a fixed period (subject to revocation
at the agency’s discretion). Second, unlike most exercises of enforcement
discretion, deferred action carries with it benefits in addition to non-
enforcement itself; specifically, the ability to seek employment authori-
zation and suspension of unlawful presence for purposes of 8 U.S.C.
§ 1182(a)(9)(B)(i) and (a)(9)(C)(i)(I). Third, class-based deferred action
programs, like those for VAWA recipients and victims of Hurricane
Katrina, do not merely enable individual immigration officials to select
deserving beneficiaries from among those aliens who have been identi-
fied or apprehended for possible removal—as is the case with ad hoc
deferred action—but rather set forth certain threshold eligibility criteria
and then invite individuals who satisfy these criteria to apply for deferred
action status.
While these features of deferred action are somewhat unusual among
exercises of enforcement discretion, the differences between deferred
action and other exercises of enforcement discretion are less significant
than they might initially appear. The first feature—the toleration of an
alien’s continued unlawful presence—is an inevitable element of almost
any exercise of discretion in immigration enforcement. Any decision not
to remove an unlawfully present alien—even through an exercise of
routine enforcement discretion—necessarily carries with it a tacit ac-
knowledgment that the alien will continue to be present in the United
States without legal status. Deferred action arguably goes beyond such
tacit acknowledgment by expressly communicating to the alien that his or
her unlawful presence will be tolerated for a prescribed period of time.
This difference is not, in our view, insignificant. But neither does it fun-
damentally transform deferred action into something other than an exer-
cise of enforcement discretion: As we have previously noted, deferred
action confers no lawful immigration status, provides no path to lawful
permanent residence or citizenship, and is revocable at any time in the
agency’s discretion.
64
Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens
With respect to the second feature, the additional benefits deferred ac-
tion confers—the ability to apply for work authorization and the tolling
of unlawful presence—do not depend on background principles of agen-
cy discretion under DHS’s general immigration authorities or the Take
Care Clause at all, but rather depend on independent and more specific
statutory authority rooted in the text of the INA. The first of those au-
thorities, DHS’s power to prescribe which aliens are authorized to work
in the United States, is grounded in 8 U.S.C. § 1324a(h)(3), which de-
fines an “unauthorized alien” not entitled to work in the United States as
an alien who is neither an LPR nor “authorized to be . . . employed by
[the INA] or by the Attorney General [now the Secretary of Homeland
Security].” This statutory provision has long been understood to recog-
nize the authority of the Secretary (and the Attorney General before him)
to grant work authorization to particular classes of aliens. See 8 C.F.R.
§ 274a.12; see also Perales v. Casillas, 903 F.2d 1043, 1048–50 (5th Cir.
1990) (describing the authority recognized by section 1324a(h)(3) as
“permissive” and largely “unfettered”). 11 Although the INA requires the
11 Section 1324a(h)(3) was enacted in 1986 as part of IRCA. Before then, the INA con-
tained no provisions comprehensively addressing the employment of aliens or expressly
delegating the authority to regulate the employment of aliens to a responsible federal
agency. INS assumed the authority to prescribe the classes of aliens authorized to work in
the United States under its general responsibility to administer the immigration laws. In
1981, INS promulgated regulations codifying its existing procedures and criteria for
granting employment authorization. See Employment Authorization to Aliens in the
United States, 46 Fed. Reg. 25,079, 25,080–81 (May 5, 1981) (citing 8 U.S.C. § 1103(a)).
Those regulations permitted certain categories of aliens who lacked lawful immigration
status, including deferred action recipients, to apply for work authorization under certain
circumstances. 8 C.F.R. § 109.1(b)(7) (1982). In IRCA, Congress introduced a “compre-
hensive scheme prohibiting the employment of illegal aliens in the United States,”
Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002), to be enforced
primarily through criminal and civil penalties on employers who knowingly employ an
“unauthorized alien.” As relevant here, Congress defined an “unauthorized alien” barred
from employment in the United States as an alien who “is not . . . either (A) an alien
lawfully admitted for permanent residence, or (B) authorized to be so employed by this
chapter or by the Attorney General.” 8 U.S.C. § 1324a(h)(3) (emphasis added). Shortly
after IRCA was enacted, INS denied a petition to rescind its employment authorization
regulation, rejecting an argument that “the phrase ‘authorized to be so employed by this
Act or the Attorney General’ does not recognize the Attorney General’s authority to grant
work authorization except to those aliens who have already been granted specific authori-
zation by the Act.” Employment Authorization; Classes of Aliens Eligible, 52 Fed. Reg.
6538 Op. O.L.C. 39 (2014)
Secretary to grant work authorization to particular classes of aliens, see,
e.g., 8 U.S.C. § 1158(c)(1)(B) (aliens granted asylum), it places few lim-
itations on the Secretary’s authority to grant work authorization to other
classes of aliens. Further, and notably, additional provisions of the INA
expressly contemplate that the Secretary may grant work authorization to
aliens lacking lawful immigration status—even those who are in active
removal proceedings or, in certain circumstances, those who have already
received final orders of removal. See id. § 1226(a)(3) (permitting the
Secretary to grant work authorization to an otherwise work-eligible alien
who has been arrested and detained pending a decision whether to re-
move the alien from the United States); id. § 1231(a)(7) (permitting the
Secretary under certain narrow circumstances to grant work authorization
to aliens who have received final orders of removal). Consistent with
these provisions, the Secretary has long permitted certain additional
classes of aliens who lack lawful immigration status to apply for work
authorization, including deferred action recipients who can demonstrate
an economic necessity for employment. See 8 C.F.R. § 274a.12(c)(14);
see also id. § 274a.12(c)(8) (applicants for asylum), (c)(10) (applicants
for cancellation of removal); supra note 11 (discussing 1981 regulations).
The Secretary’s authority to suspend the accrual of unlawful presence
of deferred action recipients is similarly grounded in the INA. The rele-
vant statutory provision treats an alien as “unlawfully present” for pur-
poses of 8 U.S.C. § 1182(a)(9)(B)(i) and (a)(9)(C)(i)(I) if he “is present in
the United States after the expiration of the period of stay authorized by
the Attorney General.” 8 U.S.C. § 1182(a)(9)(B)(ii). That language con-
templates that the Attorney General (and now the Secretary) may author-
ize an alien to stay in the United States without accruing unlawful pres-
46,092, 46,093 (Dec. 4, 1987). Because the same statutory phrase refers both to aliens
authorized to be employed by the INA and aliens authorized to be employed by the
Attorney General, INS concluded that the only way to give effect to both references is to
conclude “that Congress, being fully aware of the Attorney General’s authority to prom-
ulgate regulations, and approving of the manner in which he has exercised that authority
in this matter, defined ‘unauthorized alien’ in such fashion as to exclude aliens who have
been authorized employment by the Attorney General through the regulatory process, in
addition to those who are authorized employment by statute.” Id.; see Commodity Futures
Trading Comm’n v. Schor, 478 U.S. 833, 844 (1986) (stating that “considerable weight
must be accorded” an agency’s “contemporaneous interpretation of the statute it is en-
trusted to administer”).
66
Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens
ence under section 1182(a)(9)(B)(i) or (a)(9)(C)(i). And DHS regulations
and policy guidance interpret a “period of stay authorized by the Attorney
General” to include periods during which an alien has been granted de-
ferred action. See 8 C.F.R. § 214.14(d)(3); 28 C.F.R. § 1100.35(b)(2);
USCIS Consolidation of Guidance at 42.
The final unusual feature of deferred action programs is particular to
class-based programs. The breadth of such programs, in combination with
the first two features of deferred action, may raise particular concerns
about whether immigration officials have undertaken to substantively
change the statutory removal system rather than simply adapting its appli-
cation to individual circumstances. But the salient feature of class-based
programs—the establishment of an affirmative application process with
threshold eligibility criteria—does not in and of itself cross the line be-
tween executing the law and rewriting it. Although every class-wide
deferred action program that has been implemented to date has established
certain threshold eligibility criteria, each program has also left room for
case-by-case determinations, giving immigration officials discretion to
deny applications even if the applicant fulfills all of the program criteria.
See supra pp. 57–61. Like the establishment of enforcement priorities
discussed in Part I, the establishment of threshold eligibility criteria can
serve to avoid arbitrary enforcement decisions by individual officers,
thereby furthering the goal of ensuring consistency across a large agency.
The guarantee of individualized, case-by-case review helps avoid poten-
tial concerns that, in establishing such eligibility criteria, the Executive is
attempting to rewrite the law by defining new categories of aliens who are
automatically entitled to particular immigration relief. See Crowley Car-
ibbean Transp., 37 F.3d at 676–77; see also Chaney, 470 U.S. at 833 n.4.
Furthermore, while permitting potentially eligible individuals to apply for
an exercise of enforcement discretion is not especially common, many law
enforcement agencies have developed programs that invite violators of the
law to identify themselves to the authorities in exchange for leniency. 12
12 For example, since 1978, the Department of Justice’s Antitrust Division has imple-
mented a “leniency program” under which a corporation that reveals an antitrust conspira-
cy in which it participated may receive a conditional promise that it will not be prosecut-
ed. See Dep’t of Justice, Frequently Asked Questions Regarding the Antitrust Division’s
Leniency Program and Model Leniency Letters (Nov. 19, 2008), http://www.justice.gov/
atr/public/criminal/239583.pdf (last visited Nov. 19, 2014); see also Internal Revenue
67
38 Op. O.L.C. 39 (2014)
Much as is the case with those programs, inviting eligible aliens to identi-
fy themselves through an application process may serve the agency’s law
enforcement interests by encouraging lower-priority individuals to identi-
fy themselves to the agency. In so doing, the process may enable the
agency to better focus its scarce resources on higher enforcement priori-
ties.
Apart from the considerations just discussed, perhaps the clearest indi-
cation that these features of deferred action programs are not per se im-
permissible is the fact that Congress, aware of these features, has repeat-
edly enacted legislation appearing to endorse such programs. As discussed
above, Congress has not only directed that certain classes of aliens be
made eligible for deferred action programs—and in at least one instance,
in the case of VAWA beneficiaries, directed the expansion of an existing
program—but also ranked evidence of approved deferred action status as
evidence of “lawful status” for purposes of the REAL ID Act. These
enactments strongly suggest that when DHS in the past has decided to
grant deferred action to an individual or class of individuals, it has been
acting in a manner consistent with congressional policy “‘rather than
embarking on a frolic of its own.’” United States v. Riverside Bayview
Homes, Inc., 474 U.S. 121, 139 (1985) (quoting Red Lion Broad. Co. v.
FCC, 395 U.S. 367, 375 (1969)); cf. id. at 137–39 (concluding that Con-
gress acquiesced in an agency’s assertion of regulatory authority by
“refus[ing] . . . to overrule” the agency’s view after it was specifically
“brought to Congress’[s] attention,” and further finding implicit congres-
sional approval in legislation that appeared to acknowledge the regulatory
authority in question); Dames & Moore v. Regan, 453 U.S. 654, 680
(1981) (finding that Congress “implicitly approved the practice of claim
settlement by executive agreement” by enacting the International Claims
Settlement Act of 1949, which “create[d] a procedure to implement” those
very agreements).
Manual § 9.5.11.9(2) (Revised IRS Voluntary Disclosure Practice), http://www.irs.gov/
uac/Revised-IRS-Voluntary-Disclosure-Practice (last visited Nov. 19, 2014) (explain-
ing that a taxpayer’s voluntary disclosure of misreported tax information “may result in
prosecution not being recommended”); U.S. Marshals Service, Fugitive Safe Surrender
FAQs, http://www.usmarshals.gov/safesurrender/faqs.html (last visited Nov. 19, 2014)
(stating that fugitives who surrender at designated sites and times under the “Fugitive
Safe Surrender” program are likely to receive “favorable consideration”).
68
Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens
Congress’s apparent endorsement of certain deferred action programs
does not mean, of course, that a deferred action program can be lawfully
extended to any group of aliens, no matter its characteristics or its scope,
and no matter the circumstances in which the program is implemented.
Because deferred action, like the prioritization policy discussed above, is
an exercise of enforcement discretion rooted in the Secretary’s broad
authority to enforce the immigration laws and the President’s duty to take
care that the laws are faithfully executed, it is subject to the same four
general principles previously discussed. See supra pp. 46–47. Thus, any
expansion of deferred action to new classes of aliens must be carefully
scrutinized to ensure that it reflects considerations within the agency’s
expertise, and that it does not seek to effectively rewrite the laws to match
the Executive’s policy preferences, but rather operates in a manner conso-
nant with congressional policy expressed in the statute. See supra p. 46
(citing Youngstown, 343 U.S. at 637, and Nat’l Ass’n of Home Builders,
551 U.S. at 658). Immigration officials cannot abdicate their statutory
responsibilities under the guise of exercising enforcement discretion. See
supra pp. 46–47 (citing Chaney, 470 U.S. at 833 n.4). And any new
deferred action program should leave room for individualized evaluation
of whether a particular case warrants the expenditure of resources for
enforcement. See supra p. 47 (citing Glickman, 96 F.3d at 1123, and
Crowley Caribbean Transp., 37 F.3d at 676–77).
Furthermore, because deferred action programs depart in certain re-
spects from more familiar and widespread exercises of enforcement
discretion, particularly careful examination is needed to ensure that any
proposed expansion of deferred action complies with these general princi-
ples, so that the proposed program does not, in effect, cross the line be-
tween executing the law and rewriting it. In analyzing whether the pro-
posed programs cross this line, we will draw substantial guidance from
Congress’s history of legislation concerning deferred action. In the ab-
sence of express statutory guidance, the nature of deferred action pro-
grams Congress has implicitly approved by statute helps to shed light on
Congress’s own understandings about the permissible uses of deferred
action. Those understandings, in turn, help to inform our consideration of
whether the proposed deferred action programs are “faithful[]” to the
statutory scheme Congress has enacted. U.S. Const. art. II, § 3.
69
38 Op. O.L.C. 39 (2014)
C.
We now turn to the specifics of DHS’s proposed deferred action pro-
grams. DHS has proposed implementing a policy under which an alien
could apply for, and would be eligible to receive, deferred action if he or
she: (1) is not an enforcement priority under DHS policy; (2) has continu-
ously resided in the United States since before January 1, 2010; (3) is
physically present in the United States both when DHS announces its
program and at the time of application for deferred action; (4) has a child
who is a U.S. citizen or LPR; and (5) presents “no other factors that, in
the exercise of discretion, make[] the grant of deferred action inappropri-
ate.” Johnson Deferred Action Memorandum at 4. You have also asked
about the permissibility of a similar program that would be open to par-
ents of children who have received deferred action under the DACA
program. We first address DHS’s proposal to implement a deferred action
program for the parents of U.S. citizens and LPRs, and then turn to the
permissibility of the program for parents of DACA recipients in the next
subsection.
1.
We begin by considering whether the proposed program for the parents
of U.S. citizens and LPRs reflects considerations within the agency’s
expertise. DHS has offered two justifications for the proposed program
for the parents of U.S. citizens and LPRs. First, as noted above, severe
resource constraints make it inevitable that DHS will not remove the vast
majority of aliens who are unlawfully present in the United States. Con-
sistent with Congress’s instruction, DHS prioritizes the removal of indi-
viduals who have significant criminal records, as well as others who
present dangers to national security, public safety, or border security. See
supra pp. 50–51. Parents with longstanding ties to the country and who
have no significant criminal records or other risk factors rank among the
agency’s lowest enforcement priorities; absent significant increases in
funding, the likelihood that any individual in that category will be deter-
mined to warrant the expenditure of severely limited enforcement re-
sources is very low. Second, DHS has explained that the program would
serve an important humanitarian interest in keeping parents together with
children who are lawfully present in the United States, in situations where
70
Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens
such parents have demonstrated significant ties to community and family
in this country. See Shahoulian E-mail.
With respect to DHS’s first justification, the need to efficiently allocate
scarce enforcement resources is a quintessential basis for an agency’s
exercise of enforcement discretion. See Chaney, 470 U.S. at 831. Because,
as discussed earlier, Congress has appropriated only a small fraction of
the funds needed for full enforcement, DHS can remove no more than a
small fraction of the individuals who are removable under the immigra-
tion laws. See supra p. 49. The agency must therefore make choices about
which violations of the immigration laws it will prioritize and pursue.
And as Chaney makes clear, such choices are entrusted largely to the
Executive’s discretion. 470 U.S. at 831.
The deferred action program DHS proposes would not, of course, be
costless. Processing applications for deferred action and its renewal re-
quires manpower and resources. See Arizona, 132 S. Ct. at 2521 (Scalia, J.,
concurring in part and dissenting in part). But DHS has informed us that
the costs of administering the proposed program would be borne almost
entirely by USCIS through the collection of application fees. See Sha-
houlian E-mail; see also 8 U.S.C. § 1356(m); 8 C.F.R. § 103.7(b)(1)(i)(C),
(b)(1)(i)(HH). DHS has indicated that the costs of administering the
deferred action program would therefore not detract in any significant
way from the resources available to ICE and CBP—the enforcement arms
of DHS—which rely on money appropriated by Congress to fund their
operations. See Shahoulian E-mail. DHS has explained that, if anything,
the proposed deferred action program might increase ICE’s and CBP’s
efficiency by in effect using USCIS’s fee-funded resources to enable
those enforcement divisions to more easily identify non-priority aliens
and focus their resources on pursuing aliens who are strong candidates for
removal. See id. The proposed program, in short, might help DHS address
its severe resource limitations, and at the very least likely would not
exacerbate them. See id.DHS does not, however, attempt to justify the proposed program solely
as a cost-saving measure, or suggest that its lack of resources alone is
sufficient to justify creating a deferred action program for the proposed
class. Rather, as noted above, DHS has explained that the program would
also serve a particularized humanitarian interest in promoting family unity
by enabling those parents of U.S. citizens and LPRs who are not other-
71
38 Op. O.L.C. 39 (2014)
wise enforcement priorities and who have demonstrated community and
family ties in the United States (as evidenced by the length of time they
have remained in the country) to remain united with their children in the
United States. Like determining how best to respond to resource con-
straints, determining how to address such “human concerns” in the immi-
gration context is a consideration that is generally understood to fall
within DHS’s expertise. Arizona, 132 S. Ct. at 2499.
This second justification for the program also appears consonant with
congressional policy embodied in the INA. Numerous provisions of the
statute reflect a particular concern with uniting aliens with close relatives
who have attained lawful immigration status in the United States. See,
e.g., Fiallo v. Bell, 430 U.S. 787, 795 n.6 (1977); INS v. Errico, 385 U.S.
214, 220 n.9 (1966) (“‘The legislative history of the Immigration and
Nationality Act clearly indicates that the Congress . . . was concerned
with the problem of keeping families of United States citizens and immi-
grants united.’” (quoting H.R. Rep. No. 85-1199, at 7 (1957)). The INA
provides a path to lawful status for the parents, as well as other immediate
relatives, of U.S. citizens: U.S. citizens aged twenty-one or over may
petition for parents to obtain visas that would permit them to enter and
permanently reside in the United States, and there is no limit on the
overall number of such petitions that may be granted. See 8 U.S.C.
§ 1151(b)(2)(A)(i); see also Cuellar de Osorio, 134 S. Ct. at 2197–99
(describing the process for obtaining a family-based immigrant visa). And
although the INA contains no parallel provision permitting LPRs to peti-
tion on behalf of their parents, it does provide a path for LPRs to become
citizens, at which point they too can petition to obtain visas for their
parents. See, e.g., 8 U.S.C. § 1427(a) (providing that aliens are generally
eligible to become naturalized citizens after five years of lawful perma-
nent residence); id. § 1430(a) (alien spouses of U.S. citizens become
eligible after three years of lawful permanent residence); Demore v. Kim,
538 U.S. 510, 544 (2003). 13 Additionally, the INA empowers the Attorney
13 The INA does permit LPRs to petition on behalf of their spouses and children even
before they have attained citizenship. See 8 U.S.C. § 1153(a)(2). However, the exclusion
of LPRs’ parents from this provision does not appear to reflect a congressional judgment
that, until they attain citizenship, LPRs lack an interest in being united with their parents
comparable to their interest in being united with their other immediate relatives. The
distinction between parents and other relatives originated with a 1924 statute that exempt-
72
Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens
General to cancel the removal of, and adjust to LPR status, aliens who
have been physically present in the United States for a continuous period
of not less than ten years, exhibit good moral character, have not been
convicted of specified offenses, and have immediate relatives who are
U.S. citizens or LPRs and who would suffer exceptional hardship from the
alien’s removal. 8 U.S.C. § 1229b(b)(1). DHS’s proposal to focus on the
parents of U.S. citizens and LPRs thus tracks a congressional concern,
expressed in the INA, with uniting the immediate families of individuals
who have permanent legal ties to the United States.
At the same time, because the temporary relief DHS’s proposed pro-
gram would confer to such parents is sharply limited in comparison to the
benefits Congress has made available through statute, DHS’s proposed
program would not operate to circumvent the limits Congress has placed
on the availability of those benefits. The statutory provisions discussed
above offer the parents of U.S. citizens and LPRs the prospect of perma-
nent lawful status in the United States. The cancellation of removal
provision, moreover, offers the prospect of receiving such status immedi-
ately, without the delays generally associated with the family-based
immigrant visa process. DHS’s proposed program, in contrast, would not
grant the parents of U.S. citizens and LPRs any lawful immigration
status, provide a path to permanent residence or citizenship, or otherwise
confer any legally enforceable entitlement to remain in the United States.
ed the wives and minor children of U.S. citizens from immigration quotas, gave “prefer-
ence status”—eligibility for a specially designated pool of immigrant visas—to other
relatives of U.S. citizens, and gave no favorable treatment to the relatives of LPRs.
Immigration Act of 1924, Pub. L. No. 68-139, §§ 4(a), 6, 43 Stat. 153, 155–56. In 1928,
Congress extended preference status to LPRs’ wives and minor children, reasoning that
because such relatives would be eligible for visas without regard to any quota when their
LPR relatives became citizens, granting preference status to LPRs’ wives and minor
children would “hasten[]” the “family reunion.” S. Rep. No. 70-245, at 2 (1928); see Pub.
Res. No. 70-61, 45 Stat. 1009, 1009–10 (1928). The special visa status for wives and
children of LPRs thus mirrored, and was designed to complement, the special visa status
given to wives and minor children of U.S. citizens. In 1965, Congress eliminated the basis
on which the distinction had rested by exempting all “immediate relatives” of U.S.
citizens, including parents, from numerical restrictions on immigration. Pub. L. No. 89-
236, § 1, 79 Stat. 911, 911. But it did not amend eligibility for preference status for
relatives of LPRs to reflect that change. We have not been able to discern any rationale
for this omission in the legislative history or statutory text of the 1965 law.
73
38 Op. O.L.C. 39 (2014)
See USCIS SOP at 3. It is true that, as we have discussed, a grant of
deferred action would confer eligibility to apply for and obtain work
authorization, pursuant to the Secretary’s statutory authority to grant
such authorization and the longstanding regulations promulgated there-
under. See supra pp. 55, 65–66. But unlike the automatic employment
eligibility that accompanies LPR status, see 8 U.S.C. § 1324a(h)(3), this
authorization could be granted only on a showing of economic necessity,
and would last only for the limited duration of the deferred action grant,
see 8 C.F.R. § 274a.12(c)(14).
The other salient features of the proposal are similarly consonant with
congressional policy. The proposed program would focus on parents who
are not enforcement priorities under the prioritization policy discussed
above—a policy that, as explained earlier, comports with the removal
priorities set by Congress. See supra pp. 50–51. The continuous residence
requirement is likewise consistent with legislative judgments that extend-
ed periods of continuous residence are indicative of strong family and
community ties. See IRCA § 201(a), 100 Stat. at 3394 (codified as
amended at 8 U.S.C. § 1255a(a)(2)) (granting lawful status to certain
aliens unlawfully present in the United States since January 1, 1982); id.
§ 302(a) (codified as amended at 8 U.S.C. § 1160) (granting similar relief
to certain agricultural workers); H.R. Rep. No. 99-682, pt. 1, at 49 (1986)
(stating that aliens present in the United States for five years “have be-
come a part of their communities[,] . . . have strong family ties here which
include U.S. citizens and lawful residents[,] . . . have built social networks
in this country[, and] . . . have contributed to the United States in myriad
ways”); S. Rep. No. 99-132, at 16 (1985) (deporting aliens who “have
become well settled in this country” would be a “wasteful use of the
Immigration and Naturalization Service’s limited enforcement re-
sources”); see also Arizona, 132 S. Ct. at 2499 (noting that “[t]he equities
of an individual case” turn on factors “including whether the alien has . . .
long ties to the community”).
We also do not believe DHS’s proposed program amounts to an abdica-
tion of its statutory responsibilities, or a legislative rule overriding the
commands of the statute. As discussed earlier, DHS’s severe resource
constraints mean that, unless circumstances change, it could not as a
practical matter remove the vast majority of removable aliens present in
the United States. The fact that the proposed program would defer the
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Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens
removal of a subset of these removable aliens—a subset that ranks near
the bottom of the list of the agency’s removal priorities—thus does not,
by itself, demonstrate that the program amounts to an abdication of DHS’s
responsibilities. And the case-by-case discretion given to immigration
officials under DHS’s proposed program alleviates potential concerns that
DHS has abdicated its statutory enforcement responsibilities with respect
to, or created a categorical, rule-like entitlement to immigration relief for,
the particular class of aliens eligible for the program. An alien who meets
all the criteria for deferred action under the program would receive de-
ferred action only if he or she “present[ed] no other factors that, in the
exercise of discretion,” would “make[] the grant of deferred action inap-
propriate.” Johnson Deferred Action Memorandum at 4. The proposed
policy does not specify what would count as such a factor; it thus leaves
the relevant USCIS official with substantial discretion to determine
whether a grant of deferred action is warranted. In other words, even if an
alien is not a removal priority under the proposed policy discussed in
Part I, has continuously resided in the United States since before Janu-
ary 1, 2010, is physically present in the country, and is a parent of an LPR
or a U.S. citizen, the USCIS official evaluating the alien’s deferred action
application must still make a judgment, in the exercise of her discretion,
about whether that alien presents any other factor that would make a grant
of deferred action inappropriate. This feature of the proposed program
ensures that it does not create a categorical entitlement to deferred action
that could raise concerns that DHS is either impermissibly attempting to
rewrite or categorically declining to enforce the law with respect to a
particular group of undocumented aliens.
Finally, the proposed deferred action program would resemble in mate-
rial respects the kinds of deferred action programs Congress has implicitly
approved in the past, which provides some indication that the proposal is
consonant not only with interests reflected in immigration law as a gen-
eral matter, but also with congressional understandings about the permis-
sible uses of deferred action. As noted above, the program uses deferred
action as an interim measure for a group of aliens to whom Congress has
given a prospective entitlement to lawful immigration status. While Con-
gress has provided a path to lawful status for the parents of U.S. citizens
and LPRs, the process of obtaining that status “takes time.” Cuellar de
Osorio, 134 S. Ct. at 2199. The proposed program would provide a mech-
75
38 Op. O.L.C. 39 (2014)
anism for families to remain together, depending on their circumstances,
for some or all of the intervening period. 14 Immigration officials have on
several occasions deployed deferred action programs as interim measures
for other classes of aliens with prospective entitlements to lawful immi-
gration status, including VAWA self-petitioners, bona fide T and U visa
applicants, certain immediate family members of certain U.S. citizens
killed in combat, and certain immediate family members of aliens killed
on September 11, 2001. As noted above, each of these programs has
received Congress’s implicit approval—and, indeed, in the case of
VAWA self-petitioners, a direction to expand the program beyond its
original bounds. See supra pp. 61–63. 15 In addition, much like these and
14 DHS’s proposed program would likely not permit all potentially eligible parents to
remain together with their children for the entire duration of the time until a visa is
awarded. In particular, undocumented parents of adult citizens who are physically present
in the country would be ineligible to adjust their status without first leaving the country if
they had never been “inspected and admitted or paroled into the United States.” 8 U.S.C.
§ 1255(a) (permitting the Attorney General to adjust to permanent resident status certain
aliens present in the United States if they become eligible for immigrant visas). They
would thus need to leave the country to obtain a visa at a U.S. consulate abroad. See id.§ 1201(a); Cuellar de Osorio, 134 S. Ct. at 2197–99. But once such parents left the
country, they would in most instances become subject to the 3- or 10-year bar under
8 U.S.C. § 1182(a)(9)(B)(i) and therefore unable to obtain a visa unless they remained
outside the country for the duration of the bar. DHS’s proposed program would neverthe-
less enable other families to stay together without regard to the 3- or 10-year bar. And
even as to those families with parents who would become subject to that bar, the proposed
deferred action program would have the effect of reducing the amount of time the family
had to spend apart, and could enable them to adjust the timing of their separation accord-
ing to, for example, their children’s needs for care and support.
15 Several extended voluntary departure programs have been animated by a similar
rationale, and the most prominent of these programs also received Congress’s implicit
approval. In particular, as noted above, the Family Fairness policy, implemented in 1990,
authorized granting extended voluntary departure and work authorization to the estimated
1.5 million spouses and children of aliens granted legal status under IRCA—aliens who
would eventually “acquire lawful permanent resident status” and be able to petition on
behalf of their family members. Family Fairness Memorandum at 1; see supra p. 57. Later
that year, Congress granted the beneficiaries of the Family Fairness program an indefinite
stay of deportation. See Immigration Act of 1990, Pub. L. No. 101-649, § 301, 104 Stat.
4978, 5030. Although it did not make that grant of relief effective for nearly a year,
Congress clarified that “the delay in effectiveness of this section shall not be construed as
reflecting a Congressional belief that the existing family fairness program should be
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Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens
other programs Congress has implicitly endorsed, the program serves
substantial and particularized humanitarian interests. Removing the par-
ents of U.S. citizens and LPRs—that is, of children who have established
permanent legal ties to the United States—would separate them from their
nuclear families, potentially for many years, until they were able to secure
visas through the path Congress has provided. During that time, both the
parents and their U.S. citizen or LPR children would be deprived of both
the economic support and the intangible benefits that families provide.
We recognize that the proposed program would likely differ in size
from these prior deferred action programs. Although DHS has indicated
that there is no reliable way to know how many eligible aliens would
actually apply for or would be likely to receive deferred action following
individualized consideration under the proposed program, it has informed
us that approximately 4 million individuals could be eligible to apply. See
Shahoulian E-mail. We have thus considered whether the size of the
program alone sets it at odds with congressional policy or the Executive’s
duties under the Take Care Clause. In the absence of express statutory
guidance, it is difficult to say exactly how the program’s potential size
bears on its permissibility as an exercise of executive enforcement discre-
tion. But because the size of DHS’s proposed program corresponds to the
size of a population to which Congress has granted a prospective entitle-
ment to lawful status without numerical restriction, it seems to us difficult
to sustain an argument, based on numbers alone, that DHS’s proposal to
grant a limited form of administrative relief as a temporary interim meas-
ure exceeds its enforcement discretion under the INA. Furthermore, while
the potential size of the program is large, it is nevertheless only a fraction
of the approximately 11 million undocumented aliens who remain in the
United States each year because DHS lacks the resources to remove them;
and, as we have indicated, the program is limited to individuals who
would be unlikely to be removed under DHS’s proposed prioritization
policy. There is thus little practical danger that the program, simply by
virtue of its size, will impede removals that would otherwise occur in its
absence. And although we are aware of no prior exercises of deferred
modified in any way before such date.” Id. § 301(g). INS’s policies for qualifying Third
Preference visa applicants and nurses eligible for H-1 nonimmigrant status likewise
extended to aliens with prospective entitlements to lawful status. See supra p. 56.
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38 Op. O.L.C. 39 (2014)
action of the size contemplated here, INS’s 1990 Family Fairness policy,
which Congress later implicitly approved, made a comparable fraction of
undocumented aliens—approximately four in ten—potentially eligible for
discretionary extended voluntary departure relief. Compare CRS Immi-
gration Report at 22 (estimating the Family Fairness policy extended to
1.5 million undocumented aliens), with Office of Policy and Planning,
INS, Estimates of the Unauthorized Immigrant Population Residing in the
United States: 1990 to 2000 at 10 (2003) (estimating an undocumented
alien population of 3.5 million in 1990); see supra notes 5, 15 (discussing
extended voluntary departure and Congress’s implicit approval of the
Family Fairness policy). This suggests that DHS’s proposed deferred
action program is not, simply by virtue of its relative size, inconsistent
with what Congress has previously considered a permissible exercise of
enforcement discretion in the immigration context.
In light of these considerations, we believe the proposed expansion of
deferred action to the parents of U.S. citizens and LPRs is lawful. It
reflects considerations—responding to resource constraints and to particu-
larized humanitarian concerns arising in the immigration context—that
fall within DHS’s expertise. It is consistent with congressional policy,
since it focuses on a group—law-abiding parents of lawfully present
children who have substantial ties to the community—that Congress itself
has granted favorable treatment in the immigration process. The program
provides for the exercise of case-by-case discretion, thereby avoiding
creating a rule-like entitlement to immigration relief or abdicating DHS’s
enforcement responsibilities for a particular class of aliens. And, like
several deferred action programs Congress has approved in the past, the
proposed program provides interim relief that would prevent particular-
ized harm that could otherwise befall both the beneficiaries of the pro-
gram and their families. We accordingly conclude that the proposed
program would constitute a permissible exercise of DHS’s enforcement
discretion under the INA.
2.
We now turn to the proposed deferred action program for the parents of
DACA recipients. The relevant considerations are, to a certain extent,
similar to those discussed above: Like the program for the parents of U.S.
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Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens
citizens and LPRs, the proposed program for parents of DACA recipients
would respond to severe resource constraints that dramatically limit
DHS’s ability to remove aliens who are unlawfully present, and would be
limited to individuals who would be unlikely to be removed under DHS’s
proposed prioritization policy. And like the proposed program for LPRs
and U.S. citizens, the proposed program for DACA parents would pre-
serve a significant measure of case-by-case discretion not to award de-
ferred action even if the general eligibility criteria are satisfied.
But the proposed program for parents of DACA recipients is unlike the
proposed program for parents of U.S. citizens and LPRs in two critical
respects. First, although DHS justifies the proposed program in large part
based on considerations of family unity, the parents of DACA recipients
are differently situated from the parents of U.S. citizens and LPRs under
the family-related provisions of the immigration law. Many provisions of
the INA reflect Congress’s general concern with not separating individu-
als who are legally entitled to live in the United States from their immedi-
ate family members. See, e.g., 8 U.S.C. § 1151(b)(2)(A)(i) (permitting
citizens to petition for parents, spouses, and children); id. § 1229b(b)(1)
(allowing cancellation of removal for relatives of citizens and LPRs). But
the immigration laws do not express comparable concern for uniting
persons who lack lawful status (or prospective lawful status) in the United
States with their families. DACA recipients unquestionably lack lawful
status in the United States. See DACA Toolkit at 8 (“Deferred action . . .
does not provide you with a lawful status.”). Although they may presump-
tively remain in the United States, at least for the duration of the grant of
deferred action, that grant is both time-limited and contingent, revocable
at any time in the agency’s discretion. Extending deferred action to the
parents of DACA recipients would therefore expand family-based immi-
gration relief in a manner that deviates in important respects from the
immigration system Congress has enacted and the policies that system
embodies.
Second, as it has been described to us, the proposed deferred action
program for the parents of DACA recipients would represent a significant
departure from deferred action programs that Congress has implicitly
approved in the past. Granting deferred action to the parents of DACA
recipients would not operate as an interim measure for individuals to
whom Congress has given a prospective entitlement to lawful status. Such
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38 Op. O.L.C. 39 (2014)
parents have no special prospect of obtaining visas, since Congress has
not enabled them to self-petition—as it has for VAWA self-petitioners
and individuals eligible for T or U visas—or enabled their undocumented
children to petition for visas on their behalf. Nor would granting deferred
action to parents of DACA recipients, at least in the absence of other
factors, serve interests that are comparable to those that have prompted
implementation of deferred action programs in the past. Family unity is,
as we have discussed, a significant humanitarian concern that underlies
many provisions of the INA. But a concern with furthering family unity
alone would not justify the proposed program, because in the absence of
any family member with lawful status in the United States, it would not
explain why that concern should be satisfied by permitting family mem-
bers to remain in the United States. The decision to grant deferred action
to DACA parents thus seems to depend critically on the earlier decision to
make deferred action available to their children. But we are aware of no
precedent for using deferred action in this way, to respond to humanitari-
an needs rooted in earlier exercises of deferred action. The logic underly-
ing such an expansion does not have a clear stopping point: It would
appear to argue in favor of extending relief not only to parents of DACA
recipients, but also to the close relatives of any alien granted deferred
action through DACA or any other program, those relatives’ close rela-
tives, and perhaps the relatives (and relatives’ relatives) of any alien
granted any form of discretionary relief from removal by the Executive.
For these reasons, the proposed deferred action program for the parents
of DACA recipients is meaningfully different from the proposed program
for the parents of U.S. citizens and LPRs. It does not sound in Congress’s
concern for maintaining the integrity of families of individuals legally
entitled to live in the United States. And unlike prior deferred action
programs in which Congress has acquiesced, it would treat the Execu-
tive’s prior decision to extend deferred action to one population as justify-
ing the extension of deferred action to additional populations. DHS, of
course, remains free to consider whether to grant deferred action to indi-
vidual parents of DACA recipients on an ad hoc basis. But in the absence
of clearer indications that the proposed class-based deferred action pro-
gram for DACA parents would be consistent with the congressional
policies and priorities embodied in the immigration laws, we conclude
that it would not be permissible.
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III.
In sum, for the reasons set forth above, we conclude that DHS’s pro-
posed prioritization policy and its proposed deferred action program for
parents of U.S. citizens and lawful permanent residents would be legally
permissible, but that the proposed deferred action program for parents of
DACA recipients would not be permissible.
KARL R. THOMPSON
Principal Deputy Assistant Attorney General
Office of Legal Counsel
81