Acción Ejecutiva sobre Inmigración

(English)

El Presidente le solicitó al Secretario Johnson y al Fiscal General Eric Holder llevar a cabo una rigurosa e inclusiva revisión para presentar recomendaciones sobre cómo reformar a través de acción ejecutiva nuestro sistema de inmigración que no funciona. Este proceso de revisión buscó el asesoramiento y las aportaciones de los hombres y mujeres encargados de la aplicación de las políticas públicas, así como de ideas de una amplia gama de grupos de interés y los miembros del Congreso de ambos partidos. Nuestra evaluación identificó las diez áreas siguientes en las que, dentro de los límites de la ley, podríamos tomar acción para aumentar la seguridad en la frontera, concentrarnos en los recursos de aplicación de ley, y asegurar la confiabilidad en nuestro sistema de inmigración.

Acciones Ejecutivas

Fortalecer la Seguridad en la Frontera

DHS implementará una Estrategia de Campaña sobre Frontera Sur y Enfoques (documento en inglés) para alterar fundamentalmente la manera en la que alineamos los recursos hacia la frontera. Este nuevo plan utilizará los recursos de DHS de una manera estratégica y coordinada para proporcionar el cumplimiento efectivo de nuestras leyes e interceptar aquellas personas que intentan entrar ilegalmente a través de tierra, mar y aire. Para lograr esto, DHS ha comisionado tres grupos de trabajo compuesto de varias agencias del orden público. El primero se centrará en la frontera marítima del sur. El segundo estará a cargo de la frontera terrestre del sur y la Costa Oeste. El tercero se encargará de investigaciones para apoyar a los otros dos grupos de trabajo. Además, DHS continuará el aumento de aquellos recursos que redujeron efectivamente la cantidad de menores sin acompañantes que cruzaron la frontera ilegalmente este verano. Esto incluye agentes de Patrulla Fronteriza adicionales, personal de ICE, investigadores criminales, monitores adicionales y trabajar junto con el Departamento de Justicia (DOJ, por sus siglas en inglés) para reordenar expedientes en los tribunales de inmigración, junto con reformas en estos tribunales.

Revisar las Prioridades de Remoción

DHS implementará a través de todo el departamento una nueva política de aplicación de la ley y remoción, que pondrá máxima prioridad en las amenazas a la seguridad nacional, criminales convictos, miembros de pandillas, e inmigrantes ilegales detenidos en la frontera. Colocará como prioridad de segundo nivel a los convictos por delitos menores significativos o múltiples delitos y los que no son aprehendidos en la frontera que entraron o volvieron a entrar a este país de manera ilegal después del 1 de enero de 2014. La tercera prioridad se enfocará en aquellos que no eran delincuentes pero que no han cumplido con una orden final de remoción emitida a partir del 1 de enero de 2014. Bajo esta política revisada, los que entraron ilegalmente antes del 1 de enero de 2014, que nunca desobedecieron una orden de remoción previa, y nunca han sido convictos de crímenes serios, no serán prioridad para deportación. Esta política también proporciona guías claras sobre el ejercicio de la discreción procesal.

Eliminar el Programa de Comunidades Seguras y Reemplazarlo con un Nuevo Programa de Prioridad de Aplicación de Ley

DHS eliminará el programa de Comunidades Seguras y lo reemplazará con el Programa de Prioridad de Aplicación de Ley (PEP, por sus siglas en inglés) que reflejará de cerca y claramente las nuevas prioridades de aplicación de ley de DHS. El programa seguirá apoyándose en los datos biométricos basados en huellas dactilares presentadas durante arrestos hechos por las agencias de orden público estatales y locales e identificará para las agencias federales del orden público los criterios específicos por los cuales una persona está bajo su custodia. La lista de delitos criminales mayores ha sido tomada de la primera y segunda prioridad de nuestras nuevas prioridades de aplicación de ley. Además, formularemos planes para involucrar a los gobiernos estatales y locales sobre las prioridades de aplicación de la ley y mejoraremos la capacidad del Servicio de Inmigración y Control de Aduanas (ICE, por sus siglas en inglés) para arrestar, detener y deportar personas que aparenten ser una amenaza a la seguridad nacional, la seguridad en la frontera o la seguridad pública.

Reforma de Personal para Oficiales de Inmigración y Control de Aduanas de Estados Unidos (ICE)

En relación con estas reformas de aplicación de la ley y deportaciones, apoyaremos una realineación en las series de trabajos y paga por habilidades especiales para oficiales ICE ERO que están involucrados en operaciones de remoción. Estas medidas son esenciales para llevar los salarios de los agentes y oficiales de ICE al nivel del personal de otras agencias del orden público.

Ampliar el Programa de Acción Diferida para los Llegados en la Infancia (DACA)

Ampliaremos la elegibilidad a DACA para incluir una mayor cantidad de niños. La elegibilidad para DACA estaba limitada a aquellos que eran menores de 31 años al 15 de junio de 2012, que habían entrado a Estados Unidos antes del 15 de junio de 2007 y que eran menores de 16 años cuando entraron al país. Ampliaremos la elegibilidad para DACA para incluir todos los inmigrantes sin documentos legales que entraron a Estados Unidos antes de los 16 años de edad, y no tan solo aquellos que nacieron antes del 15 de junio de 1981. También ajustaremos la fecha de entrada al país del 15 de junio de 2007 al 1 de enero de 2010. Esta ayuda, incluyendo la autorización de empleo, ahora tendrá una duración de tres años en lugar de dos años.

Extender la Acción Diferida a Padres de Ciudadanos Estadounidenses y de Residentes Permanentes Legales

DHS ampliará la elegibilidad para la acción diferida a las personas que (i) no son prioridades de remoción bajo nuestra nueva política, (ii) han estado en este país por lo menos 5 años, (iii) tienen hijos que a la fecha de este anuncio son ciudadanos estadounidenses o residentes permanentes legales, y (iv) no presentan otros factores que harían inapropiada la concesión de la acción diferida. Estas personas serán evaluadas para la elegibilidad para acción diferida caso por caso y luego se les permitirá solicitar la autorización de empleo, siempre y cuando paguen una tarifa. Cada persona será sometida a una minuciosa revisión de antecedentes en todas las bases de datos relevante a la seguridad nacional y bases de datos criminales, incluyendo las bases de datos del FBI y DHS. Al tener autorización de empleo, estas personas tendrán que pagar impuestos y contribuir a la economía.

Ampliar las Exenciones Provisionales a Cónyuges e Hijos de Residentes Permanentes Legales

El programa de exención provisional de DHS anunciado en enero 2013 para los cónyuges e hijos de ciudadanos estadounidenses será ampliado para incluir a los cónyuges e hijos de residente permanentes legales, así como los hijos adultos de ciudadanos estadounidenses y residentes permanentes legales. Al mismo tiempo, clarificaremos el estándar de “dificultad extrema” que debe cumplirse para obtener una exención.

Revisar la Reglamentación para Permisos (“parole”)

DHS comenzará a trabajar reglamentación para identificar las condiciones bajo las cuales se les deben otorgar a los empresarios talentosos permisos de entrada a Estados Unidos, sobre la base de que su entrada al país produciría un beneficio económico público significativo. DHS también prestará apoyo a los militares y a sus esfuerzos de reclutamiento trabajando en conjunto con el Departamento de la Defensa para hacer frente a la disponibilidad de permisos para permanencia temporal en el país (“parole-in-place”) y acción diferida a los cónyuges, padres, e hijos de ciudadanos estadounidenses o residentes permanentes legales que interesan alistarse en las Fuerzas Armadas de Estados Unidos. DHS también emitirá guías para aclarar que cuando se le concede a alguien “permiso adelantado” (“advanced parole”) para salir del país – incluidos aquellos que obtengan la acción diferida – dicha persona no será considerada como que salió del país. A los extranjeros sin documentos legales generalmente se les impone una prohibición de entre 3 y 10 años, mediante la cual si salen de los Estados Unidos no pueden regresar al país durante dicho plazo.

Promover el Proceso de Naturalización

Para promover el acceso a la ciudadanía estadounidense, permitiremos el uso de tarjeta de crédito como opción de pago para la tarifa de naturalización, y ampliaremos la concienciación pública sobre la ciudadanía. Es importante tener en cuenta que actualmente la tarifa de naturalización es $680 y sólo puede ser pagada en efectivo, cheque o giro postal. DHS también explorara la viabilidad de ampliar las opciones de exención de tarifas.

Apoyar las Empresas y los Trabajadores Altamente Capacitados

DHS tomará una serie de acciones administrativas para mejorar la forma en que las empresas estadounidenses contratan y retienen los trabajadores extranjeros altamente capacitados y fortalecer ampliar las oportunidades para que los estudiantes obtengan adiestramiento práctico. Por ejemplo, debido a que nuestro sistema de inmigración tiene largos periodos de espera para obtener las Tarjetas Verdes, modificaremos las reglamentaciones existentes y haremos otros cambios administrativos para proporcionar la flexibilidad necesaria para aquellos trabajadores que tienen aprobadas peticiones de visas basadas en el empleo.

Información Adicional

Last Published Date:
November 21, 2014
Posted in Acción Ejecutiva sobre Inmigración, Executive Actions on Immigration | Leave a comment

Fixing Our Broken Immigration System Through Executive Action – Key Facts



The President asked Secretary Johnson and Attorney General Eric Holder to undertake a rigorous and inclusive review to inform recommendations on reforming our broken immigration system through executive action. This review sought the advice and input from the men and women charged with implementing the policies, as well as the ideas of a broad range of stakeholders and Members of Congress from both sides of the aisle. Our assessment identified the following ten areas where we, within the confines of the law, could take action to increase border security, focus enforcement resources, and ensure accountability in our immigration system. (Also see http://www.uscis.gov/immigrationaction)

Executive Actions

Strengthen Border Security

DHS will implement a Southern Border and Approaches Campaign Strategy to fundamentally alter the way in which we marshal resources to the border. This new plan will employ DHS assets in a strategic and coordinated way to provide effective enforcement of our laws and interdict individuals seeking to illegally across land, sea, and air. To accomplish this, DHS is commissioning three task forces of various law enforcement agencies. The first will focus on the southern maritime border. The second will be responsible for the southern land border and the West Coast. The third will focus on investigations to support the other two task forces. In addition, DHS will continue the surge of resources that effectively reduced the number of unaccompanied children crossing the border illegally this summer. This included additional Border Patrol agents, ICE personnel, criminal investigators, additional monitors, and working with DOJ to reorder dockets in immigration courts, along with reforms in these courts.

Revise Removal Priorities

DHS will implement a new department-wide enforcement and removal policy that places top priority on national security threats, convicted felons, gang members, and illegal entrants apprehended at the border; the second-tier priority on those convicted of significant or multiple misdemeanors and those who are not apprehended at the border, but who entered or reentered this country unlawfully after January 1, 2014; and the third priority on those who are non-criminals but who have failed to abide by a final order of removal issued on or after January 1, 2014. Under this revised policy, those who entered illegally prior to January 1, 2014, who never disobeyed a prior order of removal, and were never convicted of a serious offense, will not be priorities for removal. This policy also provides clear guidance on the exercise of prosecutorial discretion.

End Secure Communities and Replace it with New Priority Enforcement Program

DHS will end the Secure Communities program, and replace it with the Priority Enforcement Program (PEP) that will closely and clearly reflect DHS’s new top enforcement priorities. The program will continue to rely on fingerprint-based biometric data submitted during bookings by state and local law enforcement agencies and will identify to law enforcement agencies the specific criteria for which we will seek an individual in their custody. The list of largely criminal offenses is taken from Priorities 1 and 2 of our new enforcement priorities. In addition, we will formulate plans to engage state and local governments on enforcement priorities and will enhance Immigration and Customs Enforcement’s (ICE) ability to arrest, detain, and remove individuals deemed threats to national security, border security, or public safety.

Personnel Reform for ICE Officers

Related to these enforcement and removal reforms, we will support job series realignment and premium ability pay coverage for ICE ERO officers engaged in removal operations. These measures are essential to bringing ICE agents and officers pay in line with other law enforcement personnel.

Expand Deferred Action for Childhood Arrivals (DACA) Program

We will expand eligibility for DACA to encompass a broader class of children. DACA eligibility was limited to those who were under 31 years of age on June 15, 2012, who entered the U.S. before June 15, 2007, and who were under 16 years old when they entered. DACA eligibility will be expanded to cover all undocumented immigrants who entered the U.S. before the age of 16, and not just those born after June 15, 1981. We will also adjust the entry date from June 15, 2007 to January 1, 2010. The relief (including work authorization) will now last for three years rather than two.

Extend Deferred Action to Parents of U.S. Citizens and Lawful Permanent Residents

DHS will extend eligibility for deferred action to individuals who (i) are not removal priorities under our new policy, (ii) have been in this country at least 5 years, (iii) have children who on the date of this announcement are U.S. citizens or lawful permanent residents, and (iv) present no other factors that would make a grant of deferred action inappropriate. These individuals will be assessed for eligibility for deferred action on a case-by-case basis, and then be permitted to apply for work authorization, provided they pay a fee. Each individual will undergo a thorough background check of all relevant national security and criminal databases, including DHS and FBI databases. With work-authorization, these individuals will pay taxes and contribute to the economy.

Expand Provisional Waivers to Spouses and Children of Lawful Permanent Residents

The provisional waiver program DHS announced in January 2013 for undocumented spouses and children of U.S. citizens will be expanded to include the spouses and children of lawful permanent residents, as well as the adult children of U.S. citizens and lawful permanent residents. At the same time, we will further clarify the “extreme hardship” standard that must be met to obtain the waiver.

Revise Parole Rules

DHS will begin rulemaking to identify the conditions under which talented entrepreneurs should be paroled into the United States, on the ground that their entry would yield a significant public economic benefit. DHS will also support the military and its recruitment efforts by working with the Department of Defense to address the availability of parole-in-place and deferred action to spouses, parents, and children of U.S. citizens or lawful permanent residents who seek to enlist in the U.S. Armed Forces. DHS will also issue guidance to clarify that when anyone is given “advance parole” to leave the country – including those who obtain deferred action – they will not be considered to have departed. Undocumented aliens generally trigger a 3- or 10-year bar to returning to the United States when they depart.

Promote the Naturalization Process

To promote access to U.S. citizenship, we will permit the use of credit cards as a payment option for the naturalization fee, and expand citizenship public awareness. It is important to note that the naturalization fee is $680, currently payable only by cash, check or money order. DHS will also explore the feasibility of expanding fee waiver options.

Support High-skilled Business and Workers

DHS will take a number of administrative actions to better enable U.S. businesses to hire and retain highly skilled foreign-born workers and strengthen and expand opportunities for students to gain on-the-job training. For example, because our immigration system suffers from extremely long waits for green cards, we will amend current regulations and make other administrative changes to provide needed flexibility to workers with approved employment-based green card petitions.

Additional Information

Last Published Date:
November 20, 2014


Posted in Deferred Action Process for Young People Who Are Low Enforcement, Deferred Action Process for Young People Who Are Low Enforcement Priorities, Deferred Action Status, Executive Actions on Immigration | Leave a comment

Executive Actions on Immigration


The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others

  1. 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.
  2. The Department of Homeland Security’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 immigration laws.
  3. The Department of Homeland Security’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 (PDF)

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 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 prioritize 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 Undocumented Immigrants at 5 (Nov. 17, 2014) (“Johnson Prioritization Memorandum”).

 

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 Immigration Services, et al., from Jeh Charles Johnson, Secretary of Homeland Security, Re: Exercising Prosecutorial Discretion with Respect to Individuals 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 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 authoriza- tion 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 “economic necessity for employment”); see also 8 C.F.R. § 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 admission 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 prioritiza- tion policy and its proposed deferred action program for parents of U.S. citizens and lawful permanent residents would be permissible exercises of DHS’s discre- tion 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 immigration laws, and then analyze DHS’s proposed prioritization policy in light of these considerations.

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 pecifies “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 removed if the alien” falls within one or more classes of deportable aliens); 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 adminis- tered by the Executive Office for Immigration Review, a component of the Department of Justice. See id. § 1229a (governing removal proceedings); see also id. §§ 1225(b)(1)(A), 1228(b) (setting out expedited removal procedures for certain arriving aliens and certain aliens convicted of aggravated felonies).Before 2003, the Department of Justice, through the Immigration and Naturali- zation Service (“INS”), was also responsible for providing immigration-related administrative services and generally enforcing the immigration 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 immigra- tion into the United States and provides immigration and naturalization services to aliens; ICE, which enforces federal laws governing customs, trade, and immigra- tion; and U.S. Customs and Border Protection (“CBP”), which monitors and secures the nation’s borders and ports of entry. See Pub. L. No. 107-296, §§ 403, 442, 451, 471, 116 Stat. 2135, 2178, 2193, 2195, 2205; see also Name Change From the Bureau of Citizenship and Immigration Services to U.S. Citizenship and Immigration Services, 69 Fed. Reg. 60938, 60938 (Oct. 13, 2004); Name Change of Two DHS Components, 75 Fed. Reg. 12445, 12445 (Mar. 16, 2010). The Secretary of Homeland Security is thus now “charged with the administration 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 executive agency, that agency has the discretion to decide whether a particular 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 judgment 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. at 831; cf. United States v. Armstrong, 517 U.S. 456, 465 (1996) (recognizing that exercises of prosecutorial discretion in criminal cases involve consideration 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 Administration’s refusal to initiate enforcement proceedings with respect to alleged violations of the Federal Food, Drug, and Cosmetic Act, concluding 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 determina- tion 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 par- ticular 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 infinitely 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 under- standing, the INA vested the Attorney General (now the Secretary of Homeland Security) with broad authority to “establish such regulations; . . . issue such instructions; 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 the Department of Homeland Security, it expressly charged DHS with responsibility for “[e]stablishing national immigration enforcement policies and priorities.” Homeland Security Act of 2002, Pub. L. No. 107-296, § 402(5), 116Stat. 2135, 2178 (codified at 6 U.S.C. § 202(5)).

With respect to removal decisions in particular, the Supreme Court has recog- nized 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 discre- tionary relief from removal for aliens, including 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 “discretion to abandon the endeavor.” Am.-Arab Anti-Discrim. Comm., 525 U.S. at 483 (quoting 8 U.S.C. 132 S. Ct. at 2499 § 1252(g) (alterations in original)). 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- 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.

 

Immigration officials’ discretion in enforcing the laws is not, however, unlim- ited. 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 enforcement 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 circumscribing 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 numerous occasions exercised discretion to extend various forms of immigration 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

 

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 resources, 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 assessment 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 enforcement dis- cretion, 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 decision about the proper administration of the statute unless, among other things, the agency “‘has relied on factors which Congress had not intended 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))).

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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 dissatisfaction with the Executive’s use of parole power for refugee populations in the 1960s and 1970s); see also, e.g., infra note 5 (discussing legislative limitations on voluntary departure and extended voluntary departure).

DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present

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 authority on the agency might indicate that such decisions were not ‘committed to agency discretion’”). Abdication of the duties assigned to the agency by statute is ordinarily incompatible with the constitutional obligation 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) (explain- ing 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 predecessor, 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 undocu- mented 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 convict- ed 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 misdemeanor 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.

 

The policy would instruct that resources should be directed to these priority categories in a manner “commensurate with the level of prioritization 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 circumstanc- es”). 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 therefore 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 judgment 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 prac- tical reality that the number of aliens who are removable under 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 encountered at or near the border rather than in the interior of the country. See E-mail for Karl R. Thompson, Principal Deputy Assistant Attorney General, 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 respond to all immigra- tion 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 enforcement 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 agency’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”).

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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 Memorandum at 4. Aliens in the third tier could be deprioritized if, “in the judgment of an immigration 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 conviction; 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.” Johnson Prioritization Memorandum at 6.

The policy DHS has proposed, moreover, is consistent with the removal priori- ties 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.” Department of Homeland Security Appropriations Act, 2014, Pub. L. No. 113-76, div. F, tit. II, 128 Stat. 5, 251 (“DHS Appropriations Act”). Consistent 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 jurisdiction, 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 security, matters about which Congress has demon- strated 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 apprehended 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-enforcement decision,” neither does it amount to an abdication of DHS’s statutory responsibili- ties, or constitute a legislative rule overriding the commands of the substantive statute. Crowley Caribbean Transp., 37 F.3d at 676–77. 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 certain categories of cases. Given that the resources Congress has allocated to DHS are sufficient to remove only a small fraction of the total population of undocumented aliens in the United States, setting forth written guidance about how resources should presumptively be allocated in particular cases is a reasonable means of ensuring that DHS’s severely limited resources are systematically directed to its highest priorities across a large and diverse agency, as well as ensuring consistency in the administration 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.

 

And, significantly, the proposed policy does not identify any category of re- movable aliens whose removal may not be pursued under any circumstances. Although the proposed policy limits the discretion of immigration officials to expend resources to remove non-priority aliens, it does not eliminate that discre- tion 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 “prohibit or discourage the apprehension, detention, or removal of aliens unlawfully 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 Director, “removing such an alien would serve an important federal interest,” a standard the policy leaves open-ended. Id. Accordingly, the policy provides 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 prioritization 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

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 permanent residents (“LPRs”), or DACA recipients, and who are not removal priorities under the proposed policy discussed above. We begin by discussing the history and current practice of deferred action. We then discuss the legal authorities on which deferred action relies and identify legal principles against which the proposed use of deferred action can be evaluated. Finally, we turn to an analysis of the proposed deferred action programs themselves, beginning with the program for parents of U.S. citizens and LPRs, and concluding with the program for parents of DACA recipients.

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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.’” Opinion and Order Respecting Pl. App. for Prelim. Inj. Relief, No. 3:12-cv-03247-O, 2013 WL 1744422, at *5 (N.D. Tex. Apr. 23) (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). Although the opinion lacks precedential value, we have nevertheless considered whether, as it suggests, the text of the INA categorically forecloses the exercise of enforcement discretion with respect to aliens who have not been formally 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 U.S. at 835; Inmates of Attica Corr. Facility v. Rockefeller, 477 F.2d 375, 381 (2d Cir. 1973).

A.

In immigration law, the term “deferred action” refers to an exercise of adminis- trative 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 departure, and extended voluntary departure—that immigration officials have used over the years to temporarily prevent the removal of undocumented aliens.5

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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 available to nationals of designated foreign states affected by armed conflicts, environmental disasters, and other extraordinary conditions. Id. § 1254a. Deferred enforced departure, 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 departure was a remedy derived from the voluntary departure statute, which, before its amendment 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 administrative- ly under the Attorney General’s general authority for enforcing immigration law.” Sharon Stephan, Cong. Research Serv., 85-599 EPW, Extended Voluntary Departure 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. 33446, 33457 (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”).

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 presented “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 unconscionable because of appealing humanitarian factors”); see INS Operating 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 existence of appealing humanitarian factors”).

 

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 Congress 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 commence proceedings, adjudicate cases, or execute removal orders against any alien under [the INA]” in 8 U.S.C. § 1252(g) “seems clearly designed to give some measure of protection to ‘no deferred action’ decisions and similar discretionary determinations”); see also, e.g., 8 U.S.C. § 1154(a)(1)(D)(i)(II), (IV) (providing that certain individuals are “eligible for deferred action”). Deferred action “does not confer any immigration 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 authorization if they can demonstrate an “economic necessity for employment.” 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 Security]”). Second, DHS has promulgated regulations and issued policy guidance providing that aliens who receive deferred action will temporarily 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 Direc- torate, 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 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 individual 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 programs 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 protected status, deferred enforced departure, or extended voluntary departure. For example, from 1956 to 1972, INS imple- mented 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 extended 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. 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, Pub. L. No. 99- 603, 100 Stat. 3359 (“IRCA”). 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:

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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.

DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present

  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 immigration 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: Supple- mental 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 reported to Congress that, because of this program, no approved VAWA self-petitioner had been removed from the country. See Battered Women Immigrant Protection Act: Hearings on H.R. 3083 Before the Subcomm. on Immigration and 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 insti- tuted a similar deferred action program for applicants for nonimmigrant status or visas made available under the Victims of Trafficking and Violence Protection Act of 2000 (“VTVPA”), Pub. L. No. 106-386, 114 Stat. 1464. That Act created two new nonimmigrant classifications: 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” Nonimmigrant Visas at 2 (Aug. 30, 2001). In subsequent memoranda, INS instructed 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 Commissioner, INS, from Stuart Anderson, Executive Associate Commissioner, INS, Re: Deferred Action for Aliens with Bona Fide Applications for T Nonimmigrant 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 William R. Yates, USCIS, Re: Centralization of Interim Relief for U Nonimmigrant 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” Nonimmi- grant 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 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 Classifica- tion for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status, 72 Fed. Reg. 53014, 53039 (Sept. 17, 2007)) (“USCIS will grant deferred 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)), available at http//www.uscis.gov/sites/default/files/USCIS/Humanitarian/Special%20Situati ons/Previous%20Special%20Situations%20By%20Topic/faq-interim-student-relie f-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 Katrina.” Id. at 7. To apply for deferred action under this program, students were required to send a letter substantiating their need for deferred action, 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), available at 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 adjudicated a visa petition on the spouse’s behalf. Memoran- dum for Field Leadership, 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 example, “serious adverse factors, such as national security concerns, significant 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 general matter . . . lacked the intent to violate the law.” Memorandum for David Aguilar, Acting Commis- sioner, 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 applicants’ 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 applicants 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,” Napolitano Memorandum at 3.8

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7 Several months after the deferred action program was announced, Congress eliminated the re- quirement 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).

Congress has long been aware of the practice of granting deferred action, in- cluding 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 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 status,” 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 acknowl- edging 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.” Victims of Trafficking andViolence Protection Act of 2000, Pub. L. No. 106-386, § 1503(d)(2), 114 Stat. 1464, 1522 (codified at 8 U.S.C. § 1154(a)(1)(D)(i)(II), (IV)).10

8 Before DACA was announced, our Office was consulted about whether such a program 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 immigration 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 particular- ized and acute than those underlying certain prior class-wide deferred action programs, the concerns 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 considered 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.

Congress demonstrated a similar awareness of INS’s (and later DHS’s) de- ferred action program for bona fide T and U visa applicants. As discussed 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 subsec- tion 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 assault and other violence crimes . . . in most instances within 60 days of filing.” 154 Cong. Rec. 24603 (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 members of certain U.S. citizens killed in combat, National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136, § 1703(c)–(d), 117 Stat. 1392, 1694. In the same legislation, Congress made these individuals eligible to obtain lawful status as “family-sponsored immigrant[s]” or “immediate relative[s]” of U.S. citizens. Pub. L. No. 107-56,§ 423(b), 115 Stat. 272, 361; Pub. L. No. 108-136, § 1703(c)(1)(A), 117 Stat. 1392, 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 action 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 identifica- tion 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 “approved deferred action status.” Id. § 202(c)(2)(B)(viii).

 

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10 Five years later, in the Violence Against Women and Department of Justice Reauthorization 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. 29334 (2005) (statement of Rep. Conyers).

B.

The practice of granting deferred action, like the practice of setting enforce- ment 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.

 

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 decision not to prosecute an individual for past unlawful conduct; it instead represents a decision to openly tolerate an undocumented alien’s continued 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 authorization 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 identified 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 pres- ence—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 acknowledgment 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 unlawfulpresence will be tolerated for a prescribed period of time. This difference is not, in our view, insignificant. But neither does it fundamentally transform deferred action into something other than an exercise 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.

With respect to the second feature, the additional benefits deferred action con- fers—the ability to apply for work authorization and the tolling of unlawful presence—do not depend on background principles of agency 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 authorities, 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 defines 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 recognize 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 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 limita- tions on the Secretary’s authority to grant work authorization to other classes of aliens. Further, and notably, additional provisions of the INA expressly contem- plate 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 remove 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).

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11 Section 1324a(h)(3) was enacted in 1986 as part of IRCA. Before then, the INA contained 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. 25079, 25080–81 (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 “comprehensive 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 authorization by the Act.” Employment Authorization; Classes of Aliens Eligible, 52 Fed. Reg. 46092, 46093 (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 promulgate 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

The Secretary’s authority to suspend the accrual of unlawful presence of de- ferred action recipients is similarly grounded in the INA. The relevant statutory provision treats an alien as “unlawfully present” for purposes 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 contemplates that the Attorney General (and now the Secretary) may authorize an alien to stay in the United States without accruing unlawful presence under section 1182(a)(9)(B)(i) or section 1182(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 deferred 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 immigra- tion officials have undertaken to substantively change the statutory removal system rather than simply adapting its application 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 between 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. 15–18. 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 potential 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 Caribbean 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 Much as is the case with those pro- grams, inviting eligible aliens to identify themselves through an application process may serve the agency’s law enforcement interests by encouraging lower- priority individuals to identify themselves to the agency. In so doing, the process may enable the agency to better focus its scarce resources on higher enforcement priorities.

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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 entrusted to administer”).

DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present

Apart from the considerations just discussed, perhaps the clearest indication that these features of deferred action programs are not per se impermissible is the fact that Congress, aware of these features, has repeatedly 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 pro- grams—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 Congress acquiesced in an agency’s assertion of regulato- ry authority by “refus[ing] . . . to overrule” the agency’s view after it was specifi- cally “brought to Congress’[s] attention,” and further finding implicit congression- al 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).

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12 For example, since 1978, the Department of Justice’s Antitrust Division has implemented a “leniency program” under which a corporation that reveals an antitrust conspiracy in which it participated may receive a conditional promise that it will not be prosecuted. See Dep’t of Justice, Frequently Asked Questions Regarding the Antitrust Division’s Leniency Program and Model Leniency Letters (November 19, 2008), available at http://www.justice.gov/atr/public/criminal/239583.pdf (last visited Nov. 19, 2014); see also Internal Revenue Manual § 9.5.11.9(2) (Revised IRS Voluntary Disclosure Practice), available at http://www.irs.gov/uac/Revised-IRS-Voluntary-Disclosure-Practice (last visited Nov. 19, 2014) (explaining 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, available at 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”).

 

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. 6–7. 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 consonant with congressional policy expressed in the statute. See supra pp. 6–7 (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 p. 7 (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. 7 (citing Glickman, 96 F.3d at 1123, and Crowley Caribbean Transp., 37 F.3d at 676–77). U.S. Const. art. II, § 3.

 

Furthermore, because deferred action programs depart in certain respects 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 principles, so that the proposed program does not, in effect, cross the line between executing the law and rewriting it. In analyzing whether the proposed programs cross this line, we will draw substantial guidance from Congress’s history of legislation concerning deferred action. In the absence of express statutory guidance, the nature of deferred action programs Congress has implicitly approved by statute helps to shed light on Congress’s own understandings about the permissible uses of deferred action. Those understand- ings, in turn, help to inform our consideration of whether the proposed deferred action programs are “faithful[]” to the statutory scheme Congress has enacted.

C.

We now turn to the specifics of DHS’s proposed deferred action programs. 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 en- forcement priority under DHS policy; (2) has continuously 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 inappropriate.” Johnson Deferred Action Memorandum at 4. You have also asked about the permissibility of a similar program that would be open to parents 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 section.

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. Consistent with Congress’s instruction, DHS prioritizes the removal of individuals who have significant criminal records, as well as others who present dangers to national security, public safety, or border security. See supra p. 10. 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 individu- al in that category will be determined to warrant the expenditure of severely limited enforcement resources 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 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 individu- als who are removable under the immigration laws. See supra p. 9. 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 requires 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 collec- tion of application fees. See Shahoulian 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 otherwise 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 constraints, determining how to address such “human concerns” in the immigra- tion 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 congres- sional 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 Con- gress . . . was concerned with the problem of keeping families of United States citizens and immigrants 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 immedi- ate 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 petition 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 permanent 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 General to cancel the removal of, and adjust to lawful permanent resident 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 congres- sional 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 program 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 permanent lawful status in the United States. The cancella- tion of removal provision, moreover, offers the prospect of receiving such statusimmediately, 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. 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 thereunder. See supra pp. 13, 21–22. 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).

 

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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 exempted the wives and minor children of U.S. citizens from immigration quotas, gave “preference 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 Act of May 29, 1928, ch. 914, 45 Stat. 1009, 1009–10. 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.

The other salient features of the proposal are similarly consonant with con- gressional 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 p. 10. The continuous residence requirement is likewise consistent with legislative judgments that extended periods of continuous residence are indicative of strong family and community ties. See IRCA, Pub. L. No. 99-603,

§ 201(a), 100 Stat. 3359, 3394 (1986) (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 become 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 resources”); 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 abdication 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 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 deferred action only if he or she “pre- sent[ed] no other factors that, in the exercise of discretion,” would “make[] the grant of deferred action inappropriate.” 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 continu- ously resided in the United States since before January 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 material 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 general matter, but also with congressional understandings about the permissible 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 immi- gration status. While Congress 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 mechanism for families to remain together, depending on their circumstances, for some or all of the intervening period.14 Immigration officials have on severaloccasions deployed deferred action programs as interim measures for other classes of aliens with prospective entitlements to lawful immigration 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. 18–20.15 In addition, much like these and other programs Congress has implicitly endorsed, the program serves substantial and particularized humanitarian interests. Removing the parents 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.

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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 nevertheless 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

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 discretion. But because the size of DHS’s proposed program corresponds to the size of a popula- tion to which Congress has granted a prospective entitlement 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 measure exceeds its enforcement discretion under the INA. Furthermore, while the potential size of the program is large, it is neverthe- less 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 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 Immigration 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.

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amount of time the family had to spend apart, and could enable them to adjust the timing of their separation according 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 pp. 14–15. 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 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. 14.

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 considera- tions—responding to resource constraints and to particularized 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 en- forcement 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 particularized harm that could otherwise befall both the beneficiaries of the program 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. 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 preserve a significant measure of case-by-case discretion not to award deferred action even if the general eligibility criteria are satisfied.

 

But the proposed program for parents of DACA recipients is unlike the pro- posed 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 individuals who are legally entitled to live in the United States from their immediate 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 presumptively 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 immigration 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 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 implemen- tation 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 theproposed 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 members 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 humanitarian needs rooted in earlier exercises of deferred action. The logic underlying 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 recipi- ents, but also to the close relatives of any alien granted deferred action through DACA or any other program, those relatives’ close relatives, 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 Executive’s prior decision to extend deferred action to one population as justifying the extension of deferred action to additional populations. DHS, of course, remains free to consider whether to grant deferred action to individual parents of DACA recipients on an ad hoc basis. But in the absence of clearer indications that the proposed class-based deferred action program 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.

III.

In sum, for the reasons set forth above, 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 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


Executive Actions on Immigration

Posted in DACA, Deferred Action Process for Young People Who Are Low Enforcement Priorities, Deferred Action Status, Executive Actions on Immigration | Leave a comment

BIA Precedent Decisions Volume 26 (2012-2014) Executive Office for Immigration Review

UNITED FARM WORKERS FOUNDATION, 26 I&N Dec. 454 (BIA 2014)

ID 3821 (PDF)

A recognized organization need only apply for its representative’s accreditation at one location, and if approved, that representative may thereafter practice at any branch location of the organization that has been recognized by the Board of Immigration Appeals. Matter of EAC, Inc., 24 I&N Dec. 563 (BIA 2008), modified.


AYUDA, 26 I&N Dec. 449 (BIA 2014)

ID 3820 (PDF)

When assessing an organization’s application for recognition, the Board of Immigration Appeals makes an individualized determination whether the applicant’s fees qualify as “nominal charges” and whether its fee structure is true to the goal of providing competent low-cost legal services. Matter of American Paralegal Academy, Inc., 19 I&N Dec. 386 (BIA 1986), clarified.


ST. FRANCIS CABRINI IMMIGRATION LAW CENTER, 26 I&N Dec. 445 (BIA 2014)

ID 3819 (PDF)

Where an organization is physically colocated or financially associated with, or otherwise attached to, a for-profit venture, the Board of Immigration Appeals will not approve an application for recognition unless it is confident that the organization will not be influenced, either explicitly or implicitly, by the pecuniary interests of the commercial affiliate.


BETT, 26 I&N Dec. 437 (BIA 2014)

ID 3818 (PDF)

A Form I-9 (Employment Eligibility Verification) is admissible in immigration proceedings to support charges of removability against an alien and to determine his or her eligibility for relief from removal.


MUNROE, 26 I&N Dec. 428 (BIA 2014)

ID 3817 (PDF)

For purposes of establishing an alien’s eligibility for a waiver under section 216(c)(4)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1186a(c)(4)(A) (2012), the relevant period for determining whether an alien’s removal would result in extreme hardship is the 2-year period for which the alien was admitted as a conditional permanent resident.


PINA-GALINDO, 26 I&N Dec. 423 (BIA 2014)

ID 3816 (PDF)

An alien is ineligible for cancellation of removal under section 240A(b)(1)(C) of the
Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)(C) (2012), if he or she falls
within the scope of section 212(a)(2)(B) of the Act, 8 U.S.C. § 1182(a)(2)(B) (2012), as
having been convicted of two or more offenses for which the aggregate sentences
imposed were 5 years or more.


FERREIRA, 26 I&N Dec. 415 (BIA 2014)

ID 3815 (PDF)

Where a State statute on its face covers a controlled substance not included in the Federal controlled substances schedules, there must be a realistic probability that the State would prosecute conduct under the statute that falls outside the generic definition of the removable offense to defeat a charge of removability under the categorical approach.


DOMINGUEZ-RODRIGUEZ, 26 I&N Dec. 408 (BIA 2014)

ID 3814 (PDF)

For purposes of section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2012), the phrase “a single offense involving possession for one’s own use of thirty grams or less of marijuana” calls for a circumstance-specific inquiry into the character of the alien’s unlawful conduct on a single occasion, not a categorical inquiry into the elements of a single statutory crime. Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), distinguished. Matter of Davey, 26 I&N Dec. 37 (BIA 2012), reaffirmed.


PAEK, 26 I&N Dec. 403 (BIA 2014)

ID 3813 (PDF)

An alien who was admitted to the United States at a port of entry as a conditional
permanent resident pursuant to section 216(a) of the Immigration and Nationality Act,
8 U.S.C. § 1186a(a) (2012), is an alien “lawfully admitted for permanent residence” who
is barred from establishing eligibility for a waiver of inadmissibility under section 212(h)
of the Act, 8 U.S.C. § 1182(h) (2012), if he or she was subsequently convicted of an
aggravated felony.


HERNANDEZ, 26 I&N Dec. 397 (BIA 2014)

ID 3812 (PDF)

Malicious vandalism in violation of section 594(a) of the California Penal Code with a gang enhancement under section 186.22(d) of the California Penal Code, which requires that the underlying offense be committed for the benefit of a criminal street gang with the specific intent to promote criminal conduct by gang members, is categorically a crime involving moral turpitude.


A-R-C-G-, 26 I&N Dec. 388 (BIA 2014)

ID 3811 (PDF)

Depending on the facts and evidence in an individual case, “married women in Guatemala who are unable to leave their relationship” can constitute a cognizable particular social group that forms the basis of a claim for asylum or withholding of removal under sections 208(a) and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158(a) and 1231(b)(3) (2012).


C-C-I-, 26 I&N Dec. 375 (BIA 2014)

ID 3810 (PDF)

(1) Reopening of removal proceedings for a de novo hearing to consider termination of an alien’s deferral of removal pursuant to 8 C.F.R. § 1208.17(d)(1) (2014), is warranted where the Government presents evidence that was not considered at the previous hearing if it is relevant to the possibility that the alien will be tortured in the country to which removal has been deferred.

(2) The doctrine of collateral estoppel does not prevent an Immigration Judge from reevaluating an alien’s credibility in light of additional evidence presented at a hearing under 8 C.F.R. § 1208.17(d)(3).


L-G-H-, 26 I&N Dec. 365 (BIA 2014)

ID 3809 (PDF)

Sale of a controlled substance in violation of section 893.13(1)(a)(1) of the Florida Statutes, which lacks a mens rea element with respect to the illicit nature of the substance but requires knowledge of its presence and includes an affirmative defense for ignorance of its unlawful nature, is an “illicit trafficking” aggravated felony under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2012).


M-L-M-A-, 26 I&N Dec. 360 (BIA 2014)

ID 3808 (PDF)

(1) Because an application for special rule cancellation of removal under section 240A(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(2) (2006), is a continuing one, false testimony given by the respondent more than 3 years prior to the entry of a final administrative order should not be considered in determining whether she is barred from establishing good moral character under section 101(f)(6) of the Act, 8 U.S.C. § 1101(f)(6) (2006). Matter of Garcia, 24 I&N Dec. 179 (BIA 2007), and Matter of Ortega-Cabrera, 23 I&N Dec. 793 (BIA 2005), followed.

(2) Although the respondent was divorced from her abusive husband and subsequently had a long-term relationship with another man, she had not previously been granted special rule cancellation of removal based on her abusive marriage and had significant equities that merited a favorable exercise of discretion. Matter of A-M-, 25 I&N Dec. 66 (BIA 2009), distinguished.


CHAIREZ, 26 I&N Dec. 349 (BIA 2014)

ID 3807 (PDF)

(1) The categorical approach, which requires a focus on the minimum conduct that has a realistic probability of being prosecuted under the statute of conviction, is employed to determine whether the respondent’s conviction for felony discharge of a firearm under section 76-10-508.1 of the Utah Code is for a crime of violence aggravated felony or a firearms offense under the Immigration and Nationality Act. Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), followed.

(2) The Department of Homeland Security did not meet its burden of establishing the respondent’s removability as an alien convicted of an aggravated felony where it did not show that section 76-10-508.1 of the Utah Code was divisible with respect to the mens rea necessary to constitute a crime of violence. Descamps v. United States, 133 S. Ct. 2276 (2013), followed. Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012), withdrawn.

(3) Where the respondent did not demonstrate that he or anyone else was successfully prosecuted for discharging an “antique firearm” under section 76-10-508.1 of the Utah Code, which contains no exception for “antique firearms” as defined by 18 U.S.C. § 921(a)(16) (2012), the statute was not shown to be categorically overbroad relative to section 237(a)(2)(C) of the Act, 8 U.S.C. § 1227(a)(2)(C) (2012). Matter of Mendez-Orellana, 25 I&N Dec. 254 (BIA 2010), clarified.


G-G-S-, 26 I&N Dec. 339 (BIA 2014)

ID 3806 (PDF)

An alien’s mental health as a factor in a criminal act falls within the province of the criminal courts and is not considered in assessing whether the alien was convicted of a “particularly serious crime” for immigration purposes.


P-S-H-, 26 I&N Dec. 329 (BIA 2014)

ID 3805 (PDF)

To terminate a grant of asylum pursuant to 8 C.F.R. § 1208.24 (2013), the Department of Homeland Security must establish, by a preponderance of the evidence, that (1) there was fraud in the alien’s asylum application and (2) the fraud was such that the alien was not eligible for asylum at the time it was granted; however, proof that the alien knew of the fraud in the application is not required in order to satisfy the first criterion. Matter of A-S-J-, 25 I&N Dec. 893 (BIA 2012), clarified.


DUARTE-LUNA and LUNA, 26 I&N Dec. 325 (BIA 2014)

ID 3804 (PDF)

A parent’s continuous physical presence and continuous residence in the United States
cannot be imputed to a child for purposes of establishing the child’s eligibility for
Temporary Protected Status.


E-F-H-L-, 26 I&N Dec. 319 (BIA 2014)

ID 3803 (PDF)

In the ordinary course of removal proceedings, an applicant for asylum or for withholding or deferral of removal is entitled to a hearing on the merits of those applications, including an opportunity to provide oral testimony and other evidence, without first having to establish prima facie eligibility for the requested relief. Matter of Fefe, 20 I&N Dec. 116 (BIA 1989), followed.


JACKSON AND ERANDIO, 26 I&N Dec. 314 (BIA 2014)

ID 3802 (PDF)

Section 402(a)(2) of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L.
No. 109-248, 120 Stat. 587, 622, which bars the approval of a family-based visa petition
filed by a petitioner who has been convicted of a “specified offense against a minor” and
has not shown that he poses “no risk” to the beneficiary, does not have an impermissible
retroactive effect when applied to convictions that occurred before its enactment.


INTROCASO, 26 I&N Dec. 304 (BIA 2014)

ID 3801 (PDF)

(1) In a visa petition case involving the Adam Walsh Child Protection and Safety Act of
2006, Pub. L. No. 109-248, 120 Stat. 587, the petitioner bears the burden of proving
that he has not been convicted of a “specified offense against a minor.”

(2) In assessing whether a petitioner has been convicted of a “specified offense against a
minor,” adjudicators may apply the “circumstance-specific” approach, which permits
an inquiry into the facts and conduct underlying the conviction to determine if it is for
a disqualifying offense.


ACEIJAS-QUIROZ, 26 I&N Dec. 294 (BIA 2014)

ID 3800 (PDF)

In adjudicating cases involving the Adam Walsh Child Protection and Safety Act of
2006, Pub. L. No. 109-248, 120 Stat. 587, the Board of Immigration Appeals lacks
jurisdiction to review a “no risk” determination by the United States Citizenship and
Immigration Services, including the appropriate standard of proof to be applied.


SIERRA, 26 I&N Dec. 288 (BIA 2014)

ID 3799 (PDF)

Under the law of the United States Court of Appeals for the Ninth Circuit, the offense of attempted possession of a stolen vehicle in violation of sections 193.330 and 205.273 of the Nevada Revised Statutes, which requires only a mental state of “reason to believe,” is not categorically an aggravated felony “theft offense (including receipt of stolen property)” under sections 101(a)(43)(G) and (U) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(43)(G) and (U) (2012).


C-J-H-, 26 I&N Dec. 284 (BIA 2014)

ID 3798 (PDF)

An alien whose status has been adjusted from asylee to lawful permanent resident cannot subsequently readjust status under section 209(b) of the Immigration and Nationality Act, 8 U.S.C. § 1159(b) (2012).


CHAVEZ-ALVAREZ, 26 I&N Dec. 274 (BIA 2014)

ID 3797 (PDF)

(1) Adjustment of status constitutes an “admission” for purposes of determining an alien’s removability under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), as an alien convicted of an aggravated felony “at any time after admission.”

(2) An element listed in a specification in the Manual for Courts-Martial (“MCM”) must be pled and proved beyond a reasonable doubt and thus is the functional equivalent of an “element” of a criminal offense for immigration purposes.

(3) The crime of sodomy by force in violation of article 125 of the Uniform Code of Military Justice, 10 U.S.C. § 925 (2000), and the Punitive Articles of the MCM relating to sodomy, is a crime of violence under 18 U.S.C. § 16 (2012) within the definition of an aggravated felony under section 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F)(2012).


ABDELGHANY, 26 I&N Dec. 254 (BIA 2014)

ID 3796 (PDF)

(1) A lawful permanent resident who has accrued 7 consecutive years of lawful unrelinquished domicile in the United States and who is removable or deportable by virtue of a plea or conviction entered before April 24, 1996, is eligible to apply for discretionary relief under former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), unless: (1) the applicant is subject to the grounds of inadmissibility under sections 212(a)(3)(A), (B), (C), or (E), or (10)(C) of the Act, 8 U.S.C. §§ 1182(a)(3)(A), (B), (C), or (E), or (10)(C) (2012); or (2) the applicant has served an aggregate term of imprisonment of at least 5 years as a result of one or more aggravated felony convictions entered between November 29, 1990, and April 24, 1996.

(2) A lawful permanent resident who has accrued 7 consecutive years of lawful unrelinquished domicile in the United States and who is removable or deportable by virtue of a plea or conviction entered between April 24, 1996, and April 1, 1997, is eligible to apply for discretionary relief from removal or deportation under former section 212(c) of the Act unless: (1) the applicant’s removal or deportation proceedings commenced on or after April 24, 1996, and the conviction renders the applicant removable or deportable under one or more of the deportability grounds enumerated in section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1277 (as amended); or (2) the applicant is subject to the grounds of inadmissibility under sections 212(a)(3)(A), (B), (C), or (E), or (10)(C) of the Act; or (3) the applicant has served an aggregate term of imprisonment of at least 5 years as a result of one or more aggravated felony convictions entered between November 29, 1990, and April 24, 1996.

(3) A lawful permanent resident who is otherwise eligible for relief under former section 212(c) of the Act may apply for such relief in removal or deportation proceedings without regard to whether the relevant conviction resulted from a plea agreement or a trial and without regard to whether he or she was removable or deportable under the law in effect when the conviction was entered.

M-E-V-G-, 26 I&N Dec. 227 (BIA 2014)

ID 3795 (PDF)

(1) In order to clarify that the “social visibility” element required to establish a cognizable “particular social group” does not mean literal or “ocular” visibility, that element is renamed as “social distinction.” Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008); Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008); Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69 (BIA 2007); and Matter of C-A-, 23 I&N Dec. 951 (BIA 2006), clarified.

(2) An applicant for asylum or withholding of removal seeking relief based on “membership in a particular social group” must establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.

(3) Whether a social group is recognized for asylum purposes is determined by the perception of the society in question, rather than by the perception of the persecutor.


W-G-R-, 26 I&N Dec. 208 (BIA 2014)

ID 3794 (PDF)

(1) In order to clarify that the “social visibility” element required to establish a cognizable “particular social group” does not mean literal or “ocular” visibility, that element is renamed as “social distinction.” Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008); Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008); Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69 (BIA 2007); and Matter of C-A-, 23 I&N Dec. 951 (BIA 2006), clarified.

(2) An applicant for asylum or withholding of removal seeking relief based on “membership in a particular social group” must establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.

(3) An applicant has the burden of demonstrating not only the existence of a cognizable particular social group and his membership in that particular social group, but also a risk of persecution “on account of” his membership in that group.

(4) The respondent did not establish that “former members of the Mara 18 gang in El Salvador who have renounced their gang membership” constitute a “particular social group” or that there is a nexus between the harm he fears and his status as a former gang member.


OPPEDISANO, 26 I&N Dec. 202 (BIA 2013)

ID 3793 (PDF)

The offense of unlawful possession of ammunition by a convicted felon in violation of 18 U.S.C. § 922(g) (2006) is an aggravated felony under section 101(a)(43)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(E)(ii) (2012).


DOUGLAS, 26 I&N Dec. 197 (BIA 2013)

ID 3792 (PDF)

A child who has satisfied the statutory conditions of former section 321(a) of the Immigration and Nationality Act, 8 U.S.C. § 1432(a) (2000), before the age of 18 years has acquired United States citizenship, regardless of whether the naturalized parent acquired legal custody of the child before or after the naturalization. Matter of Baires, 24 I&N Dec. 467 (BIA 2008), followed. Jordon v. Attorney General of U.S., 424 F.3d 320 (3d Cir. 2005), not followed.

PINZON, 26 I&N Dec. 189 (BIA 2013)

ID 3791 (PDF)

(1) An alien who enters the United States by falsely claiming United States citizenship is not deemed to have been inspected by an immigration officer, so the entry is not an “admission” under section 101(a)(13)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(A) (2012).

(2) The offense of knowingly and willfully making any materially false, fictitious, or fraudulent statement to obtain a United States passport in violation of 18 U.S.C. § 1001(a)(2) (2006) is a crime involving moral turpitude.


ESTRADA, 26 I&N Dec. 180 (BIA 2013)

ID 3790 (PDF)

A spouse or child accompanying or following to join a principal grandfathered alien cannot qualify as a derivative grandfathered alien for purposes of section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006), by virtue of a spouse or child relationship that arose after April 30, 2001.


TAVAREZ PERALTA, 26 I&N Dec. 171 (BIA 2013)

ID 3789 (PDF)

(1) An alien convicted of violating 18 U.S.C. § 32(a)(5) (2006), who interfered with a police helicopter pilot by shining a laser light into the pilot’s eyes while he operated the helicopter, is removable under section 237(a)(4)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(4)(A)(ii) (2006), as an alien who has engaged in criminal activity that endangers public safety.

(2) A violation of 18 U.S.C. § 32(a)(5) is not a crime of violence under 18 U.S.C. § 16 (2006).


J-G-, 26 I&N Dec. 161 (BIA 2013)

ID 3788 (PDF)

(1) An alien who is subject to an in absentia removal order need not first rescind the order before seeking reopening of the proceedings to apply for asylum and withholding of removal based on changed country conditions arising in the country of the alien’s nationality or the country to which removal has been ordered.

(2) The numerical limitations on filing a motion to reopen in 8 C.F.R. § 1003.23(b)(1)(2013) are not applicable to an alien seeking reopening to apply for asylum and withholding of removal based on changed country conditions arising in the country of the alien’s nationality or the country to which removal has been ordered.


ZELENIAK, 26 I&N Dec. 158 (BIA 2013)

ID 3787 (PDF)

Section 3 of the Defense of Marriage Act, Pub. L. No. 104 199, 110 Stat. 2419, 2419 (1996), is no longer an impediment to the recognition of lawful same-sex marriages and spouses under the Immigration and Nationality Act if the marriage is valid under the laws of the State where it was celebrated.


FLORES, 26 I&N Dec. 155 (BIA 2013)

ID 3786 (PDF)

The offense of traveling in interstate commerce with the intent to distribute the proceeds of an unlawful drug enterprise in violation of 18 U.S.C. § 1952(a)(1)(A) (2006) is not an “aggravated felony” under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2006), because it is neither a “drug trafficking crime” under 18 U.S.C. § 924(c) (2006) nor “illicit trafficking in a controlled substance.” Matter of Davis, 20 I&N Dec. 536 (BIA 1992), followed.


V-X-, 26 I&N Dec. 147 (BIA 2013)

ID 3785 (PDF)

(1) A grant of asylum is not an “admission” to the United States under section 101(a)(13)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(A)(2006).

(2) When termination of an alien’s asylum status occurs in conjunction with removal proceedings pursuant to 8 C.F.R. § 1208.24 (2013), the Immigration Judge should ordinarily make a threshold determination regarding the termination of asylum status before resolving issues of removability and eligibility for relief from removal.

(3) An adjudication of “youthful trainee” status pursuant to section 762.11 of the Michigan Compiled Laws is a “conviction” under section 101(a)(48)(A) of the Act because such an adjudication does not correspond to a determination of juvenile delinquency under the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5042 (2006). Matter of Devison, 22 I&N Dec. 1362 (BIA 2000), followed.


E-S-I-, 26 I&N Dec. 136 (BIA 2013)

ID 3784 (PDF)

(1) Where the indicia of a respondent’s incompetency are manifest, the Department of Homeland Security (“DHS”) should serve the notice to appear on three individuals: (1) a person with whom the respondent resides, who, when the respondent is detained in a penal or mental institution, will be someone in a position of demonstrated authority in the institution or his or her delegate and, when the respondent is not detained, will be a responsible party in the household, if available; (2) whenever applicable or possible, a relative, guardian, or person similarly close to the respondent; and (3) in most cases, the respondent.

(2) If the DHS did not properly serve the respondent where indicia of incompetency were either manifest or arose at a master calendar hearing that was held shortly after service of the notice to appear, the Immigration Judge should grant a continuance to give the DHS time to effect proper service.

(3) If indicia of incompetency become manifest at a later point in the proceedings and the Immigration Judge determines that safeguards are needed, he or she should
evaluate the benefit of re-serving the notice to appear in accordance with 8 C.F.R. §§ 103.8(c)(2)(i) and (ii) (2013) as a safeguard.


RIVAS, 26 I&N Dec. 130 (BIA 2013)

ID 3783 (PDF)

A waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2006), is not available on a “stand-alone” basis to an alien in removal proceedings without a concurrently filed application for adjustment of status, and a waiver may not be granted nunc pro tunc to avoid the requirement that the alien must establish eligibility for adjustment.


OTIENDE, 26 I&N Dec. 127 (BIA 2013)

ID 3782 (PDF)

Although a visa petition filed by a petitioner for a spouse may be subject to denial under section 204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c) (2006), based on the spouse’s prior marriage, that section does not prevent the approval of a petition filed on behalf of the spouse’s child, which must be considered on its merits to determine whether the child qualifies as the petitioner’s “stepchild” under the Act.


MONTOYA-SILVA, 26 I&N Dec. 123 (BIA 2013)

ID 3781 (PDF)

A parent’s lawful permanent resident status and residence in the United States cannot be imputed to an unemancipated minor for purposes of establishing the child’s eligibility for cancellation of removal under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (2006). Matter of Escobar, 24 I&N Dec. 231 (BIA 2007); and Matter of Ramirez-Vargas, 24 I&N Dec. 599 (BIA 2008), reaffirmed.


B-R-, 26 I&N Dec. 119 (BIA 2013)

ID 3780 (PDF)

An alien who is a citizen or national of more than one country but has no fear of persecution in one of those countries does not qualify as a “refugee” under section 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42) (2006), and is ineligible for asylum.


BUTT, 26 I&N Dec.108 (BIA 2013)

ID 3779 (PDF)

(1) For purposes of establishing eligibility for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006), an alien seeking to be"grandfathered" must be the beneficiary of an application for labor certification that was "approvable when filed."

(2) An alien will be presumed to be the beneficiary of a "meritorious in fact" labor certification if the application was "properly filed" and "non-frivolous" and if no apparent bars to approval of the labor certification existed at the time it was filed.


CENTRAL CALIFORNIA LEGAL SERVICES, INC., 26 I&N Dec. 105 (BIA 2013)

ID 3778 (PDF)

A recognized organization’s application for initial accreditation of a proposed representative must show that the individual has recently completed at least one formal training course that was designed to give new practitioners a solid overview of the fundamentals of immigration law and procedure.


ORTEGA-LOPEZ, 26 I&N Dec. 99 (BIA 2013)

ID 3777 (PDF)

The offense of sponsoring or exhibiting an animal in an animal fighting venture in violation of 7U.S.C. § 2156(a)(1) (2006) is categorically a crime involvingmoral turpitude.


G-K-, 26 I&N Dec. 88 (BIA 2013)

ID 3776 (PDF)

(1) The United Nations Convention Against Transnational Organized Crime, Nov. 15, 2000, 2225 U.N.T.S. 209 (“UNTOC”), which is intended to help protect witnesses of transnational organized crime from retaliation and intimidation, does not provide an independent basis for relief from removal in immigration proceedings.

(2) The objectives of the UNTOC are advanced in the United States through existing immigration laws and regulations, including the S, T, and U nonimmigrant visas and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46. 39 U.N. GAORSupp.No. 51, at 197,U.N.Doc.A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988).

(3) The Board of Immigration Appeals and the Immigration Judges do not have the authority to rule on the constitutionality of the statutes they administer and therefore lack jurisdiction to address a claimthat the statute barring relief for particularly serious crimes is void for vagueness.


CORTES MEDINA, 26 I&N Dec. 79 (BIA 2013)

ID 3775 (PDF)

The offense of indecent exposure in violation of section 314(1) of the California Penal Code, which includes the element of lewd intent, is categorically a crime involving moral turpitude.


SANCHEZ-LOPEZ, 26 I&N Dec. 71 (BIA 2012)

ID 3774 (PDF)

The offense of stalking in violation of section 646.9 of the California Penal Code is “a crime of stalking” under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2006).


VALENZUELA-FELIX, 26 I&N Dec. 53 (BIA 2012)

ID 3773 (PDF)

When theDepartment ofHomeland Security paroles a returning lawful permanent resident for prosecution, it need not have all the evidence to sustain its burden of proving that the alien is an applicant for admission but may ordinarily rely on the results of a subsequent prosecution to meet that burden in later removal proceedings.


M-H-, 26 I&N Dec. 46 (BIA 2012)

ID 3772 (PDF)

The holding in Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007), that an offense need not be an aggravated felony to be considered a particularly serious crime for purposes of barring asylum or withholding of removal, should be applied to cases within the jurisdiction of the United States Court of Appeals for the Third Circuit.


SANCHEZ-HERBERT, 26 I&N Dec. 43 (BIA 2012)

ID 3771 (PDF)

Where an alien fails to appear for a hearing because he has departed the United States, termination of the pending proceedings is not appropriate if the alien received proper notice of the hearing and is removable as charged.


DAVEY, 26 I&N Dec. 37 (BIA 2012)

ID 3770 (PDF)

(1) For purposes of section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8U.S.C. § 1227(a)(2)(B)(i) (2006), the phrase “a single offense involving possession for one’s own use of thirty grams or less of marijuana” calls for a circumstance-specific inquiry into the character of the alien’s unlawful conduct on a single occasion, not a categorical inquiry into the elements of a single statutory crime.

(2) An alien convicted of more than one statutory crime may be covered by the exception to deportability for an alien convicted of “a single offense involving possession for one’s own use of thirty grams or less ofmarijuana” if all the alien’s crimeswere closely related to or connected with a single incident in which the alien possessed 30 grams or less of marijuana for his or her own use, provided that none of those crimeswas inherently more serious than simple possession.


M-Z-M-R-, 26 I&N Dec. 28 (BIA 2012)

ID 3769 (PDF)

(1) In assessing an asylum applicant’s ability to internally relocate, an Immigration Judge must determine whether the applicant could avoid future persecution by relocating to another part of the applicant’s country of nationality and whether, under all the circumstances, it would be reasonable to expect the applicant to do so.

(2) For an applicant to be able to internally relocate safely, there must be an area of the country where the circumstances are substantially better than those giving rise to a well-founded fear of persecution on the basis of the original claim.

(3) If an applicant is able to internally relocate, an Immigration Judge should balance the factors identified at 8 C.F.R. § 1208.13(b)(3) (2012) in light of the applicable burden of proof to determine whether it would be reasonable under all the circumstances to expect the applicant to relocate.


LEAL, 26 I&N Dec. 20 (BIA 2012)

ID 3768 (PDF)

The offense of “recklessly endangering another person with a substantial risk of imminent death” in violation of section 13-1201(A) of the Arizona Revised Statutes is categorically a crime involving moral turpitude under the definition in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), even though Arizona law defines recklessness to encompass a subjective ignorance of risk resulting from voluntary intoxication.


Y-N-P-, 26 I&N Dec. 10 (BIA 2012)

ID 3767 (PDF)

An applicant for special rule cancellation of removal under section 240A(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(2) (2006), cannot utilize a waiver of inadmissibility under section 212(h) of the Act, 8 U.S.C. § 1182(h) (2006), to overcome the section 240A(b)(2)(A)(iv) bar resulting from inadmissibility under section 212(a)(2).


E-A-, 26 I&N Dec. 1 (BIA 2012)

ID 3766 (PDF)

(1) In assessing whether there are serious reasons for believing that an applicant for asylum or withholding of removal has committed a serious nonpolitical crime, an Immigration Judge should balance the seriousness of the criminal acts against the political aspect of the conduct to determine whether the criminal nature of the acts outweighs their political character.

(2) When considered together, the applicant’s actions as a member of a group that burned passenger buses and cars, threwstones, and disrupted the economic activity of merchants in the market, while pretending to be from the opposition party, reached the level of serious criminal conduct that, when weighed against its political nature, constituted a serious nonpolitical crime.



BIA Precedent Decisions Volume 26 (2012-2014) Executive Office for Immigration Review

Posted in 26 I&N Dec. 415 (BIA 2014), BIA, BIA Precedent Decisions, BIA Precedent Decisions Volume 26, Board of Immigration Appeals, Executive Office for Immigration Review | Tagged | Leave a comment

Prosecutorial Discretion in Immigration Enforcement



Prosecutorial Discretion in Immigration Enforcement: Legal Issues

Kate M. Manuel Legislative Attorney

Todd Garvey Legislative Attorney December 27, 2013

Congressional Research Service 7-5700 www.crs.gov R42924

Tool Kit for ICE Prosecutors (PDF)

Summary

The term prosecutorial discretion is commonly used to describe the wide latitude that prosecutors have in determining when, whom, how, and even whether to prosecute apparent violations of the law. The Immigration and Naturalization Service (INS) and, later, the Department of Homeland Security (DHS) and its components have historically described themselves as exercising prosecutorial discretion in immigration enforcement. Some commentators have recently challenged this characterization on the grounds that DHS enforces primarily civil violations, and some of its components cannot be said to engage in “law enforcement,” as that term is conventionally understood. However, even agencies that do not prosecute or engage in law enforcement have been recognized as having discretion (sometimes referred to as enforcement discretion) in determining whether to enforce particular violations.

Federal regulation of immigration is commonly said to arise from various powers enumerated in the Constitution (e.g., naturalization, commerce), as well as the federal government’s inherent power to control and conduct foreign relations. Some, although not all, of these powers belong exclusively to Congress, and courts have sometimes described Congress as having “plenary power” over immigration. However, few courts or commentators have addressed the separation of powers between Congress and the President in the field of immigration, and the executive has sometimes been said to share plenary power over immigration with Congress as one of the “political branches.” Moreover, the authority to exercise prosecutorial or enforcement discretion has traditionally been understood to arise from the Constitution, not from any congressional delegation of power.

Certain decisions have been widely recognized as within the prosecutorial discretion of immigration officers. These include deciding whether to initiate removal proceedings and what charges to lodge against the respondent; canceling a Notice to Appear or other charging document before jurisdiction vests with an immigration judge; granting deferred action or extended voluntary departure to an alien otherwise subject to removal (deportation); appealing particular decisions or orders; and imposing fines for particular offenses, among other things. Enforcement priorities and resources, as well as humanitarian concerns, have typically played a role in determining whether to exercise discretion in individual cases. For example, the George W. Bush Administration temporarily suspended employer sanctions in areas affected by Hurricane Katrina, and the Obama Administration recently began granting deferred action to certain unauthorized aliens brought to the United States as children.

While the executive branch’s prosecutorial or enforcement discretion is broad, it is not unfettered, and particular exercises of discretion could potentially be checked by the Constitution, statute, or agency directives. Selective prosecution, or prosecution based on race, religion, or the exercise of constitutional rights, is prohibited, although aliens generally cannot assert selective prosecution as a defense to removal. A policy of non-enforcement that amounts to an abdication of an agency’s statutory responsibilities could potentially be said to violate the Take Care Clause. However, standing to challenge alleged violations of the Take Care Clause may be limited, and no court appears to have invalidated a policy of non-enforcement founded upon prosecutorial discretion on the grounds that the policy violated the Take Care Clause. Non-enforcement of particular laws could also potentially be challenged under the Administrative Procedure Act if a statute provides specific guidelines for the agency to follow in exercising its enforcement powers. In addition, an agency could potentially be found to have constrained its own discretion, as some courts found that the INS had done in the 1970s with its operating instruction on deferred action.

Contents (Donwload pdf)

Introduction 1

Federal Power to Regulate Immigration 3

Prosecutorial Discretion Generally 8

Prosecutorial Discretion in the Immigration Context 10

Potential Limits on the Exercise of Discretion 13

Constitution 15

Selective Prosecution 15

“Take Care” Clause 16

Statute 19

Whether “Shall” Means Agencies Lack Discretion 21

Deference to Agencies’ Interpretations of Their Governing Statutes 22

Executive Branch Self-Regulation 24

Conclusion 26

Contacts

Author Contact Information. 28

Introduction

The term prosecutorial discretion is commonly used to describe the “wide latitude” that prosecutors have in determining when, whom, how, and even whether to prosecute apparent violations of the law.1 The Immigration and Naturalization Service (INS) and, later, the Department of Homeland Security (DHS) and its components have historically described themselves as exercising prosecutorial discretion in the enforcement of federal immigration law, which is largely contained in the Immigration and Nationality Act of 1952 (INA), as amended.2 Some commentators have recently challenged this characterization on the grounds that DHS enforces primarily civil violations, and some of its components cannot be said to engage in “law enforcement,” as that term is conventionally understood.3 However, even agencies that do not prosecute or engage in law enforcement have been recognized as having discretion (sometimes referred to as enforcement discretion) in determining whether to enforce particular violations,4 and immigration officers appear to have exercised such discretion in individual cases and on a categorical basis for decades. For example, the Kennedy Administration granted extended voluntary departure to persons from Cuba in 1960,5 allowing many otherwise deportable Cuban nationals to remain in the United States for an extended period, while the George W. Bush Administration temporarily suspended employer sanctions on entities that employed unauthorized aliens in areas affected by Hurricane Katrina.6

The scope of prosecutorial discretion in immigration enforcement has recently been of interest to Congress and the public due to certain initiatives of the Obama Administration.7 In 2011, John Morton, then Director of U.S. Customs and Immigration Enforcement (ICE), issued two memoranda addressing prosecutorial discretion, one of which identified ICE’s priorities for the apprehension, detention, and removal of aliens,8 and the other of which discussed how ICE personnel may exercise prosecutorial discretion consistent with ICE’s enforcement priorities.9 Subsequently, in June 2012, then Secretary of Homeland Security Janet Napolitano issued a memorandum “setting forth how, in the exercise of [its] prosecutorial discretion, the Department… should enforce the Nation’s immigration laws against certain young people who were brought to this country as children and know only this country as home.”10 As implemented, this initiative has come to be known as Deferred Action for Childhood Arrivals (DACA). Most recently, ICE has directed its personnel to exercise discretion in “ensur[ing] that the agency’s immigration enforcement activities do not unnecessarily disrupt the parental rights of both alien parents or legal guardians of minor children.”11

These initiatives have been challenged by some Members of Congress and commentators on the grounds that they are tantamount to “amnesty” for unauthorized aliens and are contrary to the President’s constitutional responsibility to “take Care” that the laws be enforced.12 In particular, some Members have suggested that DACA exceeds the President’s authority because “it was issued after Congress specifically rejected legislation”—the Development, Relief, and Education for Alien Minors (DREAM) Act—“embodying that policy.”13 In addition, several ICE agents and the State of Mississippi filed suit in federal district court for the Northern District of Texasalleging that the DACA initiative violates certain statutory requirements and impinges upon Congress’s legislative powers, among other things.14

1 U.S. Dep’t of Justice, United States Attorneys’ Manual, §9-27.110(B) (2002), available at http://www.justice.gov/ usao/eousa/foia_reading_room/usam/title9/27mcrm.htm#9-27.110.

2 See, e.g., Julie L. Myers, Assistant Secretary, U.S. Immigration and Customs Enforcement (ICE), Prosecutorial and Custody Detention, Nov. 7, 2007, available at http://niwaplibrary.wcl.american.edu/reference/additional-materials/ immigration/enforcement-detention-and-criminal-justice/government-documents/Myers-Memo-Custody-Discretion-11- 7-07.pdf (“This memorandum serves to highlight the importance of exercising prosecutorial discretion when making administrative arrest and custody determinations for aliens who are nursing mothers.”); Doris Meissner, Commissioner, INS, Exercising Prosecutorial Discretion, Nov. 7, 2000, available at http://niwaplibrary.wcl.american.edu/reference/ additional-materials/immigration/enforcement-detention-and-criminal-justice/government-documents/22092970-INS- Guidance-Memo-Prosecutorial-Discretion-Doris-Meissner-11-7-00.pdf [hereinafter “2002 INS Guidance”] (“This memorandum describes the principles with which the INS exercises prosecutorial discretion and the process to be followed in making and monitoring discretionary decisions.”). INS was abolished in 2002, and most of its functions were transferred to the newly created Department of Homeland by the Homeland Security Act of 2002 (P.L. 107-296).

3 See, e.g., Crane v. Napolitano, No. 3:12-cv-03247-O, Amended Complaint (filed N.D. Tex., Oct. 10, 2012), at ¶¶ 88- 89 (“U.S. Citizenship and Immigration Services is not a law enforcement agency. A non-law-enforcement agency cannot exercise prosecutorial discretion.”): Robert J. Delahunty & John C. Yoo, The Obama Administration, the DREAM Act, and the Take Care Clause, at 3, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2144031 (noting that immigration laws are primarily enforced civilly).

4 See, e.g., Heckler v. Chaney, 470 U.S. 821, 831 (1985) (“[W]e recognize that an agency’s refusal to institute proceedings shares to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indict—a decision which has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution to ‘take Care that the Laws be faithfully executed.’”).

5 See, e.g., Lynda J. Oswald, Extended Voluntary Departure: Limiting the Attorney General’s Discretion in Immigration Matters, 85 MICH. L. REV. 152, 158 n.40 (1986).

6 U.S. Dep’t of Homeland Security, Press Release, Notice Regarding I-9 Documentation Requirements for Hiring Hurricane Victims, Sept. 6, 2005, available at http://v2011.nilc.org/disaster_assistance/FINAL_I-9_Press_Release.pdf.

7 The Obama Administration has also cited prosecutorial discretion in abstaining from prosecutions for contempt of

Congress and violations of the Controlled Substances Act relating to the possession of marijuana. See Letter fromJames M. Cole, Deputy Attorney General, to John Boehner, Speaker of the House, June 28, 2012; Memorandum for Selected U.S. Attorneys from David W. Ogden, Deputy Attorney General, Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana, Oct. 19, 2009; CRS Legal Sidebar, Obama Administration Will Not Challenge State Marijuana Laws That Do Not Undermine Federal Enforcement Priorities, by Brian T. Yeh and Todd Garvey, available at http://www.crs.gov/LegalSidebar/details.aspx?ID=664&Source=search.

(continued…)

8 John Morton, Director, ICE, Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens, Mar. 2, 2011, at 1-2, available at http://www.ice.gov/doclib/news/releases/2011/ 110302washingtondc.pdf (aliens who have been convicted of crimes, are at least 16 years of age and participate in organized criminal gangs, are subject to outstanding criminal warrants, or “otherwise pose a serious risk to public safety” constituting the highest priorities for removal).

9 John Morton, Director, ICE, Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens, June 17, 2011, available at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf [hereinafter “2011 DHS Guidance”].

10 Janet Napolitano, Secretary of Homeland Security, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, June 15, 2012, at 1, available at http://www.dhs.gov/xlibrary/assets/s1- exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf.

11 U.S. ICE, Facilitating Parental Interests in the Course of Civil Immigration Enforcement Activities, No. 306-112- 002b, Aug. 23, 2013, available at http://www.ice.gov/doclib/detention-reform/pdf/ parental_interest_directive_signed.pdf.

12 See, e.g., “Does Administrative Amnesty Harm Our Efforts to Gain and Maintain Operational Control of the Border?” Hearing Before the House Committee on Homeland Security, Subcommittee on Border and Maritime Security, Oct. 4, 2011; “U.S. Immigration and Customs Enforcement: Priorities and the Rule of Law,” Hearing Before the House Committee on the Judiciary, Oct. 12, 2011.

13 See, e.g., Testimony of Senator Michael S. Lee Before the House Committee on the Judiciary, “The Obama Administration’s Abuse of Power,” Sept. 12, 2012, at 5, available at http://judiciary.house.gov/hearings/ Hearings%202012/Lee%2009122012.pdf; The Obama Administration, the DREAM Act, and the Take Care Clause, supra note 3, at 5 (noting that the DREAM Act, “in one form or other, has been before Congress since 2001”).

This report begins by discussing the sources of federal power to regulate immigration and, particularly, the allocation of power between Congress and the President in this area. It next addresses the constitutional and other foundations for the doctrine of prosecutorial discretion, as well as the potential ways in which prosecutorial discretion may be exercised in the immigration context. It concludes by addressing potential constitutional, statutory, and administrative constraints upon the exercise of prosecutorial discretion. The report does not address other aspects of discretion in immigration law, such as the discretion exercised by immigration officers in granting benefits (e.g., asylum), or by immigration judges in non-enforcement contexts (e.g., cancellation of removal).15

Federal Power to Regulate Immigration

The Constitution does not directly address the sources of federal power to regulate which non-U.S. nationals (aliens) may enter and remain in the United States, or to establish the conditions of their continued presence within the country. However, several of the enumerated powers of the federal government have been construed as authorizing such regulation. The powers to establish a uniform rule of naturalization and regulate commerce are arguably the most commonly cited provisions, particularly in recent years.16 Various authorities related to foreign affairs have also been routinely cited as providing support for particular enactments and activities in the field of immigration.17 In addition, in some cases, the Supreme Court has suggested that federalregulation of immigration is grounded in the federal government’s “inherent power as a sovereign to control and conduct foreign relations.”18

14 See Crane, Amended Complaint, supra note 3. For further discussion of this litigation, see infra notes 119-120 and accompanying text. Two other suits challenging DACA were dismissed because the plaintiffs lacked standing. See Peterson v. President of the United States, No. 1:2012cv00257, Order Granting Motion to Dismiss (D.N.H., Oct. 22, 2012); Dutkiewicz v. Napolitano, No. 8:2012cv01447, Order Granting Motion to Dismiss (M.D. Fla., Nov. 9, 2012).

15 See, e.g., Restrepo v. Holder, 676 F.3d 10 (1st Cir. 2012) (cancellation of removal pursuant to 8 U.S.C. §1229b(a) is solely within the Attorney General’s discretion absent a colorable constitutional claim or a question of law); Bo Cooper, General Counsel, INS, INS Exercise of Prosecutorial Discretion, July 11, 2000, at 4, available at http://niwaplibrary.wcl.american.edu/reference/additional-materials/immigration/enforcement-detention-and-criminal- justice/government-documents/Bo-Cooper-memo%20pros%20discretion7.11.2000.pdf (“The doctrine of prosecutorial discretion applies to enforcement decisions, not benefit decisions. For example, a decision to charge, or not to charge, an alien with a ground of deportability is clearly a prosecutorial enforcement decision. By contrast, the grant of an immigration benefit, such as naturalization or adjustment of status, is a benefit decision that is not a subject for prosecutorial discretion.”).

16 See, e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius,—U.S.—, 132 S. Ct. 2566, 2600 (2012) (describing regulation of immigration as among Congress’s powers under the Commerce Clause); Arizona v. United States,—U.S.—132 S. Ct. 2492, 2498 (2012) (authority to regulate immigration resting, in part, on the power to establish a uniform rule of naturalization); Henderson v. Mayor of New York, 92 U.S. 259 (1876) (striking down New York and Louisiana laws that required shipmasters to pay fees or post bonds to indemnify states if immigrants ended up on public assistance on the grounds that the laws interfered with Congress’s power to regulate interstate commerce); Chy Lung v. Freeman, 92 U.S. 275 (1875) (striking down a California law regulating the entry of “lewd and debauched women” on the grounds that it interfered with Congress’s power to regulate the admission of noncitizens); The Passenger Cases, 48 U.S. 283 (1849) (striking down New York and Massachusetts laws that levied fees on arriving immigrant passengers, in part, on the grounds that such fees constituted unconstitutional regulations of foreign commerce).

17 See, e.g., The Chinese Exclusion Case, 130 U.S. 581, 604 (1889) (listing the powers to “declare war, make treaties, suppress insurrection, repel invasion, regulate foreign commerce, secure republican governments to the States, and admit subjects of other nations to citizenship” as authorizing Congress to enact legislation excluding Chinese laborers); Fong Yue Ting v. United States, 149 U.S. 698, 705-09 (1893) (relying on the same sources to affirm Congress’s power to deport noncitizens). See also Arizona, 132 S. Ct. at 2514 (Scalia, J., dissenting) (citing the Migration or Importation (continued…)

Many, although not all, of these powers belong exclusively to Congress,19 and courts and commentators have sometimes used language which implies that Congress is preeminent in the field of immigration. For example, it has frequently been said that Congress has “plenary power” over immigration,20 and that “over no conceivable subject is the legislative power of Congress more complete than it is over” immigration.21 In some cases, courts have even suggested that the executive branch’s authority over immigration arises from a delegation of congressional power, as is the case with other Article I powers, although Article I does not give Congress clear supremacy over immigration, as previously noted.22 In Sale v. Haitian Centers Council, Inc., for example, the Supreme Court rejected a challenge which alleged that the executive branch’s procedures for screening Haitian migrants at sea, without allowing them to disembark in the United States, did not comply with statutory and treaty-based protections that enable aliens to apply for refugee status and avoid repatriation.23 The Court did so, in part, on the grounds that “[t]he laws that the Coast Guard is engaged in enforcing when it takes to the seas under orders to prevent aliens from illegally crossing our borders are laws whose administration has been assigned to the Attorney General by Congress.”24 Similarly, in other cases, the Court has described Congress’s power to exclude aliens from the United States, or prescribe the terms and conditions upon which they may enter, as being “enforced exclusively through executive officers,”25 or opined that executive branch officials “exercise[] delegated legislative power” in taking specific actions.26

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Clause as a source of federal power over immigration). This clause, which pertains directly to slavery, can be seen as addressing federal power to control the entry of certain persons into the United States.

18 Arizona, 132 S. Ct. at 2498; Nishimara Ekiu v. United States, 142 U.S. 651, 659 (1892) (“It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self- preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.”).

19 In particular, the Constitution grants the treaty power to the President. See U.S. Const., art. II, §2 (“[The President] shall have [the] Power, by and with the Advice and Consent of the Senate to make Treaties …”).

20 See, e.g., Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 201 (1993) (“Congress … has plenary power over immigration matters.”); INS v. Chadha, 462 U.S. 919, 940-41 (1983) (“The plenary authority of Congress over aliens under Art. I, §8, cl. 4, is not open to question.”); Boutilier v. INS, 387 U.S. 118, 123 (1967) (“The Court without exception has sustained Congress’ ‘plenary power to make rules for the admission of aliens.’”).

21 Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909). This passage has been quoted in numerous other cases. See, e.g., Reno v. Flores, 507 U.S. 292, 305 (1993); Fiallo v. Bell, 430 U.S. 787, 792 (1977); Kleindienst v.

Mandel, 408 U.S. 753, 766 (1972); Hana v. Gonzales, 503 F.3d 39, 43 (1st Cir. 2007).

22 Some commentators have suggested that the language in these cases may have been partially motivated by a desire to enforce a more robust conception of the nondelegation doctrine. See, e.g., Adam B. Cox and Cristina M. Rodriguez, The President and Immigration Law, 119 YALE L.J. 458, 474 n.46 (2009).

23 509 U.S. 155 (1993).

24 Id. at 201.

25 Lem Moon Sing v. United States, 158 U.S. 538, 547 (1895) (finding that the Act of 1894, which declared that the decisions of the appropriate immigration or custom officers regarding the right of aliens to enter this country are generally final, took away the court’s authority to review such decisions). See also Galvan v. Press, 347 U.S. 522, 531 (1954) (“In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissue of our body politic as any aspect of our government.”).

26 Mahler v. Eby, 264 U.S. 32, 43-45 (1924) (finding that certain deportation orders issued by the Secretary of Labor were void because the orders did not indicate that the Secretary had made certain findings required by statute). See also Kleindienst, 408 U.S. at 769 (“[W]e think the Attorney General validly exercised the plenary power that Congress (continued…)

Few courts or commentators have, however, directly addressed the separation of powers between Congress and the President in the field of immigration,27 and in some cases, the Court has also suggested that the executive branch shares plenary power over immigration with Congress as one of the “political branches.”28 While some such cases could potentially be construed as referring to powers delegated to the executive branch by Congress, in other cases, the President has been expressly said to have inherent authority over at least some immigration-related matters. For example, in United States ex rel. Knauff v. Shaughnessy, the Court upheld the executive branch’s decision to exclude a German “war bride,” in part, on the grounds thatdelegated to the Executive by [certain provisions of the INA].”); Ng Fung Ho v. White, 259 U.S. 276, 280 (1922) (“Congress has power to order at any time the deportation of aliens whose presence in the country it deems hurtful; and may do so by appropriate executive proceedings.”); The Japanese Immigrant Case, 189 U.S. 86, 98 (1903) (“As to [aliens outside the United States], the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.”); Nishimura Ekiu, 142 U.S. at 659 (“The supervision of the admission of aliens into the United States may be entrusted by Congress either to the Department of State, having the general management of foreign relations, or to the Department of the Treasury, charged with the enforcement of the laws regulating foreign commerce; and Congress has often passed acts forbidding the immigration of particular classes of foreigners, and has committed the execution of these acts to the Secretary of the Treasury, to collectors of customs and to inspectors acting under their authority.”).

The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation…. When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power.29

Similarly, in Hampton v. Mow Sung Wong, the Court indicated that certain rules adopted by theU.S. Civil Service Commission barring resident aliens from employment in the federal civil service impermissibly deprived these aliens of due process of law, but that such rules would be permissible if they “were expressly mandated by the Congress or the President.”30 Here, Congress had delegated authority to the President to prescribe regulations for the admission of individuals to the civil service. Accordingly, it is possible that when the Hampton Court referred to the President’s power to limit alien eligibility for federal employment, it intended to refer only to the power which had been conferred to him by Congress. On the other hand, the Court’s discussion of the interests of the President that might be sufficient to justify the exclusion of noncitizens from the civil service focused upon the President’s power to negotiate treaties, suggesting recognition of some independent constitutional basis for executive branch activity in the field of immigration.31

(…continued)

27 Cf. The President and Immigration Law, supra note 22, at 510 (“[M]odern courts and commentators have largely ignored the question of power allocation between the President and Congress.”); The Obama Administration, the DREAM Act, and the Take Care Clause, supra note 3, at 3 (noting that the Constitution does not explicitly allocate authority over immigration among the political branches). Only in the case of INS v. Chadha did the Supreme Court confront a separation of powers question touching upon immigration. 462 U.S. 919 (1983). At issue in Chadha was the permissibility of a statutory provision which authorized either house of Congress, by resolution, to invalidate the executive branch’s determination to suspend deportation and adjust the status of aliens whose deportation would result in “extreme hardship” to the alien or the alien’s family. The Court struck the statute down on separation of powers grounds, finding that it violated the constitutional requirement that legislative acts be passed by both houses of Congress and presented for the President’s approval. In reaching this conclusion, the Court noted both Congress’s “plenary authority” over aliens, and that the “Attorney General acts in his presumptively Article II capacity when he administers the [INA].” Id. at 940, 953 n.16. It is unclear, however, whether the reference to the Attorney General’s “Article II capacity” means prosecutorial discretion under the Take Care Clause, or some other authority of the executive. 29 338 U.S. 537, 542 (1950).

28 See, e.g., United States v. Valenzuela-Bernal, 458 U.S. 858, 864 (1982) (“The power to regulate immigration—an attribute of sovereignty essential to the preservation of any nation—has been entrusted by the Constitution to the political branches of the Federal Government.”); Mathews v. Diaz, 426 U.S. 67, 81 (1976) (“[T]he relationship between the U.S. and our alien visitors has been committed to the political branches of the federal government. Since decisions in these matters may implicate our relations with foreign powers … such decisions are frequently of a character more appropriate to either the Legislature or the Executive branches than to the Judiciary.”); The Chinese Exclusion Case, 130 U.S. 581, 607-09 (1889) (rejecting the alien’s assertion that the federal government lacked the power to regulate immigration, in part, because the “political department” of the United States had the responsibility for determining “who shall compose [society’s] members”).

The possibility of independent executive branch authority over immigration is significant in that any such authority could potentially help justify certain actions taken by the executive branch (although actions taken in reliance on such authority could also potentially raise issues if they were arguably within Congress’s purview).32 However, the executive branch’s authority to exercise prosecutorial or enforcement discretion has traditionally been understood to arise from the Constitution,33 as discussed below.

Courts have historically not required that the executive branch have specific statutory authorization for particular exercises of prosecutorial discretion. Thus, immigration officials would not necessarily be precluded from granting deferred action, or taking certain other actions that could permit otherwise removable aliens to remain in the United States, just because federal immigration statutes do not expressly authorize such actions.34 On the other hand, Section 103(a)(3) of the INA authorizes the Secretary of Homeland Security to “perform such other acts as he deems necessary for carrying out his authority under the provisions of this chapter,” and has been construed by some as “commit[ting] enforcement of the INA to [the Secretary’s] discretion.”35 The federal government recently noted its discretion under Section 103(a)(3) in seeking dismissal of a lawsuit challenging the DACA initiative.36 The Secretary’s authority under Section 103(a)(3) of the INA is, however, an authority granted to the executive branch by Congress and, as such, is distinguishable from the President’s constitutional authority to “take Care” that the laws be enforced. Congress could, for example, potentially limit the discretion granted to the Secretary by Section 103(a)(3) of the INA, including by prohibiting particular exercises of discretion. In contrast, Congress probably could not directly limit the President’s authority under the Constitution to “take Care” that the laws be enforced.

30 426 U.S. 88, 103 (1976). Following the Court’s decision, President Ford issued an executive order reestablishing these employment restrictions. Exec. Order No. 11, 935, 41 Fed. Reg. 37301 (Sept. 2, 1976). When challenged, this order was found to be within the President’s authority. Vergara v. Hampton, 581 F.2d 1281 (7th Cir. 1978). However, in so finding, the reviewing court emphasized the President’s statutory authority under 5 U.S.C. §3301(1), not any inherent authority over immigration or aliens.

31 Hampton, 426 U.S. at 104 (“In this case the petitioners have identified several interests which the Congress or the President might deem sufficient to justify the exclusion of noncitizens from the federal service. They argue, for example, that the broad exclusion may facilitate the President’s negotiation of treaties with foreign powers by enabling him to offer employment opportunities to citizens of a given foreign country in exchange for reciprocal concessions.”).

32 Any assertion of inherent, independent, or implied constitutional presidential authority in the field of immigration may be evaluated under the rubric established by Justice Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). The Youngstown framework, which the Court has characterized as bringing “together as much combination of analysis and common sense as there is in this area,” has generally been applied when a President seeks to take action within an area generally considered to be within Congress’s purview. See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 661-62 (1981). Importantly, the scope of executive authority under the Jackson analysis is judged in direct relation to congressional action in the field. When the President acts pursuant to an authorization from Congress, his power is “at its maximum.” To the contrary, when the President seeks to take action that conflicts with Congress’s expressed will, his power is at its “lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Where Congress is silent, “there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.” Youngstown, 343 U.S. at 635-37. Any claimed constitutional authority justifying executive action in the field of immigration would, therefore, likely be evaluated in relation to the policies established by Congress in the INA and other pertinent statutes.

33 See, e.g., United States v. Armstrong, 517 U.S. 456, 464 (1996) (noting that the Attorney General and the United States Attorneys have wide latitude in enforcing federal criminal law because “they are designated by statute as the President’s delegates to help him discharge his constitutional duty to ‘take Care that the Laws be faithfully executed’”); Heckler, 470 U.S. at 831 (“[W]e recognize that an agency’s refusal to institute proceedings shares to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indict—a decision which has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution to ‘take Care that the Laws be faithfully executed.’”).

34 An argument could also potentially be made that Congress has impliedly delegated the authority to exercise certain (continued…)

The INA also grants the Secretary other types of discretion which are sometimes mentioned in connection with exercises of prosecutorial or enforcement discretion, but do not themselves involve determinations regarding when, whom, how, and even whether to prosecute apparent violations of the law. In some cases, the INA expressly provides that certain determinations are within the discretion of immigration officials, such as the determination to waive the bar upon admissibility for alien spouses or children of U.S. citizens or lawful permanent residents (LPRs) who have been present in the United States without authorization for more than 180 days.37 In other cases, the INA does not expressly mention the discretion of executive branch officials, but effectively affords them such discretion by leaving certain details of the statutory scheme to be implemented by the executive branch. Thus, the INA affords the Secretary discretion to determine which aliens are granted employment authorization by prohibiting the employment of unauthorized aliens, and defining “unauthorized alien,” in part, as an alien who has not been “authorized to be … employed by the [Secretary].”38 Because it is conferred by Congress, this discretion, like the Secretary’s discretion under Section 103(a)(3), could also be limited by Congress.

(…continued)

35 Texas v. United States, 106 F.3d 661, 667 (5th Cir. 1997) (rejecting allegations that the Attorney General had breached his nondiscretionary duty under the INA to control immigration, in part, on the grounds that enforcement of the INA is committed to the Attorney General’s discretion). See also Hotel & Rest. Employees Union Local 25 v. Smith, 846 F.2d 1499, 1510 (D.C. Cir. 1988) (citing Section 103(a)(3) to support the proposition that the then-Attorney General enjoyed “broad latitude in enforcing the immigration laws,” and that the decision to grant or withhold extended voluntary departure “falls within this broad mandate”), aff’g, 563 F. Supp. 157 (D.D.C. 1983).

36 Crane v. Napolitano, No. 3:12-CV-3247-O, Defendants’ Motion to Dismiss and Memorandum in Support (filed N.D. Tex., Nov. 13, 2012). The INS had previously expressed the view that Section 242(g) of the INA meant that it had discretion not to pursue removal against an alien because such decisions are not judicially reviewable. See INS Exercise of Prosecutorial Discretion, supra note 15, at 9. However, DHS does not appear to rely upon this argument at present.

37 INA §212(a)(9)(B); 8 U.S.C. §1182(a)(9)(B). Any such waivers may only be granted where certain conditions are met (e.g., the refusal of admission to the alien would result in “extreme hardship” to his or her citizen or LPR relatives). 38 INA §274a(h)(3); 8 U.S.C. §1324a(h)(3).

Prosecutorial Discretion Generally

The judicial branch has traditionally accorded federal prosecutors “broad” latitude in making a range of investigatory and prosecutorial determinations, including when, whom, and whether to prosecute particular violations of federal law.39 This doctrine of “prosecutorial discretion” has a long historical pedigree—the early roots of which can be traced at least to a Sixteenth Century English common law procedural mechanism known as the nolle prosequi.40 In the early English legal system, criminal prosecutions were generally initiated by private individuals rather than public prosecutors. The nolle prosequi, however, allowed the government, generally at the direction of the Crown, to intervene in and terminate a privately initiated criminal action it viewed as “frivolous or in contravention of royal interests.”41 The discretionary device was later adopted into American common law and has been used by prosecutors to terminate criminal prosecutions that are determined to be unwarranted or which the prosecuting authority chooses not to pursue.42

Notwithstanding this historical background, the modern doctrine of prosecutorial discretion derives more from our constitutional structure than English common law. However, the exact justification for the doctrine does not appear to have been explicitly established. Generally, courts have characterized prosecutorial discretion as a function of some mixture of the separation of powers, the Take Care Clause,43 or the duties of a prosecutor as an appointee of the President.44 Moreover, both federal and state courts have ruled that the exercise of prosecutorial discretion isan executive function necessary to the proper administration of justice. Given these precedents, prosecutorial discretion may be appropriately characterized as a constitutionally based doctrine.

39 See, e.g., Wayte v. United States, 470 U.S. 598, 607 (1985) (“In our criminal justice system, the Government retains ‘broad discretion’ as to whom to prosecute.”) (citing United States v. Goodwin, 457 U.S. 368, 380 (1982)); United States v. Nixon, 418 U.S. 683, 693 (1974) (“[T]he Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case…”) (citing the Confiscation Cases, 74 U.S. 454 (1869)).

40 See, e.g., Rebecca Krauss, The Theory of Prosecutorial Discretion in Federal Law: Origins and Development, 6 SETON HALL CIR. REV. 1, 19-26 (2009) (describing the English use of the nolle prosequi and its “absorb[tion]” by American law).

41 Id. at 20.

42 See, e.g., Confiscation Cases, 74 U.S. 454 (1869); Newman v. United States, 382 F.2d 479, 480 (D.C. Cir. 1967) (“Most recently, the issue of the United States Attorney’s ‘discretionary control of criminal prosecutions has arisen in connection with the filing of a nolle prosequi, and the Courts have regularly refused to interfere with these voluntary dismissals of prosecution.’”) (citing Louis B. Schwartz, Federal Criminal Jurisdiction and Prosecutors’ Discretion, 13 LAW & CONTEMP. PROB. 64, 83 (1948)). Today, judicial approval is generally required before a prosecutor may dismiss an ongoing prosecution. See FED. R. CRIM. P. 48(a) (“The government may, with leave of court, dismiss an indictment, information, or complaint.”).

43 U.S. Const. Art. II, §3 (“[H]e shall take Care that the Laws be faithfully executed…. ”).

44 See, e.g., Armstrong, 517 U.S. at 464 (“They have this latitude because they are designated by statute as the President’s delegates to help him discharge his constitutional responsibility to ‘take Care that the Laws be faithfully executed.’”); Confiscation Cases, 74 U.S. at 458 (“Appointed, as the Attorney General is, in pursuance of an act of Congress, to prosecute and conduct such suits, argument would seem to be unnecessary to prove his authority to dispose of these cases in the manner proposed…. ”); Ponzi v. Fessenden, 258 U.S. 254, 262 (1922) (“The Attorney General is the head of the Department of Justice. He is the hand of the President in taking care that the laws of the United States in protection of the interests of the United States in legal proceedings and in the prosecution of offences be faithfully executed.”); United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965) (“The Attorney General is the hand of the President in taking care that the laws of the United States in legal proceedings and in the prosecution of offenses, be faithfully executed. Although as a member of the bar, the attorney for the United States is an officer of the court, he is nevertheless an executive official of the Government, and it is as an officer of the executive department that he exercises discretion as to whether or not there shall be a prosecution in a particular case. It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions.”) (internal citations omitted)).

Regardless of its precise textual source, courts generally will neither review nor question discretionary prosecutorial decisions, nor “coerce” the executive branch to initiate a particular prosecution. In acknowledging the discretion possessed by enforcement officials, courts have recognized that the “decision to prosecute is particularly ill-suited to judicial review,” as it involves the consideration of factors—such as the strength of evidence, deterrence value, and existing enforcement priorities—“not readily susceptible to the kind of analysis the courts are competent to undertake.”45 Moreover, the executive branch has asserted that “because the essential core of the President’s constitutional responsibility is the duty to enforce the laws, the Executive Branch has exclusive authority to initiate and prosecute actions to enforce the laws adopted by Congress.”46

An agency decision to initiate an enforcement action in the administrative context “shares to some extent the characteristics of the decision of a prosecutor in the executive branch” to initiate a prosecution in the criminal context.47 Thus, just as courts are hesitant to question a prosecutor’s decisions with respect to whether to bring a criminal prosecution, so too are courts cautious in reviewing an agency’s decision not to bring an enforcement action. In the seminal case of HecklerCheney, the Supreme Court held that “an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.”48 The Court noted that agency enforcement decisions, like prosecution decisions, involve a “complicated balancing” of agency interests and resources—a balancing that the agency is “better equipped” to evaluate than the courts.49 The Heckler opinion proceeded to establish the standard for the reviewability of agency non-enforcement decisions, holding that an “agency’s decision not to take enforcement action should be presumed immune from judicial review.”50 However, the Court indicated that, in certain cases, that presumption may be overcome “where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers,” 51 as is discussed below.

  1. 45 Wayte, 470 U.S. at 607. However, the U.S. Court of Appeals for the District of Columbia Circuit has observed that “the decisions of this court have never allowed the phrase ‘prosecutorial discretion’ to be treated as a magical incantation which automatically provides a shield for arbitrariness.” Med. Comm. for Human Rights v. SEC, 432 F.2d 659, 673 (D.C. Cir. 1970).

    46 See Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 OP. OFF. LEGAL COUNSEL 101, 114 (1984) (emphasis added). This traditional conception may, however, have been qualified in some respects following the Supreme Court’s decision in Morrison v. Olson, in which the Court upheld a congressional delegation of prosecutorial power to an “independent counsel” under the Ethics in Government Act. In sustaining the validity of the statute’s appointment and removal conditions, the Court suggested that although the independent counsel’s prosecutorial powers—including the “no small amount of discretion and judgment [exercised by the counsel] in deciding how to carry out his or her duties under the Act”—were executive in that they had “typically” been performed by executive branch officials, the court did not consider such an exercise of prosecutorial power to be “so central to the functioning of the Executive Branch” as to require Presidential control over the independent counsel. 487 U.S. 654 (1988). While the ultimate reach of Morrison may be narrow in that the independent counsel was granted only limited jurisdiction and was still subject to the supervision of the Attorney General, it does appear that Congress may vest certain prosecutorial powers, including the exercise of prosecutorial discretion, in an executive branch official who is independent of traditional presidential controls. But see Nixon, 418 U.S. at 693 (“[T]he Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case…. ”).

    47 Heckler, 470 U.S. at 832. The Court also expressed concern that judicial review of agencies’ exercise of prosecutorial discretion could impose “systemic costs” by delaying criminal proceedings, chilling law enforcement, and undermining prosecutorial effectiveness. Id. at 833.

    48 Id. at 831. Accordingly, such decisions are generally precluded from judicial review under the Administrative Procedure Act (APA). 5 U.S.C. §701 (establishing an exception to the APA’s presumption of reviewability where “agency action is committed to agency discretion by law”).

    49 Heckler, 470 U.S. at 831.

    Prosecutorial Discretion in the Immigration Context

    In Reno v. American-Arab Anti-Discrimination Committee, a majority of the Supreme Court found that the various prudential concerns that prompt deference to the executive branch’s determinations as to whether to prosecute criminal offenses are “greatly magnified in the deportation context,”52 which entails civil (rather than criminal) proceedings.53 While the reasons cited by the Court for greater deference to exercises of prosecutorial discretion in the immigration context than in other contexts reflect the facts of the case, which arose when certain removable aliens challenged the government’s decision not to exercise prosecutorial discretion in their favor,54 the Court’s language is broad and arguably can be construed to encompass decisions to favorably exercise such discretion. More recently, in its decision in Arizona v. United States, a majority of the Court arguably similarly affirmed the authority of the executive branch not to seek the removal of certain aliens, noting that “[a] principal feature of the removal system is the broad discretion entrusted to immigration officials,” and that “[r]eturning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission.”55 According to the majority, such exercises of prosecutorial discretion may reflect “immediate human concerns” and the “equities of … individual case[s],” such as whether the alien has children born in the United States or ties to the community, as well as “policy choices that bear on … international relations.”56

    50 Id. at 832.

    51 Id. at 833.

    52 525 U.S. 471, 490 (1999). See also Shaughnessy, 338 U.S. at 543 (noting that immigration is a “field where flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program”).

    53 See, e.g., Padilla v. Kentucky,—U.S.—, 130 S. Ct. 1473, 1481 (2010) (“We have long recognized that deportation is a particularly severe ‘penalty,’ but it is not, in a strict sense, a criminal sanction.”) (internal citations omitted); INS v. Lopez-Mendoza, 468 U.S. 1032, 1038-39 (1984) (“A deportation proceeding is a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry…. The purpose of deportation is not to punish past transgressions but rather to put an end to a continuing violation of the immigration laws.”).

    54 Specifically, the Court noted that any delays in criminal proceedings caused by judicial review of exercises of prosecutorial discretion would “merely … postpone the criminal’s receipt of his just desserts,” while delays in removal proceedings would “permit and prolong a continuing violation of United States law,” and could potentially permit the alien to acquire a basis for changing his or her status. Reno, 525 U.S. at 490. The Court further noted that immigration proceedings are unique in that they can implicate foreign policy objectives and foreign-intelligence techniques that are generally not implicated in criminal proceedings. Id. at 491. It also found that the interest in avoiding selective or otherwise improper prosecution in immigration proceedings, discussed below, is “less compelling” than in criminal proceedings because deportation is not a punishment and may be “necessary to bring to an end an ongoing violation of United States law.” Id. (emphasis in original).

    55 Arizona, 132 S. Ct. at 2498. Justice Scalia’s dissenting opinion, in contrast, specifically cited Secretary Napolitano’s memorandum regarding the exercise of prosecutorial discretion with respect to certain aliens who came to the United States as children when asserting that “there is no reason why the Federal Executive’s need to allocate its scarce enforcement resources should disable Arizona from devoting its resources to illegal immigration in Arizona that in its view the Federal Executive has given short shrift.” Id. at 2520 (Scalia, J., dissenting) (emphasis in original)).

    56 Arizona, 132 S. Ct. at 2499.

    Going beyond such general affirmations of the executive branch’s prosecutorial discretion in the immigration context, other cases have specifically noted that certain decisions are within the prosecutorial discretion of INS and, later, the immigration components of DHS. These decisions include

    • whether to parole an alien into the United States;57

    • whether to commence removal proceedings and what charges to lodge against the respondent;58

    • whether to pursue formal removal proceedings;59

    • whether to cancel a Notice to Appear or other charging document before jurisdiction vests with an immigration judge;60

    • whether to grant deferred action or extended voluntary departure;61

    • whether to appeal an immigration judge’s decision or order, and whether to file a motion to reopen;62

    • whether to invoke an automatic stay during the pendency of an appeal;63 and

    • whether to impose a fine for particular offenses.64

As used here, deferred action is “generally an act of prosecutorial discretion to suspend [taking action] against a particular individual or group of individuals for a specific timeframe; it cannot resolve an individual’s underlying immigration status.”65 It is generally granted on a case-by-case basis, although the executive branch has sometimes provided that individuals who share certain characteristics (e.g., advanced or young age) are to be given particular consideration for deferred action.66 In contrast, extended voluntary departure—sometimes also referred to as deferred departure or deferred enforced departure—generally involves “blanket relief” from removal to particular countries.67

57 Assa’ad v. U.S. Attorney General, 332 F.3d 1321, 1339 (11th Cir. 2003); Matter of Artigas, 23 I. & N. Dec. 99 (BIA 2001) (Filppu, J., dissenting). DHS grants an alien parole when it permits the alien to physically enter the United States and to remain as a matter of sufferance only, and without having made an “entry,” for “urgent humanitarian reasons or significant public benefit.” INA §212(d)(5)(A); 8 U.S.C. §1182(d)(5)(A).

58 Hanggi v. Holder, 563 F.3d 378, 383 (8th Cir. 2009); Rodrigues v. Attorney General of the United States, 414 Fed. App’x 484, 488 (3d Cir. 2011); Matter of Avetisyan, 25 I. & N. Dec. 688 (BIA 2012); Matter of Bahta, 22 I. & N. Dec. 1381 (BIA 2000); Matter of Singh, 21 I. & N. Dec. 427 (BIA 1996); Matter of Ruis, 18 I. & N. Dec. 320 (BIA 1982); Matter of Roussis, 18 I. & N. Dec. 256 (BIA 1982); Matter of Lennon, 15 I. & N. Dec. 9 (BIA 1974).

59 Matter of Lujan-Quintana, 25 I. & N. Dec. 53 (BIA 2009). But see Flores-Ledezma v. Gonzales, 415 F.3d 375, 382 (5th Cir. 2005) (“Although we decline at this juncture to equate the Attorney General’s discretion to choose which proceeding a non-LPR will receive with prosecutorial discretion, it is fully convincing that the Government has highlighted a rational basis for the Attorney General’s exercise of such discretion.”). Section 240 of the INA provides for formal removal proceedings. However, “expedited removal,” without formal proceedings, is also possible in the case of certain aliens seeking admission to the United States. INA §235(b); 8 U.S.C. §1225(b).

60 Matter of G-N-C, 22 I. & N. Dec. 281 (BIA 1998). See also Akhtar v. Gonzales, 450 F.3d 587, 591 (5th Cir. 2006) (whether to terminate removal proceedings to allow the alien to apply for immigration benefits that may potentially be available).

61 Hotel & Rest. Employees Union Local 25, 846 F.2d at 1510-11; Barahona-Gomez v. Reno, 236 F.3d 1115, 1119 n.3

(9th Cir. 2001); Johnson v. INS, 962 F.2d 574, 579 (7th Cir. 1992); Carmona Martinez v. Ashcroft, 118 Fed. App’x 238,

239 (9th Cir. 2004); Matter of Yauri, 25 I. & N. Dec. 103 (BIA 2009); Matter of Singh, 21 I. & N. Dec. 427 (BIA 1996);

Matter of Luviano-Rodriguez, 21 I. & N. Dec. 235 (BIA 1996); Matter of Quintero, 18 I. & N. Dec. 348 (BIA 1982). 62 Matter of Avetisyan, 25 I. & N. Dec. 688 (BIA 2012); Matter of York, 22 I. & N. Dec. 660 (BIA 1999); Matter of Joseph, 22 I. & N. Dec. 660 (BIA 1990).

63 Matter of Joseph, 22 I. & N. Dec. 660 (BIA 1999).

64 Matter of M/V Saru Meru, 20 I. & N. Dec. 592 (BIA 1992); Matter of M/V Solemn Judge, 18 I. & N. Dec. 186 (BIA 1982).

65 Shoba Sivaprasad Wadhia, The Role of Prosecutorial Discretion in Immigration Law, 9 CONN. PUB. INT. L.J. 243, 263 (2010) (quoting a 2009 DHS press release on relief for widows of U.S. citizens). Individual aliens may request that (continued…)

Many of the actions that judicial and administrative tribunals have noted are within the prosecutorial discretion of immigration officers have also been mentioned in INS and, later, DHS, guidance regarding the exercise of prosecutorial discretion. Memoranda or other documents providing such guidance have been issued intermittently since at least 1976, and have suggested that officers may generally exercise discretion in

  • deciding whether to issue or cancel a notice of detainer;

  • deciding whether to issue, reissue, serve, file, or cancel a Notice to Appear;

  • focusing administrative resources on particular violations or conduct;

  • deciding whom to stop, question, or arrest for a violation;

  • deciding whether to detain aliens who are not subject to “mandatory detention” pending removal, or whether to release them on bond, supervision, personal recognizance, or other conditions;

  • seeking expedited removal or removal by means other than formal proceedings in immigration court;

  • settling or dismissing a proceeding;

  • granting deferred action or parole;

  • staying a final order of removal;

  • agreeing to voluntary departure, the withdrawal of an application for admission, or other action in lieu of a formal order of removal;

  • pursuing an appeal;

  • executing a removal order; and

  • responding to or joining in a motion to reopen removal proceedings, or joining in a motion to grant relief or a benefit.68

(…continued)

they be granted deferred action (formerly known as non-priority status), or immigration officials may decide, sua sponte, to defer action.

66 See, e.g., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, supra note 10; John Morton, Director, ICE, Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs, June 17, 2011, available at http://www.ice.gov/doclib/secure-communities/pdf/domestic-violence.pdf; Prosecutorial and Custody Detention, supra note 2.

67 See, e.g., Extended Voluntary Departure, supra note 5, at 155-59.

68 See, e.g., 2011 DHS Guidance, supra note 9, at 2-3; Civil Immigration Enforcement, supra note 8, at 3; Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs, supra note 66, at 2; William J. Howard, Principal Legal Advisor, ICE, Prosecutorial Discretion, Oct. 24, 2005, at 2, available at http://niwaplibrary.wcl.american.edu/reference/ additional-materials/immigration/enforcement-detention-and-criminal-justice/government-documents/22092975-ICE- Guidance-Memo-Prosecutorial-Discretion-William-J-Howard-10-24-05.pdf; 2002 INS Guidance, supra note 2.

Often, this executive branch guidance has highlighted resource constraints,69 as well as humanitarian considerations,70 that may warrant a favorable exercise of prosecutorial discretion, although such guidance has generally also indicated that determinations as to whether to exercise discretion in particular cases are to be based on the “totality of the circumstances”71 and whether a “substantial federal interest” is present.72 The guidance may also suggest when in the process such discretion is to be exercised (generally as early in the process as possible, so as to avoid wasting government resources),73 as well as which officers may exercise particular forms of discretion.74 While personnel are generally instructed that they should “always consider prosecutorial discretion on a case-by-case basis,”75 classes of individuals warranting consideration for favorable—or unfavorable—exercises of discretion have sometimes been identified (e.g., minors and elderly individuals, known gang members).76

Potential Limits on the Exercise of Discretion

While prosecutorial discretion is broad, it is not “unfettered,”77 and particular exercises of discretion could potentially be checked by the Constitution, statute, or agency directives.78 In practice, however, persons who are neither aliens nor otherwise subject to the requirements of the INA could lack standing to challenge alleged abuses of prosecutorial discretion in the immigration context. Standing is generally limited to persons who allege a “personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.”79 Those whose sole injury is the government’s alleged failure to follow the law will generally be found to lack standing because this injury is not personal and particularized.80 Even government officers and employees, who have taken an oath to uphold the law, will generally be found to lack standing so long as their only asserted injury is being forced to violate their oaths by implementing an allegedly unlawful policy or practice.81 Instead, they must allege some separate and concrete adverse consequence that would flow from violating their oath, and courts have reached differing conclusions as to whether the possibility of being disciplined for obeying—or refusing to obey—allegedly unlawful orders suffices for purposes of standing, or whether such injury is “entirely speculative.”82 Courts have imposed these limitations, in part, on the grounds that recognizing standing in such cases would allow persons to sue “merely … to ensure [that federal] law conforms to [their] opinion of what federal law requires,” and such personal opinions could change at any time.8

69 See, e.g., Applicability of Prosecutorial Discretion Memoranda to Certain Family Relationships, supra note 11 (“This and other memoranda related to prosecutorial discretion are designed to ensure that agency resources are focused on our enforcement priorities, including individuals who pose a threat to public safety, are recent border crossers, or repeatedly violate our immigration laws.”); Civil Immigration Enforcement, supra note 8, at 1 (“ICE … only has resources to remove approximately 400,000 aliens per year, less than 4 percent of the estimated illegal alien population of the United States.”); Prosecutorial Discretion, supra note 68 (noting demands created by the establishment of DHS and the increasing number of immigration cases being litigated in federal courts).

70 See, e.g., 2011 DHS Guidance, supra note 9, at 4 (noting that factors to consider include the alien’s length of presence in the United States; the circumstances of the alien’s arrival in the United States; the alien’s pursuit of education in the United States; the alien’s ties and contributions to the community; whether the alien or the alien’s spouse is pregnant or nursing, or suffers from a severe mental or physical illness; and conditions in the alien’s home country); Prosecutorial Discretion, supra note 68 (aliens who are immediate relatives of members of the U.S. military; aliens who have citizen children with serious medical conditions or disabilities; aliens who are undergoing treatment for a potentially life-threatening illness).

71 See, e.g., 2011 DHS Guidance, supra note 9, at 2.

72 See, e.g., 2002 INS Guidance, supra note 2, at 4.

73 See, e.g., id. at 6.

74 See, e.g., 2011 DHS Guidance, supra note 9, at 3. One particular area where such policies have shifted over time is whether immigration attorneys have the authority to cancel Notices to Appear issued by immigration officers.

75 2011 DHS Guidance, supra note 9, at 4. See also Civil Immigration Enforcement, supra note 8, at 4.

76 2011 DHS Guidance, supra note 9, at 5; Prosecutorial and Custody Detention, supra note 2; 2002 INS Guidance,

supra note 2, at 11.

77 United States v. Batchelder, 442 U.S. 114, 125 (1979).

78 See, e.g., Nader v. Saxbe, 497 F.2d 676, 679 (D.C. Cir. 1974) (“It would seem to follow that the exercise of prosecutorial discretion, like the exercise of Executive discretion generally, is subject to statutory and constitutional limits enforceable through judicial review.”).

79 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006) (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)). The requirements as to injury, causation, and redressibility refer to Article III standing. Some courts have also found that (continued…)

In addition, even where standing to challenge particular exercises of prosecutorial discretion exists, plaintiffs could potentially have difficulty obtaining relief given that actions by Congress or the President in the immigration context are generally subject to a “narrow standard of review,”84 particularly in cases where such decisions implicate foreign affairs or national security. For example, in its recent decision in Arizona v. United States, a majority of the Supreme Court noted that “[s]ome discretionary decisions involve policy choices that bear on this Nation’s international relations” when explaining the basis for the “broad discretion” immigration officers have in determining whether to remove unauthorized aliens.85 The Court has similarly emphasized the potential “diplomatic repercussions” of certain decisions made by immigration officers (e.g., determining whether to grant withholding of removal or an alien’s petition to reopen deportation proceedings).86 Moreover, in some cases, courts have found that challenges to the alleged nonenforcement of immigration laws involve nonjusticiable political questions because they fundamentally entail disagreements about the proper extent of immigration enforcement.87

(…continued)

plaintiffs challenging certain actions in the immigration context lack prudential standing to enforce the INA. See, e.g., Fed’n for Am. Immigration Reform v. Reno, 93 F.3d 897, 900 (D.C. Cir. 1996) (plaintiffs were not within the zone of interests protected by the INA for purposes of their claim that a “rush of immigrants adversely affects the welfare of the Federation’s members by generating unemployment and wage reductions”). Recently, one federal district court did find that the ICE agents challenging the DACA initiative satisfy the prudential standing requirements because the statutory provisions which they claim are violated by DACA also govern their conduct in managing investigations and initiating removal proceedings. See Crane v. Napolitano, 920 F. Supp. 2d 724, 740-41 (N.D. Tex. 2013). However, this court subsequently found that the ICE agents’ claims are within the exclusive jurisdiction of the Merit Systems Protection Board (MSPB), because their alleged injury was “being compelled to violate a federal statute upon pain of adverse employment action.” Crane, No. 3:12-cv-03247-O, Order (N.D. Tex., July 31, 2013), available at http://www.crs.gov/ analysis/legalsidebar/Documents/Crane_DenialofMotionforReconsideration.pdf.

80 See, e.g., Lance v. Coffman, 549 U.S. 437, 439 (2007) (“A plaintiff raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in [the] proper application of the Constitution and laws, and seeking relief that no more directly [or] tangibly benefits him than it does the public at large—does not state an Article III case or controversy.”) (internal quotations omitted)); Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1992) (“[W]hen the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but is ordinarily ‘substantially more difficult’ to establish.”). Individual Members of Congress also generally lack standing to challenge presidential actions. In Raines v. Byrd, the Supreme Court held that in order to obtain standing an individual Member must assert either a personal injury, like the loss of his congressional seat, or an institutional injury that amounts to vote nullification, which requires that no other legislative remedy exists to redress the alleged injury. See 521 U.S. 811 (1997).

81 See, e.g., Donelon v. La. Div. of Admin. Law ex rel. Wise, 522 F.3d 564 (5th Cir. 2008) (Louisiana Commissioner of Insurance lacked standing to challenge the constitutionality of a state law which he alleged violated the Constitution); Finch v. Miss. State Med. Ass’n, Inc., 585 F.2d 765, 773-75 (5th Cir. 1978) (governor of Mississippi lacked standing to challenge a state law whose enforcement, he believed, would cause him to violate his oath to uphold the federal and state constitutions).

82 Compare Drake v. Obama, 664 F.3d 774, 780 (9th Cir. 2011) (“The notion that [the plaintiff] will be disciplined by the military for obeying President Obama’s orders is entirely speculative. He might be disciplined for disobeying those orders, but he has an ‘available course of action which subjects [him] to no concrete adverse consequences’—he can obey the orders of the Commander-in-Chief.”) (emphasis in original)) and Crane, 920 F. Supp. 2d at 738 (finding that the ICE agents challenging DACA have “suffered an injury-in-fact by virtue of being compelled to violate a federal statute upon pain of adverse employment action,” and otherwise satisfy the requirements for standing). After finding that the plaintiffs have standing, and are likely to prevail on the merits of their claim that DACA violates the INA, the court in Crane ultimately found that it lacks jurisdiction because the ICE agents’ claims are within the exclusive jurisdiction of the MSPB. Crane, Order, supra note 79.

83 Donelon, 552 F.3d at 568 (emphasis in original).

Constitution

The U.S. Constitution can be seen as imposing two potential limitations upon the executive branch’s exercise of prosecutorial discretion, one in cases where the Executive decides to enforce the law against particular individuals because of their race, religion, exercise of a constitutional right, or other impermissible factors; and the other in cases where the Executive adopts a general policy of non-enforcement “which is in effect an abdication of its statutory duty.”88

Selective Prosecution

In discussing the scope of the executive branch’s prosecutorial discretion, courts have repeatedly noted that the determination as to whether to prosecute may not be “deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification,”89 including the exercise of protected statutory and constitutional rights.90 Prosecutions (or other enforcement actions) that are based upon these factors could potentially be found to be impermissible, as was the case in Yick Wo v. Hopkins. There, the Supreme Court found that prosecutors’ practice of enforcing a state law prohibiting the operation of laundries against only persons of Chinese descent ran afoul of the Equal Protection Clause.91 In practice, however, defendants generally find it difficult to maintain a claim of selective prosecution because of the executive branch’s prosecutorial discretion. Because such claims are seen as “invad[ing] a special province of the Executive,” courts generally require defendants to introduce “clear evidence” displacing the presumption that the prosecutor has acted lawfully.92 Specifically, they must show that (1) they were singled out for prosecution on an impermissible basis; (2) the government had a policy of declining to prosecute similarly situated defendants of other races, religions, etc.; and (3) the policy was motivated by a discriminatory purpose.93

84 See, e.g., Miller v. Albright, 523 U.S. 420, 434 n.11 (1998) (plurality opinion); Fiallo, 430 U.S. at 796; Mathews,

426 U.S. at 82.

85 See, e.g., Arizona, 132 S. Ct. at 2499.

86 Negusie v. Holder, 555 U.S. 511, 517 (2009) (“The Attorney General’s decision to bar an alien who has participated in persecution ‘may affect our relations with [the alien’s native] country or its neighbors. The judiciary is not well positioned to shoulder primary responsibility for assessing the likelihood and importance of such diplomatic repercussions.”); INS v. Abudu, 485 U.S. 94, 110 (1988) (“Although all adjudications by administrative agencies are to some degree judicial and to some degree political … INS officials must exercise especially sensitive political functions that implicate foreign relations.”).

87 Texas, 106 F.3d at 665 (dismissing a state’s suit alleging that the federal government had violated the constitution and the INA by failing to control illegal immigration, in part, on the grounds that it was a political question). The political question doctrine is based on the notion that courts should refrain from deciding questions that the Constitution has entrusted to other branches of government. See, e.g., Marbury v. Madison, 5 U.S. (1 Cr.) 137, 170 (1803). In determining whether a case entails a political question, courts consider whether there is “[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it,” among other things. Baker v. Carr, 369 U.S. 186, 217 (1962).

88 Adams, 480 F.2d at 1162. See also Heckler, 470 U.S. at 832-33 n.4 (finding that judicial review of exercises of enforcement discretion could potentially be obtained in cases where an agency has adopted a general policy that is an “abdication of its statutory responsibilities”).

89 Bordenkircher v. Hayes, 434 U.S. 357, 364 (1977) (finding that a state prosecutor’s decision to indict the defendant as habitual offender after he refused to plead guilty of a felony did not violate the defendant’s constitutional rights). 90 Goodwin, 457 U.S. at 372.

Claims of selective prosecution can be even more difficult to maintain in an immigration context because the various prudential concerns that prompt deference to the executive branch’s determinations as to whether to prosecute particular criminal offenses are “greatly magnified in the deportation context.”94 In fact, in Reno v. American-Arab Anti-Discrimination Committee, discussed above, the Supreme Court effectively foreclosed many claims of selective prosecution in removal proceedings by finding that “[a]s a general matter … an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation.”95 The petitioners in Reno had alleged that they were targeted for deportation because of the exercise of their First Amendment rights. All belonged to a group that the government characterized as an “international terrorist and communist organization,” and they asserted that the INS did not enforce “routine status requirements,” such as were enforced against them, against aliens who were not members of similarly disfavored groups.96 However, a majority of the Court rejected the petitioners’ arguments, in part, because it viewed “selective prosecution” as unusual even in the criminal context97 and, in part, because it considered the exercise of prosecutorial discretion to be particularly significant in the immigration context, as previously noted. However, the Reno Court did leave open the possibility that a decision to remove an alien could potentially be struck down in a “rare case in which the alleged basis of discrimination is so outrageous that the foregoing considerations can be overcome,”98 and subsequent cases continue to recognize the possibility of selective prosecution claims in the immigration context.99

“Take Care” Clause

Article II, Section 3 of the U.S. Constitution could also potentially constrain the executive branch’s prosecutorial discretion in certain cases. When discussing the scope of such discretion, some courts have suggested that situations could potentially arise where the executive branch “expressly adopt[s] a general policy which is in effect an abdication of its statutory duty” by implementing a blanket ban on enforcement of a duly enacted statute.100 In such situations, by refusing to enforce certain aspects of a statute, the executive branch could potentially be said to have exceeded the permissible scope of prosecutorial or enforcement discretion, and violated the President’s duty that the “laws be faithfully executed.”101 However, no court appears to have invalidated a policy of non-enforcement founded upon prosecutorial discretion on the grounds that the policy violated the Take Care Clause, and one federal appellate court has opined that “[r]eal or perceived inadequate enforcement … does not constitute a reviewable abdication of duty.”102 Rather, according to this court, to prove such an abdication, plaintiffs must show that the Executive either is “doing nothing to enforce the … laws,” or has “consciously decided to abdicate” its enforcement responsibilities.103

91 118 U.S. 356 (1886).

92 Reno, 525 U.S. at 489 (quoting Armstrong, 517 U.S. at 463).

93 Armstrong, 517 U.S. at 465.

94 Reno, 525 U.S. at 490. It should be noted, however, that the Reno Court did not hold that discriminatory enforcement of the immigration laws does not offend the Equal Protection Clause, only that Section 242(g) of the INA (8 U.S.C.

§1252(g)) deprives the courts of jurisdiction over such claims.

95 Reno, 525 U.S. at 488.

96 Id. at 473.

97 Id. at 489 (“Even in the criminal-law field, a selective prosecution claim is a rara avis [rare bird].”).

98 Reno, 525 U.S. at 491.

99 See, e.g., Matter of E-R-M & L-R-M, 25 I. & N. Dec. at 522.

Some commentators have suggested that prosecutorial discretion policies which could result in the executive branch not enforcing the law against a large number of people constitute an abdication of statutory duty and, thus, violate the Take Care Clause.104 This point has recently been made by some commentators with respect to the potentially 1.76 million individuals eligible to receive deferred action under DACA.105 However, even if the INA were construed to impose a statutory duty to remove all unauthorized aliens, the fact that a large number of persons are favorably affected by a prosecutorial discretion policy might not, per se, suffice to prove a violation of the Take Care Clause. Courts might also consider the size of the total population against whom the law could be enforced, as well as the resources available for enforcing the law, on the theory that

the President cannot secure full execution of the laws, if Congress denies to him adequate means of doing so. … The President performs his full constitutional duty, if, with the means and instruments provided by Congress and within the limitations prescribed by it, he uses his best endeavors to secure the faithful execution of the laws enacted.106

Thus, in the case of DACA, for example, a reviewing court might note that DACA-eligible aliens represent a fraction of the estimated 11.5 million aliens who are present in the United States without authorization,107 and ICE has the resources to remove annually less than 4% of the unauthorized alien population.108

100 Adams, 480 F.2d at 1162.

101 U.S. Const. art. II, §3. See also Kendall v. United States ex rel. Stokes, 37 U.S. 524, 613 (“To contend that the obligation imposed on the President to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible.”).

102 Texas, 106 F.3d at 667.

103 Id.

104 See, e.g., Crane, Amended Complaint, supra note 3, at ¶ 101 (“The application of ‘deferred action’ to approximately 15% of aliens who are in the United States without authorization is not an exercise of executive branch discretion permitted by the Constitution.”); The Obama Administration, the DREAM Act, and the Take Care Clause, supra note 3, at 2 (“[I]f a President can refuse to enforce a federal law against a class of 800,000 to 1.76 million, what discernible limits are there to prosecutorial discretion?”).

105 Jeanne Batalova and Michelle Mittelstadt, Migration Policy Institute, Relief from Deportation: Demographic Profile of DREAMers Potentially Eligible under the Deferred Action Policy, Aug. 2012, available at http://www.migrationpolicy.org/pubs/FS24_deferredaction.pdf, at 1.

106 Myers v. United States, 272 U.S. 52, 291-92 (1926) (Brandeis, J., dissenting). See also Heckler, 470 U.S. at 831 (noting that, among the factors that make agency decisions to refuse enforcement generally unsuitable for judicial review, are questions as to “whether agency resources are best spent on this violation or another, … 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”).

The specific form of discretion exercised could also potentially play a role in a reviewing court’s analysis of whether particular nonenforcement policies or practices constitute an abdication of a statutory duty. For example, a court could potentially distinguish between determinations to delay enforcement actions (e.g., granting deferred action or extended voluntary departure for a particular duration of time), and determinations not to take enforcement actions (e.g., determining whether to commence removal proceedings or cancel a notice for an alien to appear at removal proceedings), on the grounds that the Executive contemplates taking action in the future in the former cases.109 Relatedly, a reviewing court might note whether the executive branch exercises its discretion on a case-by-case basis, taking into consideration the specific circumstances of the offense and the individual who committed it, or whether it has indicated its intention not to enforce particular offenses at all or against large groups of people. Such distinctions might, however, be difficult to draw with practices like the DACA initiative, in which exercises of discretion could be characterized as either individualized or categorical, depending upon how the initiative is viewed. DHS has repeatedly noted that determinations regarding whether to grant deferred action are to be made on a case-by-case basis for DACA-eligible individuals.110 However, DHS has also established a broad category of individuals (e.g., those who came to the United States when they were under the age of 16, and are either currently in school or have graduated from high school) who are eligible to request deferred action pursuant to DACA.111

The existence of multiple—sometimes inconsistent—enforcement mandates from Congress might also factor into a court’s analysis of whether particular nonenforcement policies or practices constitute an abdication of duty, particularly in situations where an agency elects to concentrate limited resources upon offenders (or offenses) that Congress has recently indicated are a priority. For example, following the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which some commentators assert amended the INA to require the removal of at least some unauthorized aliens, Congress enacted a number of measures directing DHS to give priority to the removal of “criminal aliens.”112 DHS has emphasized that its diminished focus on the removal of DACA-eligible individuals corresponds to an increased focus on criminal aliens,113 and a reviewing court could potentially find that enforcement of later- enacted mandates (as to criminal aliens) may justify more limited enforcement of earlier enacted mandates (as to unauthorized aliens generally).

107 See, e.g., Michael Hoefer, Nancy Rytina, and Bryan Baker, DHS Office of Immigration Statistics, Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2011, Population Estimates (Mar. 2012), available at http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2011.pdf.

108 Civil Immigration Enforcement, supra note 8, at 1 (“ICE … only has resources to remove approximately 400,000 aliens per year, less than 4 percent of the estimated illegal alien population in the United States.”); Defendants’ Motion to Dismiss and Memorandum in Support, supra note 36, at 19 (“Deferring action for certain childhood arrivals means nothing more than that the Department will shift its limited resources to focus on its highest removal priorities, which include, per Congress’s directive, a focus on criminal aliens and other aliens who threaten public safety.”).

109 The Executive could also potentially still take enforcement action in the latter cases by, for example, commencing removal proceedings against aliens whom it had previously decided not to bring proceedings against. There is no statute of limitations for the removal of unlawfully present aliens, so those who currently are removable on the grounds that they are present without authorization would generally still be removable on these grounds in the future. However, by remaining in the country for a longer period of time, aliens who are present without authorization could potentially acquire new bases for adjusting status (e.g., marrying a U.S. citizen or lawful permanent resident), as the Court noted in Reno. 525 U.S. at 490. In addition, at least at some times previously, the immigration agencies had policies of not taking action against persons whom they had previously determined warranted favorable exercises of prosecutorial discretion unless the alien’s circumstances had changed. See 2002 INS Guidance, supra note 2, at 11-12 (noting that favorable exercises of discretion are to be “clearly documented” in the alien’s file, and that an INS office should generally abide by a favorable decision taken by another office on a matter, absent new or changed circumstances).

110 Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, supra note 10, at 2 (“No individual should receive deferred action under this memorandum unless they first pass a background check and requests for relief pursuant to this memorandum are to be decided on a case by case basis. DHS cannot provide any assurance that relief will be granted in all cases.”).

111 Individuals who do not meet these criteria could still request or be granted deferred action outside of DACA.

Statute

Another potential constraint upon the executive branch’s exercise of prosecutorial discretion was noted by the Supreme Court in Heckler v. Cheney. There, the Court rejected a challenge to the Food and Drug Administration’s (FDA’s) decision not to exercise its enforcement authority over the use of certain drugs on the grounds that “an agency’s decision not to take enforcement action should be presumed immune from judicial review under § 701(a)(2)” of the Administrative Procedure Act (APA).114 Section 701(a)(2) of the APA generally bars review of “agency action [that] is committed to agency discretion by law,”115 and the Court’s statement here would suggest that it views exercises of prosecutorial discretion as generally committed to agency discretion by law. However, the Heckler Court also noted that this presumption of nonreviewability “may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers.”116

Determining whether a statute provides “guidelines” so as to make an agency’s determination not to take enforcement action reviewable generally implicates questions of statutory interpretation. Such questions are not necessarily easily answered, though, as is illustrated by the argument that the executive branch lacks the discretion to grant deferred action to DACA beneficiaries because the INA requires the removal of aliens who entered the United States unlawfully.117 This argument, which has recently been made by some commentators and litigants, rests upon three “interlocking provisions” in Section 235 of the INA that were added or amended by IIRIRA. Briefly summarized, these provisions state that

112 See, e.g., Department of Homeland Security Appropriations Act, 2012, P.L. 112-74, Div. D., tit. ii, 125 Stat. 950 (Dec. 23, 2011) (“[T]he Secretary of Homeland Security shall prioritize the identification and removal of aliens convicted of a crime by the severity of that crime.”); Department of Homeland Security Appropriations Act, 2010, P.L. 111-83, Div. D., tit. III, 123 Stat. 2142 (Oct. 28, 2009) (same); Department of Homeland Security Appropriations Act,

  1. 110-329, Div. D, tit. ii, 122 Stat. 3659 (Sept. 30, 2008) (same); Consolidated Appropriations Act, 2008, P.L. 110- 161, 121 Stat. 2050-51 (Dec. 26, 2007) (funding to “improve and modernize efforts to identify aliens convicted of a crime, sentenced to imprisonment, and who may be deportable, and remove them from the United States”); H.R. REPT. 111-157, at 6 (2009) (“[R]ather than simply rounding up as many illegal immigrants as possible, which is sometimes achieved by targeting the easiest and least threatening among the undocumented population, DHS must ensure that the government’s huge investments in immigration enforcement are producing the maximum return in making our country safer.”).

    113 See, e.g., Civil Immigration Enforcement, supra note 8, at 1-2 (aliens who have been convicted of crimes, are at least 16 years of age and participate in organized criminal gangs, are subject to outstanding criminal warrants, or “otherwise pose a serious risk to public safety” constituting the highest priorities for removal). Relatedly, Secretary Napolitano’s announcement of the DACA initiative expressly excluded from consideration for deferred action under DACA persons who have been convicted of a felony, a “significant misdemeanor,” or multiple misdemeanors. See Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, supra note 10, at 1.

    114 Heckler, 470 U.S. at 832.

    115 5 U.S.C. §701(a)(2). This presumption is an exception to the general rule that the APA “embodi[es] a ‘basic presumption of judicial review.’” Lincoln v. Vigil, 508 U.S. 182, 190 (1993) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967)).

    116 470 U.S. at 832-33. See also id. at 833 (“[I]n establishing this presumption [of nonreviewability] in the APA, Congress did not set agencies free to disregard legislative direction in the statutory scheme that the agency administers. Congress may limit an agency’s exercise of enforcement power if it wishes, either by setting substantive priorities, or by otherwise circumscribing an agency’s power to discriminate among issues or cases it will pursue.”).

    1. any alien present in the United States who has not been admitted shall be deemed an applicant for admission;

    2. applicants for admission shall be inspected by immigration officers; and

    3. in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for removal proceedings.118

Those who view these provisions as requiring the removal of aliens who entered the United States unlawfully would appear to construe “shall” as indicating mandatory agency action, and all “applicants for admission” as “aliens seeking admission.”

The federal district court reviewing ICE agents’ challenge to the DACA initiative initially adopted this interpretation, finding that the INA’s “use of the word ‘shall’ imposes a mandatory duty on immigration officers to initiate removal proceedings whenever they encounter ‘applicants for admission’ who are not ‘clearly and beyond a doubt entitled to be admitted.’”119 However, the court subsequently found that the same alleged injury that gave the plaintiffs standing to bring their challenge—namely, their “being compelled to violate a federal statute upon pain of adverse employment action”—means that their case is within the exclusive jurisdiction of the Merit Systems Protection Board (MSPB), and cannot be heard by a federal district court.120

No other court has addressed the construction of these three provisions of the INA as an “interlocking” whole. Another court, if it found that it had jurisdiction, could potentially adopt an alternate interpretation, particularly given prior decisions distinguishing between aliens within the United States who have not been admitted, and aliens seeking admission at ports of entry.121 The Supreme Court’s decision in Arizona v. United States could also potentially be said to support an alternate construction.122 While the majority in Arizona did not directly address the DACA initiative, it expressly noted the “broad discretion exercised by immigration officials” in the removal process.123 Because such discretion would arguably be inconsistent with a statutory requirement to place in removal proceedings all aliens who entered the United States unlawfully, the majority’s decision suggests that the Court does not construe the INA as legally compelling immigration officers to place all aliens who entered the United States unlawfully in removal proceedings.

117 See, e.g., Arizona v. United States, No. 11-182, Amicus Curiae Brief of Secure States Initiative in Support of Petitioners, at 8-9; Crane, Amended Complaint, supra note 3, at ¶¶ 38-40.

118 INA §235(a)(1), (a)(3), and (b)(2)(A); 8 U.S.C. §1225(a)(1), (a)(3), and (b)(2)(A).

119 Crane, No. 3:12-cv-03247-O, 2013 U.S. Dist. LEXIS 57788, at *28-*29 (N.D. Tex., Apr. 23, 2013).

120 Crane, Order, supra note 79.

121 See, e.g., 8 C.F.R. §236.1(c) & (d); Matter of Oseiwusu, 22 I. & N. Dec. 19 (BIA 1998) (“According to the regulations, an Immigration Judge has no authority over the apprehension, custody, and detention of arriving aliens and is therefore without authority to consider the bond request of an alien returning pursuant to a grant of advance parole.”).

122 See Arizona v. United States,—U.S.—132 S. Ct. 2492 (2012). Moreover, even if a reviewing court construed Section 235 of the INA as statutorily compelling DHS to place aliens who unlawfully entered the United States into removal proceedings, DHS would not necessarily be barred from exercising certain forms of prosecutorial discretion as to DACA beneficiaries after these individuals have been placed into removal proceedings. See generally Crane, Amended Complaint, supra 3, at ¶ 71 (“[A]ny ‘prosecutorial discretion’ that Defendants exercise must be consistent with 8 U.S.C. § 1225 and can only occur after an alien has been placed into removal proceedings as required by 8

U.S.C. §1225, or under a provision of federal law expressly authorizing such ‘prosecutorial discretion.’”).

Courts could also potentially construe other provisions of the INA that use “shall” differently than the district court reviewing the ICE officers’ challenge to DACA construed the three provisions noted above.

Whether “Shall” Means Agencies Lack Discretion

The argument that Section 235 of the INA requires that aliens who unlawfully entered the United States be placed in removal proceedings appears to rest on the use of “shall” in Section 235, and the view that “shall” indicates mandatory agency action. “Shall” frequently indicates required action, particularly when used in contexts that do not implicate an agency’s enforcement discretion.124 However, the use of “shall” in Section 235, or elsewhere in the INA, would not, in itself, necessarily be construed to mean that DHS is required to take particular actions, because courts have found that agencies may retain discretion even when a statute uses “shall.”125 The statute at issue in Heckler, for example, stated that

[a]ny article of food, drug, or cosmetic that is adulterated or misbranded when introduced into or while in interstate commerce or while held for sale … after shipment in interstate commerce, or which may not … be introduced into interstate commerce, shall be liable to be proceeded against.126

123 Arizona, 132 S. Ct. at 2499 (“A principal feature of the removal system is the broad discretion exercised by immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal. Discretion in the enforcement of immigration law embraces immediate human concerns. … Some discretionary decisions [also] involve policy choices that bear on this Nation’s international relations. … 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.”) (internal citations omitted)).

124 See, e.g., Lopez v. Davis, 531 U.S. 230, 241 (2001) (“Congress’ use of the permissive ‘may’ in § 3621(e)(2)(B) contrasts with the legislators’ use of a mandatory ‘shall’ in the very same section. Elsewhere in § 3621, Congress used ‘shall’ to impose discretionless obligations, including the obligation to provide drug treatment when funds are available. See 18 U.S.C. § 3621(e)(1) (‘Bureau of Prisons shall, subject to the availability of appropriations, provide residential substance abuse treatment (and make arrangements for appropriate aftercare)’); see also, e.g., § 3621(b) (‘The Bureau shall designate the place of the prisoner’s imprisonment…. In designating the place of imprisonment or making transfers under this subsection, there shall be no favoritism given to prisoners of high social or economic status.’”).

125 INS and, later, DHS has also taken the position that the use of “shall” in a statute does not, by itself, limit the ability of immigration officers to exercise prosecutorial discretion, and the agencies’ views could potentially be entitled to some deference, as discussed below. See, e.g., 2002 INS Guidance, supra note 2 (“[A] statute directing that the INS ‘shall’ remove removable aliens would not be construed by itself to limit prosecutorial discretion.”); INS Exercise of Prosecutorial Discretion, supra note 15, at 8 (opining that any statutory limits on INS’s prosecutorial discretion must be “clear and specific”).

126 470 U.S. at 835 (quoting 21 U.S.C. §334(a)(1) (emphasis added)).

Nonetheless, despite its use of “shall,” this statutory provision was construed by the Court as “framed in the permissive.”127 The Board of Immigration Appeals (BIA), the highest administrative body for construing and applying immigration law, has also rejected the view that “shall” means that immigration officials necessarily lack discretion as to whether to take particular actions. For example, in a 2011 decision, the BIA found that determinations as to whether to pursue expedited removal proceedings under Section 235 of the INA or formal removal proceedings under Section 240 of the INA are within DHS’s discretion, notwithstanding the fact that the INA uses “shall” in describing who is subject to expedited removal.128 In so doing, the BIA specifically noted that

in the Federal criminal code, Congress has defined most crimes by providing that whoever engages in certain conduct “shall” be imprisoned or otherwise punished. But this has never been construed to require a Federal prosecutor to bring charges against every person believed to have violated the statute.129

In light of these precedents, the use of “shall,” in itself, might not suffice for a court to find that an agency lacks the discretion not to enforce particular statutory requirements against certain individuals. Rather, a reviewing court might also consider the overall “statutory scheme [and] its objectives.”130 For example, in Dunlop v. Bachowski, the Court found that the Department of Labor’s alleged nonenforcement of a statute was reviewable, unlike with the statute at issue in Heckler. The statute in question used the word “shall,” but the Court does not appear to have accorded any special significance to this word. Instead, the Court emphasized that the statute directed the Secretary of Labor to investigate certain complaints brought by members of labor organizations challenging the validity of union elections, and bring a civil action against the labor organization within 60 days of the complaint’s filing if the Secretary finds probable cause to believe a violation occurred and has not been remedied.131 Because of these provisions, the Court viewed the Secretary’s discretion as limited to determining whether there is probable cause to believe that a violation occurred.132 Similarly, in Adams v. Richardson, the U.S. Court of Appeals for the District of Columbia Circuit noted that the statute in question was not “so broad” as to preclude judicial review, since it “indicates with precision the measures available to enforce the Act.”133

Deference to Agencies’ Interpretations of Their Governing Statutes

Another potential issue that can arise in determining whether “shall” indicates mandatory agency action when used in particular statutory provisions is how the agency has construed the provision, and whether a court finds that the agency’s interpretation is entitled to deference under the precedent of Chevron, USA v. Natural Resources Defense Council.134 In Chevron, the Supreme Court articulated a two-part test for review of an agency’s construction of a statute which it administers: (1) Has Congress directly spoken to the precise question at issue? and (2) If not, is the agency’s reasonable interpretation of the statute consistent with the purposes of the statute?135 “[I]f the statute speaks clearly ‘to the precise question at issue,’” the tribunal “must give effect to the unambiguously expressed intent of Congress,”136 regardless of what the agency regulation provides. However, where “the statute is silent or ambiguous with respect to the specific issue,” the tribunal “must sustain the [a]gency’s interpretation if it is ‘based on a permissible construction’ of the Act.”137

127 Id. See also id. at 842 (Marshall, J., concurring) (indicating that the Food, Drug, and Cosmetics Act is “not a mandatory statute” and, thus, the Food and Drug Administration has “significant discretion” to choose which alleged violations to prosecute).

128 Matter of E-R-M & L-R-M, 25 I. & N. Dec. 520, 523 (BIA 2011).

129 Id. at 522.

130 Dunlop v. Bachowski, 421 U.S. 560, 567 (1975) (also considering the legislative history and the “nature of the administrative action involved”).

131 Id. at 563.

132 Id. at 570.

133 480 F.2d at 1162. See also id. at 1163 (noting that “[t]he Act sets forth two alternative courses of action by which enforcement may be effected”).

In the case of Section 235 of the INA, for example, the Department of Justice (DOJ) and, later, DHS have interpreted the relevant provisions of the INA in a somewhat different manner than those who argue that DHS lacks the discretion not to remove aliens who entered the United States unlawfully. Both DOJ/DHS and those who claim it lacks discretion construe the first two provisions of Section 235 of the INA noted above—aliens present without admission being deemed applicants for admission, and applicants for admission being inspected—as applying to both (1) “arriving aliens” at a port-of-entry and (2) aliens who are present in the United States without inspection. However, DOJ and DHS have differed from proponents of the view that DHS lacks discretion in that DOJ and DHS have construed the third provision—regarding detention of certain aliens seeking admission—as applicable only to arriving aliens, not aliens who are present without inspection.138 This difference appears to have arisen, in part, because the agencies have emphasized the phrase “aliens seeking admission” in the third provision, and have reasoned that only arriving aliens at ports-of-entry can be said to be seeking admission.139

134 467 U.S. 837 (1984).

135 467 U.S. at 842-43.

136 Barnhart v. Walton, 535 U.S. 212, 217 (2002) (quoting Chevron, 467 U.S. at 842-43).

137 Id. at 218 (quoting, in part, Chevron, 467 U.S. at 843).

138 Specifically, the regulation implementing the third INA provision noted above—regarding the detention of aliens seeking admission—applies only to arriving aliens, not to aliens who entered without admission. See 8 C.F.R.

§235.3(c) (“[A]ny arriving alien who appears to the inspecting officer to be inadmissible, and who is placed in removal proceedings pursuant to section 240 of the Act shall be detained in accordance with section 235(b) of the Act”). This has been the agency’s interpretation of the provision since the initial final rule implementing this provision. See INS, Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 10312, 10357 (Mar. 6, 1997) (codified at 8 C.F.R. §235.3(c)). See also INS, Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 444, 444-46 (Jan. 3, 1997) (noting that the INA “distinguishes between the broader term ‘applicants for admission’ and a narrower group, ‘arriving aliens’”). The term “arriving alien” is defined in the regulations as “an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States,” but does not include aliens who entered without inspection. See 8 C.F.R.§1.2.

139 The position of DHS and DOJ may also reflect concerns that if Section 235(b)(2)(A) were construed to apply to all applicants for admission, the statutory language regarding “seeking admission” would be superfluous, and construing statutes so as to give effect to all of their provisions is one of the fundamental principles of statutory interpretation. See, e.g., Hibbs v. Winn, 542 U.S. 88, 101 (2004) (“A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.”); Montclair v. Ramsdell, 107 U.S. 147, 152 (1883) (Courts should “give effect, if possible, to every clause and word of a statute, avoiding, if it may be, any construction which implies that the legislature was ignorant of the meaning of the language it employed.”). Similarly, if detention were mandatory for all applicants for admission under INA 235(b)(2)(A), then the language including inadmissible aliens under the mandatory detention provision in Section 236(c)(1)(A) and (D) of the INA would arguably be superfluous as well, since the only aliens in the United States who are subject to the grounds of inadmissibility are applicants for admission. The agencies’ interpretation does not appear to have been directly adopted (continued…)

The district court reviewing ICE agents’ challenge to the DACA initiative declined to grant any deference to DHS’s interpretation here. The court found that this interpretation was not entitled to deference, in part, because it viewed the relevant provisions of the INA as unambiguously applying to both aliens coming (or attempting to come) into the United States at a port of entry, and aliens present in the United States without having been admitted.140 It also found that DHS regulations did not support DHS’s proposed interpretation because, while these regulations applied to arriving aliens, they were not limited to arriving aliens.141 However, as previously noted, this court is the only court to have so reached this conclusion, and it subsequently found that it lacked jurisdiction over the ICE agents’ claims.142 It is unclear whether other courts would reach the same conclusion as to whether and how much deference should be accorded to DHS’s interpretation of these three provisions of INA §235.

It should also be noted that the INS and, later, DHS have interpreted other provisions of the INA differently than §235, construing them as removing prosecutorial discretion as to certain determinations. For example, immigration authorities have long maintained that Section 236(c) of the INA—which states that immigration officials “shall take into custody” certain criminal aliens, and may release them only under narrow circumstances143—limits their discretion as to whether or not to release such aliens from custody.144

Executive Branch Self-Regulation

An agency could also potentially be found to have imposed certain constraints upon its exercise of prosecutorial discretion through either (1) the promulgation of regulations or (2) the issuance of guidelines that the agency intends to be binding or which have been employed in such a way as to be binding as a practical matter.145 For example, in a 1979 decision, the U.S. Court of Appeals for the Ninth Circuit (“Ninth Circuit”) found that an INS Operations Instruction addressing deferred action against deportable aliens was binding upon the agency because of its “purpose and effect.”146 In reaching this conclusion, the court emphasized that the Instruction more closely resembled a substantive provision for relief than an internal procedural guideline because it “exist[ed] out of consideration for the convenience of the petitioner, and not that of the INS.”147 The court further noted that the Instruction ostensibly required INS district directors to recommend deferred or “non-priority” status in certain cases, and that this status was periodically reviewed and not subject to termination at INS’s convenience.148 In short, the court distinguished the Instruction from other intra-agency guidelines that would create no substantive rights because the Instruction’s effects were “final and permanent, with the same force as that of a Congressional statute.”149 Other courts reached different conclusions as to whether this particular Operations Instruction was binding,150 and the INS subsequently amended to it to clarify that grants of deferred action were discretionary.151 Later, the guideline was rescinded (although INS and, later, DHS continued to grant deferred action).152 However, the 1979 case illustrates that certain types of “cabining of an agency’s prosecutorial discretion” could potentially “rise to the level of a substantive, legislative rule” in the immigration context.153 Were that the case, DHS’s exercise of prosecutorial discretion could potentially be found to have been constrained by its own guidelines.

(…continued)

by any court, although it arguably has been implicitly adopted in various court and BIA rulings that have applied a DHS regulation which provides that immigration judges have jurisdiction over bond determinations for aliens present without inspection, but not for arriving aliens. See, e.g., Matter of Oseiwusu, 22 I. & N. Dec. 19 (BIA 1998) (“According to the regulations, an Immigration Judge has no authority over the apprehension, custody, and detention of arriving aliens and is therefore without authority to consider the bond request of an alien returning pursuant to a grant of advance parole.”).

140 Crane, 2013 U.S. Dist. LEXIS 57788, at *23-*24.

141 Id., at *25.

142 See supra note 120 and accompanying text.

143 INA §236(c)(1)-(2); 8 U.S.C. §1226(c)(1)-(2).

144 See, e.g., 2002 INS Guidance, supra note 2, at 3 (indicating that detention pursuant to Section 236(c) is mandatory because Section 236(c) “evidences a specific congressional intention to limit discretion not to detain certain criminal aliens in removal proceedings that would otherwise exist”); INS Exercise of Prosecutorial Discretion, supra note 15, at

11. However, some commentators have noted that, notwithstanding this view, immigration agencies have released aliens subject to “mandatory detention” in order to moot lawsuits challenging the alien’s detention. See, e.g., Stephen

H. Legomsky, The Detention of Aliens: Theories, Rules, and Discretion, 30 U. MIAMI INTER-AM. L. REV. 531, 534 (1999).

145 See, e.g., Pacific Molasses Co. v. Fed. Trade Comm'n, 356 F.2d 386, 389-90 (5th Cir. 1996) (“When an administrative agency promulgates rules to govern its proceedings, these rules must be scrupulously observed. This is so even when the defined procedures are ‘… generous beyond the requirements that bind such agency …’ For once an agency exercises its discretion and creates the procedural rules under which it desires to have its actions judged, it denies itself the right to violate these rules.”). But see Farrell v. Dep’t of the Interior, 314 F.3d 584, 590 (Fed. Cir.

2002) (“The general consensus is that an agency statement, not issued as a formal regulation, binds the agency only if the agency intended the statement to be binding.”).

In its recent guidance regarding the exercise of prosecutorial discretion, DHS has consistently emphasized that “there is no right to a favorable exercise of prosecutorial discretion by the agency,” and that nothing in the guidelines should be construed to prohibit the apprehension, detention, or removal of aliens unlawfully present in the United States, or to limit any legal authority to enforce federal immigration law.154 However, an agency’s characterization of its own policies as non-binding is not necessarily dispositive,155 and certain parties challenging the DACAinitiative have suggested that, in “implementing the Directive, DHS has treated the Directive as if it were a rule.”156 No court appears to have addressed this argument, to date, but early in 2012— when DHS was conducting preliminary reviews of the dockets of the immigration courts in Baltimore and Denver for cases that might qualify for favorable exercises of prosecutorial discretion157—a panel of the Ninth Circuit ordered ICE to advise the court as to whether ICE planned to exercise prosecutorial discretion in five pending cases.158 The court did so sua sponte, without such an order having been requested, and the dissenting judge expressed concern that the majority’s order could portend future scrutiny of why ICE made particular decisions.159 The dissent also asserted that judicial review of ICE’s exercise of prosecutorial discretion is “sharply limited by the separation of powers.”160

146 Nicholas v. INS, 590 F.2d 802, 805 (1979).

147 Id. at 807.

148 Id.

149 Id.

150 See, e.g., Vergel v. INS, 536 F.2d 755, 757-80 (8th Cir. 1976) (upholding the deportation order, but staying its mandate for a period of time to allow the alien to apply for deferred action); David v. INS, 548 F.2d 219, 223 (8th Cir. 1977) (same); Yoon v. INS, 538 F.2d 1211, 1213 (5th Cir. 1976) (decision to grant or deny deferred action was within the “particular discretion of the INS,” and the agency had the power to create and employ a category “for its own administrative convenience without standardizing the category and allowing applications for inclusion in it”); Lennon

v. INS, 527 F.2d 187, 191 n.7 (2nd Cir. 1975) (describing deferred action as an “informal administrative stay of deportation”).

151 See, e.g., Leon Wildes, The Deferred Action Program of the Bureau of Citizenship and Immigration Services: A Possible Remedy for Impossible Immigration Cases, 41 SAN DIEGO L. REV. 819, 822 (2004).

152 See, e.g., Charles Gordon, Stanley Mailman, & Stephen Yale-Loehr, IMMIGR. L. & PROC. §72.03(2)(h) n.120 (2009) (noting that the Operating Instruction addressing deferred action was rescinded in 1997).

153 Community Nutrition Institute v. Young, 818 F.2d 943, 948 (1987) (finding that the FDA’s thresholds for aflatoxins in corn were legislative rules that should have been promulgated through notice-and-comment rulemaking because the levels “have a present effect and are binding,” and marketing any food not within the levels is viewed as unlawful). But see Heckler, 470 U.S. at 837 (rejecting a challenge to the Food and Drug Administration’s refusal to enforce alleged violations of the Food, Drug, and Cosmetic Act, in part, because the agency “policy statement” in question did not “arise in the course of discussing the agency’s discretion to exercise its enforcement power” and, thus, did not limit this discretion). The Court in Heckler expressly left open the possibility that certain agency rules might provide adequate guidelines for informed judicial review of decisions not to enforce them. Id. at 836.

154 See, e.g., 2011 DHS Guidance, supra note 9, at 6.

155 See, e.g., Columbia Broadcasting Sys., Inc. v. United States, 316 U.S. 407, 416 (1942) (“The particular label placed (continued…)

Conclusion

Regardless of whether it is characterized as “prosecutorial discretion” or “enforcement discretion,” immigration officers are generally seen as having wide latitude in determining when, how, and even whether to pursue apparent violations of the INA. This latitude is similar to that possessed by prosecutors in the criminal law enforcement context and enforcement officials in other federal agencies. Whether and how to constrain this discretion has been a recurring issue for some Members of Congress, particularly in light of the June 2011 DHS memorandum on prosecutorial discretion and the more recent DACA initiative.161 While some Members have expressed support for the DACA initiative,162 or called for expanded use of prosecutorial discretion by immigration authorities in other contexts,163 others have sought to prohibit DHS from granting deferred action or extended voluntary departure to removable aliens except in narrow circumstances,164 or to “nullify” particular policies regarding prosecutorial discretion that have been articulated by the Obama Administration.165

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upon it by the Commission is not necessarily conclusive, for it is the substance of what the Commission has purported to do and has done which is decisive.”); Guardian Fed. Savings & Loan Ass’n v. Fed. Savings & Loan Ins. Corp., 589 F.2d 658, 666-67 (D.C. Cir. 1978) (“If it appears that a so-called policy statement is in purpose or likely effect one that narrowly limits administrative discretion, it will be taken for what it is—a binding rule of substantive law.”). The agency’s characterization could, however, potentially be entitled to some deference. See, e.g., Community Nutrition Institute, 818 F.2d at 946.

156 Crane v. Napolitano, No. 3:12-cv-03247-O, Brief in Support of Plaintiffs’ Application for Preliminary Injunction, at 19 (filed N.D. Tex., Nov. 28, 2012). See also Crane v. Napolitano, No. 3:12-cv-03247-O, Affidavit of Christopher L. Crane, ¶ 8 (filed N.D. Tex., Nov. 27, 2012) (alleging that ICE has adopted a practice of not questioning individuals who assert that they could be eligible for deferred action as part of the DACA initiative, thereby effectively making all who claim deferred action entitled to it).

157 See, e.g., Julia Preston, U.S. to Review Cases Seeking Deportations, New York Times, Nov. 17, 2011, available at

http://www.nytimes.com/2011/11/17/us/deportation-cases-of-illegal-immigrants-to-be-reviewed.html.

158 Rodriguez v. Holder, 668 F.3d 670 (9th Cir. 2012); Agustin v. Holder, 668 F.3d 672 (9th Cir. 2012); Jex v. Holder,

668 F.3d 673 (9th Cir. 2012); Pocasangre v. Holder, 668 F.3d 674 (9th Cir. 2012); Mata-Fasardo v. Holder, 668 F.3d

674 (9th Cir. 2012).

159 Agustin, 668 F.3d at 672 (O’Scannlain, J., dissenting).

160 Id. Subsequently, in response to the DACA initiative, the U.S. Court of Appeals for the Second Circuit (“Second Circuit”) established a procedure whereby pending immigration cases are tolled while the government determines whether to remand the case to the BIA for administrative closure in light of DACA and related initiatives. In Matter of Immigration Petitions for Review Pending in the United States Court of Appeals for the Second Circuit, No. 12-4096, 2012 U.S. App. LEXIS 21555 (Oct. 16, 2012). However, unlike the Ninth Circuit, the Second Circuit did not order ICE to inform it regarding whether ICE plans to exercise discretion in particular cases.

161 See supra note 12 and accompanying text.

162 See, e.g., Durbin Statement on DREAM Act and Administrative Action to Help Young Immigrants, June 15, 2012, available at http://durbin.senate.gov/public/index.cfm/pressreleases?ID=070d1061-66c4-45ef-bb34-41da7e1e7d40. 163 See, e.g., Pelosi, Nadler, Honda, and 81 Members of Congress Urge Department of Homeland Security Again To

(continued…)

The extent to which Congress can constrain the Administration’s exercise of discretion in the DACA context, in particular, may depend on whether a reviewing court characterizes the underlying authority for the implementation of the program as constitutionally or statutorily based. Congress has broad authority to restrict discretionary acts taken pursuant to statutory delegations, while arguably limited authority, under the doctrine of Separation of Powers, to restrict the President’s exercise of constitutionally based discretion. In addition, the degree of intrusion into executive enforcement decisions may also impact a court’s review of any congressional response. For example, legal precedent suggests that Congress probably cannot directly limit the President’s exercise of discretion by requiring that the executive branch initiate enforcement actions against particular individuals.166 On the other hand, Congress would appear to have considerable latitude in establishing statutory guidelines for immigration officials to follow in the exercise of their enforcement powers, including by “indicat[ing] with precision the measures available to enforce the” INA, or by prohibiting DHS from considering certain factors in setting enforcement priorities.167

However, the existing judicial presumption that “an agency’s decision not to take enforcement action [is] immune from judicial review,”168 and the deference potentially accorded to an agency’s interpretation of its governing statute,169 suggests that such statutory guidelines would likely need to be clear, express, and specific. The use of “shall” in a provision of the INA may not, in itself, suffice for a statute to be construed as having provided enforceable guidelines for immigration officials to follow in exercising prosecutorial discretion. Absent a substantive legislative response, Congress may still be able to influence the implementation of DACA or other discretion-based policies by the immigration authorities, including by engaging in stringent oversight over the DHS program or by exercising its “power of the purse”170 to prohibit DHS and its components from implementing particular policies related to the exercise of prosecutorial discretion that Congress does not support.171

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Recognize LGBT Family Ties in Deportation Cases, (copy on file with the authors).The need for discretion in certain cases involving aliens in same-sex marriages may have been removed by DHS’s response to the recent Supreme Court decision in United States v. Windsor. Windsor struck down Section 3 of the Defense of Marriage Act (DOMA), which had precluded federal agencies from recognizing same-sex marriages. Following this decision, DHS began permitting

U.S. citizens and lawful permanent residents to sponsor their same-sex spouses for family-based immigrant visas and adjustment of status. See DHS, Implementation of the Supreme Court Ruling on the Defense of Marriage Act, available at http://www.dhs.gov/topic/implementation-supreme-court-ruling-defense-marriage-act.

164 Hinder the Administration’s Legalization Temptation (HALT) Act, H.R. 2497, §2(f), 113th Cong. (permitting the grant of deferred action or extended voluntary departure only for the purpose of maintaining an alien in the United States “(1) to be tried for a crime, or to be a witness at trial, upon the request of a Federal, State, or local law enforcement agency; (2) for any other significant law enforcement or national security purpose; or (3) for a humanitarian purpose where the life of the alien is imminently threatened”).

165 Prohibiting the Back-Door Amnesty Act, H.R. 5953, §2(a), 113th Cong. (“nullifying” the 2011 Morton memoranda and the 2012 Napolitano memorandum).

166 See Heckler, 470 U.S. at 833 (“… Congress did not set agencies free to disregard legislative direction in the statutory scheme that the agency administers. Congress may limit an agency’s exercise of enforcement power if it wishes, either by setting substantive priorities, or by otherwise circumscribing an agency’s power to discriminate among issues or cases it will pursue.”).

167 Adams, 480 F.2d at 1162.

168 Heckler, 470 U.S. at 832.

169 Chevron, 467 U.S. at 842-43.

Author Contact Information

Kate M. Manuel Legislative Attorney

kmanuel@crs.loc.gov, 7-4477

Todd Garvey Legislative Attorney

tgarvey@crs.loc.gov, 7-0174

Tool Kit for ICE Prosecutors (PDF)

170 See U.S. Const., art. I, §9, cl. 7 (“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law…. ”).

171 See, e.g., Department of Homeland Security Appropriations Act, 2013, H.R. 5855, as passed by the House, §581(a), 113th Cong. (“None of the funds made available in this Act may be used to finalize, implement, administer, or enforce the ‘Morton Memos.’”).

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