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

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

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.

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.

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 permissi-

ble exercise of DHS’s enforcement discretion.

November 19, 2014

MEMORANDUM OPINION FOR THE SECRETARY OF HOMELAND SECURITY

AND THE COUNSEL TO THE PRESIDENT

You have asked two questions concerning the scope of the Department of

Homeland Security’s discretion to enforce the immigration laws. First, you have

asked whether, in light of the limited resources available to the Department

(“DHS”) to remove aliens unlawfully present in the United 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

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Opinions of the Office of Legal Counsel in Volume 38

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

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

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 Immigra-

tion and Nationality Act of 1952 (“INA”), as amended, 8 U.S.C. §§ 1101 et seq. In

the INA, Congress established a comprehensive scheme governing immigration

and naturalization. The INA specifies certain categories of aliens who are

inadmissible to the United States. See 8 U.S.C. § 1182. It also specifies “which

aliens may be removed from the United States and the procedures for doing so.”

Arizona v. United States, 132 S. Ct. 2492, 2499 (2012). “Aliens may be removed if

they were inadmissible at the time of entry, have been convicted of certain crimes,

or meet other criteria set by federal law.” Id. (citing 8 U.S.C. § 1227); see 8 U.S.C.

§ 1227(a) (providing that “[a]ny alien . . . in and admitted to the United States

shall, upon the order of the Attorney General, be 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

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Opinions of the Office of Legal Counsel in Volume 38

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

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

priorities.” Homeland Security Act of 2002, Pub. L. No. 107-296, § 402(5), 116

Stat. 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.

§ 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.

132 S. Ct. at 2499.

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

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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

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).

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

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.

29, 43 (1983))).

Third, the Executive Branch ordinarily cannot, as the Court put it in Chaney,

“‘consciously and expressly adopt[] a general policy’ that is so extreme as to

amount to an abdication of its statutory responsibilities.” 470 U.S. at 833 n.4

(quoting Adams v. Richardson, 480 F.2d 1159, 1162 (D.C. Cir. 1973) (en banc));

see id. (noting that in situations where an agency had adopted such an extreme

policy, “the statute conferring 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

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Opinions of the Office of Legal Counsel in Volume 38

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

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

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

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.

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Opinions of the Office of Legal Counsel in Volume 38

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”).

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

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

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

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).

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Opinions of the Office of Legal Counsel in Volume 38

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.

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

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”).

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

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

13

Opinions of the Office of Legal Counsel in Volume 38

(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,

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.

14

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

INS, from Gene McNary, Commissioner, INS, Re: Family Fairness: Guidelines

for Voluntary Departure under 8 CFR 242.5 for the Ineligible Spouses and

Children of Legalized Aliens (Feb. 2, 1990) (“Family Fairness Memorandum”);

see also CRS Immigration Report at 10.

On at least five occasions since the late 1990s, INS and later DHS have also

made discretionary relief available to certain classes of aliens through the use of

deferred action:

1. Deferred Action for Battered Aliens Under the Violence Against Women Act.

INS established a class-based deferred action program in 1997 for the benefit of

self-petitioners under the Violence Against Women Act of 1994 (“VAWA”), Pub.

L. No. 103-322, tit. IV, 108 Stat. 1796, 1902. VAWA authorized certain aliens

who have been abused by U.S. citizen or LPR spouses or parents to self-petition

for lawful 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 Hear-

ings”).

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

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Opinions of the Office of Legal Counsel in Volume 38

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

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

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

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).

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Opinions of the Office of Legal Counsel in Volume 38

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

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 and

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.

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

Violence 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

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

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).

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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).

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 unlawful

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

presence 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

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

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Opinions of the Office of Legal Counsel in Volume 38

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).

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

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”).

22

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

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.

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

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”).

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Opinions of the Office of Legal Counsel in Volume 38

(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).

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).

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.

U.S. Const. art. II, § 3.

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

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

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Opinions of the Office of Legal Counsel in Volume 38

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

26

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

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 status

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.

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Opinions of the Office of Legal Counsel in Volume 38

immediately, 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).

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

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

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 several

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

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Opinions of the Office of Legal Counsel in Volume 38

occasions 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.

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

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.

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

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.

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

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Opinions of the Office of Legal Counsel in Volume 38

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 the

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

proposed program, because in the absence of any family member with lawful

status in the United States, it would not explain why that concern should be

satisfied by permitting family 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

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