Amicus Curiae Brief — Department of Homeland Security, et al., Petitioners v. Regents of the University of California, et al.

Nos. 18-587, 18-588 and 18-589

In the

Supreme Court of the United States

DEPARTMENT OF HOMELAND SECURITY, et al.,

Petitioners,

v.

REGENTS OF THE UNIVERSITY

OF CALIFORNIA, et al.,

Respondents.

DONALD J. TRUMP, PRESIDENT

OF THE UNITED STATES, et al.,

Petitioners,

v.

NATIONAL ASSOCIATION FOR THE

ADVANCEMENT OF COLORED PEOPLE, et al.,

Respondents.

(For Continuation of Caption See Inside Cover)

On Writs of Certiorari to the United States Courts

of A ppeal for the Ninth, DC and Second Circuits

BRIEF OF FORMER HOMELAND SECURITY

AND IMMIGRATION OFFICIALS AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

Jeh C. Johnson

Liza M. Velazquez

David C. Kimball-Stanley

Paul, Weiss, Rifkind, Wharton

& Garrison LLP

1285 Avenue of the Americas

New York, NY 10019

(212) 373-3000

Masha G. Hansford

Paul, Weiss, Rifkind, Wharton

& Garrison LLP

2001 K Street, NW

Washington, DC 20006

(202) 223-7300

K aren L. Dunn

Joshua Riley

Menno Goedman

A ndrea R. Flores

Boies Schiller Flexner LLP

1401 New York Avenue, NW

Washington, DC 20005

(202) 237-2727

A lbert Giang

Counsel of Record

Boies Schiller Flexner LLP

725 South Figueroa Street

Los Angeles, CA 90017

(213) 629-9040

agiang@bsfllp.com

Counsel for Amici Curiae

291551

KEVIN K. MCALEENAN, ACTING SECRETARY

OF HOMELAND SECURITY, et al.,

Petitioners,

v.

MARTIN JONATHAN BATALLA VIDAL, et al.,

Respondents.

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS............................................... i

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICI CURIAE ................................. 1

SUMMARY OF ARGUMENT ..................................... 6

STATEMENT OF THE CASE ..................................... 7

ARGUMENT ............................................................. 12

I. Deferred Action Is Firmly Rooted in

Historical Practice .......................................... 12

II. Allowing Deferred Action Recipients to

Apply for Work Authorization Is

Consistent With Historical Practice and

Benefits the United States ............................. 25

A. Work authorization is permitted under

federal law ................................................. 26

B. Work authorization is consistent with

historical practice ...................................... 27

CONCLUSION .......................................................... 34

ii

TABLE OF AUTHORITIES

Page(s)

Cases:

Arizona v. United States,

567 U.S. 387 (2012) .............................................. 10

Hotel & Rest. Emps. Union, Local 25 v. Smith,

846 F.2d 1499 (D.C. Cir. 1988) ............................ 16

United States v. Texas,

136 S. Ct. 2271 (2016) .......................................... 26

Statutes:

6 U.S.C. § 202(5) ........................................................ 13

8 U.S.C. § 1103 .......................................................... 29

8 U.S.C. § 1182(a)(4) ................................................. 26

8 U.S.C. § 1231(a)(7) ................................................. 32

8 U.S.C. § 1324a(a)(1) ............................................... 29

8 U.S.C. § 1324a(h)(3) ................................... 27, 29, 31

Pub. L. No. 82-414, 66 Stat. 163 ............................... 14

Pub. L. No. 93-518, 88 Stat. 1652 ............................. 28

Pub. L. No. 97-113, 95 Stat. 1519 ............................. 17

Pub. L. No. 99-603, 100 Stat. 3359 ..................... 17, 29

Pub. L. No. 101-649, 104 Stat. 4978 ......................... 22

Pub. L. No. 104-208, 110 Stat. 3009-546 .................. 32

iii

Pub. L. No. 106-386, 114 Stat. 1464 ......................... 33

Regulations:

8 C.F.R. § 109.1(b)(6) ................................................. 29

8 C.F.R. § 214.2(c) ..................................................... 28

8 C.F.R. § 214.14(d)(3) ............................................... 24

8 C.F.R. § 274a.12(c)(11) ........................................... 33

8 C.F.R. § 274a.12(c)(14) ......................... 13, 17, 26, 33

Sup. Ct. R. 37.3(a) ....................................................... 1

Other Authorities:

17 Fed. Reg. 11,488 (Dec. 19, 1952) .......................... 27

46 Fed. Reg. 25,079 (May 5, 1981) ............................ 17

46 Fed. Reg. 25,080 (May 5, 1981) ............................ 29

46 Fed. Reg. 25,081 (May 5, 1981) ...................... 17, 29

51 Fed. Reg. 39,385 (Oct. 28, 1986) .......................... 30

51 Fed. Reg. 39,386 (Oct. 28, 1986) .......................... 30

52 Fed. Reg. 46,092 (Dec. 4, 1987) ...................... 30, 31

52 Fed. Reg. 46,093 (Dec. 4, 1987) ...................... 30, 31

72 Fed. Reg. 53,014 (Sept. 17, 2007) ........................ 24

Alan C. Nelson, Legalization and Family

Fairness: An Analysis (Oct. 21, 1987) ................. 18

iv

Camilo Montoya-Galvez, Trump Administration

to Process Some Deferred Deportation

Requests from Sick Immigrants, CBS News

(Sept. 2, 2019) ...................................................... 25

Executive Grants of Temporary Immigration

Relief, 1956-Present, Am. Immigr. Counsel

(Oct. 2014) ............................................................ 14

Gene McNary, INS Comm’r, to INS Reg’l

Comm’rs, Family Fairness: Guidelines for

Voluntary Departure Under 8 CFR 242.5 for

the Ineligible Spouses and Children of

Legalized Aliens (Feb. 2, 1990) ............................ 19

Hearing Before the H. Comm. on the Judiciary,

114th Cong. (Feb. 25, 2015) ................................... 8

Immigration Act of 1989 (Part 2): Hearing before

the Subcomm. on Immigration, Refugees, and

International Law of the H. Comm. on the

Judiciary at 56, 101st Cong. (Feb. 21, 1990) ...... 20

Immigration Reform and Control Act of 1983:

Hearings

before

the

Subcomm.

on

Immigration, Refugees, and Int’l Law of the

H. Comm. on the Judiciary, 98th Cong. 1441

(1983) .................................................................... 30

Jeffrey S. Passel et al., As Growth Stalls,

Unauthorized

Immigrant

Population

Becomes More Settled, Pew Res. Ctr. (Sept. 3,

2014) ..................................................................... 20

v

Jens Manuel Krogstad et al., 5 Facts About

Illegal Immigration in the U.S., Pew Res.

Ctr. (June 12, 2019) ............................................... 7

Jie Zong et al., A Profile of Current DACA

Recipients by Education, Industry, and

Occupation, Migration Pol’y Inst. (Nov. 2017) .... 11

Kathryn Watson, Pentagon Says DACA

Recipients in Military Number Fewer than

900, CBS News (Sept. 6, 2017) ............................ 11

Letter from Robert McConnell, Dep’t of Justice,

to Rep. Romano Mazzoli (Apr. 4, 1983) ............... 30

Memorandum from Andorra Bruno et al.,

Analysis

of

June

15,

2012

DHS

Memorandum,

Exercising

Prosecutorial

Discretion with Respect to Individuals Who

Came to the United States as Children Cong.

Res. Serv. (July 13, 2012) .................................... 13

Memorandum from Janet Napolitano to David

V. Aguilar et al., Sec’y of Homeland Sec.,

Exercising Prosecutorial Discretion with

Respect to Individuals Who Came to the

United States as Children (June 15, 2012) .... 9, 10

Memorandum from Michael D. Cronin, Acting

Exec. Assoc. Comm’r, INS, to Michael A.

Pearson, Exec. Assoc. Comm’r, Off. of

Programs, INS,

VTVPA of 2000 Policy

Memorandum

#2—“T”

and

“U”

Nonimmigrant Visas (Aug. 30, 2001) .................. 33

vi

Memorandum

from

Paul

W.

Virtue,

Supplemental Guidance on Battered Alien

Self-Petitioning Process and Related Issues

(May 6, 1997) ........................................................ 22

President Dwight D. Eisenhower, Statement by

the President Concerning the Entry into the

United States of Adopted Foreign-Born

Orphans (Oct. 26, 1956) ................................. 13, 14

President George H.W. Bush, Statement on

Signing the Immigration Act of 1990 (Nov.

29, 1990) ............................................................... 21

President William J. Clinton, Memorandum for

the Attorney General: Measures Regarding

Certain Liberians in the United States (Sept.

27, 1999) ................................................... 22, 23, 32

President William J. Clinton, Memorandum on

Deferred Enforced Departure for Haitians

(Dec. 23, 1997) ................................................ 32, 33

Raquel Muñiz et al., DACAmented Law

Students and Lawyers in the Trump Era,

Ctr. Am. Progress (June 7, 2018) ........................ 11

Recent Developments, 67 No. 6 Interpreter

Releases (Feb. 5, 1990) .................................. 18, 20

Revision of Immigration, Naturalization, and

Nationality Laws: Joint Hearing Before the

S. & H.R. Subcomms. on the Judiciary, 82d

Cong. 713 (1951)................................................... 14

vii

Roberto G. Gonzalez et al., Taking Giant Leaps

Forward: Experiences of a Range of DACA

Beneficiaries at the 5-Year Mark, Ctr. Am.

Progress (June 22, 2017) ..................................... 11

Sam Bernsen, Lawful Work for Nonimmigrants,

48 No. 21 Interpreter Releases (June 21,

1971) ..................................................................... 28

Sam Bernsen, Leave to Labor, 52 No. 35

Interpreter Releases (Sept. 2, 1975).................... 28

Statement from Dean Manning on the End of the

DACA Program, Harv. L. Sch. (Sept. 5, 2017) .... 11

Steven Kopits, Apprehensions, Illegal Entries

Forecast for 2019 (August), Princeton Pol’y

Advisors (Sept. 10, 2019) ....................................... 7

Ted Hesson, DHS Walks Back Decision to Halt

Medical Deportation Relief, Politico (Sept. 19,

2019) ..................................................................... 25

Tom Wong et al., Results from 2019 National

DACA Study, Ctr. Am. Progress (2019) .............. 11

U.S. Customs & Border Patrol, United States

Border Patrol Nationwide Illegal Alien

Apprehensions Fiscal Years 1925 – 2018 .............. 7

U.S. Customs & Border Protection, CBP

Enforcement Statistics FY 2019 ............................ 7

U.S. Immigr. & Customs Enforcement, Fiscal

Year 2018 ICE Enforcement and Removal

Operations Report .................................................. 8

viii

USCIS Policy Manual § 38.2 ..................................... 15

USCIS, Interim Relief for Certain Foreign

Academic Students Adversely Affected by

Hurricane

Katrina,

Frequently

Asked

Questions (Nov. 25, 2005) .................................... 23

USCIS, Liberia Temporary Protected Status

(TPS) Questions and Answers (Sept. 27,

2002) ..................................................................... 23

USCIS, Press Release, USCIS Announces

Interim Relief for Foreign Students

Adversely Impacted by Hurricane Katrina

(Nov. 25, 2005) ..................................................... 33

INTEREST OF AMICI CURIAE1

Amici are former leaders of the U.S. Department

of Homeland Security (“DHS”) and its component or

predecessor agencies. Amici had direct involvement

in the creation and administration of Deferred Action

for Childhood Arrivals (“DACA”) specifically and/or

responsibility for administering and enforcing our

nation’s immigrations laws generally.

Jeh C. Johnson served as Secretary of DHS from

December 2013 to January 2017, where he was responsible for enforcement and administration of the

nation’s immigration laws. Previously, Secretary

Johnson served as General Counsel of the U.S. Department of Defense (2009–2012), General Counsel

of the U.S. Air Force (1998–2001), and as an Assistant U.S. Attorney in the Southern District of New

York (1989–1991).

Alejandro Mayorkas served as Deputy Secretary

of DHS from December 2013 to October 2016. Prior

to that, Deputy Secretary Mayorkas was Director of

U.S.

Citizenship and Immigration Services

(“USCIS”) from August 2009 to December 2013; in

1 The parties have consented to the filing of this brief. Pur-

suant to Rule 37.3(a), written consents to the filing of this brief

are on file with the Clerk of the Court. No counsel for a party

authored this brief in whole or in part, and no such counsel or

party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than the

amici curiae, or their counsel, made a monetary contribution to

the preparation or submission of this brief.

2

that role, he was directly responsible for the launch,

implementation, and subsequent administration of

DACA. Earlier in his career, Deputy Secretary

Mayorkas was United States Attorney for the Central District of California (1998–2001).

Leon Rodriguez served as Director of USCIS from

2014 to 2017, where he was also directly responsible

for the administration of DACA. From 2007 to 2011,

Mr. Rodriguez served in leadership positions at the

Department of Health and Human Services and the

Department of Justice.

Gil Kerlikowske served as Commissioner of U.S.

Customs and Border Protection from March 2014 to

January 2017. Previously, Commissioner Kerlikowske was Director of the Office of National Drug Control Policy (2009–2014) and served as the Commissioner or Chief of Police in four different cities, including an eight-year term in Seattle, Washington

(2001–2009).

John T. Morton served as Director of Immigration

and Customs Enforcement (“ICE”) from May 2009 to

August 2013. Previously, Mr. Morton served in leadership positions at the Department of Justice and

was an Assistant U.S. Attorney in the Eastern District of Virginia (1999–2006).

Stevan E. Bunnell served as General Counsel of

DHS from December 2013 to January 2017. Prior to

that, he held various positions in law enforcement,

3

including Chief of the Criminal Division in the U.S.

Attorney’s Office for the District of Columbia.

Russell C. Deyo served as Acting Deputy Secretary of DHS from November 2016 to January 2017.

Previously, Mr. Deyo served as Under Secretary for

Management at DHS from May 2015 to November

2016. He also served as an Assistant U.S. Attorney

for the District of New Jersey (1978–1985).

Bo Cooper served as General Counsel of the Immigration and Naturalization Service (“INS”) from

1999 until 2003.2

T. Alexander Aleinikoff served as General Counsel and then as Executive Associate Commissioner

for Programs of the INS from 1994 to 1997.

Roxana Bacon served as Chief Counsel of USCIS

from 2009 to 2011.

Seth Grossman served as Chief of Staff to the

General Counsel of DHS from 2010 to 2011, Deputy

General Counsel of DHS from 2011 to 2013, and as

Counselor to the Secretary at the same agency in

2013.

Stephen H. Legomsky served as Chief Counsel of

2 The INS is the predecessor agency to

the federal offices

within DHS that now have responsibility for enforcing the nation’s immigration laws.

4

USCIS from 2011 to 2013 and as Senior Counselor to

the Secretary of DHS on immigration from July to

October 2015.

Jonathan E. Meyer served as Deputy General

Counsel of DHS from 2014 to 2016 and as Senior

Counselor to the General Counsel from 2011 to 2014.

Previously, he served as Deputy Assistant Attorney

General at the Department of Justice (2000–2001,

2009–2011).

John R. Sandweg served as Acting Director of

ICE from 2013 to 2014, as Acting General Counsel of

DHS from 2012 to 2013, as Senior Counselor to the

Secretary of DHS from 2010 to 2012, and as Chief of

Staff to the General Counsel of the same agency from

2009 to 2010.

David A. Martin served as Principal Deputy General Counsel of DHS from January 2009 through December 2010 (including four months as Acting General Counsel) and as General Counsel of the INS

from August 1995 to January 1998.

Paul Virtue served as General Counsel of the INS

from 1998 to 1999. He also served as Executive Associate Commissioner of the INS from 1997 to 1998

and as Deputy General Counsel from 1988 to 1997.

Paul M. Rosen served as Chief of Staff to the Secretary of DHS from 2015 to 2017. Previously, Mr.

Rosen served in various positions at DHS from 2013

to 2015. Earlier in his career, Mr. Rosen served at

5

the U.S. Department of Justice (2009–2013) and as

Counsel to the U.S. Senate Judiciary Committee for

then-Senator Joseph R. Biden, Jr. (2006–2009).

Amici submit this brief to offer their first-hand

perspective on the virtue, historical pedigree, and

lawfulness of deferred action in the enforcement of

federal immigration law and to provide context as to

why a decision to rescind DACA as unlawful cannot

and should not stand.

6

SUMMARY OF ARGUMENT

DACA is not government benevolence, inaction,

or—as some have derisively labeled it—“amnesty.”

Rather, as the amici can personally attest, DACA is

sound, smart policy given the inherent limitations of

government resources. It confers no legal status and

it serves important government interests (including

public safety and national security) by encouraging

young people who are the lowest priorities for removal, but who live in the shadows of American life,

to come forward, engage in their communities, and

contribute to the economy.

Discretionary relief policies have existed within

the landscape of executive branch authority for decades and have been used by administrations of both

political parties. DACA is thus neither novel nor unprecedented. The authority to adopt DACA and the

accompanying authority to issue work authorization

both derive from the prosecutorial discretion routinely exercised by the executive branch and from Congress’ broad delegations of authority in the immigration context. Further statutory authority expressly

endorsing the manner in which that prosecutorial

discretion is exercised is not necessary.

7

STATEMENT OF THE CASE

There are an estimated 11 million people present

in this country without documentation. Another

300,000 to 450,000 immigrants are apprehended trying to enter the country illegally each year. This

year, the figure likely will approach 850,000—the

highest in over a decade.3

Historically, the executive branch has lacked the

resources required to take action against every person residing in the United States who may be removable. The institutions and personnel of immigration enforcement—including immigration courts,

judges, federal attorneys, asylum officers, and DHS

enforcement and removal personnel—can remove only a small fraction of those who are removable. Re-

3 Jens Manuel Krogstad et al., 5 Facts About Illegal Immi-

gration in the U.S., Pew Res. Ctr. (June 12, 2019),

https://pewrsr.ch/2lpzIfn; U.S. Customs & Border Protection,

CBP Enforcement Statistics FY 2019, http://bit.ly/2lhBbo7; Steven Kopits, Apprehensions, Illegal Entries Forecast for 2019

(August), Princeton Pol’y Advisors (Sept. 10, 2019),

http://bit.ly/2mqdY36; U.S. Customs & Border Patrol, United

States Border Patrol Nationwide Illegal Alien Apprehensions

Fiscal Years 1925 – 2018, http://bit.ly/2mQqMzV.

8

cently, the government has removed 220,000 to

260,000 people per year from the country’s interior.4

Inevitably, then, choices must be made. Priorities

for removal must be developed. Prosecutorial discretion must be exercised.

For more than fifty years, presidents and their

administrations have done just that: exercising prosecutorial discretion to prioritize enforcement against

those individuals who pose threats to public safety or

national security, while deferring action against and

authorizing the right to work (where economically

necessary) for those who do not.

The Obama Administration was no exception.

Just as seven of his predecessors had done, including

nearly every president since Eisenhower, President

Obama implemented deferred action, whereby immigration officials exercised discretion to defer the removal of young people who otherwise were in the

United States unlawfully. See generally Hearing Before the H. Comm. on the Judiciary, 114th Cong.

(Feb. 25, 2015) (Written Testimony of Stephen H.

Legomsky at 2–26), http://bit.ly/2lFGM7I (explaining

the legality of such policies, including DACA).

4 U.S. Immigr. & Customs Enforcement,

ICE Enforcement and

http://bit.ly/2mwAVl3.

Removal

Fiscal Year 2018

Operations Report 10,

9

Established on June 15, 2012, DACA authorizes

the deferral of removal and other proceedings on a

case-by-case basis for young people who were under

the age of sixteen when they entered the United

States, under the age of thirty-one as of June 15,

2012, and who meet specific educational and publicsafety criteria. See Memorandum from Janet Napolitano to David V. Aguilar et al., Sec’y of Homeland

Sec., Exercising Prosecutorial Discretion with Respect

to Individuals Who Came to the United States as

Children 1–2 (June 15, 2012), http://bit.ly/2mVOUkJ

(“Napolitano Memorandum”). Importantly, however,

satisfying these criteria is a necessary, but not sufficient, condition to receiving deferred action under

DACA; immigration officials retain authority to deny

deferred action even to those individuals who satisfy

these criteria. See Br. for Amici DACA Recipients &

State of New Jersey at 9–25.

Deferred action for DACA recipients is “especially

justified,” because they “were brought to this country

as children” and many “know only this country as

home.” Napolitano Memorandum at 1–2. President

Obama recognized that it would cause irreparable

harm to remove these individuals to countries where

they lacked familial or economic ties. There is thus a

compelling humanitarian interest in affording DACA

recipients some explicit protection against removal.

10

Like deferred action and similar policies before it,

DACA is not available to anyone who has been convicted of certain offenses or to anyone who poses a

threat to national security. Id. at 1. DACA’s emphasis on public safety and national security is consistent with historical practice—immigration enforcement generally has prioritized dangerous criminals and those apprehended at the border. See generally Arizona v. United States, 567 U.S. 387, 396–97

(2012).

DACA’s authorizing memorandum provides that

USCIS “shall accept applications to determine

whether these individuals qualify for work authorization during this period of deferred action.” Napolitano Memorandum at 3. Significantly, however, the

authorizing memorandum confers neither a right to

work nor a right to petition DHS for approval to

work. Rather, a DACA recipient is eligible to apply

for work authorization under a federal regulation

that predates DACA and has been available for decades to qualifying recipients of discretionary relief.

Since its adoption, DACA has been an overwhelming success. As of 2017, before the Trump Administration attempted to rescind DACA on the incorrect assertion that its hands were tied legally,

nearly fifty-five percent of DACA recipients were

employed, while sixty-two percent of those not in the

11

labor force were enrolled in school.5 The DACA population includes students, teachers,6 licensed physicians,7 members of the U.S. military,8 students at top

law schools,9 and those admitted to practice law in

various states.10 In short, today’s DACA population

is by-and-large either full-time employed or otherwise in school. In the course of their duties, amici

5 Jie Zong et al., A Profile of Current DACA Recipients by

Education, Industry, and Occupation, Migration Pol’y Inst.

(Nov. 2017), http://bit.ly/2lrezS1; see also Tom Wong et al., Results from 2019 National DACA Study, Ctr. Am. Progress 2, 6

(2019), https://ampr.gs/2lWJyWp (explaining that, since their

applications were approved, seventy percent of DACA recipients

have enrolled in educational programs that were previously unavailable to them and almost sixty percent became employed for

the first time).

6 See Roberto G. Gonzalez et al., Taking Giant Leaps For-

ward: Experiences of a Range of DACA Beneficiaries at the 5Year Mark, Ctr. Am. Progress 5 (June 22, 2017),

https://ampr.gs/2lu5tDU.

7 Ibid.

8 Kathryn Watson, Pentagon Says DACA Recipients in Mili-

tary Number Fewer than 900, CBS News (Sept. 6, 2017),

https://cbsn.ws/2kTFlSR.

9 Statement from Dean Manning on the End of the DACA

Program, Harv. L. Sch. (Sept. 5, 2017), http://bit.ly/2kWugjZ.

Raquel Muñiz et al., DACAmented Law Students and

Lawyers in the Trump Era, Ctr. Am. Progress (June 7, 2018),

https://ampr.gs/2lrqFKM.

10

12

personally met a number of these outstanding young

people who, after years of living in this country, have

become de facto Americans.

Amici know from personal experience that DACA

is sound, smart policy, and firmly rooted in precedent. Now, after more than seven years, rescinding

DACA is neither compelled by law nor warranted in

fact. President Trump himself has observed that

DACA recipients should “rest easy” because the “policy of [his] administration [is] to allow the dreamers

to stay.” J.A. 435. The human cost of now rescinding

DACA on the erroneous assertion that the law compels it would be enormous; it is no overstatement to

say that if DACA perishes, many of the 700,000

young people who placed their faith in the U.S. government would be gravely harmed.

ARGUMENT

I. Deferred Action Is Firmly Rooted in Historical

Practice.

Deferred action, including discretionary, systematic relief granted on a case-by-case basis to large

numbers of people otherwise removable, has in various forms occupied the landscape of executive au-

13

thority for decades.11 Federal law long has recognized this reality, codifying and sanctioning deferred

action as “an act of administrative convenience to the

government which gives some cases lower priority.” 8

C.F.R. § 274a.12(c)(14) (2019); see also 6 U.S.C.

§ 202(5) (2018) (making the Secretary of Homeland

Security “responsible” for “establishing national immigration enforcement policies and priorities”).

Below are a handful of salient examples, all of

which involve executive action that occurred absent,

or in excess of, statutory authority granted by Congress.

Eisenhower Administration. In 1956, President Eisenhower “paroled” approximately one thousand foreign-born children who had been adopted by

American citizens overseas but who were barred entry into the United States by statutory quotas. President Dwight D. Eisenhower, Statement by the President Concerning the Entry into the United States of

Adopted Foreign-Born Orphans (Oct. 26, 1956),

11 See, e.g., Memorandum from Andorra Bruno et al., Analy-

sis of June 15, 2012 DHS Memorandum, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the

United States as Children 20–23, Cong. Res. Serv. (July 13,

2012), http://bit.ly/2liwPNz (“CRS Analysis”).

14

http://bit.ly/2mtocQe (“Eisenhower Statement”).12

With this authority, President Eisenhower was empowered to permit the physical presence in the country of individuals who otherwise were inadmissible

under the governing statutes.13 The President explained that he had been “particularly concerned

over the hardship” the quotas imposed, especially on

members of the Armed Forces who were “forced to

leave their adopted children behind” after completing

tours of duty. Eisenhower Statement at 1. The President adopted the parole policy in the face of Congressional inaction. Ibid.

As the Cold War entered its second decade, the

Eisenhower Administration began to use the parole

power as an instrument of foreign policy.14 For example, President Eisenhower ordered the parole of

12 See Executive Grants of Temporary Immigration Relief,

1956–Present, Am. Immigr. Counsel 3 (Oct. 2014),

http://bit.ly/2lstw6k (“AIC Report”).

13 See Immigration and Nationality Act, Pub. L. No. 82-414,

§ 212(d)(5), 66 Stat. 163, 188 (1952); see also Revision of Immigration, Naturalization, and Nationality Laws: Joint Hearing

Before the S. & H. Subcomms. on the Judiciary, 82d Cong. 713

(1951) (Statement of Peyton Ford, Deputy Att’y Gen.) (recognizing a long history of executive parole “under emergent and humanitarian circumstances” absent any authorizing “provision in

existing law” before 1952).

14 See AIC Report at 3.

15

Cubans fleeing their country’s oppressive communist

regime.15 The Kennedy, Johnson, and Nixon Administrations continued this parole program, which ultimately allowed over 600,000 otherwise inadmissible persons to enter the United States.16

Ford & Carter Administrations. The Ford and

Carter Administrations each granted “Extended Voluntary Departure”17 to certain classes of immigrants,

many of whom came from war-torn or communist

countries, including individuals of Lebanese and

15 Ibid.

16 Ibid.

17 Since 1990 and continuing through today, Extended Vol-

untary Departure has been known as Deferred Enforced Departure. USCIS Policy Manual § 38.2, https://bit.ly/2mnY09H.

These terms refer to “a temporary, discretionary, administrative stay of removal granted to aliens from designated countries.” Ibid.

16

Ethiopian descent.18 Under these deferred action policies, immigration officials “temporarily suspend[ed]

enforcement” of the immigration laws for “particular

group[s] of aliens.” Hotel & Rest. Emps. Union, Local

25 v. Smith, 846 F.2d 1499, 1510 (D.C. Cir. 1988) (en

banc) (per curiam) (separate opinion of Mikva, J.).19

Reagan Administration. The Reagan Administration made two significant contributions to the

history of deferred action. First, it continued and

broadened the use of deferred action, in particular by

implementing the Family Fairness Program.20 Second, and of equal importance, President Reagan’s

INS promulgated a regulation enabling deferred ac18 See AIC Report at 4. Petitioners suggest that this policy

“had a plausible basis” in the Immigration and Nationality Act.

Pet. Br. at 49. But as the United States previously recognized,

Extended Voluntary Departure was distinct from the statutorily authorized policy. See id. at 49 n.10; see also Hotel & Rest.

Emps. Union, Local 25 v. Smith, 846 F.2d 1499, 1519 (D.C. Cir.

1988) (en banc) (per curiam) (separate opinion of Silberman, J.)

(affirming Extended Voluntary Departure as the President’s

“extrastatutory decision to withhold enforcement”). In our view,

informed by decades of collective work administering our nation’s immigration laws, Extended Voluntary Departure was

clearly distinct from the policy authorized by statute. Because it

did not in fact have express statutory authorization, the policy

is indistinguishable from DACA.

19 See also AIC Report at 3–5; CRS Analysis at 20–21.

20 CRS Analysis at 21–22.

17

tion recipients to apply for work authorization. See

46 Fed. Reg. 25,079, 25,081 (May 5, 1981). This regulation remains in effect and applies to present-day

deferred action recipients, including those covered by

DACA. 8 C.F.R. § 274a.12(c)(14).

At the start of President Reagan’s term, Congress

expressly approved the Administration’s continued

use of Extended Voluntary Departure as a means of

prosecutorial discretion for certain citizens of El Salvador who claimed a risk of persecution in their

homeland. See International Security and Development Cooperation Act of 1981, Pub. L. No. 97-113,

§ 731, 95 Stat. 1519, 1557 (“It is the sense of the

Congress that the administration should continue to

review, on a case-by-case basis, petitions for extended voluntary departure made by citizens of El Salvador who claim that they are subject to persecution in

their homeland, and should take full account of the

civil strife in El Salvador in making decisions on

such petitions.”).

Later, following passage of the Immigration Reform and Control Act of 1986 (“IRCA”), President

Reagan’s Administration established the Family

Fairness Program. See Pub. L. No. 99-603, § 201, 100

Stat. 3359, 3394. At the time, IRCA provided a

pathway to lawful status for certain people who otherwise were present illegally in the United States.

See ibid. But the statute said nothing about the relatives of people who might qualify for lawful status

18

under IRCA. “What to do when some but not all

members of an alien family qualify for legalization”

thus became “a controversial issue.” See Recent Developments, 67 No. 6 Interpreter Releases 153, 153

(Feb. 5, 1990), http://bit.ly/2mtPlmh.

Confronted with that issue, INS Commissioner

Alan Nelson acknowledged that there was “nothing

in [IRCA or the legislative history] that would indicate Congress wanted to provide immigration benefits to others who didn’t meet the basic criteria, including the families of legalized aliens.” Alan C. Nelson, Legalization and Family Fairness: An Analysis

(Oct. 21, 1987), reprinted in 64 No. 41 Interpreter

Releases 1191 app. I, at 1201. The INS therefore

lacked express statutory authority to grant lawful

permanent resident status to anyone who did not

qualify for it on their own merits. Ibid. That situation was indistinguishable from the one addressed by

DACA.

The Reagan Administration, however, knew that

the INS was not legally required to remove all such

persons, even if the INS was prohibited from granting them legal status. That is, the Reagan Administration recognized the distinction between: (a)

granting individuals lawful permanent resident status, which the Attorney General could not do without

express statutory authorization, and (b) merely deferring removal actions against certain persons unlawfully present, which the Attorney General was

19

empowered to do by law. See ibid.

As Commissioner Nelson stated: “INS is exercising the Attorney General’s discretion by allowing

minor children to remain in the United States even

though they do not qualify on their own, but whose

parents (or single parent in the case of divorce or

death of spouse) have qualified under the provisions

of IRCA. The same discretion is to be exercised as

well in other cases which have specific humanitarian

considerations.” Ibid.

G.H.W. Bush Administration. President George

H.W. Bush’s Administration then expanded the Family Fairness Program. In 1990, INS Commissioner

Gene McNary instructed that “[v]oluntary departure

will be granted to the spouse and to unmarried children under 18 years of age, living with the legalized

alien” so long as those individuals can establish that

they meet certain criteria, including residence in the

United States for a specified period of time and the

lack of a felony conviction. Gene McNary, INS

Comm’r, to INS Reg’l Comm’rs, Family Fairness:

Guidelines for Voluntary Departure Under 8 CFR

242.5 for the Ineligible Spouses and Children of Legalized Aliens 1 (Feb. 2, 1990), reprinted in 67 No. 6

Interpreter Releases 153 app. I, at 164–65 (Feb. 5,

1990) (“McNary Memorandum”). The McNary Memorandum also made clear that anyone who qualified

under the Family Fairness Program was eligible to

work. Ibid. Contemporaneous government estimates

20

indicated that as many as 1.5 million people would

be eligible under the expanded program.21 See Immigration Act of 1989 (Part 2): Hearing before the Subcomm. on Immigration, Refugees, and International

Law of the H. Comm. on the Judiciary at 56, 101st

Cong. (Feb. 21, 1990) (testimony of INS Commissioner Gary McNary); see also id. at 49. It is estimated

that this figure amounted to approximately forty

percent of immigrants without documentation in the

United States at the time.22

21 We dispute Petitioners’ claim that the Family Fairness

Program served only an estimated 100,000 individuals. Pet. Br.

at 49. As Petitioners themselves note, this is inconsistent with

contemporaneous accounts by the head of the INS, which estimated as many as 1.5 million recipients. Ibid. Moreover, the

authority relied upon by Petitioners in support of the lower estimate appears to be three newspaper articles, which cannot

overcome the authoritative estimate proffered by the INS. See

ibid. (citing Recent Developments, 67 No. 6 Interpreter Releases

153, 153 (Feb. 5, 1990), which itself relies on articles in the Los

Angeles Times, the New York Times, and the Washington Post

as authority for the 100,000 figure). But regardless of the exact

numbers, the point remains: a ruling that DACA is unlawful

would mean that this program and others like it were illegal

and should have been struck down by the courts.

22 See Jeffrey S. Passel et al., As Growth Stalls, Unauthor-

ized Immigrant Population Becomes More Settled, Pew Res. Ctr.

4, 7 (Sept. 3, 2014), https://pewrsr.ch/2m4CK8F (estimating the

unauthorized-immigrant population in 1990 to be 3.5 million

people).

21

President Bush later reaffirmed the executive

branch’s inherent authority to implement policies

like deferred action in a signing statement accompanying his approval of the Immigration Act of 1990.

The Act authorized the Attorney General to grant

Temporary Protected Status (“TPS”) to allow otherwise removable persons to remain in the United

States “because of their particular nationality or region of foreign state of nationality.” Pub. L. No. 101649, § 302, 104 Stat. 4978, 5035 (1990). President

Bush objected to language purporting to make this

the “exclusive” avenue for providing such relief, stating: “I do not interpret this provision as detracting

from any authority of the executive branch to exercise prosecutorial discretion in suitable immigration

cases. Any attempt to do so would raise serious constitutional questions.” See President George H.W.

Bush, Statement on Signing the Immigration Act of

1990 (Nov. 29, 1990), http://bit.ly/2mWGaL7.

Enactment of the Immigration Act of 1990 was

significant for an additional reason: it conveyed and

confirmed Congress’ express approval of the Family

Fairness Program as it had been implemented to

that point. Specifically, while the Act codified a temporary stay of removal and work authorization for

certain eligible immigrants to preserve “family unity,” Congress made clear that this provision would

not become effective until the following year—and

that administration of the Family Fairness Program

22

should not be modified in any manner before such

date. See Immigration Act of 1990, Pub. L. No. 101649, § 301(g), 104 Stat. 4978, 5030 (“[T]he 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.”)

Clinton Administration. President Clinton

provided deferred action for individuals without documentation who might later prove eligible for relief

under the Violence Against Women Act. See Memorandum from Paul W. Virtue, Supplemental Guidance on Battered Alien Self-Petitioning Process and

Related Issues 3 (May 6, 1997), http://bit.ly/2mXIcuw

(noting that “[b]y their nature, VAWA cases generally possess factors that warrant consideration for deferred action”). And later, following the end of the

Liberian civil war and ahead of the looming expiration of TPS protections for Liberian refugees in 1999,

President Clinton invoked his “constitutional authority to conduct the foreign relations of the United

States” to grant Deferred Enforced Departure

(“DED”) of Liberian nationals who were present in

the United States when their TPS expired. See President William J. Clinton, Memorandum for the Attorney General: Measures Regarding Certain Liberians in the United States (Sept. 27, 1999),

23

http://bit.ly/2kUd8ew (“Clinton Memorandum”).23

President Clinton also authorized employment for

Liberians receiving discretionary relief under this

policy. See ibid.

G.W. Bush Administration. At the start of his

administration in 2001, President Bush extended

President Clinton’s DED policy for certain Liberian

nationals.24 Later, in 2007, the Bush Administration

granted DED for Liberian nationals a second time,

again permitting deferred action following expiration

of TPS (which had been reinstated following a

change of country conditions in Liberia in 2002). See

72 Fed. Reg. 53,596 (Sept. 19, 2007).

President Bush also granted deferred action to

foreign students affected by Hurricane Katrina who

otherwise were removable because of their failure to

fulfill the requisite F-1 visa full-time student requirement.25 This included an express grant of eligi-

23 See also CRS Analysis at 23.

24 See USCIS, Liberia Temporary Protected Status (TPS)

Questions

and

Answers

2

(Sept.

27,

2002),

http://bit.ly/2mXOgmM (explaining DED availability).

25 USCIS, Interim Relief for Certain Foreign Academic Stu-

dents Adversely Affected by Hurricane Katrina, Frequently

Asked Questions 1 (Nov. 25, 2005), http://bit.ly/2mARJr9.

24

bility to apply for work authorization, provided that

the students could demonstrate economic necessity.26

Finally, the George W. Bush Administration enacted regulations that deferred action for individuals

petitioning for U nonimmigrant status—a classification available to victims of criminal activity who assist the government’s investigation and prosecution

of that activity. 72 Fed. Reg. 53,014, 53,027 (Sept. 17,

2007). The rules allowed these petitioners, like

DACA recipients, to apply for employment authorization and excluded the period during which their

petitions were pending from counting towards the

accrual of unlawful presence. Ibid.; see 8 C.F.R.

§ 214.14(d)(3).

Trump Administration. President Trump’s

Administration, like at least eight administrations

before it, also engaged in deferred action—

contradicting its own stated position that any form of

deferred action not expressly authorized by statute is

illegal. See Pet. Br. at 11. For example, from at least

January 2017 through September 2019, USCIS continued to process deferred action renewal requests

26 Ibid.

25

from individuals who themselves or whose family

faced life-threatening health crises.27

II. Allowing Deferred Action Recipients to Apply

for Work Authorization Is Consistent With Historical Practice and Benefits the United States.

The Executive’s core authority to prioritize the

removal of certain individuals above others—

whether for public safety, national security, or humanitarian reasons—gives rise to a closely related

consideration: how to structure discretionary relief

policies to best serve the American economy.

Administration after administration has answered this question by authorizing recipients of deferred action to petition the federal government for

work authorization if the recipients can prove economic necessity. That solution is sensible, as it increases social security and tax revenues, boosts our

country’s GDP, and provides better access to work

protections for discretionary relief recipients. See

See Camilo Montoya-Galvez, Trump Administration to

Process Some Deferred Deportation Requests from Sick Immigrants, CBS News (Sept. 2, 2019), https://cbsn.ws/2lt1ash; see

also Ted Hesson, DHS Walks Back Decision to Halt Medical

Deportation

Relief,

Politico

(Sept.

19,

2019),

https://politi.co/2myWK3s (quoting USCIS spokesperson that

“USCIS is resuming its consideration of non-military deferred

action requests on a discretionary, case-by-case basis”).

27

26

generally Brief for Professional Economists and

Scholars in Related Fields as Amici Curiae in Support of Petitioners, United States v. Texas, 136 S. Ct.

2271 (2016) (No. 15-674). It also reduces the likelihood that a recipient of deferred action will become a

public charge, thereby furthering the purpose of federal immigration law. Immigration Act of 1990

§ 212(a)(4), 8 U.S.C 1182(a)(4) (2018) (aliens are inadmissible if they are likely to become a public

charge).

Granting work authorization to recipients of deferred action is expressly permitted by regulation

and is a necessary practice for the coherent administration of federal immigration law. See 8 C.F.R.

§ 274a.12(c)(14). Ending this policy would present

not only an unprecedented disruption of the federal

immigration system, it would upend an employment

practice upon which the American economy and immigration system have relied for nearly half a century.

A. Work authorization is permitted under federal law.

It is undisputed that federal law permits all

recipients of deferred action to request work

authorization based upon a showing of “economic necessity.” 8 C.F.R. § 274a.12(c)(14); see Pet. Br. at 44–

45. Critically, federal law does not permit all recipients of deferred action to receive work authorization.

27

Rather, work authorization is available only to those

deferred action recipients who can demonstrate that

they are unable to support themselves economically

without entering the formal economy.

Contrary to Petitioners’ claim, Pet. Br. at 44–45,

this limited right is not a reason to reject DACA’s

lawfulness. To begin, work authorization is not

unique to DACA. Rather, it is a product of federal

regulations that predate DACA by decades, that

have been invoked by administrations of both parties

since the 1970s, and that Congress has approved

since 1986. See 8 U.S.C. § 1324a(h)(3) (recognizing

executive authority to grant work authorization). See

generally J.A. 833–35 & n.11 (OLC opinion explaining the history of this authority). Further, the accompanying effect is modest and beneficial to this

country. Finally, it also is smart policy: if these individuals are to remain in the United States, even for

short periods of time, immigration officials recognize

that it is in the national interest to ensure that they

can be economically self-sufficient.

B. Work authorization is consistent with historical practice.

Like deferred action, the grant of work authorization is a long-standing practice of the executive

branch. DHS and its predecessor agencies have

granted work authorization to certain immigrants

since at least 1952. See, e.g., 17 Fed. Reg. 11,488,

28

11,489 (Dec. 19, 1952) (codified at 8 C.F.R. § 214.2(c)

(1952)) (prohibiting some aliens from working in the

United States “unless such employment or activity

has first been authorized by the district director”).

The policy of granting work authorization to recipients of deferred action began in the early 1970s

and continues today. Congress has endorsed the

practice throughout this period. See Sam Bernsen,

Lawful Work for Nonimmigrants, 48 No. 21 Interpreter Releases 168, 315 (June 21, 1971).

1970s. In 1975, the INS’s General Counsel explained that the INS authorized certain aliens to

work in cases “when we do not intend or are unable

to enforce the alien’s departure,” even though such

work authorization “doesn’t make his illegal stay

here any less illegal.” Sam Bernsen, Leave to Labor,

52 No. 35 Interpreter Releases 291, 294–95 (Sept. 2,

1975). As under DACA, such grants of work authorization were not given “automatically,” but rather required a “request” by the individual. Id. at 295. Earlier, Congress had recognized and approved this

practice in the Farm Labor Contractor Registration

Act Amendments of 1974, Pub. L. No. 93-518, § 7(5),

88 Stat. 1652, 1655, which made it unlawful for farm

labor contractors knowingly to employ any “alien not

lawfully admitted for permanent residence or who

has not been authorized by the Attorney General to

accept employment” (emphasis added).

29

1980s. In 1981, President Reagan’s INS codified

“the procedures and criteria for the grant of employment authorization to aliens in the United States.”

See 46 Fed. Reg. 25,080–25,081 (May 5, 1981). The

Reagan Administration stipulated that the Attorney

General could grant work authorization to certain

deferred action recipients, as well as other categories

of individuals who lacked specific statutory authorization for employment. Id. at 25,081 (codified at 8

C.F.R. § 109.1(b)(6) (1982) (citing 8 U.S.C. § 1103)).

Granting deferred action recipients the right to seek

approval to work was necessary, the INS emphasized, “because humanitarian or economic needs

warrant administrative action.” Ibid.

Five years later, Congress endorsed President

Reagan’s codification of work authorization. See Immigration Reform and Control Act of 1986, Pub. L.

No. 99-603, 100 Stat. 3359. By enacting IRCA, Congress made it unlawful for an employer to hire “an

unauthorized alien (as defined in subsection (h)(3) of

this section) with respect to such employment.” 8

U.S.C. § 1324a(a)(1). In defining “unauthorized alien,” however, Congress excluded individuals who

had been “authorized to be so employed by [the INA]

or by the Attorney General.” 8 U.S.C. § 1324a(h)(3)

(emphasis added). This language reaffirmed both the

Attorney General’s authority to grant work authori-

30

zations and the manner in which the INS had been

exercising that authority.28

The following year, the INS reaffirmed the work

authorization rule (after extensive notice and comment) and reiterated the important policy goals that

supported its adoption. In 1987, the Reagan Administration denied a petition for rulemaking that

sought to rescind the rule on grounds that it was “inconsistent” with IRCA’s alleged purpose of protecting

the “American labor force.” 51 Fed. Reg. 39,385–

39,386 (Oct. 28, 1986); 52 Fed. Reg. 46,092–46,093

(Dec. 4, 1987) (denying the petition). In rejecting the

petition, the INS explained that the work authorization rule relates to and supports a variety of IRCA’s

policy objectives, including because it furthers international exchange, encourages family reunion, protects those who fear persecution, facilitates diplomatic relations, fulfills international treaty require28 At the time Congress enacted IRCA,

it was aware that

the INS had promulgated work authorization regulations: the

INS sent a letter to Congress asserting its claimed authority to

grant work authorization, and Congress included this letter in

IRCA’s legislative history. See Letter from Robert McConnell,

Dep’t of Justice, to Rep. Romano Mazzoli (Apr. 4, 1983), included in Immigration Reform and Control Act of 1983: Hearings

before the Subcomm. on Immigration, Refugees, and Int’l Law of

the H. Comm. on the Judiciary, 98th Cong. 1441, 1450 (1983)

(“INS currently has authority to define classes of aliens who

may be employed in the U.S. . . . .”).

31

ments, provides due process for removable individuals, and affords some humanitarian assistance in

meritorious cases. 52 Fed. Reg. at 46,092. The INS

further explained that “the only logical way to interpret” Section 1324a(h)(3)’s definition of “unauthorized alien” is to recognize that Congress was fully

aware of the Attorney General’s practice and wanted

to exclude both “aliens who have been authorized

employment by the Attorney General through the

regulatory process” and “those who are authorized

employment by statute.” Id. at 46,093. Congress has

not interfered with or sought to end this process in

the years since.

1990s. The George H.W. Bush and Clinton Administrations granted discretionary relief and work

authorization in support of their humanitarian and

foreign policy objectives.

In 1991, the George H.W. Bush Administration

granted voluntary departure to the “ineligible spouses and children of legalized aliens” who did not qualify for statutory protection under IRCA. McNary

Memorandum at 165. The Administration also

granted work authorization to these individuals, recognizing that family members of newly legalized individuals required both protection from removal and

the means to economically support themselves. Ibid.

In 1996, Congress again preserved the Attorney

General’s authority to grant work authorization,

32

even as it imposed new limits on the Attorney General’s ability to do so. For example, Congress provided that “[n]o alien ordered removed shall be eligible

to receive authorization to be employed in the United

States unless the Attorney General makes a specific

finding . . . that the alien cannot be removed” or that

“the removal of the alien is otherwise impracticable

or contrary to the public interest.” Illegal Immigration Reform and Immigrant Responsibility Act of

1996, Pub. L. No. 104-208, § 305(a)(3), 110 Stat.

3009-546, 3009-600 (codified as amended at 8 U.S.C.

§ 1231(a)(7)).

In late 1997, President Clinton ordered the Attorney General to provide certain Haitian nationals

with DED. See President William J. Clinton, Memorandum on Deferred Enforced Departure for Haitians

(Dec. 23, 1997), http://bit.ly/2nemnqS. President

Clinton also granted these Haitian nationals “authorization for employment,” pursuant to which they

could seek approval to work. Ibid. Like DACA recipients, these Haitian nationals were eligible for deferred action and employment authorization so long

as they had been continuously present in the United

States for a specified period of time. Ibid.

Finally, as discussed supra p. 22-23, President

Clinton in 1999 extended DED to certain Liberian

nationals based upon “compelling foreign policy reasons[.]” Clinton Memorandum at 1. President Clinton supported his foreign policy rationale with an

33

economic one, making work authorization available

to Liberians who received discretionary relief. Ibid.

2000s. During the second Bush Administration,

the INS continued to grant work authorization to aliens who might qualify as potential trafficking or

crime victims under the Victims of Trafficking and

Violence Protection Act of 2000 (VTVPA), Pub. L. No.

106-386, 114 Stat. 1464. See Memorandum from Michael D. Cronin, Acting Exec. Assoc. Comm’r, INS, to

Michael A. Pearson, Exec. Assoc. Comm’r, Off. of

Programs, INS, VTVPA of 2000 Policy Memorandum

#2—“T” and “U” Nonimmigrant Visas 4 (Aug. 30,

2001), http://bit.ly/2mEG5vA (discussing how potential applicants of new VAWA categories could be eligible for work authorization under 8 C.F.R.

§ 274a.12(c)(11), (c)(14)). After Hurricane Katrina,

work authorization was similarly extended to students newly eligible for deferred action.29

As this history suggests, Congress and the executive repeatedly have granted work authorization to

recipients of deferred action. They have done so because economic and humanitarian needs compel it.

DACA is no different.

29 See USCIS, Press Release, USCIS Announces Interim Re-

lief for Foreign Students Adversely Impacted by Hurricane

Katrina 1 (Nov. 25, 2005), http://bit.ly/2lHjWfZ.

34

CONCLUSION

DACA is a lawful and prudent response to challenges inherent in the enforcement of our nation’s

immigration laws. It also is entirely consistent with

the practice of prior administrations dating back to

the 1950s. And while DACA does not create any specific right for young people to work, existing federal

law does, and the practice has been accepted by the

executive and legislative branches since the 1970s.

For these reasons, the judgment of the courts below

should be affirmed.

Respectfully submitted,

JEH C. JOHNSON

KAREN L. DUNN

IZA

ELAZQUEZ

L

M. V

JOSHUA RILEY

DAVID C. KIMBALL-STANLEY

MENNO GOEDMAN

PAUL, WEISS, RIFKIND,

ANDREA R. FLORES

HARTON

ARRISON

W

&G

LLP BOIES SCHILLER FLEXNER LLP

1285 Avenue of the Americas

1401 New York Avenue, NW

New York, NY 10019

Washington, DC 20005

(212) 373-3000

(202) 237-2727

ALBERT GIANG

Counsel of Record

BOIES SCHILLER FLEXNER LLP

725 South Figueroa Street

Los Angeles, CA 90017

(213) 629-9040

agiang@bsfllp.com

Counsel for Amici Curiae

October 4, 2019

MASHA G. HANSFORD

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

2001 K Street, NW

Washington, DC 20006

(202) 223-7300