Amicus Curiae Brief — United States v. Texas, 136 S. Ct. 2271 (2016) (No. 15-674)

No. 15-674

IN THE

Supreme Court of the United States

UNITED STATES, ET AL.,

Petitioners,

Vv.

STATE OF TEXAS, ET AL.,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF OF FORMER FEDERAL IMMIGRATION

AND HOMELAND SECURITY OFFICIALS

AS AMICI CURIAE IN SUPPORT OF

THE UNITED STATES

MARTIN S. LEDERMAN MICHAEL J. GOTTLIEB

GEORGETOWN UNIVERSITY LAW Counsel of Record

CENTER ALEXANDER I. PLATT

600 New Jersey Ave. NW JOSHUA RILEY

Washington, D.C. 20001 ALEXANDER TABLOFF

(202) 662-9937 BOIES, SCHILLER & FLEXNER LLP

5301 Wisconsin Ave., N.W.

Washington, D.C. 20015

(202) 237-2727

mgottlieb@bsfllp.com

Counsel for Amici Curiae

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE...............ccccecccceeeseeeseneees l

SUMMARY OF ARGUMENT. ...........::cccccccsesseeeeseeeeeeeees 2

II.

DEFERRED ACTION POLICIES HAVE BEEN AN

ESSENTIAL COMPONENT OF THE EXECUTIVE

BRANCH’S ENFORCEMENT OF FEDERAL

IMMIGRATION LAW FOR DECADESG...................0.00000 5

A. Deferred Action Policies Have Been

A Common Feature of Immigration

Enforcement Since the 1950s ...................000008 5

B. Deferred Action Programs Promote Sensible

Immigration Policy Objectives ..................... 11

ALLOWING ALIENS WITH DEFERRED ACTION TO

APPLY FOR WORK AUTHORIZATION IS AN

IMPORTANT COMPONENT OF IMMIGRATION

ENFORCEMENT THAT IS CONSISTENT WITH

FEDERAL IMMIGRATION LAW ..........ccccccseeeeeeeseeeeees 20

A. The Executive's Longstanding Policy of

Allowing Aliens with Deferred Action To

Apply for Work Authorization Is the Product

of Extensive Administrative, Legislative, and

Penis TPS OR IIIT ccccscccccssstusinssscatmacsenasaan 21

B. Authorizing Certain Aliens With Deferred

Action To Work Is Consistent With

Established Immigration Policy Objectives .37

CORREA IIR c0ccccncsnssveccnnioseccescnsneanonitestoneiéiosmenmmianiimaln 40

APPENDIX

‘3

TABLE OF AUTHORITIES

CASES

Page(s)

Barnhart v. Walton,

EEE 40

Canas-Garcia v. McKinnon,

1984 U.S. Dist. LEXIS 14946,

83-cv-2077 (D. Mass. Jul. 13, 1984).................0000000. 27

Diaz v. INS,

648 F. Supp. 638 (E.D. Cal. 1986) ............................ 27

Gilana v. Smith,

1981 U.S. Dist. LEXIS 16824,

81-cv-3829 (N.D. Ill. Dec. 24, 1981)..............0000000c00. 27

Heckler v. Chaney,

ESSERE EE 3

Hotel & Rest. Employees Union,

Local 25 v. Smith,

846 F.2d 1499 (D.C. Cir. 1988) ...............ccccccccccceeceeeees 6

STATUTES

ik .cnusnsuensnsceneane 36

i ssssenmainnoscncnnes 36

i siemneeennes 37

0 Ee 26, 29, 33, 34

Immigration and Nationality Act,

Pub. L. No. 82-414, 66 Stat. 163 (1952) ................... 34

i

TABLE OF AUTHORITIES—Continued

Page(s)

Farm Labor Contractor Registration Act,

Pub. L. No. 88-582, 78 Stat. 920 (1964) ................... 23

Social Security Amendments of 1972, Pub. L.

ee ne 22

Farm Labor Contractor Registration Act

Amendments Act, Pub. L. No. 93-518,

RE RE RE er Diehl t 23

Immigration and Nationality Act Amendments

of 1976, Pub. L. No. 94-571, 90 Stat. 2703............... 23

Migrant and Seasonal Agricultural Worker

Protection Act, Pub. L. No. 97-470, 96 Stat.

RR EI IER IS EERIE Fa a SU enn 23

Immigration Reform and Control Act,

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

RRR at PD ER LE Pe ee cee passim

Immigration Act of 1990, Pub. L. No. 101-

ny 10

Violent Crime Control and Law

Enforcement Act, Pub. L. No. 103-322,

se tt ccovscicsticchinseniniinsieadeicetasideasieiinaisabeiontimans 36

Illegal Immigration Reform and

Immigrant Responsibility Act, Pub. L.

No. 104-208, 110 Stat. 3009 (1996) .................... 36, 37

iv

TABLE OF AUTHORITIES—Continued

Page(s)

REGULATIONS

ars Ue IAD sceniisisiccisseiteitsnissssieinininsbabeiaebiciaitinbanaiiteaiaiiacanaiai 24

gf 8 Ee eran an ee eee passim

44 Fed. Reg. 43,480 (Jul. 25, 1979) ................000 23, 24, 38

45 Fed. Reg. 19,563 (Mar. 26, 1980)................ccccceeceeeees 24

46 Fed. Reg. 25,079 (May 5, 1981) ............cc00000 24, 25, 39

46 Fed. Reg. 55,920 (Nov. 13, 1981) ..........ccccccerseeeseeerees 39

51 Fed. Reg. 39,385 (Oct. 28, 1986) .................cc.scseeeeeeees 25

51 Fed. Reg. 45,338 (Dec. 18, 1986) .........cccccccessesesseoeeee 33

52 Fed. Reg. 2115 (Wan. 20, 1987) ................sccsssereseseesees 32

52 Fed. Reg. 8762 (Mar. 19, 1987)...................ccccccceeeeeees 32

52 Fed. Reg. 16,216 (May 1, 1987) ......ccccccccccsecsesesoes 32, 39

52 Fed. Reg. 46,092 (Dec. 4, 1987) .....cccccccceeoeen cseseee26, 34

56 Fed. Reg. 41,767 (Aug. 23, 1991)...............cccccceeeeeeeee 21

60 Fed. Reg. 66,062 (Dec. 21, 1995) .0...........ccccccccssereeeeeee 9

61 Fed. Reg. 13,061 (Mar. 26, 1996)..............ccccccccseseeeee 35

62 Fed. Reg. 10,312 (Mar. 6, 1997)...................cc0cccccceeee 37

75 Fed. Reg. 33,446 (Jun. 11, 2010) ........cccccccccoscsessesseens 33

75 Fed. Reg. 58,962 (Sep. 24, 2010) ......................... 32, 33

v

TABLE OF AUTHORITIES—Continued

Page(s)

LEGISLATIVE MATERIALS

nT Ts cateameiensinnicenseioubensmatineinane 27

SEs TIT TTT caceectritceciaceenasicatahiteaiesliabaslaaanbimebbadanseia 28

Illegal Aliens: Hearings Before Subcomm.

No. 1 of the H. Comm on the Judiciary,

Ea a 22, 28

BR A) aT ITT ccsinntasccssiuetidintbeiemoaiaiiiedctentenneetl 28

ey es IE cccvncinisicinsisanhuncdsddnnnsniniciemannioniiennete 29

REE REE EES ESM eae een eee 29

EES eee Season rere 29

ee ts IE cracireriransevanianentitncieeninnniasenisemenecied 29

S. 3074: Hearings Before the Subcomm.

On Immigration and Naturalization of

the S. Comm. on the Judiciary, 94th

REET SE EES BOLT OEIC eae eee 29

BN SE UIT hcichenecpneiahceailinsionniesesbbepeiidandetaneaten tain sbtemnibaseeanes 29

Alien Adjustment and Employment Act of

1977: Hearings Before the S. Comm. on

the Judiciary, 95th Cong. (1978) ..........ccc0-e0-e0eee0ee0e- 29

BERNE SEER 8 See oe Oe ee ee 29

res I inser davecincsancsnricttriestnsesnacled 29

vi

TABLE OF AUTHORITIES—Continued

Immigration Control and Legalization

Amendments (H.R. 3080): Hearing

Before the Subcomm. On Immigration,

Refugees and Int'l Law of the H.

Comm. on the Judiciary, 99th Cong.

(1DGB).. .cccccccescccccccccccecssccccsossocessoosecsccsesooscecees

Implementation of the Immigration

Reform and Control Act of 1986:

Hearing Before the Subcomm. on

Immigration, Refugees, and Int'l Law

of the H. Comm. on the Judiciary, 99th

ce 8, eee

Immigration Reform and Control Act of

1986 Oversight: Hearings Before the

Subcomm. On Immigration, Refugees,

and Int'l Law of the H. Comm. on the

Judiciary, 101st Cong. (1989)..................+.

Immigration Act of 1989: Hearing Before

the Subcomm. On Immigration,

Refugees, and Int'l Law of the H.

Comm. on the Judiciary, 101st Cong.

(RGB) .cccccccccerccecccssosescnsscessccosescocssscossosososcooes

Written Testimony of Stephen Legomsky

before the H. Comm. on the Judiciary

(PSD. BB, DOUG) ..cccoccrccreccscccssccscesccveessncescesees

Page(s)

pecceesecssoes 31

vii

TABLE OF AUTHORITIES—Continued

Page(s)

BRIEFS

Brief for United States as Petitioner,

Heckler v. Chaney,

No. 83-1878, 1984 WL 565477

a 14

PRESIDENTIAL MATERIALS

President Dwight Eisenhower, Statement

Concerning the Entry into the United

States of Adopted Foreign-Born

8 RE een 6

President Ronald Reagan, Statement on

Signing the Immigration Reform and

Control Act of 1986, 22 WEEKLY COMP.

PRES. DOCS. 1533 (Nov. 6, 1986) ................000000. 17, 38

President George H.W. Bush, Statement

on Signing the Immigration Act of

1990, 26 WEEKLY COMP. PRES. Doc.

ee es en I cavdateiamatoonninendl 10

OTHER AUTHORITIES

American Immigration Council, Executive

Grants of Temporary Immigration

Relief, 1956-Present (Oct. 2014) .............000ccccccccceeeeeeees 6

Sam Bernsen, Leave to Labor, 52 No. 35

INTERPRETER RELEASES 291 (Sep. 2,

RMR ae es Pe Se Pe 21, 22

TABLE OF AUTHORITIES—Continued

Page(s)

Memorandum from Sam Bernsen, General

Counsel, INS, to Comm’r, Legal

Opinion Regarding Service Exercise of

Prosecutorial Discretion (Jul. 15, 1976) ............. 12, 14

Sam Bernsen, Updating the Immigration

Law, 9 IN DEFENSE OF THE ALIEN 203

ETERS aN cet e 10 BPE ese Pals AE Einar ea 22

Andorra Bruno et al., Congressional

Research Serv., Analysis of June 15,

2012 DHS Memorandum, Exercising

Prosecutorial Discretion with Respect

to Individuals Who Came to the United

RID i GO Ci ili cececcsccccccccsccncszacescccvccccecesonees 6

Memorandum from Bo Cooper, General

Counsel, INS, to Comm’r, INS Exercise

of Prosecutorial Discretion (Jul. 11,

RRR AIC 5 Ps OEE IE Ta eee 12, 13, 17, 18

U.S. Dep't of Justice, Circular Letter No.

I i a cessieemseeeienedein 14

Executive Office of the President, Council

of Economic Advisers, The Economic

Effects of Administrative Action on

RA TE TS SAD Bee RES 38

FAIR, Supplemental Statement Regarding

the Permissible Scope of the Attorney

General’s Authority to Grant Work

Authorization (Jan. 29, 1987) ..........ccccccccecccceeeeeveeeees 33

ix

TABLE OF AUTHORITIES—Continued

Page(s)

Memorandum from William Howard,

Principal Legal Advisor, ICE, to All

OPLA Chief Counsel, Prosecutorial

Discretion (Oct. 24, 200B)............-.ccsececseseceess 15, 16, 18

INS, Preliminary Working Draft of

Regulations on Powers and Duties of

Service Officers and Employment

Authorization (Jan. 20, 1987) ............cc.cccccccccccceseseees 32

INS Reverses Family Fairness Policy, 67

No. 6 INTERPRETER RELEASES 153

NS a sepeuiaoenionidieninnion 7

Memorandum from Jeh Johnson, Sec’y of

Homeland Security, to Leon

Rodriguez, Dir., USCIS, Exercising

Prosecutorial Discretion (Nov. 20,

SUITE tnaiiciciceicebescaatiedietesiibatidiadiiding hidadsbigiadebiamapedebeniie 12, 17, 19, 38

Deborah Levy, The Alien Rights Law

Project, 27 HOWARD L.J. 1265 (1984)................ 24, 25

Letter from Robert McConnell, Dep’t of

Justice, to Hon. Romano Mazzoli (Apr.

IEEE Aidsninddocpeicaliniveddnennaninespebaiannbeuninausieiciiipneiniantne 27

Memorandum from Gene McNary,

Comm’r, INS, to Reg’] Comm'rs,

Family Fairness (Feb. 2, 1990)...................0...+. passim

Memorandum from Doris Meissner,

Comm’r, INS, to Reg’! Dirs., Exercising

Prosecutorial Discretion (Nov. 17,

PETIT dnchstctddbadnadnedetinihipiniantineiedennsemadsiammnienianens 15, 18

x

TABLE OF AUTHORITIES—Continued

Page(s)

Memorandum from Julie Myers, Assistant

Sec’y of Homeland Security, to Field

Office Dirs., Prosecutorial and Custody

a actsaddsehadinadeuutins 19

Letter from Seema Nanda, Dep't of

Justice, to David R. Burton, National

Small Bus. Ass’n (Sep. 10, 2012) ...................cceceeeeees 31

Memorandum from Janet Napolitano,

Sec’y of Homeland Security, to David

V. Aguilar,, Exercising Prosecutorial

pe re 14, 15

Letter from Alan Nelson, Comm’r, INS to

Romano Mazzoli (May 14, 1984) .................cccceeeeeees 27

Alan Nelson, Comm’r, INS, Legalization

and Family Fairness: An Analysis

NS SII oie ncicecccaineniapancheeapibenaanibiniiguichsenintiiveie 7, 8,19

Jeffrey Passel et al., As Growth Stalls,

Unauthorized Immigrant Population

Becomes More Settled, Pew Research

ERA EER SG UE RS NEES eee eee ae i)

USCIS, Interim Relief for Certain Foreign

Academic Students Adversely Affected

by Hurricane Katrina, Frequently

Asked Questions (Nov. 25, 2005). ............cccccccceeeeseees 11

USCIS, Press Release, USCIS Announces

Interim Relief for Foreign Students

Adversely Impacted by Hurricane

Ne I c Hitis. BI ecciccaciivciiecsoncsscsciocctssinvessonesinse 35

xl

TABLE OF AUTHORITIES—Continued

Page(s)

Memorandum from Paul Virtue, INS, to

Reg’! Dirs., Supplemental Guidance on

Battered Alien Self-Petitioning Process

and Related Issues (May 6, 1997).....................00-.00++ 11

INTEREST OF AMICI CURIAE!

Amici served in senior positions in the federal

agencies charged with enforcement of US.

immigration laws under both Democratic and

Republican administrations.

Paul Virtue served as General Counsel of the

United States Immigration and Naturalization

Service (“INS” or “the Service”) from 1998 to 1999.

INS is the predecessor agency to the federal offices

within the Department of Homeland Security

(“DHS”) that now have responsibility for enforcing

the nation’s immigration laws. He also served as

Executive Associate Commissioner from 1997 until

1998 and Deputy General Counsel from 1988 until

1997.

Bo Cooper served as General Counsel of INS

from 1999 until 2003.

Roxana Bacon served as Chief Counsel of U.S.

Citizenship and Immigration Services (“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.

/

' Pursuant to Supreme Court Rule 37.3(a), all parties have

consented to the filing of this brief. Pursuant to Rule 37.6,

amici certify that no counsel for a party authored this brief in

whole or in part, and no persons other than amici curiae or

their counsel made a monetary contribution to its preparation

or submission.

2

Stephen H. Legomsky served as Chief Counsel

of USCIS from 2011 to 2013 and as Senior

Counselor to the Secretary of DHS on immigration

issues from July to October 2015.

John R. Sandweg served as Acting Director of

Immigration and Customs Enforcement (“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.

As former leaders of the nation’s primary

immigration enforcement agencies, amici are

familiar with the historical underpinnings of the

deferred action and work authorization policies at

issue in this litigation. Amici’s experience

demonstrates that prosecutorial discretion plays a

vital role in the rational enforcement of federal

immigration law, which has historically established

laudable policy objectives backed by inadequate

enforcement resources. Amici’s experience is that

the exercise of executive discretion in the

immigration context is vital to advancing the

national security interests, humanitarian values,

and rule of law principles underlying federal

immigration law.

SUMMARY OF ARGUMENT

For more than half of a century, the Executive

Branch has developed and implemented policies

designed to delay—in many cases indefinitely—the

enforcement of deportation and other aspects of

federal immigration law. Administrations of both

Republican and Democratic Presidents have relied

on these policies to enforce federal immigration

3

laws in a manner that is efficient, rational, and

humane. While these policies have at times

generated political controversy, until recently their

legal underpinnings did not. That is because, as a

general rule, the ordering of enforcement priorities

is a “special province of the Executive.” Heckler v.

Chaney, 470 U.S. 821, 833 (1985).

Throughout this period, the Executive Branch

has ordinarily allowed aliens with deferred action

to apply for authorization to work while they

remain in this country. This policy, which is

codified at 8 C.F.R. § 274a.12(c)(14), was the subject

of extensive deliberation in the 1970s and 1980s,

including several rounds of notice and comment

rulemaking by INS. These executive deliberations

were recognized and ratified by Congress through a

series of enactments during and after the same

period.

The decision of the divided court of appeals

panel threatens to upend the sensible enforcement

policies on which federal immigration officials have

relied for decades. The Deferred Action for Parents

of Americans and Lawful Permanent Residents

(“DAPA”) program is the same in its basic

attributes as numerous deferred action policies that

preceded it. As with DAPA, nearly all prior deferred

action policies exercised prosecutoria! discretion in

order to focus enforcement efforts on the highest

priority cases consistent with federal immigration

policy, while allowing for work authorization for

individuals who will likely remain in the country

for at least some duration.

Executive discretion to establish enforcement

policies is especially important in the immigration

4

context because scarce resources are available to

implement myriad federal immigration policies and

because the selection of enforcement priorities has

potentially severe consequences for national

security, the employment market, and _ the

preservation of family unity. Prosecutorial

discretion is just as important, and just as lawful,

when it is used to establish priorities that may

affect large numbers of persons as it is when it

affects only individual cases. Reversal of the

decision below is vital to ensure that immigration

enforcement priorities are determined by the

Executive Branch officials to whom Congress has

committed such discretion, rather than by judicial

fiat.

5

ARGUMENT

I, DEFERRED ACTION POLICIES HAVE BEEN AN

ESSENTIAL COMPONENT OF THE EXECUTIVE

BRANCH’S ENFORCEMENT OF FEDERAL

IMMIGRATION LAW FOR DECADES

For more than half of a century, federal

immigration officials have exercised enforcement

discretion through policies that permit “deferred

action,” “extended voluntary departure,” “parole,”

or “deferred enforced departure” for various classes

of aliens. Notwithstanding the variation in

terminology, these programs are fundamentally

alike: each enables certain classes of otherwise

removable aliens to remain temporarily in (or, in

the case of parole, to enter) the United States and,

in most cases, to support themselves while they are

present by working lawfully. In amici’s experience,

the objectives Congress sought to achieve via the

federal immigration laws would be thwarted if

Executive Branch officials were suddenly deprived

of the discretion to use such policies.

A. Deferred Action Policies Have Been A

Common Feature of Immigration

Enforcement Since the 1950s

In 1956, President Eisenhower “paroled”—i.e.,

authorized the admission into the United States

of—roughly one thousand foreign-born children

who were adopted by American citizens overseas

but who were precluded from entering the United

States because of statutory quotas. The President

explained that he had been “particularly concerned

over the hardship” that these quotas imposed,

especially on members of the U.S. armed forces who

were “forced to leave their adopted children behind”

6

following tours of duty. On the advice of the

Attorney General and Secretary of State, the

President adopted the parole policy “pending action

by Congress to amend the law.” See President

Dwight Eisenhower, Statement Concerning the

Entry into the United States of Adopted Foreign-

Born Orphans (Oct. 26, 1956) available at

http://www.presidency.ucsb.edu/ ws/?pid=10677.

As the Cold War entered its second decade, the

Eisenhower Administration began to use the parole

power as an instrument of foreign policy. For

example, President Eisenhower ordered the parole

of Cubans fleeing that countrys oppressive

communist regime—a program continued by the

Kennedy, Johnson, and Nixon Administrations, and

which ultimately permitted over six hundred

thousand otherwise ineligible aliens to enter the

United States. American Immigration Council,

Executive Grants of Temporary Immigration Relief,

1956-Present (Oct. 2014).

The Ford and Carter Administrations each

made grants of “extended voluntary departure,”

meaning that they “temporarily suspend{ed]

enforcement” of deportation for ‘particular group[s]

of aliens.” Hotel & Rest. Employees Union, Local 25

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

banc); Andorra Bruno et al., CRS, Analysis of June

15, 2012 DHS Memorandum, ' Exercising

Prosecutorial Discretion with Respect to Individuals

Who Came to the United States as Children (2012).

The Reagan and George H.W. Bush

Administrations continued and broadened deferred

action. In 1986, following passage of the

Immigration Reform and Control Act (IRCA), Pub.

7

L. No. 99-603, 100 Stat. 3359 (1986), the Reagan

Administration also launched the “Family

Fairness” program. IRCA had established a

pathway to lawful status for certain aliens who

otherwise were present without authorization in

the United States, see id. at § 201, 100 Stat. at

3445, but the Act did not state whether INS should

continue to deport the relatives of aliens who might

qualify for lawful status under the new law—and

the legislative history makes clear that the

omission was a deliberate legislative decision. See

S. Rep. 99-132, at 16 (1986) (“It is the intent of the

Committee that the families of legalized aliens will

obtain no special petitioning rights by virtue of the

legalization.”); see also INS Reverses Family

Fairness Policy, 67 No. 6 INTERPRETER RELEASES

153 (Feb. 5, 1990) (“What to do when some but not

all members of an alien family qualify for

legalization has been a controversial issue since the

beginning of the amnesty program.”). Confronting

that question, 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 Nelson,

Legalization and Family Fairness: An Analysis

(Oct. 21, 1987), reprinted as 64 No. 41 INTERPRETER

RELEASES 1191, 1201 (“Nelson Statement”). INS

therefore lacked express statutory authority to

grant resident status to aliens who did not

otherwise qualify for it. Id.

The fact that IRCA did not provide express

statutory authority to INS to alter the status of

non-qualifying aliens, however, did not mean that

8

the Act required the Service to deport all such

persons, or precluded such persons from working.

The Reagan Administration recognized a

distinction between granting permanent resident

status, which the Attorney General could not do

without statutory authorization, and merely

deferring removal actions against certain

unlawfully present aliens, which the law

empowered the Attorney Genera! to do. Jd. As

Commissioner Nelson explained:

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.

Id.

President George H.W. Bush’s Administration

expanded the Family Fairness Program in 1990 by

instructing that “[vjoluntary departure will be

granted to the spouse and to unmarried children

under 18 years of age, living with the legalized

alien, who 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. Memorandum from Gene

McNary, Comm’r, INS, to Reg’] Comm’rs, Family

Fairness (Feb. 2, 1990), reprinted as 67 No. 6

INTERPRETER RELEASES 153, 165 App. I (“McNary

9

Memo”); see also 60 Fed. Reg. 66,062, 66,063 (Dec.

21, 1995) (“The Service created the Family Fairness

policy as a means of precluding the separation of

family members by deferring their deportation.”).

The Service also made clear that aliens who

qualified under the Family Fairness Program

would be eligible to work. See McNary Memo.

Contemporaneous government estimates

indicated that as many as 1.5 million aliens were

expected to be eligible under the expanded Family

Fairness program. See Immigration Act of 1989:

Hearing before the Subcomm. On Immigration,

Refugees, and International Law of the H. Comm.

On the Judiciary, 101st Cong. 49 (1990) (Mr.

McCollum: “Do you have any idea, any estimates of

how many people we are talking about who are the

immediate relatives legalized under the IRCA Act?

....” Mr. McNary: “Well, we are talking about 1.5

million under IRCA.”); see also id. at 56 (Mr.

Morrison: “Mr. McNary, you used the number 1.5

million IRCA relatives who are undocumented but

who are covered by your family fairness policy. Do I

have that number right?” Mr. McNary: “Yes.”).

Publicly available estimates indicate that this

figure was approximately forty percent of

undocumented aliens in the United States at the

time. See Jeffrey Passel et al., As Growth Stalls,

Unauthorized Immigrant Population Becomes More

Settled, Pew Research Center (2014) available at

http://www.pewhispanic.org/files/20 1 4/09/201 4-09-

03_Unauthorized-Final.pdf (estimating that 3.5

10

million unauthorized immigrants lived in the

United States in 1990).?

Shortly after implementing the expansion of

Family Fairness, President Bush issued a signing

statement accompanying his approval of the

Immigration Act of 1990. That Act granted the

Attorney General power to grant “temporary

protected status” to allow otherwise deportable

aliens to remain in the United States “because of

their particular nationality or region of foreign

state of nationality.” Pub. L. No. 101-649 § 302,

104 Stat. 4978, 5030. 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.” See President George H.W. Bush, Statement

on Signing the Immigration Act of 1990, 26 WEEKLY

CompP. PRES. Doc. 1947 (Nov. 29, 1990).

Recent Administrations have continued to

employ deferred action. For instance, President

Clinton’s Administration authorized deferred action

2 Although fewer people ultimately applied for Family

Fairness than the Administration was predicting—in part

because the subsequently-enacted Immigration Act of 1990

offered preferable remedies—the point is that the

administration “saw no legal barrier to going forward .. . [njor

was there an outcry from either Congress or the general

public.” Written Testimony of Stephen Legomsky before the

H. Comm. on the Judiciary 24-25 (Feb. 25, 2015),

http://judiciary.house.gov/_cache/files/fc3022e2-6e8d-403f-

a1 9c-25bb77ddfbO9/legomsky-testimony. pdf (“Legomsky

Testimony’).

11

for aliens who might prove eligible for permanent

relief through the Violence Against Women Act. See

Memorandum from Paul Virtue, INS to Reg’! Dirs.,

Supplemental Guidance on Battered Alien Self-

Petitioning Process and Related Issues at 3 (May 6,

1997) (“Virtue Memo”) (noting that “[b]y their

nature, VAWA cases generally possess factors that

warrant consideration for deferred action”).

President George W. Bush likewise provided

deferred action for foreign students affected by

Hurricane Katrina who were unable to fulfill their

F-1 visa’s full-time student requirement, and

simultaneously suspended employer verification

requirements for those students, as well. USCIS,

Interim Relief for Certain Foreign Academic

Students Adversely Affected by Hurricane Katrina,

Frequently Asked Questions (Nov. 25, 2005),

available at http://www.uscis.gov/sites/default/ files/

files/pressrelease/F1Student_11_25 _05_FAQ.pdf.

These examples are by no means exhaustive.

Amici have identified nearly forty examples of such

policies, each of which is listed in the Appendix to

this brief. The consistency and frequency with

which the Executive has employed deferred action

policies underscore the central role the practice has

played in promoting sensible enforcement of the

federal immigration laws.

B. Deferred Action Programs Promote

Sensible Immigration Policy Objectives

Over the past several decades, Administrations

of both political parties have repeatedly defended

deferred action policies by invoking straightforward

and consistent legal and policy arguments. As

officials charged with enforcing U.S. immigration

12

laws have explained, deferred action policies are

necessary to make the most efficient use of limited

enforcement resources, to achieve consistent

enforcement of federal immigration law, and to

promote humanitarian and family values.

1. Deferred Action Is Necessary To

Make The Most Efficient Use Of

Limited Enforcement Resources

Like the numerous exercises of prosecutorial

discretion in the immigration context that preceded

it, DAPA responds to the reality that Congress has

not allocated to DHS and DOJ sufficient resources

to remove every person who is not authorized to be

in the United States. Compare Memorandum from

Jeh Johnson, Sec’y of Homeland Security, to Leon

Rodriguez, Dir., USCIS, Exercising Prosecutorial

Discretion, at 2 (Nov. 20, 2014), available at

http://www.dhs.gov/sites/default/files/publications/

14_1120_memo_deferred_action.pdf (““DAPA

Memo”) (“Due to limited resources, DHS and its

Components cannot respond to all immigration

violations or remove all persons illegally in the

United States.”) with Memorandum from Sam

Bernsen, General Counsel, INS, to Comm’r, Legal

Opinion Regarding Service Exercise of Prosecutorial

Discretion, at 1 (Jul. 15, 1976) (“Bernsen Memo”)

(“There simply are not enough resources to enforce

all of the rules and regulations presently on the

books. As a practical matter, therefore, law

enforcement officials have to make policy choices as

to the most effective and desirable way in which to

deploy their limited resources.”), and Memorandum

from Bo Cooper, General Counsel, INS, to Comm’r,

INS Exercise of Prosecutorial Discretion, at 2 (Jul.

11, 2000) (“Cooper Memo”) (“[{L]imitations in

13

available enforcement resources ... make it

impossible for a law enforcement agency to

prosecute all offenses that come to its attention.”).

Resource constraints require senior immigration

officials to decide how funding and personnel can be

allocated and deployed in the manner most likely to

advance the multiple objectives of our federal

immigration laws. As_ described supra, _ the

Executive Branch for decades has been required to

prioritize enforcement objectives, in a manner

similar to DAPA, and it has consistently and

successfully defended the legality of such actions.

In 1984, the Reagan Administration’s attorneys,

arguing before this Court, set forth a compelling

defense, equally applicable here, of the Executive's

exercise of prosecutorial discretion:

In deciding whether to undertake

enforcement action, an agency must do

far more than merely determine

whether there is a sound factual and

legal basis for proceeding. The agency

must decide which enforcement

strategy will best carry out its

statutory mandate and must decide

how to allocate its scarce resources. It

must compare the importance and cost

of various potential cases, as well as

the likelihood of success in each of

those endeavors. . . . After considering

these and other factors, an agency

may rationally decide to pursue highly

visible cases. Or it may decide to

undertake action in a much larger

number of cases. Evaluating the

relevant factors and developing a

14

sound enforcement’ strategy are

quintessentially the functions of a

regulatory agency. They are not

appropriate for judicial review.

Brief for United States as Petitioner, Heckler v.

Chaney, No. 83-1878, 1984 WL 565477, at *17-18

(U.S. Aug. 16, 1984).

Like its predecessor deferred action policies,

DAPA reflects the Executive’s determination that

enforcement of the immigration laws will be most

effective if the government’s limited resources are

used to prosecute and remove individuals who pose

the greatest threats to public safety and national

security instead of those who do not pose such

threats, who belong to families residing peacefully

and productively in the United States for many

years, and who have already developed strong ties

to this country and to their communities.

DAPA employs the same type of enforcement

strategy that Congress has authorized the

Executive to make for decades. As early as 1909, a

DOJ circular advised officers not to proceed in

immigration cases unless “some substantial results

are to be achieved thereby in the way of betterment

of the citizenship of the country.” See U.S. Dep’t of

Justice, Circular Letter No. 107 (Sep. 20, 1909)

(quoted in Bernsen Memo at 4). DAPA reflects a

similar judgment that deferred action is necessary

in order to best advance the ends of the

immigration laws, national security, and public

safety, in light of the limited resources available.

Compare Memorandum from Janet Napolitano,

Sec’y of Homeland Security, to David V. Aguilar,

Exercising Prosecutorial Discretion, at 1 (Jun. 15,

15

2012) (“[Ajdditional measures are necessary to

ensure that our enforcement resources are not

expended on these low priority cases but are

instead appropriately focused on people who meet

our enforcement priorities.”) with Memorandum

from Doris Meissner, Comm’r, INS, to Reg’! Dirs.,

Exercising Prosecutorial Discretion, at 4 (Nov. 17,

2000), reprinted as 77 No. 46 INTERPRETER

RELEASES 1661, App. I (“Meissner Memo”) (“Like all

law enforcement agencies, the INS has finite

resources, and it is not possible to investigate and

prosecute all immigration violations. The INS

historically has responded to this limitation by

setting priorities in order to achieve a variety of

goals. These goals include protecting public safety,

promoting the integrity of the legal immigration

system, and deterring violations of the immigration

law. ... An agency’s focus on maximizing its impact

under appropriate principles, rather than devoting

resources to cases that will do less to advance these

overall interests, is a crucial element in effective

law enforcement management.”).

The need for prosecutorial discretion has grown

more acute as increasingly sophisticated threats to

the homeland have emerged and the number of

potential targets for enforcement actions has

surged. In the years after the September 11, 2001,

terrorist attacks, the Principal Legal Advisor of ICE

under President George W. Bush urged that “we

must prioritize our cases to allow us to place

greatest emphasis on our national security and

criminal alien dockets.” Memorandum from

William Howard, Principal Legal Advisor, ICE, to

All OPLA Chief Counsel, Prosecutorial Discretion,

16

at 8 (Oct. 24, 2005) (“Howard Memo’). He

elaborated:

It is clearly DHS policy that national

security violators, human rights

abusers, spies, traffickers in both

narcotics and people, sexual predators

and other criminals are removal

priorities. It is wise to remember that

cases that do not fall within these

categories sometimes require that we

balance the cost of an action versus

the value of the result. Our reasoned

determination in making prosecutorial

discretion decisions can be a

significant benefit to the efficiency and

fairness of the removal process.

Id.

DHS, of course, could have refrained from

removing these individuals without granting

deferred action. But deferred action policies

advance homeland security and public safety

objectives because they draw individuals from out

of the shadows and into the open. These individuals

provide their names, addresses, and histories, and

the government performs background checks to

assure public safety. Communities are safer when

undocumented immigrants who are either victims

of crimes or witnesses to crimes feel secure enough

to report the crimes to the police rather than avoid

contact for fear of being deported. See Legomsky

Testimony at 29. DAPA, which reflects this

Administration’s decision “to prioritize threats to

national security, public safety, and _ border

17

security,” is consistent with this approach. See

DAPA Memo at 3.

2. Deferred Action Policies Are

Necessary To Achieve Consistent

Enforcement of Federal Immigration

Law

The U.S. immigration system depends on the

dedicated efforts of tens of thousands of federal

employees—from border patrol agents and career

prosecutors to the Attorney General and the

Secretary of Homeland Security. These employees

are frequently called upon to make important

decisions that shape the implementation and

enforcement of the law, the security of the nation,

the safety of the public, and the future of families.

See Cooper Memo at 3 (“{INS] exercises

prosecutorial discretion thousands of times every

day.”).

Policy statements’ setting forth the

Administration’s enforcement priorities are

necessary to coordinate these efforts in service of a

common objective, namely, “to establish a

reasonable, fair, orderly, and secure system of

immigration into this country and not to

discriminate in any way against particular nations

or people.” President Ronald Reagan, Statement on

Signing the Immigration Reform and Control Act of

1986, 22 WEEKLY COMP. PRES. DOCS. 1533 (Nov. 6,

1986). Amici’s experience is that policy statements

like DAPA are necessary to avoid an immigration

system in which similarly situated aliens are

treated differently based solely on happenstance.

They also provide public transparency on important

policy decisions.

18

Policy statements that guide enforcement

discretion have played an important role in

promoting consistency in the treatment of

individuals in the immigration system. When the

Family Fairness Program was created, the INS

Commissioner explained that a policy statement

was necessary “to assure uniformity in the granting

of voluntary departure and work authorization for

the ineligible spouses and children of legalized

aliens.” McNary Memo at 164. Senior officials in

subsequent Administrations have similarly noted

the importance of deferred action policy statements

as an effective tool to promote uniformity and

consistency in the enforcement of the law. See, e.g.,

Meissner Memo at 2 (“A statement of principles

concerning discretion . . . contribute[s] to more

effective management of the Government’s limited

prosecutorial resources by promoting’ greater

consistency among the prosecutorial activities of

different offices[.]”); Howard Memo at 3 (“I]t is

important that we all apply sound principles of

prosecutorial discretion uniformly throughout our

offices and in all of our cases, to ensure that the

cases we litigate on behalf of the United States,

whether at the administrative level or in the

federal courts, are truly worth litigating.”); Cooper

Memo at 8 (“{A]ppropriate policy guidance,

reinforced by training, is necessary in order for a

law enforcement agency to carry out an

enforcement function properly. Such guidance

serves a variety of policy goals, including promoting

public confidence in the fairness and consistency of

the agency’s enforcement action[.}”).

19

3. Deferred Action Policies Promote

Humanitarian Values

Sound enforcement of the immigration laws

requires attention to the humanitarian policy

objective of promoting family unity. As INS

Commissioner McNary explained: “It is vital that

we enforce the law against illegal entry. However,

we can enforce the law humanely. To split families

encourages further violations of the law as they

reunite.” McNary Memo.

Immigration officials at all levels have been

called upon for decades to exercise prosecutorial

discretion in a manner that is faithful to the rule of

law without sacrificing the preservation of, and

respect for, family units to the greatest extent

practicable. See, e.g., Memorandum from Julie

Myers, Assistant Sec’y of Homeland Security, to

Field Office Dirs., Prosecutorial and Custody

Discretion (Nov. 7, 2007) (“Myers Memo”)

(discussing treatment of nursing mothers and

stating that “[flield agents and officers are not only

authorized by law to exercise discretion within the

authority of the agency, but are expected to do so in

a judicious manner at all stages of the enforcement

process’); see also Nelson Statement at 1200. The

Family Fairness Program, discussed supra, is one

salient example of how federal immigration officials

have attempted to avoid unnecessary harm to

family unity.

DAPA’s aim of preserving family unity in cases

that do not threaten public safety is consistent with

the policy objectives that have guided federal

immigration enforcement efforts for decades. E.g.,

DAPA Memo at 3 (explaining that aliens who

20

“commit serious crimes or otherwise become

enforcement priorities” are ineligible). Amici’s

experience demonstrates that the best approach to

achieving rational and effective enforcement of our

immigration laws is to prioritize threats to public

safety and national security, while simultaneously

demonstrating compassion for families whose

members pose no substantial risks and who have

developed ties to the communities in which they

live.

II. ALLOWING ALIENS WITH DEFERRED ACTION TO

APPLY FOR WORK AUTHORIZATION IS AN

IMPORTANT COMPONENT OF IMMIGRATION

ENFORCEMENT THAT IS CONSISTENT WITH

FEDERAL IMMIGRATION LAW

Federal law provides that an “alien who has

been granted deferred action, an act of

administrative convenience to the government

which gives some cases lower priority,” may apply

for work authorization by showing “economic

necessity for employment.” 8 C.FR. §

274a.12(c)(14). This thirty-five-year-old regulation

codifies a policy that has been in place for even

longer, and it reflects extensive legislative,

administrative, and public deliberations that

warrant judicial deference. The policy was

reexamined and reaffirmed following extensive

public comment and congressional action in 1986 to

outlaw the employment of “unauthorized” aliens;

and Congress has subsequently ratified the

practice.

21

A. The Executive’s Longstanding Policy of

Allowing Aliens with Deferred Action

To Apply for Work Authorization Is the

Product of Extensive Administrative,

Legislative, and Public Deliberations

The decision to allow aliens with deferred action

policies to apply for work authorization was neither

accidental nor anomalous. To the contrary, the

availability of work authorization for such aliens

was a deliberate choice that was first made in the

1970s, repeatedly affirmed over the following

decades by administrations of both parties, and

ratified by Congresses that were well aware of the

policy.

1. INS Has Allowed Aliens With

Deferred Action to Apply for Work

Authorization Since at Least the

1970s

In 1975, INS’s General Counsel explained that

the Service 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 (Sep.

2, 1975). Such authorizations were not given

“automatically,” but rather, “[t]he alien has to come

to the Service and make a request.” Id. at 295.3

3 The same is true today for aliens with deferred action. See 8

C.F.R. §274a.12(c)(14) (requiring that aliens with deferred

action establish “economic necessity” in order to receive

employment authorization); see also 56 Fed. Reg. 41,767,

41,781 (Aug. 23, 1991) (rejecting a proposal to eliminate the

22

By the late 1970s, INS work authorizations were

common, and served a host of important functions

for both aliens and employers. Although in the

1970s there was not yet any blanket legal

prohibition on the employment of undocumented

aliens, permitting certain classes of undocumented

aliens to obtain work authorization, including those

with deferred action, served several objectives.

First, in 1972 Congress made _ work

authorization a prerequisite for certain aliens to

obtain a Social Security number. See Social

Security Amendments of 1972, Pub. L. No. 92-603 §

137, 86 Stat. 1329, 1364 (codified as amended at 42

U.S.C. § 405(c)(2)(B)(i)(D); 44 Fed. Reg. 10,369,

10,371 (Feb. 20, 1979) (adding 20 C.F.R. §

422.107(e)); see also Bernsen, Leave to Labor, at

294. Employers then, as now, were much less likely

to hire aliens “off the books,” and to avoid full

remittance of Social Security payments and other

taxes attributable to such aliens, if the aliens had

Social Security numbers that allowed them to work

“above board.”4

Second, agricultural workers had a _ special

reason to seek work authorization: as of 1974,

federally registered farm labor contractors were

economic necessity requirement for aliens with deferred

action).

* INS had even launched a “voluntary” pressure campaign to

discourage employers from hiring aliens who lacked such

authorization. See Sam Bernsen, Updating the Immigration

Law, 9 IN DEFENSE OF THE ALIEN 203, 204-06 (1986); Illegal

Aliens: Hearings Before Subcomm. No. 1 of the H. Comm on

the Judiciary, 92nd Cong. 1020 (1971 & 1972).

23

prohibited from facilitating the hiring of any alien

“not lawfully admitted for permanent residence, or

who has not been authorized by the Attorney

General to accept employment.”® Farm Labor

Contractor Registration Amendments Act, Pub. L.

No. 93-518 § 11, 88 Stat. 1652, 1655 (1974).®

Finally, as of 1976, aliens who “continue(d] in or

accept[ed] unauthorized employment” were barred

from obtaining an adjustment of status.

Immigration and Nationality Act Amendments of

1976, Pub. L. No. 94-571 § 6, 90 Stat. 2703, 2706

(codified as amended at 8 U.S.C. § 1255(c)); see also

44 Fed. Reg. 43,480 (Jul. 25, 1979) (describing this

provision’ as legislative recognition of the Attorney

General's preexisting authority to grant work

authorization).

6 Prior to 1974, the statute prohibited these farm labor

contractors from facilitating the hiring of any alien who was

“violating the provisions of the immigration and nationality

laws of the United States.” Farm Labor Contractor

Registration Act, Pub. L. No. 88-582 § 5(b), 78 Stat. 920, 922

(1964).

6 IRCA subsequently repealed this language, which became

mostly redundant in light of IRCA’s broader employer

sanctions provisions. IRCA, § 101(b)(1)(C), 100 Stat. at 3372;

see also Migrant and Seasonal Agricultural Worker Protection

Act, Pub. L. No. 97-470, §§ 106 & 523, 96 Stat. 2583, 2589-90,

2600 (1983).

7 INS actually cited to Public Law 95-571, but the context

makes it clear that the reference is to 94-571. See 44 Fed. Reg.

at 43,480.

24

2. In the Early 1980s, INS Codified its

Work Authorization Policy for

Categories of Aliens Not Authorized

To Be in the United States, Including

Those with Deferred Action

In 1979, INS “for the first time codiflied]

existing employment authorization procedures,”

publishing a proposed rule in the Federal Register.

44 Fed. Reg. at 43,480. The proposal provided that

“fajn alien who, as an exercise of the Service’s

prosecutorial discretion, has been allowed to

remain in the United States for an indefinite or

extended period of time will . . . be eligible to apply”

for work authorization. Id.; see also id. (proposing 8

C.F.R. § 109.1(b)) (“An alien who is not maintaining

a lawful nonimmigrant status may apply for

employment authorization if he ... has been

granted permission to remain in the United States

for an indefinite or extended period of time by the

Immigration and Naturalization Service.”).

The next year, after giving “[clareful

consideration” to public comments, INS published a

“significantly modified” proposal. 45 Fed. Reg.

19,563 (Mar. 26, 1980). This revised version made

no mention of the Service’s “prosecutorial

discretion,” or of INS’s longstanding practice of

making work authorization available to aliens

whose removal had been deferred. The Federal

Register contains no explanation for this omission.

Comments on the revised proposal expressed

“concern” that it “did not adequately cover all

categories [of] nonimmigrants who are permitted to

work while in the United States.” 46 Fed. Reg.

25,079, 25,080 (May 5, 1981); see also Deborah

25

Levy, The Alien Rights Law Project, 27 HOWARD

L.J. 1265, 1277 (1984). The final rule, published a

few months after President Reagan took office,

restored work authorization eligibility for the

category of aliens that had been omitted in the 1980

revised proposal, namely, “[a]ny alien in whose case

the district director recommends consideration of

deferred action, an act of administrative

convenience to the government which gives some

cases lower priority.” 46 Fed. Reg. at 25,081.8

3. Congress Affirmed INS’s Work

Authorization Rule When it Enacted

the Immigration Reform and Control

Act of 1986

In 1986, the Federation for American

Immigration Reform (“FAIR”) filed a petition for

rulemaking, seeking to rescind the 1981 rule that

allowed aliens subject to deferred action to apply

for work authorization. 51 Fed. Reg. 39,385 (Oct.

28, 1986). FAIR asserted that INS had “acted

beyond its statutory authority and contrary to the

purpose of the Immigration and Nationality Act” by

allowing “illegal or temporarily present aliens to

apply for and receive work authorization.” Jd. at

39,386; see also id. at 39,387 (“The granting of work

authorization to deportable aliens and

nonimmigrants not authorized by statute to work

allows such aliens to compete directly with

8 The current regulations contain language that is virtually

identical to that added in 1981. See 8 C.F.R. § 274a.12(c)(14)

(“An alien who has been granted deferred action, an act of

administrative convenience to the government which gives

some cases lower priority.”).

26

American workers for jobs. This is in direct conflict

with the purpose for which the [Immigration and

Nationality Act] was enacted.”). INS published

FAIR’s petition in the Federal Register and

solicited public comments. Jd.

Before the Service acted on FAIR’s petition,

Congress intervened and_ ratified INS’s

interpretation of its legal authorities. The 1986

Immigration Reform and Control Act (“IRCA”)

prohibited employers from employing aliens not

“lawfully admitted for permanent residence” or

“authorized to be . . . employed by [the Immigration

and Nationality Act] or by the Attorney General.”

IRCA, § 101(a)(1), 100 Stat. at 3368 (codified at 8

U.S.C. § 1324a(h)(3)) (emphasis added). This

language reaffirmed the Attorney General’s

authority to grant work authorizations as well as

the manner in which INS had been exercising that

authority—a practice that Congress declined to

limit in any way. See 52 Fed. Reg. 46,092, 46,093

(Dec. 4, 1987) (“[T]he only logical way to interpret

this phrase is 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

regulatory process, in addition to those who are

authorized employment by statute”).

Congress had notice of the 1981 regulations

when it passed IRCA. In addition to the publicly-

noticed FAIR petition mentioned above, the

Service’s claim of work authorization authority was

highlighted directly to Congress and included in the

27

Act’s legislative history. See Letter from Robert

McConnell, DOJ, to Romano Mazzoli (Apr. 4, 1983),

included in Immigration Reform and Control Act of

1983, Hearings before the Subcomm. On

Immigration, Refugees and Intl Law of the H.

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

(“INS currently has authority to define classes of

aliens who may be employed in the U.S.”); Letter

from Alan Nelson, Comm’r, INS, to Romano

Mazzoli (May 14, 1984), included in INS Oversight

and Budget Authorization for Fiscal Year 1985:

Hearings Before the Subcomm. On Immigration,

Refugees, and Intl Law of the H. Comm. on the

Judiciary, 98th Cong. 357 (1984) (explaining that

INS regulations “set forth eligibility and criteria for

employment authorization”). Moreover, INS’s work

authorization regulations had also already been the

subject of litigation when Congress deliberated

upon and enacted IRCA. E.g., Diaz v. INS, 648 F

Supp. 638 (E.D. Cal. 1986); Canas-Garcia v.

McKinnon, 1984 U.S. Dist. LEXIS 14946, 83-cv-

2077 (D. Mass. Jul. 13, 1984); Gilana v. Smith,

1981 U.S. Dist. LEXIS 16824, 81-cv-3829 (N.D. Il.

Dec. 24, 1981).

IRCA marked the culmination of years of

legislative deliberations about the Attorney

General’s power to issue work authorizations for

aliens. In 1971, the Nixon Administration

introduced legislation prohibiting the employment

of “aliens who are illegally in the United States or

are in an immigration status in which such

employment is not authorized.” H.R. 2328 § 26

(1971). But at a hearing before “Subcommittee

Number 1” of the House Judiciary Committee, an

organization representing “American Business”

28

warned that “(t]he phrasiology ‘in violation of law

or in an immigration status in which such

employment is not authorized’ is not sufficiently

flexible to allow the Immigration and

Naturalization Service to continue present

treatment of aliens who work in certain categories.”

Illegal Aliens: Hearings Before Subcomm. No. 1 of

the H. Comm on the Judiciary, 92nd Cong. 1243-45

(1971 & 1972) (statement of the American Council

of Int'l Personnel, Inc.). When the INS General

Counsel was later asked by the same Subcommittee

about INS’s “administrative permissiveness in

allowing certain aliens to undertake employment,”

he insisted that the language in_ the

Administration’s proposed bill was intended to

cover all cases where INS had _ authorized

employment. Id. at 1344.

The Subcommittee decided to remove any

possible ambiguity left by the Administration’s

“phrasiology.” It reported a new version of the bill

that prohibited employment of “any alien in the

United States who has not been lawfully admitted

to the United States for permanent residence,

unless the employment of such alien is authorized

by the Attorney General.” H.R. 16188 (1972)

(emphasis added) (as reported in H.R. Rep. 92-

1366, at 12 (1972)); see also H.R. Rep. 92-1366, at 1

(1972) (“The purpose of this bill is to make it

unlawful to knowingly hire aliens who have not

been lawfully admitted for permanent residence or

are not authorized by the Attorney General to work

while in the United States.”). Subsequently

proposed employer sanctions bills, up to and

including the law that was ultimately enacted as

IRCA in 1986, all recognized the Attorney General’s

29

power to grant work authorizations. See IRCA, §

101(a)(1) (codified at 8 U.S.C. § 1324a(h)(3)); see

also H.R. 982 § 2 (1973) (reported in H.R. Rep. 93-

108, at 2 (1973)); H.R. 8713 § 2 (1975) (reported in

H.R. Rep. 94-506, at 26 (1975)); S. 2252 § 5 (1978)

(quoted in Alien Adjustment and Employment Act of

1977: Hearings Before the S. Comm. on the

Judiciary, 95th Cong. 3 (1978)).°

Armed with full knowledge of INS’s assertion of

work authorization authority, as well as ample

opportunities to rescind or invalidate the same,

Congress ratified the Service’s policy. Indeed, in a

separate provision in IRCA, Congress demonstrated

a clear understanding that the Attorney General

had authorized work for aliens whose removal had

been deferred—and that such authorization would

make an alien eligible for lawful employment under

IRCA.

Congress had earlier considered an amendment

to a draft of IRCA that would have made it

unlawful for an employer to discriminate against

any alien who had been authorized to work. See 130

9 One further change in the proposed language before IRCA is

worth mentioning. In 1976, testimony noted that the new

wording used in the 1972 bill ignored the fact that the INA

was itself a source of work authorization. S. 3074: Hearings

Before the Subcomm. On Immigration and Naturalization of

the S. Comm. on the Judiciary, 94th Cong. 103 (1976)

(statement of Stanley Mailman, Ass’n of Immigration and

Nationality Lawyers). Thus, in 1982, the House Committee

reported a bill penalizing the employment of aliens not

authorized either “by this Act or by the Attorney General.”

H.R. 6514 (1982) (reported in H.R. Rep. 97-890, at 41 (1982)).

That is the substance of the provision Congress eventually

included in IRCA.

30

CONG. Rec. 15,935 (Jun. 12, 1984). Congress,

however, ultimately enacted a narrower version of

the amendment, which provided protection against

discrimination to only lawful permanent residents,

temporary residents, refugees, and asylees. See

IRCA § 102 (codified as amended at 8 U.S.C. §

1324b(a)). A comparison between IRCA’s non-

discrimination provision, which covers a subset of

aliens who are authorized to work, and the

employer sanctions provision, which extends more

broadly, highlights the relevant distinction:

Employer Sanctions, | Nondiscrimination,

§ 101(a)(1) § 102

‘lawfully § admitted “lawfully admitted

for permanent residence, | for permanent residence,

or... authorized to be | is granted the status

. employed by [the | of an alien lawfully

INA] or by _ the | admitted for

Attorney General.” temporary residence

under section

245A(a)(1), is

admitted as a refugee

under section 207, or

is granted asylum

under section 208"

Advocacy groups had complained that the

narrowed version of the non-discrimination

provision excluded from coverage “certain non-

immigrant aliens, paroled aliens, aliens with

extended voluntary departure status, and other

classes of persons authorized to work but not

—

31

included in the specific categories delineated by the

anti-discrimination provision.” See Immigration

Control and Legalization Amendments: Hearing

Before the Subcomm. On Immigration, Refugees

and Intl Law of the H. Comm. on the Judiciary,

99th Cong. 127 (1985) (statement of Richard

Fajardo, MALDEF). But Congress retained the

narrower version and deliberately excluded from

the anti-discrimination protection that subset of

aliens who, although not lawful permanent or

temporary residents, refugees, or asylees, were

nonetheless authorized to work by the Attorney

General, including those aliens with deferred

action. Cf. Letter from Seema Nanda, DOJ, to

David Burton (Sep. 10, 2012) available at

http://www.justice.gov/sites/default/files/crt/legacy/2

012/09/27/161.PDF (explaining that aliens who

qualify for the DACA program are not protected

from citizenship status discrimination under

IRCA).

4. INS Reaffirmed its Work

Authorization Rule Immediately

Following IRCA’s Passage, After

Extensive Notice and Comment

Shortly after Congress enacted IRCA, INS

‘began to solicit input on regulations to implement

the law. See Implementation of the Immigration

Reform and Control Act of 1986, Hearing Before the

Subcomm. on Immigration, Refugees, and Int'l Law

of the H. Comm. On the Judiciary, 99th Cong. 36-

37, 60-61 (1986). The Service took an

“unprecedented step to permit and encourage as

much public input as possible,” circulating an

“internal draft [of] preliminary regulations prior to

their formal publication in the federal register.” 52

32

Fed. Reg. 2115 (Jan. 20, 1987). The draft

regulations maintained work authorization

eligibility for aliens with deferred action and also

added a new group: “An alien who is a member of a

nationality group granted extended voluntary

departure.” See INS, Preliminary Working Draft of

Regulations (Jan. 20, 1987), reprinted at 32

IMMIGRATION AND NATIONALITY ACTS LEGISLATIVE

AND RELATED DOCUMENTS, No. 127 (Supp. 1997).

While the Service’s draft regulations were being

circulated, INS officials made “[m]Jany public

appearances .. . to inform and solicit comments

from interested parties.” 52 Fed. Reg. 8762 (Mar.

19, 1987). After reviewing and_ evaluating

“numerous comments” from a “wide cross-section of

society,” INS published its proposed rules, which

retained eligibility for work authorization in the

deferred action and extended voluntary departure

contexts. Id. Subsequently, after again considering

comments on its proposed rules from “a very broad

spectrum of American society [that] included

private citizens; agricultural, business, industrial

and labor organizations; Congressional sources and

governmental entities at the federal, state, and

local levels; educational institutions; voluntary

agencies; interest groups and organizations; and

law firms,” INS promulgated final rules, which once

again provided for work authorization for aliens

with deferred action and extended voluntary

departure. 52 Fed. Reg. at 16,216, 16,220, 16,227.19

'0 USCIS later substituted “deferred enforced departure” for

“extended voluntary departure.” See 75 Fed. Reg. 58,962,

58.990 (Sep. 24, 2010) (amending 8 C.F.R. § 274a.12(a)(11));

see also 75 Fed. Reg. 33,446, 33,457 (Jun. 11, 2010)

33

As INS was promulgating its final rules on

IRCA, FAIR’s petition to rescind the 1981

regulations remained pending. Shortly after

Congress enacted IRCA, INS extended the

comment period on the FAIR petition, noting that

IRCA’s recognition of the Attorney General’s power

to grant work authorization “appears to have a

direct bearing on the issues to be resolved.” 51 Fed.

Reg. 45,338, 45,338 (Dec. 18, 1986). FAIR itself

submitted a supplemental memorandum in which it

argued that IRCA’s enactment supported the

petition to rescind the rule. See_ FAIR,

Supplemental Statement Regarding the Permissible

Scope of the Attorney General’s Authority to Grant

Work Authorization (Jan. 29, 1987), FAIR Records,

1867-2006, George Washington Univ. Gelman

Library, Collection No. MS2195, Box 95, Folder 2.

INS thereafter denied FAIR’s petition, having

considered comments from a “wide spectrum of

interested parties, ranging from local to national! to

international governmental entities, and from

private individuals to business and educational

institutions to public interest groups.” 52 Fed. Reg.

46,092 (Dec. 4, 1987). INS pointed both to the

Attorney General's general authority to enforce the

immigration laws and establish regulations, as well

as IRCA’s more specific recognition of the Attorney

General’s power to grant work authorizations. /d.

at 46,093 (discussing Immigration and Nationality

Act, Pub. L. No. 82-414, § 103(a), 66 Stat. 163, 173-

(explaining that the reference to extended voluntary

departure had become “obsolete” and proposing new

regulation covering deferred enforced departure).

34

74 (1952); IRCA § 101(a)(1) (codified at 8 U.S.C. §

1324a(h)(3)). With respect to the latter, INS

explained:

[T]he only logical way to interpret this

phrase is 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 regulatory process, in

addition to those who are authorized

employment by statute.

52 Fed. Reg. at 46,093.11

'' The INS also noted that “most of the classes” permitted to

apply for work authorization “are very small to begin with,”

and that “the total number of aliens authorized to accept

employment is quite small and the impact on the labor

market is minimal.” 52 Fed. Reg. at 46,093. INS did not in

any way suggest, however, that the number of eligible aliens

was relevant to the question of its legal authority, nor did INS

indicate that there would be grounds for rescinding the

longstanding practice if and when the number of aliens

eligible for deferred action were to increase, as it had in the

past.

35

5. Since 1987, INS Has Consistently

Permitted Aliens With Deferred

Action to Apply For Work

Authorization, And Congress Has

Left This Policy Undisturbed

In the years following IRCA’s passage, INS

continued to grant work authorization to aliens not

authorized to be in the United States, including

aliens covered by many of the policies discussed

above. E.g., McNary Memo (“Work authorization

will be granted to aliens who qualify for voluntary

departure” under the expanded Family Fairness

program); 61 Fed. Reg. 13,061 (Mar. 26, 1996)

(inviting VAWA self-petitioners to apply for work

authorization after obtaining direct action status,

notwithstanding the fact that the original VAWA

statute did “not direct the Service to provide

employment authorization based solely on the filing

or approval of a_ self-petition”); USCIS, Press

Release, USCIS Announces Interim Relief for

Foreign Students Adversely Impacted by Hurricane

Katrina (Nov. 25, 2005) (“Katrina-impacted foreign

academic students not covered by the Notice and

their dependents (F-2 visa holders) may request

deferred action and apply for employment

authorization based on economic necessity.”). In

addition to aliens with deferred action, current

regulations allow for work authorization for aliens

with deferred enforced departure, applicants for

adjustment of status, and even certain aliens

already subject to removal proceedings. 8 C.F.R. §§

274a.12(a)(11), (c)(9), (c)(10).

FAIR complained to Congress about this

practice. See Immigration Reform and Control Act

of 1986 Oversight: Hearings Before the Subcomm.

36

On Immigration, Refugees, And International Law

of the H. Comm. on the Judiciary, 101st Cong. 597

(1989) (statement of Daniel Stein, FAIR) (criticizing

the regulations providing for work authorization for

aliens “given deferred action, applicants for

political asylum, aliens granted extended voluntary

departure, parolees, applicants for adjustment of

status, asylees, and a whole host of classifications

attributed to administrative and processing delay’).

Yet Congress declined to rescind or even question

the agency’s authority.

To be sure, Congress has periodically limited the

classes of aliens eligible for work authorization, but

it has never altered the longstanding policy that

aliens subject to deferred action may apply for work

authorization, despite the legislature’s knowledge

of that longstanding and transparent policy. E.g.,

Pub. L. No. 103-322 § 130005(b), 108 Stat. 1796,

2028 (1994) (codified as amended at 8 U.S.C. §

1158(d)(2)) (asylum applicants); Pub. L. No. 104-

208, § 303(a), 110 Stat. 3009, 3009-585 (1996)

(codified as amended at 8 U.S.C. § 1226(a)(3))

(detained aliens). Congress even enacted a

provision in 1996 in which it recognized the

agency’s practice of authorizing some aliens already

subject to removal orders to work. Id. § 305(a)(3),

110 Stat. at 3009-600 (codified as amended at 8

U.S.C. § 1231(a)(7)). Actions such as these—and

Congress’s failure to limit the agency's well-known

asserted authorities and practices—belie

Respondents’ argument (Br. in Opp. at 32-33) that

Congress has limited the Secretary's power to

confer work authorization so as to encompass only

37

those classes of aliens that the INA itself specifies

as eligible for such authorization. !?

B. Authorizing Certain Aliens With

Deferred Action To Work Is Consistent

With Established Immigration Policy

Objectives

The longstanding regulations governing work

authorization reflect sensible policy concerns, which

became even more acute in 1986 when Congress

prohibited employers from hiring aliens without

work authorization. Absent work authorization,

aliens, particularly those of modest means, would

likely have no lawful way to support themselves or

their families, and might therefore become a

burden on those closest to them. Permitting aliens

without means to remain in this country while

12 Another example is also telling. In 1996, Congress for the

first time established time-limits for grants of “voluntary

departure”—another category of aliens not authorized to be in

the United States who have long been eligible for work

authorization under the regulations. See Pub. L. No. 104-208

§ 304(a)(3), 110 Stat. 3009, 3009-596 (1996) (codified as

amended at 8 U.S.C. § 1229c(a)(2)(A)). Since, under INS's

regulations, aliens with voluntary departure could be granted

work authorization for the period of the voluntary departure,

this legislation effectively restricted the duration of work

authorizations for those aliens. See 52 Fed. Reg. 16,216,

16,227 (May 1, 1987) (adding 8 C.F.R. § 274a.12(c)(12)).

Because Congress did nothing to restrict the availability of

work authorization in connection with deferred action, INS

explained that deferred action might be available where

voluntary departure no longer was, and that, if deferred

action were granted, “employment authorization may be

granted under the provisions of §274a.12(c)(14).” 62 Fed. Reg.

10,312, 10,325 (Mar. 6, 1997).

38

denying them permission to work would also cause

economic distortions. Aliens in this position might

turn to illegal work for lower wages in exploitative

conditions, causing downstream effects on the labor

market, including adverse effects on American

workers. See Executive Office of the President,

Council of Economic Advisers, The Economic Effects

of Administrative Action on Immigration at 10

(2014).

Aliens with deferred action may obtain work

authorization only if they can show “economic

necessity” as defined by federal poverty guidelines.

See 8 C.F.R. §§ 274a.12(c)(14), (e). This condition

ensures that those aliens who remain in the

country but who lack the means necessary to

support themselves are able to earn a living

through legitimate, above-board employment. The

rule is consistent with the policy objective of

ensuring that aliens who are not subject to

deportation will live in the “sunlight” instead of

“the shadows.” See Reagan, IRCA Signing

Statement; see also DAPA Memo at 3.

The economic necessity condition has been a

part of the work authorization rule from the very

beginning. INS’s first proposed rules in 1979 would

have granted authorization only “if the alien

establishes to the satisfaction of the district

director that he is financially unable to maintain

himself during that period.” 44 Fed. Reg. at 43,480.

Though commenters expressed “opposition” to this

requirement, arguing that it would “unduly burden

the alien and Service,” INS retained it, limiting

authorization to that subset of aliens with deferred

action who could establish “to the satisfaction of the

district director that he/she is financially unable to

39

maintain himself/herself and family without

employment.” 46 Fed. Reg. at 25,080-081. INS

chose to “alleviate” the complained-of “burden” by

clarifying the standard, adopting the “Community

Service Administration Income Poverty Guidelines”

as “the basic criteria to establish economic

necessity for employment authorization requests

where the alien’s need to work is a_ factor”

(including aliens with deferred action). 46 Fed. Reg.

at 25,080.13

Following IRCA, INS re-promulgated its rule

and included both the “economic necessity”

requirement and the reference to the poverty

guidelines. 52 Fed. Reg. at 16,228. This language

remains on the books today. 8 C.F.R. §§

274a.12(c)(14) & (e).

Allowing aliens whose removal has _ been

deferred to work upon a showing of economic

necessity is a sensible tool employed for decades by

both Republican and Democratic administrations to

advance the humanitarian and economic objectives

underlying the federal immigration laws. These

policies were adopted carefully and thoughtfully

over the course of decades, and they have been

identified, studied, and ratified by Congress,

including after the 1986 enactment of IRCA. At a

minimum, the regulations reflect the Executive

Branch’s longstanding interpretation of the legal

authorities granted to INS and DHS by federal

'S INS later updated its regulation to acknowledge legislation

requiring the Secretary of HHS to update these guidelines

periodically. See 46 Fed. Reg. 55,920, 55,921 (Nov. 13, 1981)

(citing Pub. L. No. 97-35 § 673, 95 Stat. 357, 512 (1981)).

40

immigration laws. As such, they are worthy of this

Court’s deference. See Barnhart v. Walton, 535 U.S.

212, 220 (2002).

CONCLUSION

The judgment of the court of appeals should be

reversed.

MARTIN S. LEDERMAN

GEORGETOWN

UNIVERSITY LAW CENTER

600 New Jersey Ave, N.W.

Washington, D.C. 20001

(202) 662-9937

March 8, 2016

Respectfully submitted,

MICHAEL J. GOTTLIEB

Counsel of Record

ALEXANDER I. PLATT

JOSHUA RILEY

ALEXANDER TABLOFF

BOIES, SCHILLER &

FLEXNER LLP

5301 Wisconsin Ave, N.W.

Washington, D.C. 20015

(202) 237-2727

mgottlieb@bsfllp.com

APPENDIX"*

Type of Class of No.

Year Action Aliens Affected Comments

1956 | Parole Orphans 923 Legislation

adopted by was pending

U.S. citizens

abroad

1956 | Extended Third Unknown | See U.S. ex

-72 Voluntary preference visa rel. Parco v.

Departure petitioners Morris, 426

(EVD) F. Supp. 976,

979-80 (E.D.

Pa. 1977)

1956 | Parole Hungarians 31,915

-58

1959 | Parole Cubans 621,403

-72

1962 | Parole Chinese 15,100

-65

1975 | Parole Vietnamese, Nearly

-79 Cambodians, 360,000

and Laotians

1976 | EVD Lebanese Unknown

1977 | Suspended | “Silva 250,000

Deportation | letterholders”

1977 | EVD Ethiopians At least Extended in

15,000 1982

14 Sources: CRS Report, supra; Karl R. Thompson, Principal

Deputy Assistant Att'y General, OLC, Memorandum Op., for

the Sec’y of Homeland Security and the Counsel to the

President, 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 (Nov. 19, 2014);

Am. Immigration Counsel, Executive Grants of Temporary

Immigration Relief, 1956-Present (Oct. 2014).

1977 | Parole Soviet Union Over Issued after

-80 ‘| nationals 50,000 statutory

cap on

conditional

entries was

met

1978 | EVD Ugandans Unknown

1978 | EVD Nurses Unknown | 43 Fed. Reg.

2776

1979 | EVD Nicaraguans 3,600

1979 | EVD Iranians Unknown

1980 | EVD Afghans Unknown

1981 | EVD Polish 7,000 Extended in

1984 and

1987 1987

1987 | AG directed | Nicaraguans 150,000- | Legislation

INS to 200,000 was pending

refrain from

deportation

1987 | Indefinite Certain Over Nelson

Voluntary children and 100,000 Statement;

Departure spouses of families see also

aliens eligible discussion

for legalization above

under IRCA

(“Family

Fairness”)

1989 | Deferred Chinese 80,000

Action &

1990 | Deferred

Enforced

Departure

(DED)

1990 | Voluntary All spouses 1.5 McNary

departure and children of | million Memo; see

aliens eligible also

for legalization discussion

under IRCA above

(“Family

Fairness”)

1991 | DED Persian Gulf 2,227

1992 | DED Salvadorians 190,000 Issued after

expiration of

legislative

grant of

temporary

protected

status.

1997 | DED Haitians 40,000 Legislation

was pending |

1997 | Deferred VAWA Unknown | Virtue Memo

action beneficiaries

1998 | Temporary | Salvadorians, | 150,000 Hurricane

deportation | Guatemalans, Mitch

suspension | Hondurans,

and

Nicaraguans

1999 | DED Liberians 10,000 Issued after

expiration of

legislative

grant of

temporary

protected

status

2001 | Parole, “T” and “U” Unknown

-02 deferred visa applicants

action, and

stays of?

removal

2005 | Deferred Students Unknown | Legislation

Action affected by was pending

Hurricane

Katrina

2007 | DED Liberians 10,000 Issued after

expiration of

legislative

grant of

temporary

protected

status

2007 | Executive Nursing Unknown | Myers Memo

discretion mothers

2009 | DED Liberians Unknown

2009 | Extended Foreign born Unknown | Memo from

deferred spouses and Donald

action children under Neufeld,

the age of 21 of USCIS, to

United States Field

citizens who Leadership,

had died Guidance

Regarding

Surviving

Spouses of

Deceased

U.S. Citizens

and Their

Children

(Sep. 4,

2009)

2010 | Parole Haitian Unknown | Haitian

orphans in the earthquake

process of

being adopted

2011 | Deferred Victims of Unknown

action human

trafficking and

sexual

exploitation

2011 | DED Liberians 3,600

2012 | Deferred Foreign born Up to 1.8 | Legislation

action individuals million was pending

who entered

the United

States before

their 16%

birthday and

were under the

age of 31 as of

June 2012