Deferred Action for Childhood Arrivals

Federal RegisterSep 28, 2021

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 106, 236, and 274a

[CIS No. 2691-21; DHS Docket No. USCIS-2021-0006]

RIN 1615-AC64

Deferred Action for Childhood Arrivals

AGENCY:

U.S. Citizenship and Immigration Services, DHS.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

On June 15, 2012, the U.S. Department of Homeland Security (DHS) established the Deferred Action for Childhood Arrivals (DACA) policy. The policy—which describes the Secretary of Homeland Security's (Secretary's) exercise of her prosecutorial discretion in light of the limited resources that DHS has for removal of undocumented noncitizens—directed U.S. Citizenship and Immigration Services (USCIS) to create a process to defer removal of certain noncitizens who years earlier came to the United States as children, meet other criteria, and do not present other circumstances that would warrant removal. Since that time, more than 825,000 people have applied successfully for deferred action under this policy. On January 20, 2021, President Biden directed DHS, in consultation with the Attorney General, to take all appropriate actions to preserve and fortify DACA, consistent with applicable law. On July 16, 2021, the U.S. District Court for the Southern District of Texas vacated the June 2012 memorandum that created the DACA policy and what the court called the “DACA program,” and it permanently enjoined DHS from “administering the DACA program and from reimplementing DACA without compliance with” the Administrative Procedure Act (APA). However, the district court temporarily stayed its vacatur and injunction with respect to most individuals granted deferred action under DACA on or before July 16, 2021, including with respect to their renewal requests. The district court's vacatur and injunction were based, in part, on its conclusion that the June 2012 memorandum announced a legislative rule that required notice-and-comment rulemaking. The district court further remanded the “DACA program” to DHS for further consideration. DHS has appealed the district court's decision. Pursuant to the Secretary's broad authorities to administer and enforce the immigration laws, consistent with the district court's direction to consider a number of issues on remand, and after careful consideration of the arguments and conclusions on which the district court's decision is based, DHS puts forward for consideration the following proposed rule. DHS invites public comments on the proposed rule and possible alternatives.

DATES:

Written comments and related material must be submitted on or before November 29, 2021.

ADDRESSES:

You may submit comments on the entirety of this proposed rulemaking package, identified by DHS Docket No. 2021-0006, through the Federal eRulemaking Portal at

https://www.regulations.gov.

Follow the website instructions for submitting comments.

Comments submitted in a manner other than the one listed above, including emails or letters sent to DHS or USCIS officials, will not be considered comments on the proposed rule and may not receive a response from DHS. Please note that DHS and USCIS cannot accept any comments that are hand-delivered or couriered. In addition, USCIS cannot accept comments contained on any form of digital media storage devices, such as CDs/DVDs and USB drives. USCIS also is not accepting mailed comments at this time. If you cannot submit your comment by using

https://www.regulations.gov,

please contact Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, by telephone at (240) 721-3000 for alternate instructions.

For additional instructions on sending comments, see the “Public Participation” heading of the

SUPPLEMENTARY INFORMATION

section of this document.

FOR FURTHER INFORMATION CONTACT:

Andria Strano, Acting Chief, Office of Policy and Strategy, Division of Humanitarian Affairs, U.S. Citizenship and Immigration Services, Department of Homeland Security, 5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone (240) 721-3000.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation

II. Executive Summary

A. Purpose of the Regulatory Action

B. Summary of Major Provisions of the Regulatory Action

C. Costs and Benefits

III. Background, Authority, and Purpose

A. History of Discretionary Reprieves From Removal

B. Litigation History

C. Forbearance From Enforcement Action

D. Employment Authorization

E. Lawful Presence

F. Fees

G. Advance Parole

H. Further Analysis, Alternatives, and Call for Comments

IV. Provisions of Proposed Rule

A. Section 106.2—Fees

B. Section 236.21—Applicability

C. Section 236.22—Discretionary Determination

D. Section 236.23—Procedures for Request, Terminations, and Restrictions on Information Use

E. Section 236.24—Severability

F. Section 236.25—No Private Rights

V. Statutory and Regulatory Requirements

A. Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review)

B. Regulatory Flexibility Act

C. Unfunded Mandates Reform Act of 1995

D. Small Business Regulatory Enforcement Fairness Act of 1996

E. Executive Order 13132: Federalism

F. Executive Order 12988: Civil Justice Reform

G. Paperwork Reduction Act—Collection of Information

H. Family Assessment

I. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

J. National Environmental Policy Act

K. Executive Order 12630: Governmental Actions and Interference With Constitutionally Protected Property Rights

L. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

List of Abbreviations

APA Administrative Procedure Act

AST Autonomous Surveillance Tower

BLS Bureau of Labor Statistics

CBP U.S. Customs and Border Protection

CEQ Council on Environmental Quality

CFR Code of Federal Regulations

CLAIMS Computer-Linked Application Information Management System

CPI-U Consumer Price Index for All Urban Consumers

DACA Deferred Action for Childhood Arrivals

DAPA Deferred Action for Parents of Americans and Lawful Permanent Residents

DED Deferred enforced departure

DHS Department of Homeland Security

DOJ Department of Justice

DREAM Act Development, Relief, and Education for Alien Minors Act

EAD Employment authorization document

ELIS Electronic Immigration System

E.O. Executive Order

EOIR Executive Office for Immigration Review

EPS Egregious public safety

EVD Extended voluntary departure

FAIR Federation for American Immigration Reform

FLCRAA Farm Labor Contractor Registration Act Amendments of 1974

FR Federal Register

FY Fiscal Year

GED General Education Development

ICE U.S. Immigration and Customs Enforcement

IIRIRA Illegal Immigration Reform and Immigrant Responsibility Act of 1996

IMMACT 90 Immigration Act of 1990

INA Immigration and Nationality Act of 1952

INS Immigration and Naturalization Service

IRCA Immigration Reform and Control Act of 1986

MPI Migration Policy Institute

NEPA National Environmental Policy Act

NOA Notice of action

NOIT Notice of intent to terminate

NTA Notice to appear

OCFO Office of the Chief Financial Officer

OI Operations Instructions

OIRA Office of Information and Regulatory Affairs

OIS Office of Immigration Statistics

OMB Office of Management and Budget

OPQ Office of Performance and Quality

PRA Paperwork Reduction Act of 1995

PRWORA Personal Responsibility and Work Opportunity Reconciliation Act of 1996

Pub. L. Public Law

RFA Regulatory Flexibility Act

RIA Regulatory Impact Analysis

RIN Regulation Identifier Number

RTI Referral to ICE

SBREFA Small Business Regulatory Enforcement Fairness Act of 1996

Secretary Secretary of Homeland Security

SORN System of Record Notice

Stat. U.S. Statutes at Large

TPS Temporary Protected Status

UMRA Unfunded Mandates Reform Act of 1995

U.S.C. United States Code

USCIS U.S. Citizenship and Immigration Services

VAWA Violence Against Women Act of 1994

VPC Volume Projection Committee

VTVPA Victims of Trafficking and Violence Protection Act of 2000

I. Public Participation

DHS invites all interested parties to participate in this rulemaking by submitting written data, views, comments, and arguments on all aspects of this proposed rule. DHS also invites comments that relate to the economic, environmental, or federalism effects of this proposed rule. Comments must be submitted in English, or an English translation must be provided. Comments that will provide the most assistance to USCIS in implementing these changes will refer to a specific portion of the proposed rule; explain the reason for any recommended change; and include data, information, or authority that supports such recommended change. Comments submitted in a manner other than the one listed above, including emails or letters sent to DHS or USCIS officials, will not be considered comments on the proposed rule and may not receive a response from DHS.

Instructions:

If you submit a comment, you must include the agency name (U.S. Citizenship and Immigration Services) and the DHS Docket No. USCIS-2021-0006 for this rulemaking. All comments or materials submitted in the manner described above will be posted, without change, to the Federal eRulemaking Portal at

https://www.regulations.gov

and will include any personal information you provide. Therefore, submitting this information makes it public. You may wish to consider limiting the amount of personal information that you provide in any voluntary public comment submission you make to DHS. DHS may withhold from public viewing information provided in comments that it determines may impact the privacy of an individual or is offensive. For additional information, please read the Privacy Notice available at

https://www.regulations.gov/privacy-notice.

Docket:

For access to the docket and to read background documents or comments received, go to

https://www.regulations.gov,

referencing DHS Docket No. USCIS-2021-0006. You also may sign up for email alerts on the online docket to be notified when comments are posted or a final rule is published.

II. Executive Summary

A. Purpose of the Regulatory Action

On June 15, 2012, then-Secretary Janet Napolitano issued a memorandum providing new guidance for the exercise of prosecutorial discretion with respect to certain young people who came to the United States years earlier as children, who have no current lawful immigration status, and who were already generally low enforcement priorities for removal.

The Napolitano Memorandum states that DHS will consider granting “deferred action,” on a case-by-case basis, for individuals who:

Memorandum from Janet Napolitano, Secretary, DHS, to David V. Aguilar, Acting Commissioner, U.S. Customs and Border Protection (CBP), et al. (June 15, 2012),

https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf

(hereinafter Napolitano Memorandum).

1. Came to the United States under the age of 16;

2. Continuously resided in the United States for at least 5 years preceding June 15, 2012, and were present in the United States on that date;

3. Are in school, have graduated from high school, have obtained a General Education Development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;

4. Have not been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses, or otherwise do not pose a threat to national security or public safety; and

5. Were not above the age of 30 on June 15, 2012.

Id.

Individuals who request relief under this policy, meet the criteria above, and pass a background check may be granted deferred action.

Deferred action is a longstanding practice by which DHS and the former Immigration and Naturalization Service (INS) have exercised their discretion to forbear or assign lower priority to removal action in certain cases for humanitarian reasons, administrative convenience, or other reasonable prosecutorial discretion considerations.

Id.

See, e.g., Reno

Am.-Arab Anti-Discrimination Comm.,

525 U.S. 471, 484 (1999) (

AADC

); 8 CFR 274a.12(c)(14).

In establishing this policy, known as DACA, then-Secretary Napolitano emphasized that for the Department to use its limited resources in a strong and sensible manner, it necessarily must exercise prosecutorial discretion. Then-Secretary Napolitano observed that these “young people . . . were brought to this country as children and know only this country as home” and as a general matter “lacked the intent to violate the law,” reasoning that limited enforcement resources should not be expended to “remove productive young people to countries where they may not have lived or even speak the language.”

The Napolitano Memorandum also instructs that the individual circumstances of each case must be considered and that deferred action should be granted only where justified.

Napolitano Memorandum.

Id.

Since 2012, more than 825,000 people have applied successfully for deferred action under the DACA policy.

On average, DACA recipients arrived in the United States in 2001 and at the age of 6.

In addition, 38 percent of recipients

arrived before the age of 5.

For many, this country is the only one they have known as home. In the nearly 10 years since this policy was announced, DACA recipients have grown into adulthood and built lives for themselves and their loved ones in the United States. They have gotten married and had U.S. citizen children. Over 250,000 children have been born in the United States with at least one parent who is a DACA recipient, and about 1.5 million people in the United States share a home with a DACA recipient.

DACA recipients have obtained driver's licenses and credit cards, bought cars, and opened bank accounts.

In reliance on DACA, its recipients have enrolled in degree programs, started businesses, obtained professional licenses, and purchased homes.

Depending on the health insurance that their deferred action allowed them to obtain through employment or State-sponsored government programs, DACA recipients have received improved access to health insurance and medical care and have sought treatment for long-term health issues.

For DACA recipients and their family members, the conferral of deferred action has increased DACA recipients' sense of acceptance and belonging to a community, increased their sense of hope for the future, and given them the confidence to become more active members of their communities and increase their civic engagement.

See

USCIS, DACA Quarterly Report (FY 2021, Q1),

https://www.uscis.gov/sites/default/files/document/data/DACA_performancedata_fy2021_qtr1.pdf.

As of the end of CY 2021, there were over 636,00 active DACA recipients in the United States.

See

USCIS, Count of Active DACA Recipients By Month of Current DACA Expiration (Dec. 31, 2020),

https://www.uscis.gov/sites/default/files/document/data/Active_DACA_Recipients%E2%80%93December31%2C2020.pdf.

DHS, USCIS, Office of Performance and Quality (OPQ), Electronic Immigration System (ELIS) and

Computer-Linked Application Information Management System (CLAIMS) 3 Consolidated (queried Mar. 2021).

Id.

Nicole Prchal Svajlenka and Philip E. Wolgin,

What We Know About the Demographic and Economic Impacts of DACA Recipients: Spring 2020 Edition,

Center for American Progress (Apr. 6, 2020),

https://www.americanprogress.org/issues/immigration/news/2020/04/06/482676/know-demographic-economic-impacts-daca-recipients-spring-2020-edition

(hereinafter Svajlenka and Wolgin (2020)).

See

Roberto G. Gonzales and Angie M. Bautista-Chavez,

Two Years and Counting: Assessing the Growing Power of DACA,

American Immigration Council (June 2014); Zenén Jaimes Pérez,

A Portrait of Deferred Action for Childhood Arrivals Recipients: Challenges and Opportunities Three Years Later,

United We Dream (Oct. 2015),

https://unitedwedream.org/wp-content/uploads/2017/10/DACA-report-final-1.pdf

(hereinafter Jaimes Pérez (2015)); Tom K. Wong, et al.,

Results from Tom K. Wong et al., 2020 National DACA Study, https://cdn.americanprogress.org/content/uploads/2020/10/02131657/DACA-Survey-20201.pdf

(hereinafter Wong (2020)).

See

Roberto G. Gonzales, et al.,

The Long-Term Impact of DACA: Forging Futures Despite DACA's Uncertainty,

Immigration Initiative at Harvard (2019),

https://immigrationinitiative.harvard.edu/files/hii/files/final_daca_report.pdf

(hereinafter Gonzales (2019)); Wong (2020).

Gonzales (2019).

Gonzales (2019); Jaimes Pérez (2015); Wong (2020).

The DACA policy has encouraged its recipients to make significant investments in their careers and education. Many DACA recipients report that deferred action—and the employment authorization that DACA permits them to request—has allowed them to obtain their first job or move to a higher paying position more commensurate with their skills.

DACA recipients are employed in a wide range of occupations, including management and business, education and training, sales, office and administrative support, and food preparation; thousands more are self-employed in their own businesses.

They have continued their studies, and some have become doctors, lawyers, nurses, teachers, or engineers.

About 30,000 are health care workers, and many of them have helped care for their communities on the frontlines during the COVID-19 pandemic.

In 2017, 72 percent of the top 25 Fortune 500 companies employed at least one DACA recipient.

Roberto G. Gonzales, et al.,

Becoming DACAmented: Assessing the Short-Term Benefits of Deferred Action for Childhood Arrivals (DACA),

58 Am. Behav. Scientist 1852 (2014); Wong (2020);

see also

Nolan G. Pope,

The Effects of DACAmentation: The Impact of Deferred Action for Childhood Arrivals on Unauthorized Immigrants,

143 J. of Pub. Econ. 98 (2016),

http://www.econweb.umd.edu/~pope/daca_paper.pdf

(hereinafter Pope (2016)) (finding that DACA increased participation in the labor force for undocumented immigrants).

Nicole Prchal Svajlenka,

What We Know About DACA Recipients in the United States,

Center for American Progress (Sept. 5, 2019),

https://www.americanprogress.org/issues/immigration/news/2019/09/05/474177/know-daca-recipients-united-states;

Jie Zong, et al.,

A Profile of Current DACA Recipients by Education, Industry, and Occupation,

Migration Policy Institute (Nov. 2017),

https://www.migrationpolicy.org/sites/default/files/publications/DACA-Recipients-Work-Education-Nov2017-FS-FINAL.pdf

(hereinafter Zong (2017)).

See

Gonzales (2019); Nicole Prchal Svajlenka,

A Demographic Profile of DACA Recipients on the Frontlines of the Coronavirus Response,

Center for American Progress (April 6, 2020),

https://www.americanprogress.org/issues/immigration/news/2020/04/06/482708/demographic-profile-daca-recipients-frontlines-coronavirus-response

(hereinafter Svajlenka (2020)); Wong (2020); Zong (2017).

Svajlenka (2020). DACA recipients who are health care workers also are helping to alleviate a shortage of health care professionals in the United States and they are more likely to work in underserved communities where shortages are particularly dire. Angela Chen, et al.,

PreHealth Dreamers: Breaking More Barriers Survey Report

at 27 (Sept. 2019) (presenting survey data showing that 97 percent of undocumented students pursuing health and health-science careers planned to work in an underserved community); Andrea N. Garcia, et al.,

Factors Associated with Medical School Graduates' Intention to Work with Underserved Populations: Policy Implications for Advancing Workforce Diversity,

Acad. Med. (Sept. 2017),

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5743635

(finding that underrepresented minorities graduating from medical school are nearly twice as likely as white students and students of other minorities to report an intention to work with underserved populations).

Tom K. Wong, et al.,

DACA Recipients' Economic and Educational Gains Continue to Grow,

Center for American Progress (Aug. 28, 2017),

https://www.americanprogress.org/issues/immigration/news/2017/08/28/437956/daca-recipients-economic-educational-gains-continue-grow

(hereinafter Wong (2017)).

As a result of these educational and employment opportunities, DACA recipients make substantial contributions in taxes and economic activity.

According to one estimate, as of 2020, DACA recipients and their households pay about $5.6 billion in annual Federal taxes and about $3.1 billion in annual State and local taxes.

In addition, through their employment, they make significant contributions to Social Security and Medicare funds.

Approximately two-thirds of recipients purchased their first car after receiving DACA,

and an estimated 56,000 DACA recipients own homes and are directly responsible for $566.7 million in annual mortgage payments.

DACA recipients also are estimated to pay $2.3 billion in rental payments each year.

Because of this, the communities of DACA recipients—who reside in all 50 States and the District of Columbia

—in addition to the recipients themselves, have grown to rely on the economic contributions this policy facilitates.

sum, despite the express limitations in the Napolitano Memorandum, over the 9 years in which the DACA policy has been in effect, the good faith investments recipients have made in both themselves and their communities, and the investments that their communities have made in them, have been, in the Department's judgment, substantial.

Please see the Regulatory Impact Analysis (RIA) for this proposed rule, which can be found in Section V.A. The RIA includes analysis and estimates of the costs, benefits, and transfers that DHS expects this rule to produce. Please note that the estimates presented in the RIA are based on the specific methodologies described therein. Figures may differ from those presented in the sources discussed here. As noted below, USCIS welcomes input on the methodologies employed in the RIA, as well as any other data, information, and views related to the costs, benefits, and transfers associated with this rulemaking.

Svajlenka and Wolgin (2020).

See also

Misha E. Hill and Meg Wiehe,

State & Local Tax Contributions of Young Undocumented Immigrants,

Institute on Taxation and Economic Policy (Apr. 2017) (analyzing the State and local tax contributions of DACA-eligible noncitizens in 2017).

Jose Magaña-Salgado and Tom K. Wong,

Draining the Trust Funds: Ending DACA and the Consequences to Social Security and Medicare,

Immigrant Legal Resource Center (Oct. 2017);

see also

Jose Magaña-Salgado,

Money on the Table: The Economic Cost of Ending DACA,

Immigrant Legal Resource Center (Dec. 2016) (analyzing the Social Security and Medicare contributions of DACA recipients in 2016).

Wong (2017).

Svajlenka and Wolgin (2020).

Id.

USCIS,

Deferred Action for Childhood Arrivals (DACA) Quarterly Report (Fiscal Year 21, Q1)

https://www.uscis.gov/sites/default/files/document/data/DACA_performancedata_fy2021_qtr1.pdf.

Reasonable reliance on the existence of the DACA policy is distinct from reliance on a grant of DACA to a particular person. Individual DACA grants are discretionary and may be terminated at any time but communities, employers, educational

institutions, and State and local governments have come to rely on the existence of the policy itself and its potential availability to those individuals who qualify.

This proposed rule responds to President Biden's memorandum of January 20, 2021, “Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA),”

in which President Biden stated:

86 FR 7053 (hereinafter Biden Memorandum).

DACA reflects a judgment that these immigrants should not be a priority for removal based on humanitarian concerns and other considerations, and that work authorization will enable them to support themselves and their families, and to contribute to our economy, while they remain.

Id.

This proposed rule embraces the consistent judgment that has been maintained by the Department—and by three presidential administrations since the policy first was announced—that DACA recipients should not be a priority for removal.

It is informed by the Department's experience with the policy over the past 9 years and the ongoing litigation concerning the policy's continued viability. It is particularly meant to preserve legitimate reliance interests in the continued implementation of the nearly decade-long policy under which deferred action requests will be considered, while emphasizing that individual grants of deferred action are, at bottom, an act of enforcement discretion to which recipients do not have a substantive right.

See id.;

Sept. 5, 2017 Statement from President Donald J. Trump,

https://trumpwhitehouse.archives.gov/briefings-statements/statement-president-donald-j-trump-7

(“I have advised [DHS] that DACA recipients are not enforcement priorities unless they are criminals, are involved in criminal activity, or are members of a gang.”); Napolitano Memorandum.

The proposed rule recognizes that enforcement resources are limited, that sensible priorities must necessarily be set, and that it is not generally the best use of those limited resources to remove productive young people to countries where they may not have lived since early childhood and whose languages they may not even speak. It recognizes that, as a general matter, DACA recipients, who came to this country many years ago as children, lacked the intent to violate the law, have not been convicted of any serious crimes, and remain valued members of our communities. It reflects the conclusion that, while they are in the United States, they should have access to a process that, operating on a case-by-case basis, may allow them to work to support themselves and their families, and to contribute to our economy in multiple ways. This proposed rule also accounts for the momentous decisions DACA recipients have made in ordering their lives in reliance on and as a result of this policy, and it seeks to continue the benefits that have accrued to DACA recipients, their families, their communities, and to the Department itself that have been made possible by the policy. DHS emphasizes that the DACA policy as proposed in this rule is not a permanent solution for the affected population and does not provide lawful status or a path to citizenship for noncitizens who came to the United States many years ago as children. Legislative efforts to find such a solution remain critical. On July 16, 2021, the U.S. District Court for the Southern District of Texas vacated the 2012 DACA policy, finding, among other things, that it was contrary to the Immigration and Nationality Act of 1952 (INA).

DHS is carefully and respectfully considering the analysis in that decision and its conclusions about DACA's substantive legality and invites comment on how, if correct, those conclusions should affect this rulemaking.

Texas

United States,

No. 1:18-cv-00068, 2021 WL 3025857 (S.D. Tex. July 16, 2021) (

Texas II

July 16, 2021 memorandum and order).

B. Summary of Major Provisions of the Regulatory Action

This proposed rule would preserve and fortify DHS's DACA policy for the issuance of deferred action to certain young people who came to the United States many years ago as children, who have no current lawful immigration status, and who are generally low enforcement priorities. The proposed rule would include the following provisions of the DACA policy from the Napolitano Memorandum and longstanding USCIS practice:

•

Deferred Action.

The proposed rule would provide a definition of deferred action as a temporary forbearance from removal that does not confer any right or entitlement to remain in or re-enter the United States, and that does not prevent DHS from initiating any criminal or other enforcement action against the DACA recipient at any time.

•

Threshold Criteria.

The proposed rule would include the following longstanding threshold criteria: That the requestor must have (1) come to the United States under the age of 16; (2) continuously resided in the United States from June 15, 2007, to the time of filing of the request; (3) been physically present in the United States on both June 15, 2012, and at the time of filing of the DACA request; (4) not been in a lawful immigration status on June 15, 2012, as well as at the time of request; (5) graduated or obtained a certificate of completion from high school, obtained a GED certificate, currently be enrolled in school, or be an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; (6) not been convicted of a felony, a misdemeanor described in the rule, or three or more other misdemeanors not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, or otherwise pose a threat to national security or public safety; and (7) been born on or after June 16, 1981, and be at least 15 years of age at the time of filing, unless the requestor is in removal proceedings, or has a final order of removal or a voluntary departure order. The proposed rule also would state that deferred action under DACA may be granted only if USCIS determines in its sole discretion that the requestor meets the threshold criteria and otherwise merits a favorable exercise of discretion.

•

Procedures for Request, Terminations, and Restrictions on Information Use.

The proposed rule would set forth procedures for denial of a request for DACA or termination of a grant of DACA, the circumstances that would result in the issuance of a notice to appear (NTA) or referral to U.S. Immigration and Customs Enforcement (ICE) (RTI), and the restrictions on use of information contained in a DACA request for the purpose of initiating immigration enforcement proceedings.

In addition to proposing the retention of longstanding DACA policy and procedure, the proposed rule includes the following changes:

•

Filing Requirements.

The proposed rule would modify the existing filing process and fees for DACA by making the request for employment authorization on Form I-765, Application for Employment Authorization, optional and charging a fee of $85 for Form I-821D, Consideration of Deferred Action for Childhood Arrivals. DHS would maintain the current total cost to DACA requestors who also file Form I-765 of

$495 ($85 for Form I-821D plus $410 for Form I-765).

•

Employment Authorization.

The proposed rule would create a DACA-specific regulatory provision regarding eligibility for employment authorization for DACA deferred action recipients in a new paragraph designated at 8 CFR 274a.12(c)(33). The new paragraph would not constitute any substantive change in current policy; it merely would create a DACA-specific provision in addition to the existing provision dealing with deferred action recipients more broadly. Like that provision, this one would continue to specify that the noncitizen

must have been granted deferred action and must establish economic need to be eligible for employment authorization.

For purposes of this discussion, USCIS uses the term “noncitizen” to be synonymous with the term “alien” as it is used in the INA.

•

Automatic Termination of Employment Authorization.

The proposed rule would automatically terminate employment authorization granted under 8 CFR 274.12(c)(33) upon termination of a grant of DACA.

• “

Lawful Presence.

” Additionally, the proposed rule reiterates USCIS' codification in 8 CFR 1.3(a)(4)(vi) of agency policy, implemented long before DACA, that a noncitizen who has been granted deferred action is considered “lawfully present”—a specialized term of art that does not in any way confer authorization to remain in the United States—for the discrete purpose of authorizing the receipt of certain Social Security benefits consistent with 8 U.S.C. 1611(b)(2). The proposed rule also would reiterate longstanding policy that a noncitizen who has been granted deferred action does not accrue “unlawful presence” for purposes of INA sec. 212(a)(9) (imposing certain admissibility limitations for noncitizens who departed after having accrued certain periods of unlawful presence in the United States).

C. Costs and Benefits

The proposed rule would result in new costs, benefits, and transfers. To provide a full understanding of the impacts of DACA, DHS considers the potential impacts of this proposed rule relative to two baselines. The first baseline, the No Action Baseline, represents a state of the world under the current DACA policy; that is, the policy initiated by the guidance in the Napolitano Memorandum in 2012. For reasons explained in Section V.A.4.a.(1) below, this baseline does not directly account for the July 16, 2021 district court decision. The second baseline, the Pre-Guidance Baseline, represents a state of the world where the DACA policy does not exist, a world as it existed before the guidance in the Napolitano Memorandum. DHS emphasizes that the Pre-Guidance Baseline gives clarity about the impact of the DACA policy as such, and that it is, therefore, the more useful baseline for understanding the costs and benefits of that policy. Relative to that baseline, the monetized benefits, including above all income earnings, greatly exceed the monetized costs. DHS also notes that the Pre-Guidance Baseline analysis also can be used to better understand the state of the world under the July 16, 2021 district court decision, should the stay of that decision ultimately be lifted.

Table 1 provides a detailed summary of the proposed provisions and their potential impacts relative to the No Action Baseline. Table 2 provides a detailed summary of the proposed provisions and their potential impacts relative to the Pre-Guidance Baseline.

BILLING CODE 9111-97-P

EP28SE21.013

EP28SE21.014

EP28SE21.015

EP28SE21.016

EP28SE21.017

BILLING CODE 9111-97-C

III. Background, Authority, and Purpose

Section 102 of the Homeland Security Act of 2002

and section 103 of the INA

generally charge the Secretary with the administration and enforcement of the immigration and naturalization laws of the United States.

The INA further authorizes the Secretary to “establish such regulations; prescribe such forms of bond, reports, entries, and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the provisions of” the INA.

In the Homeland Security Act of 2002, Congress also provided that the Secretary “shall be responsible for . . . [e]stablishing national immigration enforcement policies and priorities.”

The Homeland Security Act also provides that the Secretary, in carrying out their authorities, must “ensure that the overall economic security of the United States is not diminished by efforts, activities, and programs aimed at securing the homeland.”

Public Law 107-296, sec. 102(a)(3), 116 Stat. 2135, 2143 (codified at 6 U.S.C. 112(a)(3)).

Public Law 82-414, 66 Stat. 163 (as amended).

INA sec. 103(a)(1), 8 U.S.C. 1103(a)(1). The INA also vests certain authorities in the President, Attorney General, and Secretary of State, among others.

See id.

INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3).

Public Law 107-296, sec. 402(5), 116 Stat. 2135, 2178 (codified at 6 U.S.C. 202(5)).

6 U.S.C. 111(b)(1)(F).

The Secretary proposes in this rule to establish specified guidelines for considering requests for deferred action submitted by certain individuals who came to the United States many years ago as children. This proposed rule would help appropriately focus the Department's limited immigration enforcement resources on threats to national security, public safety, and border security where they are most needed. In doing so, the proposed rule also would serve the significant humanitarian and economic interests animating and engendered by the DACA policy. In addition, the proposed rule would preserve not only DACA recipients' serious reliance interests, but also those of their families, schools, employers, faith groups, and communities.

Above all, DHS is committed to a rulemaking process and outcome that is entirely consistent with the broad authorities and enforcement discretion conferred upon the Secretary in the INA and the Homeland Security Act.

See DHS

Regents of the Univ. of Cal.,

140 S. Ct. 1891, 1914 (2020) (

Regents

) (“DACA recipients have `enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children, all in reliance' on the DACA program. The consequences of the rescission, respondents emphasize, would `radiate outward' to DACA recipients' families, including their 200,000 U.S.-citizen children, to the schools where DACA recipients study and teach, and to the employers who have invested time and money in training them. In addition, excluding DACA recipients from the lawful labor force may, they tell us, result in the loss of $215 billion in economic activity and an associated $60 billion in federal tax revenue over the next ten years. Meanwhile, States and local governments could lose $1.25 billion in tax revenue each year.” (internal citations omitted)).

As the head of the Department, and the official responsible for “the administration and enforcement” of the nation's immigration laws, the Secretary is directed to set national immigration enforcement policies and priorities.

While other officials, such as the Directors of ICE and USCIS and the Commissioner of CBP, may set policies within their respective spheres, and individual immigration officers are able to make case-by-case enforcement discretion decisions in the course of their duties, the Secretary holds the ultimate responsibility and authority for establishing the Department's priorities and for setting the parameters for other officials' exercise of discretion. Unlike officers in the field, the Secretary is uniquely positioned to make informed judgments regarding the humanitarian, public safety, border security, and other implications of national immigration enforcement policies and priorities. The Secretary is ultimately accountable for

appropriately using the resources available to the Department as a whole and for taking a comprehensive view of the enforcement landscape. A regulation codifying a national enforcement discretion policy for the DACA population would reinforce the Department's focusing its resources on those noncitizens who pose a threat to national security, public safety, and border security.

INA sec. 103(a)(1), 8 U.S.C. 1103(a)(1);

see also

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

Of course, there are many tools available to the Secretary to execute such policy choices. Historically, DHS has implemented deferred action policies with respect to identified groups via general statements of policy and rules of agency organization, procedure, or practice. Such policies are not legally binding on any private parties (and do not bind the agency from making changes), do not constitute legislative rules, and are not codified in the Code of Federal Regulations. In the case of DACA, DHS proposes to promulgate regulations to reflect the Secretary's enforcement priorities and implement the deferred action policy with respect to the DACA population. DHS has decided to propose this rule in consideration of the important reliance interests of DACA beneficiaries, their employers, and their communities; in response to the President's direction to take all actions appropriate to preserve and fortify DACA; and in light of the various issues and concerns raised in ongoing litigation challenging DACA.

DHS's decision to proceed by rulemaking, rather than the less formal procedures typically associated with the creation of policy guidance, represents a departure from previous practice in light of current circumstances. DHS emphasizes that its approach here has important benefits, such as providing a more formal opportunity for public participation. DHS also recognizes that the use of less formal procedures, and the absence of notice-and-comment rulemaking, has been challenged in court, in some cases successfully. But the approach here should not be interpreted as suggesting that DHS itself doubts the legality of the 2012 DACA policy or any other past, present, or future deferred action policy. It is consistent with section 553 of the APA, and a longstanding principle, that an agency may use non-binding, non-legislative guidance, lacking the force of law, “to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.”

DHS has consistently maintained, and continues to maintain here, that it has such discretionary power with respect to deferred action.

See Chrysler Corp.

Brown,

441 U.S. 281, 302 n.31 (1979) (quoting

Attorney General's Manual on the Administrative Procedure Act

(1947)).

That DHS has determined voluntarily to use notice-and-comment procedures does not reflect any legal determination by the executive branch that it must do so or that it will be required to do so in the future.

See, e.g., Hoctor

U.S. Dep't of Agric.,

82 F.3d 165, 171-72 (7th Cir. 1996) (observing that courts should “attach no weight to [an agency]'s inconsistency” in deciding whether to use notice-and-comment procedures for similar rules and that “there is nothing in the [APA] to forbid an agency to use the notice and comment procedure in cases in which it is not required to do so”);

Indep. Living Res.

Oregon Arena Corp.,

982 F. Supp. 698, 744 n.62 (D. Or. 1997) (“There are many reasons why an agency may voluntarily elect to utilize notice and comment rulemaking: The proposed rule may constitute a material amendment to the old rule, the agency may wish to avoid potential litigation over whether the new rule is legislative or interpretive, or the agency may simply wish to solicit public comment.”);

cf. Perez

Mort. Bankers Ass'n,

575 U.S. 92, 101 (2015) (“Because an agency is not required to use notice-and-comment procedures to issue an initial interpretive rule, it is also not required to use those procedures when it amends or repeals that interpretive rule.”).

The proposed rule also would aid DHS's enforcement branches in identifying classes of noncitizens whose removal Congress has signaled should be prioritized

and focus a greater portion of their limited time, space, and funds on these higher risk situations that pose a threat to public safety or national security. While a grant of deferred action may have additional consequences under other provisions of law and regulation, including State law, at its core it reflects a decision made by the Executive to forgo removal against an individual for a limited period while the individual remains a low priority. It reflects a policy of forbearance. It is well within the Department's authority, and consistent with historical practice, for DHS to create a nationwide policy for efficiently allocating limited enforcement resources.

See, e.g.,

INA sec. 235(b)(1), 8 U.S.C. 1225(b)(1) (establishing “expedited removal” for certain noncitizens arriving in the United States); INA sec. 236(c), 8 U.S.C. 1226(c) (providing mandatory detention for certain criminal noncitizens); INA sec. 236A, 8 U.S.C. 1226a (providing mandatory detention of suspected terrorists);

See also

American Immigration Council,

Executive Grants of Temporary Immigration Relief, 1956-Present

(Oct. 2, 2014),

https://www.americanimmigrationcouncil.org/research/executive-grants-temporary-immigration-relief-1956-present

(identifying 39 examples of temporary immigration relief); Sharon Stephan,

Extended Voluntary Departure and Other Grants of Blanket Relief from Deportation,

Congressional Research Service, No. 85-599 EPW (Feb. 23, 1985) (hereinafter CRS Report on EVD).

See

CRS Report on Discretionary Reprieves from Removal (cataloguing types of discretionary reprieves from removal, including reprieves that are generally only available in conjunction with the removal process, such as voluntary departure, stays of removal, orders of supervision, and administrative closure).

see also

CRS Report on EVD; Lynda J. Oswald, Note,

Extended Voluntary Departure: Limiting the Attorney General's Discretion in Immigration Matters,

85 Mich. L. Rev. 152, 152 n.1 (1986) (cataloguing grants of EVD based on nationality).

The use of EVD abated following the passage of the Immigration Act of 1990 (IMMACT 90), which expressly authorized the Attorney General (whose authorities in this respect are now assigned to the Secretary), following consultation with the Secretary of State, to designate a foreign country for Temporary Protected Status (TPS) in certain circumstances.

But even after 1990, Presidents of both parties have extended similar treatment to nationals of certain countries under the rubric of DED.

See

Public Law 101-649, sec. 302, 104 Stat. 4978, 5030-36 (codified as amended at 8 U.S.C. 1254a). In fact, in establishing TPS in IMMACT 90, Congress understood that the Attorney General (now Secretary) had continuing authority to establish such policies on grounds other than the individuals' nationality, providing that TPS would be the exclusive authority for the Attorney General to permit otherwise removable aliens to remain temporarily in the United States “because of their particular nationality.” INA sec. 244(g), 8 U.S.C. 1254a(g);

see

Statement by President George H.W. Bush upon Signing S. 358, 26 Weekly Comp. Pres. Doc. 1946 (Dec. 3, 1990), 1990 U.S.C.C.A.N. 6801 (Nov. 29, 1990) (expressing concern with INA sec. 244(g) because it would impinge on the Executive's prosecutorial discretion).

See, e.g.,

57 FR 28700 (June 26, 1992) (President George H.W. Bush directing DED for certain Salvadorans); 86 FR 6845 (Jan. 25, 2021) (President Trump directing DED for certain Venezuelans); 86 FR 43587 (Aug. 10, 2021) (President Biden directing DED for certain Hong Kong residents).

2. Indefinite “Voluntary Departure” Under the “Family Fairness” Policies

In 1987, the INS announced a policy known as “family fairness” to allow for indefinite residence in the United States and work authorization

for spouses and children of certain noncitizens who had been made eligible for legal immigration in the Immigration Reform and Control Act of 1986 (IRCA).

In IRCA, Congress made millions of noncitizens eligible for temporary residency, lawful permanent residency, and eventually naturalization,

but it did not similarly provide for such noncitizens' spouses and children who had arrived too recently or were otherwise ineligible.

Notwithstanding the apparently intentional gap in eligibility,

the INS provided for a discretionary reprieve from removal for many such spouses and children.

Under the policy, the INS announced that it would “indefinitely defer deportation” for (1) ineligible spouses and children who could show compelling or humanitarian factors; and (2) ineligible unmarried minor children who could show that both parents (or their only parent) had achieved lawful temporary resident status.

Those individuals also could obtain work authorization.

Ultimately such spouses and children might be able to benefit from an immediate relative petition filed on their behalf.

The family fairness policies referred to this reprieve as indefinite voluntary departure or voluntary departure.

See

Alan C. Nelson, Commissioner, INS,

Legalization and Family Fairness—An Analysis

(Oct. 21, 1987) (hereinafter 1987 Family Fairness Memorandum),

reprinted in

64 No. 41 Interpreter Releases 1191, App. I (Oct. 26, 1987);

see also

Memorandum to INS Regional Commissioners from Gene McNary, Commissioner, INS,

Re: Family Fairness: Guidelines for Voluntary Departure under 8 CFR 242.5 for the Ineligible Spouses and Children of Legalized Aliens

(Feb. 2, 1990) (hereinafter 1990 Family Fairness Memorandum).

See

1987 Family Fairness Memorandum.

See

S. Rep. No. 132, 99th Cong., 1st Sess., at 16 (1985) (“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

Paul W. Schmidt, Acting General Counsel, INS,

Legal Considerations On The Treatment Of Family Members Who Are Not Eligible For Legalization

(May 29, 1987) (“[IRCA] does not cover spouses and children of legalized aliens. . . . The legislative history on this issue is crystal clear.”). Two weeks prior to the announcement of the family fairness policy, Senator John Chafee proposed a legislative path to legalization for the spouses and children excluded from IRCA; however, the proposal was rejected.

See

Record Vote No. 311, S. Amend. 894 to S. 1394, 100th Cong. (1987),

https://www.congress.gov/amendment/100th-congress/senate-amendment/894/actions.

A narrower effort to block funding for deportations of such individuals was introduced soon after the 1987 Family Fairness Memorandum but also did not become law.

See

H.J. Res. 395, 100th Cong. § 110 (as introduced Oct. 29, 1987); Act of Dec. 22, 1987, Public Law 100-202, 101 Stat. 1329;

see also

133 Cong. Rec. 12,038-43 (1987) (statement of Rep. Roybal).

See

1987 Family Fairness Memorandum.

See id.

See

Recent Developments, 64 No. 41 Interpreter Releases 1191, App. II, at 1206 (Oct. 26, 1987).

The INS expanded the family fairness policy in 1990, “to assure uniformity in the granting of voluntary departure and work authorization for the ineligible spouses and children of legalized aliens,” and “to respond to the needs” of legalized noncitizens and their family members “in a consistent and humanitarian manner.”

As expanded, the policy provided indefinite voluntary departure for any ineligible spouse or minor child of a legalizing noncitizen who showed that they (1) had been residing in the country by the date of IRCA's 1986 enactment; (2) were otherwise inadmissible; (3) had not been convicted of a felony or three misdemeanors; and (4) had not assisted in persecution.

See

1990 Family Fairness Memorandum.

See also

Record Vote No. 107, S. Amend. 244 to S. 358, 101st Cong. (1989),

https://www.congress.gov/amendment/101st-congress/senate-amendment/244/actions;

IRCA Amendments of 1989, H.R. 3374, 101st Cong. (1989),

https://www.congress.gov/bill/101st-congress/house-bill/3374/all-actions

(reflecting subcommittee hearings held as last action on the bill).

Estimates of the potentially eligible population varied, but many were very large.

The INS Commissioner testified that 1.5 million people were estimated to be eligible.

Congress ultimately responded by ratifying the family fairness program and by authorizing an even broader group to obtain lawful status beginning 1 year thereafter.

Congress stated that this 1-year delay “shall not be construed as reflecting a Congressional belief that the existing family fairness program should be modified in any way before such date.”

See, e.g.,

Recent Developments, 67 No. 8 Interpreter Releases 201, 206 (Feb. 26, 1990);

see also Batalla Vidal

Trump,

No. 18-485 (2d Cir.) (consolidating appeals from

New York

Trump,

No. 17-cv-5228 (E.D.N.Y.) and

Batalla Vidal

Baran,

No. 16-4756 (E.D.N.Y.)).

In April 2018, in

NAACP

Trump,

the U.S. District Court for the District of Columbia granted plaintiffs partial summary judgment on one of their APA claims, finding the Government failed to explain the rescission adequately. The court vacated the Duke Memorandum, but it stayed its order for 90 days so that DHS could provide additional explanation of its action.

106

Then-Secretary Kirstjen Nielsen issued a second memorandum (Nielsen Memorandum) further explaining DHS's decision to rescind DACA.

107

Upon consideration of the Nielsen Memorandum, the

NAACP

Trump

court declined to reconsider its order vacating the Duke Memorandum, again finding the rescission arbitrary and capricious under the APA.

108

106

NAACP

Trump,

298 F. Supp. 3d 209, 249 (D.D.C. 2018).

107

Memorandum from Kirstjen M. Nielsen, Secretary, DHS (June 22, 2018).

108

NAACP

Trump,

315 F. Supp. 3d 457, 474 (D.D.C. 2018).

The Government appealed the orders to the U.S. Courts of Appeals for the Ninth, Second, and D.C. Circuits. While awaiting those courts' decisions, the Government petitioned the Supreme Court for a writ of certiorari before judgment in each case,

109

asking the Court to grant similar petitions and consolidate the rescission cases.

110

Before the Supreme Court acted on the Government's petitions, the Ninth Circuit affirmed the preliminary injunction in

Regents,

and the Supreme Court granted certiorari in that case and certiorari before judgment in the Second Circuit and D.C. Circuit cases. Over the course of the litigation, DHS continued to adjudicate DACA requests from previous DACA holders as required by the nationwide injunctions.

109

The Ninth Circuit later affirmed the district court's preliminary injunction, 908 F.3d 476 (9th Cir. 2018), and the Government converted its petition to a petition for a writ of certiorari.

DHS

Regents of the Univ. of Cal.,

No. 18-587 (Supreme Court) (petition for writ of certiorari before judgment filed Nov. 5, 2018; request to convert to petition for writ of certiorari filed Nov. 19, 2018).

110

McAleenan

Vidal,

No. 18-589 (Supreme Court) (petition for writ of certiorari before judgment filed Nov. 5, 2018);

Batalla Vidal

Trump,

No. 18-485 (2d Cir.) (consolidating appeals from

New York

Trump,

17-cv-5228 (E.D.N.Y.) and

Batalla Vidal

Baran,

No. 16-04756 (E.D.N.Y.)) (appeal filed Feb. 20, 2018);

Trump

NAACP,

No. 18-588 (Supreme Court) (petition for writ of certiorari before judgment filed Nov. 5, 2018);

Trustees of Princeton Univ.

United States,

No. 18-5245 (D.C. Cir.) (appeal filed Aug. 13, 2018) (

Trustees of Princeton Univ.

United States,

No. 17-cv-2325 (D.D.C.) consolidated with

NAACP

Trump,

No. 17-cv-1907 (D.D.C.)). Although the district court granted the Government's motion for summary judgment in part in

Casa de Maryland,

the Fourth Circuit reversed, vacating the Duke Memorandum, though it stayed its order, and the Supreme Court denied cert.

DHS

Casa De Maryland,

18-1469 (petition for writ of certiorari);

Casa de Maryland

DHS,

18-1521 (4th Cir. May 17, 2019) (appeal and cross-appeal filed May 8, 2018)

(Casa de Maryland

DHS,

No. 17-cv-2942 (D. Md.)).

The Supreme Court heard the consolidated rescission cases to determine the issues of (1) whether the rescission was reviewable; (2) whether it was arbitrary and capricious under the APA; and (3) whether it violated the equal protection principles of the Fifth Amendment's Due Process Clause.

111

On June 18, 2020, the Court issued its decision and found the policy's rescission reviewable under the APA.

112

The Court found that the decision to rescind DACA was arbitrary and capricious under the APA because then-Acting Secretary Duke had not adequately considered alternatives to rescission, nor had she considered the reliance interests of DACA recipients. The Court held that plaintiffs failed to state a cognizable equal protection claim. And the Court declined to consider the Nielsen Memorandum. Ultimately, the Court remanded the matter to DHS “to consider the problem anew.”

113

In a letter to then-Acting Secretary Chad Wolf, then-Attorney General William Barr withdrew the September 4, 2017 Sessions letter, in order to “facilitate that consideration.”

114

111

Regents,

140 S. Ct. 1891 (2020).

112

Id.

at 1907, 1910.

113

Id.

at 1916.

114

Attorney General William P. Barr's letter to Acting Secretary Chad F. Wolf on DACA

(June 30, 2020),

https://www.dhs.gov/sites/default/files/publications/20_0630_doj_aj-barr-letter-as-wolf-daca.pdf

Subsequently, then-Acting Secretary Chad Wolf issued a memorandum limiting grants of DACA to those individuals who had previously held DACA and reducing the grant from 2- to 1-year increments, while DHS considered the future of the policy.

115

The Wolf Memorandum also required rejection of all pending and future advance parole applications from DACA recipients and a refund of the associated fees, absent “exceptional circumstances.”

116

The plaintiffs in

Batalla Vidal

Nielsen

and

New York

Trump

amended their complaints to challenge the Wolf Memorandum.

117

The U.S. District Court for the Eastern District of New York vacated the Wolf Memorandum after finding that Mr. Wolf had not been lawfully serving as the Acting Secretary under the Homeland Security Act at the time of the memorandum's issuance.

118

The court ordered DHS to post public notice on DHS and USCIS websites that it was accepting initial DACA requests and applications for advance parole documents under the terms in place prior to the September 5, 2017 rescission, as well as to notify and provide a remedy to those applicants affected by processing under the now-vacated Wolf Memorandum.

119

USCIS then returned to operating DACA in accordance with the Napolitano Memorandum, as a result of the

Batalla Vidal

court's order.

120

115

See Reconsideration of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,”

Memorandum from Chad F. Wolf, Acting Secretary, to heads of immigration components of DHS, dated July 28, 2020, at p. 7 (hereinafter Wolf Memorandum).

116

Id.

at p. 8.

117

Plaintiffs in the previously consolidated cases in

Regents

DHS

likewise filed amended complaints in the Northern District of California, challenging the Wolf Memorandum and the subsequent implementing guidance (Joseph Edlow, Deputy Director of Policy, USCIS, to Associate Directors and Program Office Chiefs,

Implementing Acting Secretary Chad Wolf's July 28, 2020 Memorandum, “Reconsideration of the June 15, 2012 Memorandum `Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children' ”

(Aug. 21, 2020)) on the basis that the memoranda were ultra vires and violated the APA, and also challenging then-Acting Secretary Wolf's appointment.

See, e.g.,

Pls.' First Am. Compl. For Declaratory and Injunctive Relief,

Regents

DHS,

No. 17-cv-5211, 2020 WL 8270391 (N.D. Cal. Nov. 2, 2020). The parties stipulated to stay proceedings pending DHS's actions pursuant to the Biden Memorandum.

118

Batalla Vidal

Wolf,

501 F. Supp. 3d 117, 129-33 (E.D.N.Y. 2020).

119

See Batalla Vidal

Wolf,

No. 16-cv-4756, 2020 WL 7121849 (E.D.N.Y. Dec. 4, 2020).

120

DHS expects that the proposed rule would supersede both the Napolitano Memorandum and, to the extent necessary, the vacated Wolf Memorandum.

Meanwhile, in May 2018 and prior to the Supreme Court's decision in

Regents,

Texas and nine other States filed suit in the U.S. District Court for

the Southern District of Texas, challenging the legality of the Napolitano Memorandum

121

(which, despite the rescission, remained in place due to numerous court orders

122

). As the States had waited 6 years to file suit, the court declined to enter a preliminary injunction against DACA “due to their delay.”

123

The court explained that the plaintiff States could not show irreparable harm from continuation of the policy during the litigation.

124

But the court found that the States had a likelihood of success on the merits on their substantive and procedural APA claims.

125

After discovery, the court stayed the case awaiting the then-forthcoming decision in

DHS

Regents

121

Texas

United States,

328 F. Supp. 3d 662 (S.D. Tex. 2018) (

Texas II

denial of motion for preliminary injunction).

122

See, e.g., NAACP

Trump,

315 F. Supp. 3d 457, 474 (D.D.C. 2018).

123

See Texas II

denial of motion for preliminary injunction at 740.

124

Id.

125

Id.

at 736.

Following the Supreme Court's decision in

Regents,

and after additional discovery, the parties in

Texas II

filed cross-motions for summary judgment. On July 16, 2021, the court in

Texas II

issued its memorandum and order on the motions for summary judgment, holding that the Napolitano Memorandum is contrary to the APA's rulemaking requirements and the INA, and vacating the Napolitano Memorandum.

126

The court remanded the Napolitano Memorandum to DHS for further consideration. The court further issued a permanent injunction prohibiting DHS's continued administration and reimplementation of DACA without compliance with the APA, but temporarily stayed the vacatur and permanent injunction as to most individuals granted DACA on or before July 16, 2021, including with respect to renewal requests. The

Texas II

court also held that while DHS may continue to accept both DACA initial and renewal filings, DHS is prohibited from granting initial DACA requests and accompanying requests for employment authorization.

126

Texas II

July 16, 2021 memorandum and order.

Currently, termination of an individual's grant of deferred action under DACA must adhere to the requirements of the nationwide preliminary injunction issued by the U.S. District Court for the Central District of California in

Inland Empire-Immigrant Youth Collective

Nielsen

127

The

Inland Empire

court certified a limited class of DACA recipients whose DACA grants had been or would be terminated without notice under particular circumstances, and it required USCIS to reinstate their deferred action under DACA and provide advance notice and an opportunity to respond prior to terminating a class member's grant of DACA. In accordance with the preliminary injunction and modified class definition and implementation procedures, USCIS is required to issue a notice of intent to terminate (NOIT) if it decides to terminate an individual's DACA grant, unless the individual (1) has a criminal conviction that is disqualifying for DACA; (2) has a charge for a crime that falls within the egregious public safety (EPS) grounds referenced in the USCIS 2011 NTA policy memorandum;

128

(3) has a pending charge for certain terrorism and security crimes described in 8 U.S.C. 1182(a)(3)(B)(iii) and (iv) or 8 U.S.C. 1227(a)(4)(A)(i); (4) departed the United States without advance parole; (5) was physically removed from the United States pursuant to an order of removal, voluntary departure order, or voluntary return agreement; or (6) maintains a nonimmigrant or immigrant status. As the

Inland Empire

class does not include these categories of DACA recipients, a NOIT is not required to terminate DACA. DHS is preliminarily enjoined from terminating a grant of DACA based solely on the issuance of an NTA that charges the individual as overstaying an authorized period of admission or being present without inspection and admission. DHS appealed the preliminary injunction to the U.S. Court of Appeals for the Ninth Circuit, which heard oral arguments on the appeal on June 13, 2019. The Ninth Circuit placed the case in abeyance on April 7, 2021, pending the present rulemaking.

129

127

Order Granting Preliminary Injunction and Class Certification,

Inland Empire-Immigrant Youth Collective

Nielsen,

17-cv-2048, 2018 WL 1061408 (C.D. Cal. Feb. 26, 2018),

modified by

Modified Class Definition and Implementation Procedures—Corrected,

Inland Empire-Immigrant Youth Collective

Nielsen,

17-cv-2048 (C.D. Cal. Mar. 20, 2018).

128

For an individual with an EPS charge for a crime of violence, as set forth in section IV(A)(1)(d) of the USCIS 2011 NTA policy memorandum, the minimum sentence for that charge must be at least 1 year of imprisonment before the individual will be deemed excluded from the class definition in

Inland Empire. See id.,

Modified Class Definition and Implementation Procedures—Corrected, at pp. 2-3.

129

Order Holding Appeal in Abeyance,

Inland Empire-Immigrant Youth Collective

Mayorkas,

18-55564 (9th Cir. Apr. 7, 2021).

C. Forbearance From Enforcement Action

In every area of law enforcement—both civil and criminal—executive agencies exercise enforcement discretion.

130

When, as is the norm, legislatures provide law enforcement agencies with only enough resources to arrest, detain, or prosecute a fraction of those who are suspected of violating the law, these agencies must establish priorities. DHS and its predecessor agencies have long exercised enforcement discretion, prioritizing national security, border security, and public safety mandates over civil infractions that do not represent a similar threat to the United States and its citizens.

131

Given DHS's limited resources to pursue immigration enforcement and the approximately 11 million noncitizens estimated to reside in the United States without legal status,

132

the use of discretion and prioritization is a necessary element of fulfilling the DHS mission.

130

See Heckler

Chaney,

470 U.S. 821, 831 (1985).

131

While the priorities have shifted between administrations, DHS and its components have issued enforcement priority and prosecutorial discretion policy memoranda since at least 1976, including in 2017 and 2021.

See, e.g.,

Sam Bernsen, General Counsel, INS,

Legal Opinion Regarding [Immigration and Naturalization] Service Exercise of Prosecutorial Discretion

(July 15, 1976); John Kelly, Secretary, DHS,

Enforcement of the Immigration Laws to Serve the National Interest

(Feb. 20, 2017); Memorandum from Acting Secretary David Pekoske to Senior Official Performing the Duties of the CBP Commissioner, et al.,

Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities

(Jan. 20, 2021) (hereinafter Pekoske Memorandum); Acting ICE Director Tae D. Johnson,

Interim Guidance: Civil Immigration Enforcement and Removal Priorities

(Feb. 18, 2021). On September 15, 2021, the U.S. Court of Appeals for the Fifth Circuit partially stayed a preliminary injunction issued by the U.S. District Court for the Southern District of Texas with respect to the latter two policies.

See State of Texas

United States,

No. 21-40618 (5th Cir. Sept. 15, 2021).

132

See

DHS, Office of Immigration Statistics (OIS),

Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2015-January 2018

(Jan. 2021),

https://www.dhs.gov/sites/default/files/publications/immigration-statistics/Pop_Estimate/UnauthImmigrant/unauthorized_immigrant_population_estimates_2015_-_2018.pdf (hereinafter OIS Report) (“DHS estimates that 11.4 million unauthorized immigrants were living in the United States on January 1, 2018, roughly unchanged from 11.4 million on January 1, 2015”);

Randy Capps, et al.,

Unauthorized Immigrants in the United States: Stable Numbers, Changing Origins,

Migration Policy Institute (2020),

https://www.migrationpolicy.org/sites/default/files/publications/mpi-unauthorized-immigrants-stablenumbers-changingorigins_final.pdf

(hereinafter Capps (2020)) (“As of 2018 . . . there were 11 million unauthorized immigrants in the country, down slightly from 12.3 million in 2007.”).

In Fiscal Year (FY) 2016-FY 2020, DHS resources appropriated by Congress allowed ICE to conduct an

average of 235,120 removals of noncitizens per fiscal year, a small proportion of the roughly 11 million undocumented noncitizens present in the United States.

133

Because of this mismatch between available resources and the number of potential enforcement targets, DHS must prioritize those that pose the greatest risk to public safety, national security, and border security. For instance, in FY 2020, 92 percent of the noncitizens that ICE removed after arrest by ICE Enforcement and Removal Operations (as opposed to those arrested by CBP at or near the border) had criminal convictions or pending criminal charges.

134

By contrast, USCIS data released in 2019 on arrests of DACA recipients reflect that just 10 percent of DACA recipients had ever been so much as arrested or apprehended for a criminal or immigration-related civil offense. Of those arrests, the most common offenses were non-DUI-related driving offenses and immigration-related civil or criminal offenses.

135

This suggests that even in the absence of the DACA policy, the vast majority of DACA recipients would not be enforcement targets and likely would remain in the country without becoming the subject of enforcement action.

133

ICE,

Fiscal Year 2020 Enforcement and Removal Operations Report

4 (2020); ICE,

Fiscal Year 2019 Enforcement and Removal Operations Report

19 (2019); ICE,

Fiscal Year 2018 Enforcement and Removal Operations Report

10 (2018); ICE,

Fiscal Year 2017 Enforcement and Removal Operations Report

12 (2017); ICE,

Fiscal Year 2016 Enforcement and Removal Operations Report

2 (2016).

134

See ICE Annual Report: Fiscal Year 2020, https://www.ice.gov/doclib/news/library/reports/annual-report/iceReportFY2020.pdf

. ICE's interior enforcement operations are most likely to encounter the DACA-eligible population because DACA recipients must have been continuously physically present in the United States since June 15, 2012, and, therefore, generally are not encountered by CBP's border security actions.

135

See

USCIS,

DACA Requestors with an IDENT Response

(Nov. 2019),

https://www.uscis.gov/sites/default/files/document/data/DACA_Requestors_IDENT_Nov._2019.pdf

ICE is currently further focusing resources on the identification of those individuals with serious criminal convictions and those individuals who pose a threat to national security, border security, and public safety.

136

DHS's focus on high-priority cases generally, as well as the DACA policy in particular, provides additional reassurance to people who present low or no risk to the United States, their families, and their communities. (This, in turn, has larger societal benefits, as discussed in Section V.A.4.b.(6) and elsewhere in this proposed rule.)

136

See

Acting ICE Director Tae D. Johnson,

Interim Guidance: Civil Immigration Enforcement and Removal Priorities

(Feb. 18, 2021). As noted above, on September 15, 2021, the U.S. Court of Appeals for the Fifth Circuit partially stayed a preliminary injunction issued by the U.S. District Court for the Southern District of Texas with respect to this policy.

See State of Texas

United States,

No. 21-40618 (5th Cir. Sept. 15, 2021).

Adopting the proposed regulatory provisions would fortify DHS's prioritized approach to immigration and border enforcement by allowing DHS to continue to realize the efficiency benefits of the DACA policy. USCIS' determination that an individual meets the DACA guidelines and merits a favorable exercise of discretion assists law enforcement activities in several areas by streamlining the review required when officers encounter a DACA recipient. For example, when a CBP law enforcement officer encounters a DACA recipient in the course of their activities, they can see that USCIS confirmed that the noncitizen did not recently cross the border and had no significant criminal history at the time of the most recent DACA adjudication. Rather than conducting a full review of the DACA recipient's immigration and criminal history, in some circumstances, such as at the primary inspection booth at a checkpoint, the officer may be able to make a determination without necessitating further investigation (such as secondary inspection)—an effort that could involve multiple officers, with time costs ranging from minutes to hours.

137

Additionally, while officers must exercise their judgment based on the facts of each individual case, the prior vetting of DACA recipients provides a baseline that can streamline an enforcement officer's review of whether a DACA recipient is otherwise an enforcement priority.

137

In the U.S. Border Patrol (USBP) context, subject-matter experts estimate that potential time savings could range from 30 minutes to 2 hours, depending on the circumstances of the encounter and available staff and resources. Time savings would accrue to the agent in the field as well as radio operators who work to confirm identity. Specific data on this point are not available because USBP does not separately collect data on this type of encounter.

Similarly, when ICE encounters a DACA recipient in the course of operations, ICE may review that person's history to ascertain if a disqualifying conviction has been rendered against them since the granting or renewal of DACA and proceed with an appropriate law enforcement resolution in each case. As appropriate, a law enforcement action, such as an arrest or immigration detainer being issued, may be avoided if someone is a DACA recipient or eligible individual and has no disqualifying convictions subsequent to the granting or renewal of DACA and continues to merit a favorable exercise of prosecutorial discretion.

In either scenario, DACA helps save time and resources, which then could be spent on priority matters. At the same time, the DACA recipient could avoid time in DHS custody, resulting in lower costs for the DACA recipients and greater resource availability for DHS.

Likewise, ICE relies on the fact that a noncitizen has received DACA in determining whether to place the noncitizen into removal proceedings or, if the noncitizen is already in removal proceedings, in determining whether to agree to continue, administratively close, or dismiss the removal proceedings without prejudice.

138

Depending on the surrounding circumstances, such decisions could allow priority cases to move through the overloaded immigration courts more quickly, reduce resource burdens on ICE attorneys and the immigration courts, provide more immediate respite to those who present low or no risk to the country, or avoid costs associated with detaining and ultimately removing a noncitizen.

138

DHS cannot quantify the frequency with which ICE makes such decisions, because ICE does not track enforcement discretion decisions made based on DACA. Source: Enforcement and Removal Operations; Office of the Principal Legal Advisor. In addition, such decisions also can be affected by other policies (

e.g.,

overall enforcement priorities), such that in some cases, the decision to forbear from enforcement action could be attributed to either DACA or those other policies. But even when DHS is operating under enforcement priorities that generally would produce the same decision to forbear from enforcement action, ICE benefits from being able to rely on the fact that USCIS already has vetted the noncitizen via the DACA framework.

As was the case when the DACA policy was first established in 2012, DHS recognizes that it is unable now, or in the foreseeable future, to take enforcement action against every noncitizen who resides in the United States without legal status. Given this reality, it is necessary for DHS to focus its resources and efforts on higher priority cases, such as those individuals who present a threat to national or border security. DHS policy long has reflected a determination that strong humanitarian and practical considerations make these noncitizens, who entered the United States as children and were not aware of, or in control of, the manner or means of their entry, excellent candidates for designation as low enforcement priorities. Enforcement actions against this population are not aligned with a prioritization of border or national security or public safety, or with DHS's commitment to values-based enforcement policies.

Therefore, in accordance with relevant statutory provisions, DHS's duty to enforce the immigration laws, and a long history of court decisions upholding acts of prosecutorial discretion, DHS is proposing this rule to continue and fortify its policy of exercising its enforcement discretion to defer removal as to a particular, identified class of noncitizens, so as to allow limited appropriated resources to be applied to higher priority cases.

139

There are roughly 636,410 active DACA recipients and an estimated total of 1.3 million individuals who could meet the criteria set out in this proposed rule. Migration Policy Institute,

DACA Recipients & Eligible Population by State, https://www.migrationpolicy.org/programs/data-hub/deferred-action-childhood-arrivals-daca-profiles

. Even if all such individuals are granted deferred action, that number represents only a small portion of the estimated 11 million undocumented noncitizens present in the United States and the available appropriated resources would remain grossly inadequate to the task of prosecuting and removing the estimated remaining 9.7 million undocumented individuals. This means that the proposed rule will not prevent DHS from continuing to enforce the immigration laws to the full extent that the resources Congress has given it will permit; to the contrary, as discussed below, these policies will facilitate still more effective use of the Department's finite resources.

1. The Secretary Is Authorized by Statute To Establish This Deferred Action Policy

When Congress created DHS in 2002, it gave the Secretary authority over most immigration matters and placed both ICE and CBP, the two agencies responsible for immigration enforcement, under the Secretary's direction.

140

Section 103(a)(1) of the INA states that “the [Secretary] shall be charged with the administration and enforcement of this Act and all other laws relating to the immigration and naturalization of aliens.”

141

This sweeping grant includes authority to issue enforcement discretion policies such as the one proposed here.

142

Congress also explicitly charged that “the Secretary shall be responsible for . . . [e]stablishing national immigration enforcement policies and priorities,” recognizing that the Secretary must provide guidance on the proper exercise of the Department's immigration enforcement authorities and on the allocation of scarce resources.

143

140

See

Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2136.

141

See

8 U.S.C. 1103(a)(1).

142

See Ariz. Dream Act Coal.

Brewer,

855 F.3d 957, 967 (9th Cir. 2017) (“[T]he INA explicitly authorizes the [Secretary] to administer and enforce all laws relating to immigration and naturalization. INA 103(a)(1), 8 U.S.C. 1103(a)(1). As part of this authority, it is well settled that the Secretary can exercise deferred action, a form of prosecutorial discretion . . . .”).

143

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

The review of historical practice above shows that deferred action has played an important role in immigration enforcement for more than 60 years. Congress has affirmatively encouraged its use in various settings. In INA sec. 204(a)(1)(D)(i)(II) and (IV), 8 U.S.C. 1154(a)(1)(D)(i)(II) and (IV), for example, Congress called attention to deferred action as a remedy for certain domestic violence victims and their children, by expressly providing that children who no longer could self-petition under VAWA because they were over the age of 21 nonetheless would be “eligible for deferred action and work authorization.” Similarly, in INA sec. 237(d)(2), 8 U.S.C. 1227(d)(2), Congress clarified that a denial of a request for a temporary stay of removal does not preclude deferred action for pending T and U nonimmigrant applicants. And through IMMACT 90, Congress provided post-hoc ratification of the use of indefinite voluntary departure in the family fairness policy, stating that a delay in the effective date “shall not be construed as reflecting a Congressional belief that the existing family fairness program should be modified in any way before such date.”

144

Provisions like these reflect Congress' recognition—acting after the executive branch already has implemented such a policy—that identifying classes of individuals who may be eligible for deferred action, as an act of enforcement discretion,

145

is both lawful and appropriate.

146

Moreover, numerous regulations refer to deferred action, some which have been in force for nearly 40 years, and Congress has allowed them to remain in force.

147

144

See

IMMACT 90 sec. 301(g). As noted above,

supra

note 57, the 1987 Family Fairness Memorandum was promulgated against a backdrop of a failed legislative effort to provide a pathway to legalization for IRCA-excluded spouses and children. The 1990 Family Fairness Memorandum came amidst rejection of protection from deportation in a House bill mirroring a Senate provision.

See supra

note 61. As such, while Congress later ratified INS's administrative practice, there was little to no apparent prospect for legislative action prompting the family fairness policies at the time they were promulgated in 1987 and 1990.

But see Texas I,

809 F.3d at 185 (“Although the `Family Fairness' program did grant voluntary departure to family members of legalized aliens while they `waited for a visa preference number to become available for family members,' that program was interstitial to a statutory legalization scheme. DAPA is far from interstitial: Congress has repeatedly declined to enact the Development, Relief, and Education for Alien Minors Act (`DREAM Act'), features of which closely resemble DACA and DAPA.”) (footnotes omitted);

Texas II

July 16, 2021 memorandum and order at 66 (citing

Texas I,

809 F.3d at 185) (“Family Fairness was `interstitial to a statutory legalization scheme,' because its purpose was to delay prosecution until Congress could enact legislation providing the same benefits, which it did when it passed [IMMACT 90].”). To whatever extent the 1990 Family Fairness Memorandum can be described as “interstitial” due to earlier passage of the Senate provision, DACA now occupies a similar interstitial space—the American Dream and Promise Act of 2021 passed the House in March 2021, and the bill is currently under consideration in the Senate.

See

H.R. 6, 117th Cong., American Dream and Promise Act of 2021 (as passed by House, Mar. 18, 2021),

https://www.congress.gov/bill/117th-congress/house-bill/6

(last visited Sept. 16, 2021). The Department maintains, however, that the DACA policy fits within the longstanding administrative practice of deferred action and is authorized by statute regardless of whether it is “interstitial” to a bill that is under active consideration by Congress.

145

In the

Texas II

district court's July 16, 2021 memorandum and order, the court distinguished between “prosecutorial discretion” and “adjudicative discretion,” citing a past statement in congressional testimony by Secretary Napolitano and a memorandum from an INS General Counsel. DHS respectfully disagrees with the court's interpretation of those statements—which do not draw the distinction made by the district court—and also disagrees with the court's legal conclusions on this point. It is true, of course, that under the proposed rule, DHS does not simply forbear from initiating proceedings; it also creates a process by which applicants must seek forbearance through an adjudicative proceeding. But that process is designed to answer one question: is forbearance appropriate? Whenever an agency decides to exercise forbearance, it must engage in some kind of process. The process in the proposed rule is more formal and structured than many exercises of prosecutorial discretion, but that is deliberate and serves important goals; it ensures appropriate, consistent, and efficient consideration of the equities deemed most relevant by the Secretary.

146

For other statutory references to deferred action,

see, e.g.,

REAL ID Act of 2005, Public Law 109-13, div. B, sec. 202(c)(2)(B)(viii), 119 Stat. 231, 313 (49 U.S.C. 30301 note) (including deferred action recipients among the classes of individuals with “lawful status” eligible for REAL ID-compliant driver's licenses or identification cards); National Defense Authorization Act for Fiscal Year 2004, Public Law 108-136, sec. 1703(c)(1)(A) and (2), 117 Stat. 1693, 1694-95 (2003) (providing that the spouse, parent, or child of a U.S. citizen who died as a result of honorable service in combat and who was granted posthumous citizenship may self-petition for permanent residence and “shall be eligible for deferred action, advance parole, and work authorization”).

147

See, e.g.,

8 CFR 109.1(b)(7) (1982); 8 CFR 274a.12(c)(14) (2014); 8 CFR 1.3(a)(4)(vi) (including noncitizens granted deferred action among categories of those deemed “lawfully present in the United States” for purposes of eligibility for benefits under title II of Social Security Act); 8 CFR 214.11(m)(2) (deferred action for trafficking victims who are provisionally approved for T nonimmigrant status and on waiting list for available visa number); 8 CFR 214.14(d)(2) and (3) (same for U nonimmigrant status); 8 CFR 245.24(a)(3) (“U Interim Relief means deferred action and work authorization benefits provided by USCIS or [INS] to applicants for U nonimmigrant status deemed prima facie eligible for U nonimmigrant status prior to publication of the U nonimmigrant status regulations.”); 8 CFR 245a.2(b)(5) (including among noncitizens eligible for adjustment to temporary resident status those who were granted deferred action before 1982); 28 CFR 1100.35(b) (encouraging the granting of deferred action and other forms of “continued presence” for victims of severe forms of trafficking in persons who are potential witnesses to that trafficking); 45 CFR 152.2 (noncitizens “currently in deferred action status” —except those “with deferred action under [DHS's] deferred action

for childhood arrivals process, as described in the [Napolitano Memorandum]”—are deemed “lawfully present” for purposes of the Pre-Existing Condition Insurance Plan Program).

Finally, the fact that Congress has repeatedly considered but failed to enact legislative proposals to give legal status to a population that substantially overlaps with the population eligible for DACA does not call into question the Secretary's statutory authority to establish this deferred action policy. As the Supreme Court often has made clear, Congress can legislate only by following the constitutional procedure for enactment of law.

148

The non-actions of a subsequent Congress, including its failure to do something significantly different from an agency action, are not themselves legislation, and they are “a hazardous basis for inferring the intent of an earlier one,” particularly with respect to determining whether the agency action is authorized by statutes that an earlier Congress enacted.

149

When Congress does not act, it might be for a wide variety of reasons, including competing priorities and the sheer press of business.

150

In any case, the DREAM Act

151

is a substantially different policy from DACA. The DREAM Act proposed to grant individuals lawful status, first conditional and then permanent, which DHS cannot do and is not proposing here. By declining to enact the DREAM Act, then, Congress has not rejected or otherwise spoken to the Secretary's authority to establish the DACA policy. It bears repeating that, though well aware of DHS's longstanding administrative practice, including the Napolitano Memorandum, Congress has not taken any action to override or prohibit this use of deferred action.

152

148

See, e.g., INS

Chadha,

462 U.S. 919, 951 (1983).

149

Mackey

Lanier Collection Agency & Serv., Inc,

486 U.S. 825, 840 (1988) (quoting

United States

Price,

361 U.S. 304, 313 (1960));

see also, e.g., Cal. Div. of Labor Stds. Enf.

Dillingham Constr., N.A.,

519 U.S. 316, 331 n.8 (1997).

150

See, e.g., Central Bank of Denver, N.A.

First Interstate Bank of Denver, N.A.,

511 U.S. 164, 187 (1994).

151

The DREAM Act was first introduced in 2001 (

see

DREAM Act, S. 1291, 107th Cong., 1st Sess. (2001)) and subsequently has been reintroduced several times.

152

Indeed, Congress has taken up, but never passed, bills to defund DACA processing by DHS.

See, e.g.,

H.R. 5160, 113th Cong. (2014).

2. The Courts Have Long Recognized the Executive's Authority To Establish Enforcement Priorities and Grant Deferred Action

It long has been recognized that executive agencies are entitled to exercise their discretion in setting enforcement priorities when they have limited resources. The Supreme Court explicitly recognized that authority in

Heckler

Chaney,

when the Food and Drug Administration declined to proceed against an allegedly unlawful use of a particular drug for lethal injections.

153

The decision whether to enforce was, the Court held, “committed to agency discretion by law” within the meaning of the APA.

154

The Court said: “This Court has recognized on several occasions over many years that an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion.”

155

The Court added that

153

470 U.S. 821 (1985) (

Chaney

154

5 U.S.C. 701(a)(2).

155

Chaney,

470 U.S. at 831.

an agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise. Thus, the agency must not only assess whether a violation has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency's overall priorities, and, indeed, whether the agency has enough resources to undertake the action at all.

156

Id.

Regarding immigration enforcement, in

Arizona

United States,

the Supreme Court relied on the Federal Government's broad immigration enforcement discretion to declare several provisions of an Arizona immigration enforcement statute unconstitutional.

157

The Court described the scope of that enforcement discretion in sweeping terms: “A principal feature of the removal system is the broad discretion exercised by immigration officials. . . . Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all.”

158

Over a decade earlier, the Court emphasized that even after choosing to initiate enforcement action, immigration officials may “abandon the endeavor” of immigration enforcement “at each stage” of the process.

159

Several Federal courts of appeals have made similar statements, recognizing that the Executive has extremely broad discretionary authority when deciding how to allocate enforcement resources, including when to forbear removal on humanitarian grounds.

160

157

132 S. Ct. 2492 (2012).

158

Id.

at 2499, citing Brief for Former Commissioners of the United States Immigration and Naturalization Service as Amici Curiae 8-13.

159

AADC,

525 U.S. at 483-84.

160

See AADC,

525 U.S. at 483-84 (“[A]t the time IIRIRA was enacted the INS had been engaging in a regular practice (which had come to be known as `deferred action') of exercising that discretion for humanitarian reasons or simply for its own convenience.”);

Regents of the Univ. of Cal.

DHS,

908 F.3d 476, 487 (9th Cir. 2018) (“Deferred action refers to an exercise of administrative discretion by the [immigration agency] under which [it] takes no action to proceed against an apparently deportable alien based on a prescribed set of factors generally related to humanitarian grounds.” (internal quotation marks omitted));

Arpaio

Obama,

797 F.3d 11, 16 (D.C. Cir. 2015) (“Whether to initiate removal proceedings and whether to grant relief from deportation are among the discretionary decisions the immigration laws assign to the executive.”);

Crane

Johnson,

783 F.3d 244, 247 (5th Cir. 2015) (“Under the INA, the [Secretary] is `charged with the administration and enforcement of the INA and all other laws relating to the immigration and naturalization of aliens. . . .' Although the [Secretary] is charged with enforcement of the INA, `a principal feature of the removal system is the broad discretion exercised by immigration officials.' In fact, the Supreme Court has recognized that the concerns justifying criminal prosecutorial discretion are `greatly magnified in the deportation context.' ” (internal brackets and citations omitted)).

Indeed, for more than 20 years the Supreme Court specifically has recognized deferred action—that is, the decision to temporarily forbear from pursuing the removal of a noncitizen—as a core feature and “regular practice” of the Executive's discretionary authority.

161

The Court confirmed this understanding in the context of the 2012 DACA policy, stating that “[t]he defining feature of deferred action is the decision to defer removal (and to notify the affected alien of that decision).”

162

One Federal court aptly described deferred action this way:

161

See AADC,

525 U.S. at 483-84.

162

Regents,

140 S. Ct. at 1911.

[T]he executive branch has long used an enforcement tool known as “deferred action” to implement enforcement policies and priorities, as authorized by statute. Deferred action is simply a decision by an enforcement agency not to seek enforcement of a given statutory or regulatory violation for a limited period of time. In the context of the immigration laws, deferred action represents a decision by DHS not to seek the removal of an alien for a set period of time. In this sense, eligibility for deferred action represents an acknowledgment that those qualifying individuals are the lowest priority for enforcement.

163

Arpaio

Obama,

27 F. Supp. 3d 185, 192-93 (D.D.C. 2014),

aff'd,

797 F.3d 11 (D.C. Cir. 2015).

The Court in

Arizona

recognized the Federal Government's appropriate focus on just the type of criteria for forbearance policies found in the 2012 DACA policy and in this proposed rule:

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including . . . long ties to the community, or a record of distinguished

military service. . . . Returning an alien to his own country may be deemed inappropriate even where he . . . fails to meet the criteria for admission.

164

Arizona,

132 S. Ct. at 2499.

see also

INA secs. 235(b)(1) and (c) and 236(c)(1)(D), 8 U.S.C. 1225(b)(1) and (c) and 1226(c)(1)(D) (prioritizing national security and border security).

Further, as noted earlier, INA sec. 103(a), 8 U.S.C. 1103(a), confers broad powers on the Secretary in connection with “the administration and enforcement” of the immigration laws, and section 402(5) of the Homeland Security Act, 6 U.S.C. 202(5), charges the Secretary with the more specific duty of “establishing national immigration enforcement policies and priorities.” In discharging that responsibility to establish immigration enforcement policies and priorities, the Secretary exercises their “control, direction, and supervision” over DHS employees, INA sec. 103(a)(2), 8 U.S.C. 1103(a)(2), and may “establish such regulations; prescribe such forms of bond, reports, entries, and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority,” INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3). The proposed rule is thus consistent with another important congressional policy—the decision to entrust the optimal allocation of finite immigration enforcement resources to the Secretary's broad discretion.

As discussed above, the enforcement priorities that animate the proposed rule include national security, public safety through the removal of serious criminal

offenders based on the severity of the particular crimes, and border security. At the same time, when resources do not permit universal enforcement, prioritizing some goals requires deprioritizing others. The proposed rule deprioritizes the removal of those individuals who came to the United States many years ago as children; have lived in the United States peacefully and productively for substantial periods; and have been or are likely to be productive contributors to American society, via education, employment, and national service.

The use of deferred action as the particular vehicle for exercising this enforcement discretion is equally rational. This proposed deferred action policy would (1) encourage undocumented noncitizens to come forward, identify and present themselves to the Department, provide their addresses and other personal information, and supply fingerprints that will permit background checks; (2) enable USCIS—using funds raised by fees, provided in part by the deferred action requestors themselves—periodically to identify and investigate a large class of undocumented noncitizens who do not pose a threat to national security, border security, or public safety, thus permitting the DHS immigration enforcement agencies to focus their resources on the remaining higher priority individuals; (3) make communities safer by further enabling undocumented noncitizens who are crime victims or witnesses to report crimes to the police without fear of being arrested, detained, and removed; (4) significantly increase tax revenues as the wages and tax filing rates of deferred action recipients rise; and (5) protect the reliance interests of current DACA recipients—as well as their family members, employers, and educational institutions, among others—who have built lives and structured programs based on the existence of a national enforcement discretion program for this low-priority population.

174

See Regents,

140 S. Ct. at 1914 (“DACA recipients have `enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children, all in reliance' on the DACA program. The consequences of the rescission, respondents emphasize, would `radiate outward' to DACA recipients' families, including their 200,000 U.S.-citizen children, to the schools where DACA recipients study and teach, and to the employers who have invested time and money in training them. In addition, excluding DACA recipients from the lawful labor force may, they tell us, result in the loss of $215 billion in economic activity and an associated $60 billion in federal tax revenue over the next ten years. Meanwhile, States and local governments could lose $1.25 billion in tax revenue each year.” (internal citations omitted)).

A second limit, to quote the Supreme Court's

Chaney

decision once more, is that an agency's enforcement policy cannot amount to an “abdication of its statutory responsibilities.”

175

The proposed rule comes nowhere close to an abdication, given the enormous resources that the Department would continue to dedicate toward immigration enforcement during implementation of the proposed rule, and the basic practical reality that Congress has not appropriated sufficient resources for DHS to pursue all immigration enforcement that is available.

176

Indeed, the proposed rule would not prevent DHS from continuing to use all the resources Congress has appropriated for immigration enforcement. There can thus be no suggestion of abdication; DHS will continue to enforce the immigration laws as fully as its appropriated resources allow.

175

Chaney,

470 U.S. at 833 n.4.

176

The “abdication” standard was tested in

Texas

United States,

106 F.3d 661 (5th Cir. 1997). The State of Texas sued the Federal Government, alleging that the Government had failed to control undocumented immigration and that the State had incurred economic costs as a result. A unanimous panel of the U.S. Court of Appeals for the Fifth Circuit dismissed the claim. The court held: “We reject out-of-hand the State's contention that the federal defendants' alleged systemic failure to control immigration is so extreme as to constitute a reviewable abdication of duty.” 106 F.3d at 667. The claim failed because “[t]he State does not contend that federal defendants are doing nothing to enforce the immigration laws or that they have consciously decided to abdicate their enforcement responsibilities. Real or perceived inadequate enforcement of immigration laws does not constitute a reviewable abdication of duty.”

Id.; see also id.

(“The State candidly concedes . . . that [INA sec. 103] places no substantive limits on the Attorney General and commits enforcement of the INA to her discretion.”).

In view of these two limits, the Department does not believe that it could grant deferred action to every noncitizen in the United States who lacks lawful status, whether all at once or “in smaller numbers, group-by-group.”

177

But the proposed rule, limited in nature and scope, would stop far short of such drastic action. And after careful consideration, the Department believes it does possess the authority to adopt the deferred action policy reflected in the proposed rule.

178

177

Texas II

July 16, 2021 memorandum and order at 64.

178

The district court in

Texas II

also concluded that “DACA is an unreasonable interpretation of the law because it usurps the power of Congress to dictate a national scheme of immigration laws and is contrary to the INA.” The Department respectfully disagrees and reiterates that its authority to create and implement DACA is vested in the Secretary's broad authority under the INA and the Homeland Security Act of 2002 to administer the immigration laws of the United States and establish national immigration enforcement policies and priorities, as explained above.

Relying on a Supreme Court case,

Arizona

United States,

567 U.S. 387, 406 (2012), the

Texas II

court concluded that the Department's interpretation of its authority is unreasonable because “Congress intended to completely preempt further regulation in the area of immigration,” including regulation by the Department with respect to employment authorization of noncitizens. In the Department's view, the

Texas II

court's reliance on

Arizona

was misplaced. There, the Court held that an Arizona statute that made it a criminal offense for a noncitizen without work authorization to seek or engage in employment was preempted by Federal law because “it would interfere with the careful balance struck by Congress with respect to unauthorized employment of aliens.” The DACA policy gives rise to no such interference. DACA is not a State statute that impinges or usurps Congress' plenary power over the “field” of immigration. Rather, DACA is a policy created by a department of the executive branch of government that, under Federal law, is vested with the authority to act on immigration matters.

D. Employment Authorization

Since the inception of DACA in 2012, DACA recipients—like all other deferred action recipients—have been eligible for employment authorization under 8 CFR 274a.12(c)(14), a decades-old regulation that allows noncitizens who are provided deferred action from immigration enforcement the opportunity to apply for such authorization and receive an EAD if they establish an economic necessity for employment.

179

“Economic necessity” is based on the Federal Poverty Guidelines at 45 CFR 1060.2, and existing regulations at 8 CFR 274a.12(e) define the criteria necessary to establish the noncitizen's economic need to work. This proposed rule would not change the eligibility of DACA recipients to apply for work authorization or alter the existing general rule for establishing economic necessity. This rule proposes to codify DACA-related employment authorization in a new paragraph designated 8 CFR 274a.12(c)(33).

180

As with 8 CFR 274a.12(c)(14), the new paragraph (c)(33) would continue to specify that the noncitizen must have been granted deferred action and must establish economic need to be eligible for employment authorization.

179

As discussed below, such discretionary employment authorization for individuals provided deferred action has been codified in similar regulations since publication of the predecessor regulation at 8 CFR 109.1(b)(6) in 1981.

See Employment Authorization to Aliens in the United States,

46 FR 25079 (May 5, 1981).

180

Although currently issued under 8 CFR 274a.12(c)(14), a DACA-related EAD does not have the “C-14” code on its face, but rather “C-33” to assist DHS in distinguishing DACA recipients' EADs for operational and statistical tracking purposes.

This rule also proposes a relatively modest change to existing DACA practice, which requires all DACA requestors to submit the Form I-765,

Application for Employment Authorization, and the Form I-765WS, Employment Authorization Worksheet. DHS proposes instead to make it optional for each DACA requestor to apply for employment authorization and an EAD. DHS proposes as well to modify the Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to contain a place for the requestor to indicate whether they also are filing the Form I-765 and the Form I-765WS concurrently. A DACA requestor may also wait until after receiving a DACA approval notice before applying for employment authorization. A DACA requestor or recipient who chooses to request employment authorization must file Form I-765 and Form I-765WS and pay all associated fees.

181

This rule does not propose any changes to the existing general rule for establishing economic necessity, which will continue to be determined on a case-by-case basis pursuant to 8 CFR 274a.12(e). This rule further proposes that the termination of a noncitizen's DACA, in accordance with 8 CFR 274a.14(a), would result in the automatic termination of any DACA-related employment authorization and employment authorization documentation obtained by the noncitizen.

181

See

discussion of fees at Section IV.A below.

Since at least the 1970s, the INS and later DHS have made employment authorization available for noncitizens without lawful immigration status who nevertheless are provided deferred action or certain other forms of prosecutorial discretion.

182

Although there was no general Federal prohibition on employing noncitizens without work authorization until the enactment of IRCA in 1986,

183

working without authorization nevertheless could cause certain categories of nonimmigrants to violate their status. INS thus had a long practice of notating the I-94 of a nonimmigrant provided such authorization,

184

and it continued the practice for certain categories of noncitizens without nonimmigrant status.

185

In 1972, Congress made work authorization a prerequisite for certain noncitizens to obtain a Social Security number.

186

Congress ratified the INS's position that it had discretion under the INA to authorize noncitizens to work in enacting the Farm Labor Contractor Registration Act Amendments of 1974 (FLCRAA).

187

The FLCRAA made it unlawful for farm labor contractors to employ knowingly any “alien not lawfully admitted for permanent residence or who has not been authorized by the Attorney General to accept employment.”

188

182

See generally

Sam Bernsen,

Employment Rights of Aliens Under the Immigration Laws, In Defense of the Alien,

Vol. 2 (1979), at pp. 21, 32-33 (collecting former INS OI on employment authorization),

reprinted at https://www.jstor.org/stable/23142996

. For example, the former INS's OI in 1969 allowed for discretionary employment authorization to be issued to individuals who were provided voluntary departure, which permitted certain deportable noncitizens to remain in the United States until an agreed-upon date at which point they had to leave at their own expense but without the INS needing to obtain an order of removal.

See

INS OI 242.10(b) (Jan. 29, 1969).

183

Public Law 99-603, 100 Stat. 3359.

184

See, e.g.,

INS OI 214.2(j) (Nov. 16, 1962) and 214.2(f) (Aug. 15, 1958).

See generally

Sam Bernsen,

Lawful Work for Nonimmigrants,

48 No. 21 Interpreter Releases, 168 (June 21, 1971) (noting that nonimmigrants were not subject to numerical limitations but were subject to work restrictions).

185

See supra

note 182.

186

See

Social Security Amendments of 1972, Public Law 92-603, sec. 137, 86 Stat. 1329, 1364-65 (codified as amended at 42 U.S.C. 405(c)(2)(B)(i)(I) (1979));

see also

Sam Bernsen,

Leave to Labor,

52 No. 35 Interpreter Releases 291, 294 (Sept. 2, 1975).

187

Public Law 93-518, sec. 11(a)(3), 88 Stat. 1652, 1655.

188

7 U.S.C. 1045(f) (Supp. IV 1974);

see

7 U.S.C. 2044(b) (1970 and Supp. IV 1974) (contractor's license could be revoked on same basis).

In 1975, INS's General Counsel explained that INS authorized certain noncitizens to work in cases “when we do not intend or are unable to enforce the alien's departure . . . .”

189

The broad authority in section 103(a) of the INA, 8 U.S.C. 1103(a), charging the “Attorney General” and, ever since 2003, the Secretary, with “the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens” consistently has been interpreted to allow for the granting of such discretionary employment authorization to noncitizens.

190

189

Sam Bernsen,

Leave to Labor;

52 No. 35 Interpreter Releases 291, 294-95 (Sept. 2, 1975).

190

See Proposed Rules for Employment Authorization for Certain Aliens,

44 FR 43480 (July 25, 1979) (first regulation collecting employment authorization policies). These provisions grant the Secretary broad discretion to determine the most effective way to administer the laws.

See Narenji

Civiletti,

617 F.2d 745, 747 (D.C. Cir. 1979) (observing that the INA “need not specifically authorize each and every action taken by the Attorney General [(now Secretary)], so long as his action is reasonably related to the duties imposed upon him”).

By the late 1970s, INS work authorizations commonly were issued. In 1979, the INS published a proposed rule that for the first time sought to codify its existing employment authorization practices.

191

In the preamble, the INS stated that “[t]he Attorney General's authority to grant employment authorization stems from section 103(a) of the Immigration and [Nationality] Act[,] which authorizes him to establish regulations, issue instructions, and perform any actions necessary for the implementation and administration of the Act.”

192

The INS also noted additional recognition by Congress of this authority in the enactment of an amendment that barred from adjustment of status to permanent residence any noncitizen (with certain exceptions) who after January 1, 1977, engages in unauthorized employment prior to filing an application for adjustment of status.

193

The preamble further noted that employment authorization could be obtained by noncitizens who were prima facie entitled to an immigration benefit such as adjustment of status, suspension of deportation, or asylum, as well as

191

44 FR 43480 (July 25, 1979).

192

Id.

(further noting that the Attorney General had delegated the authority to the Commissioner of the INS).

193

Id.

(citing Pub. L. 94-571, sec. 6, 90 Stat. 2703, 2705-06 (1976), which amended INA sec. 245(c) regarding adjustment of status to permanent resident—the INS mistakenly cited the law as “Pub. L. 95-571”).

[a]n alien who, as an exercise of [INS's] prosecutorial discretion, has been allowed to remain in the United States for an indefinite or extended period of time . . . . The proposed regulation states that the application for employment authorization may be granted if the alien establishes that he is financially unable to maintain himself during the applicable period.

194

Id.

When the final rule was published in 1981 as new part 109 to title 8 of the Code of Federal Regulations,

195

it not only enabled various classes of noncitizens authorized by specific statutes to work, but also permitted discretionary work authorization for certain other noncitizens without lawful status, such as those who (1) had pending applications for asylum, adjustment of status, or suspension of deportation; (2) had been granted voluntary departure; or (3) had been recommended for deferred action.

196

The new 8 CFR 109.1(b)(6) published in 1981 specifically listed the following as a class of noncitizens who could apply for work authorization to the INS district director for the district in which the noncitizen resided:

195

In 1980, the INS had issued a second proposed rule for notice and comment after modifying the initial rule based on public comments.

See Employment Authorization,

45 FR 19563 (March 26, 1980) (preamble continued to note that INA sec. 103(a) provides legal authority for issuance of employment authorization).

196

See Employment Authorization to Aliens in the United States,

46 FR 25079 (May 5, 1981).

Any 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: Provided, the alien

establishes to the satisfaction of the district director that he/she is financially unable to maintain himself/herself and family without employment.

197

Id.

at 25081.

In November 1981, the INS moved the employment authorization provision for individuals granted deferred action to 8 CFR 109.1(b)(7) when it further expanded the categories of noncitizens who could be granted employment authorization to include paroled noncitizens and deportable noncitizens granted voluntary departure, either prior to or at the conclusion of immigration proceedings.

198

See Employment Authorization; Revision to Classes of Aliens Eligible,

46 FR 55920 (Nov. 13, 1981).

When Congress passed IRCA in 1986,

199

making it unlawful for the first time for employers knowingly to hire “an unauthorized alien” for employment, Congress was well aware of the INS's longstanding practice of granting employment authorization to noncitizens, including the regulations permitting the agency to provide employment authorization to certain categories of noncitizens who had no lawful immigration status.

200

During the extensive legislative deliberations leading to IRCA, the INS also was considering a petition for rulemaking from the Federation for American Immigration Reform (FAIR) that directly challenged the 1981 employment authorization regulations as ultra vires, particularly INS's authority to provide such authorization to noncitizens who had not been specifically authorized by statute to work, which the INS had published for public comment.

201

FAIR's petition sought to have the INS rescind 8 CFR 109.1(b) through a new rulemaking.

199

Public Law 99-603, 100 Stat. 3359.

200

See

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

201

See Employment Authorization,

51 FR 39385, 39386-39387 (Oct. 28, 1986).

Before the agency acted on FAIR's petition, Congress intervened and ratified the INS's interpretation of its legal authority to provide employment authorization by providing in IRCA that:

the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by [the INA] or by the Attorney General.

202

See

IRCA sec. 101(a)(1), 100 Stat. 3359, 3368 (codified at INA sec. 274a(h)(3), 8 U.S.C. 1324a(h)(3)).

At the very same time that Congress made it unlawful for an employer knowingly to hire a person who is unauthorized to work, Congress recognized that a person could be authorized to work by the Attorney General.

After publishing proposed regulations to implement IRCA and soliciting extensive public comment, including extending the comment period on the still-pending FAIR petition, the INS ultimately denied that petition.

203

In its denial, the INS noted both its broad authority in section 103(a) of the INA, 8 U.S.C. 1103(a), to administer the immigration laws and the new definition of “unauthorized alien” in section 274A(h)(3) of the INA, 8 U.S.C. 1324a(h)(3), by explaining that

203

See Employment Authorization; Classes of Aliens Eligible,

51 FR 45338 (Dec. 18, 1986);

Control of Employment of Alien

s, 52 FR 8762 (Mar. 19, 1987); and

Employment Authorization; Classes of Aliens Eligible,

52 FR 46092 (Dec. 4, 1987) (denial of FAIR petition).

the 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.

204

See Employment Authorization; Classes of Aliens Eligible,

52 FR at 46093 (Dec. 4, 1987).

This contemporaneous interpretation—which has remained undisturbed by Congress for nearly 35 years—is entitled to considerable weight.

The final IRCA regulations incorporated the statutory definition of “unauthorized alien” from section 274a(h)(3) of the INA, 8 U.S.C. 1324a(h)(3), for employment purposes at 8 CFR 274a.1. The rules also redesignated the employment authorization regulations in part 109, with amendments, as part 274a, subpart B, in title 8 of the Code of Federal Regulations, with work authorization made available for noncitizens with deferred action who establish an economic necessity in 8 CFR 274a.12(c)(14).

205

In 8 CFR 274a.12(d) (1987), the rules further described the basic criteria and procedures to establish “economic necessity” as based on the Federal Poverty Guidelines. The new rules also included employment authorization for noncitizens who were members of a nationality group granted EVD, a form of prosecutorial discretion described in greater detail above.

206

205

See

52 FR 16216 (May 1, 1987).

206

See

8 CFR 274a.12(a)(11) (1987).

See also

general discussion above of EVD and its successor, DED. After the term EVD became obsolete, the employment authorization provision was amended to cover noncitizens provided DED pursuant to a directive from the President to the Secretary and under the conditions established by the Secretary in accord with the presidential directive.

See

current 8 CFR 274a.12(a)(11).

In the years following the enactment of IRCA and promulgation of the employment authorization regulations, the provisions relating to employment authorization for noncitizens with deferred action have remained substantively the same. As noted above, under subsequent administrations since the 1987 promulgation of 8 CFR 274a.12(c)(14), the INS and then DHS have continued to provide deferred action to individuals who are members of specific groups and to grant them eligibility for employment authorization on a case-by-case basis.

207

See, e.g.,

Memorandum for Regional Directors, et al., INS, from Paul W. Virtue, Acting Executive Associate Commissioner, INS,

Re: Supplemental Guidance on Battered Alien Self-Petitioning Process and Related Issues

(May 6, 1997) (directing individualized determinations of deferred action for pending self-petitioners under VAWA);

USCIS Announces Interim Relief for Foreign Students Adversely Impacted by Hurricane Katrina,

press release, dated Nov. 25, 2005; Memorandum from Donald Neufeld, Acting Associate Director, USCIS Office of Domestic Operations,

Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and Their Children

(Sept. 4, 2009) (directing deferred action and employment authorization for widows and widowers whose immigrant petitions had not been decided before their spouses died); Napolitano Memorandum (establishing DACA and directing that determinations be made as to whether eligible individuals qualify for work authorization during their period of deferred action).

After IRCA, Congress made certain limited amendments to the employment-related provisions in the INA,

208

but Congress never has modified INA sec. 274a(h)(3), 8 U.S.C. 1324a(h)(3), the provision that recognizes that the Attorney General (now the Secretary) may authorize noncitizens to be lawfully employed.

209

Congress also periodically has limited the classes of noncitizens who may receive employment authorization,

210

but it never has altered the policy in existence since at least the 1970s (and codified in regulations since 1981) that noncitizens granted deferred action may apply for and obtain discretionary employment authorization. In fact, as noted above, Congress has enacted statutes that recognized and adopted existing USCIS deferred action practices for certain noncitizens, such as pending T and U nonimmigrant applicants and petitioners, without altering 8 CFR 274a.12(c)(14), which provided for their ability to apply for employment authorization.

211

208

See, e.g.,

IMMACT 90, Public Law 101-649, tit. V, subtit. C, 104 Stat. 4978 (1990) (codified as amended at various sections of 8 U.S.C. 1324a and 1324b—additional provisions related to employer sanctions and anti-discrimination in employment of noncitizens); IIRIRA, Public Law 104-208, div. C, tit. IV, 110 Stat. 3009, 3009-655-3009-670 (codified as amended at various sections of 8 U.S.C. 1324a and 1324b—adding provisions for pilot programs on identity and employment eligibility verification, amendments regarding employer sanctions, and amendments regarding unfair immigration-related employment practices).

209

Section 274A(h)(3)(B) of the INA, 8 U.S.C. 1324a(h)(3)(B), recognizes that employment may be authorized by statute or by the Secretary.

See, e.g., Ariz. Dream Act Coal.

Brewer,

757 F.3d 1053, 1062 (9th Cir. 2014) (“Congress has given the Executive Branch broad discretion to determine when noncitizens may work in the United States.”);

Perales

Casillas,

903 F.2d 1043, 1050 (5th Cir. 1990) (noting the broad, discretionary employment authorization authority in INA sec. 274A(h)(3) and the implementing EAD regulations).

210

See, e.g.,

8 U.S.C. 1158(d)(2) (asylum applicants not otherwise eligible for employment

authorization shall not be eligible for employment authorization prior to 180 days after filing asylum application if regulations authorize such employment); 8 U.S.C. 1226(a)(3) (detained noncitizen may not be provided work authorization, even if released, unless the noncitizen is lawfully admitted for permanent residence or otherwise would—without regard to removal proceedings—be provided such authorization); 8 U.S.C. 1231(a)(7) (limiting circumstances in which noncitizens ordered removed may be eligible to receive employment authorization). Indeed, those provisions restricting employment authorization reasonably can be construed as reflecting Congress' general understanding that the Attorney General, now the Secretary, otherwise has statutory authority to provide employment authorization to noncitizens, including those who do not have a lawful immigration status, except where expressly proscribed in the INA.

211

See, e.g.,

INA sec. 237(d)(2), 8 U.S.C. 1227(d)(2) (law enacted in 2008 following INS policy of using deferred action and other measures to forbear removing individuals who demonstrate eligibility for T or U nonimmigrant status).

The Department has carefully considered, but respectfully disagrees with, the

Texas II

court's decision finding that it is unlawful to provide employment authorization to persons who receive deferred action under DACA.

212

The

Texas II

court found that DACA recipients are not in the categories of noncitizens whom Congress specifically has authorized to be employed, nor in the categories of noncitizens for whom Congress has allowed DHS to provide discretionary employment authorization.

213

The Department believes that the court's conclusion is inconsistent with the long history of Congress' recognition of the former INS's and DHS's practice of providing discretionary employment authorization to individuals granted deferred action both before and after IRCA, as described earlier in this section, and the best interpretation of the Secretary's broad authorities under INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3), and INA sec. 274A(h)(3), 8 U.S.C. 1324a(h)(3), which indicates that with respect to employment, an “unauthorized alien” may be eligible and authorized to work either by the INA or “by the Attorney General,” now the Secretary. Nothing in INA sec. 274A(h)(3), 8 U.S.C. 1324a(h)(3), indicates that there must be some underlying statute that separately provides the Secretary with discretion to authorize employment for a given category of noncitizens before the Secretary may exercise the discretion that is provided directly to the Secretary through INA sec. 274A(h)(3), 8 U.S.C. 1324a(h)(3).

214

In addition to individuals granted deferred action, DHS notes that DHS, and the Department of Justice (DOJ) before it, long has authorized employment for many categories of noncitizens for whom no additional statute expressly provides for employment authorization.

215

Although these categories of noncitizens whom the Attorney General and later the Secretary have authorized for employment eligibility have been placed into regulations at various times, many of them were in the 1981 codification of the former INS employment authorization rules, while others were added later.

216

The regulatory employment authorization categories have continued to exist to this day. Were DHS to adopt the interpretation of the

Texas II

court, many of these other employment authorization categories that also rely on the Secretary's broad authorities under INA secs. 103(a)(3) a

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