The Department of Homeland Security's Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others ( 2014 )


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  •        The Department of Homeland Security’s Authority to
          Prioritize Removal of Certain Aliens Unlawfully Present
            in the United States and to Defer Removal of Others
    The Department of Homeland Security’s proposed policy to prioritize the removal of certain aliens
      unlawfully present in the United States would be a permissible exercise of DHS’s discretion to
      enforce the immigration laws.
    The Department of Homeland Security’s proposed deferred action program for parents of U.S. citizens
      and legal permanent residents would also be a permissible exercise of DHS’s discretion to enforce
      the immigration laws.
    The Department of Homeland Security’s proposed deferred action program for parents of recipients of
      deferred action under the Deferred Action for Childhood Arrivals program would not be a permissi-
      ble exercise of DHS’s enforcement discretion.
    
                                                                                 November 19, 2014
    
          MEMORANDUM OPINION FOR THE SECRETARY OF HOMELAND SECURITY
                     AND THE COUNSEL TO THE PRESIDENT
    
        You have asked two questions concerning the scope of the Department of
    Homeland Security’s discretion to enforce the immigration laws. First, you have
    asked whether, in light of the limited resources available to the Department
    (“DHS”) to remove aliens unlawfully present in the United States, it would be
    legally permissible for the Department to implement a policy prioritizing the
    removal of certain categories of aliens over others. DHS has explained that
    although there are approximately 11.3 million undocumented aliens in the country,
    it has the resources to remove fewer than 400,000 such aliens each year. DHS’s
    proposed policy would prioritize the removal of aliens who present threats to
    national security, public safety, or border security. Under the proposed policy,
    DHS officials could remove an alien who did not fall into one of these categories
    provided that an Immigration and Customs Enforcement (“ICE”) Field Office
    Director determined that “removing such an alien would serve an important
    federal interest.” Draft Memorandum for Thomas S. Winkowski, Acting Director,
    ICE, et al., from Jeh Charles Johnson, Secretary of Homeland Security, Re:
    Policies for the Apprehension, Detention, and Removal of Undocumented
    Immigrants at 5 (Nov. 17, 2014) (“Johnson Prioritization Memorandum”).
        Second, you have asked whether it would be permissible for DHS to extend
    deferred action, a form of temporary administrative relief from removal, to certain
    aliens who are the parents of children who are present in the United States.
    Specifically, DHS has proposed to implement a program under which an alien
    could apply for, and would be eligible to receive, deferred action if he or she is not
    a DHS removal priority under the policy described above; has continuously
    resided in the United States since before January 1, 2010; has a child who is either
    a U.S. citizen or a lawful permanent resident; is physically present in the United
    
    
    
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    States both when DHS announces its program and at the time of application for
    deferred action; and presents “no other factors that, in the exercise of discretion,
    make[] the grant of deferred action inappropriate.” Draft Memorandum for Leon
    Rodriguez, Director, U.S. Citizenship and Immigration Services, et al., from Jeh
    Charles Johnson, Secretary of Homeland Security, Re: Exercising Prosecutorial
    Discretion with Respect to Individuals Who Came to the United States as Children
    and Others at 4 (Nov. 17, 2014) (“Johnson Deferred Action Memorandum”). You
    have also asked whether DHS could implement a similar program for parents of
    individuals who have received deferred action under the Deferred Action for
    Childhood Arrivals (“DACA”) program.
       As has historically been true of deferred action, these proposed deferred action
    programs would not “legalize” any aliens who are unlawfully present in the United
    States: Deferred action does not confer any lawful immigration status, nor does it
    provide a path to obtaining permanent residence or citizenship. Grants of deferred
    action under the proposed programs would, rather, represent DHS’s decision not
    to seek an alien’s removal for a prescribed period of time. See generally Reno v.
    Am.-Arab Anti-Discrim. Comm., 
    525 U.S. 471
    , 483–84 (1999) (describing
    deferred action). Under decades-old regulations promulgated pursuant to authority
    delegated by Congress, see 8 U.S.C. §§ 1103(a)(3), 1324a(h)(3), aliens who are
    granted deferred action—like certain other categories of aliens who do not have
    lawful immigration status, such as asylum applicants—may apply for authoriza-
    tion to work in the United States in certain circumstances, 8 C.F.R.
    § 274a.12(c)(14) (providing that deferred action recipients may apply for work
    authorization if they can show an “economic necessity for employment”); see also
    8 C.F.R. § 109.1(b)(7) (1982). Under DHS policy guidance, a grant of deferred
    action also suspends an alien’s accrual of unlawful presence for purposes of
    8 U.S.C. § 1182(a)(9)(B)(i) and (a)(9)(C)(i)(I), provisions that restrict the
    admission of aliens who have departed the United States after having been
    unlawfully present for specified periods of time. A grant of deferred action under
    the proposed programs would remain in effect for three years, subject to renewal,
    and could be terminated at any time at DHS’s discretion. See Johnson Deferred
    Action Memorandum at 2, 5.
       For the reasons discussed below, we conclude that DHS’s proposed prioritiza-
    tion policy and its proposed deferred action program for parents of U.S. citizens
    and lawful permanent residents would be permissible exercises of DHS’s discre-
    tion to enforce the immigration laws. We further conclude that, as it has been
    described to us, the proposed deferred action program for parents of DACA
    recipients would not be a permissible exercise of enforcement discretion.
    
                                              I.
    
       We first address DHS’s authority to prioritize the removal of certain categories
    of aliens over others. We begin by discussing some of the sources and limits of
    
    
    
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    DHS’s enforcement discretion under the immigration laws, and then analyze
    DHS’s proposed prioritization policy in light of these considerations.
    
                                              A.
    
        DHS’s authority to remove aliens from the United States rests on the Immigra-
    tion and Nationality Act of 1952 (“INA”), as amended, 8 U.S.C. §§ 1101 et seq. In
    the INA, Congress established a comprehensive scheme governing immigration
    and naturalization. The INA specifies certain categories of aliens who are
    inadmissible to the United States. See 8 U.S.C. § 1182. It also specifies “which
    aliens may be removed from the United States and the procedures for doing so.”
    Arizona v. United States, 
    132 S. Ct. 2492
    , 2499 (2012). “Aliens may be removed if
    they were inadmissible at the time of entry, have been convicted of certain crimes,
    or meet other criteria set by federal law.” Id. (citing 8 U.S.C. § 1227); see 8 U.S.C.
    § 1227(a) (providing that “[a]ny alien . . . in and admitted to the United States
    shall, upon the order of the Attorney General, be removed if the alien” falls within
    one or more classes of deportable aliens); see also 8 U.S.C. § 1182(a) (listing
    classes of aliens ineligible to receive visas or be admitted to the United States).
    Removal proceedings ordinarily take place in federal immigration courts adminis-
    tered by the Executive Office for Immigration Review, a component of the
    Department of Justice. See id. § 1229a (governing removal proceedings); see also
    id. §§ 1225(b)(1)(A), 1228(b) (setting out expedited removal procedures for
    certain arriving aliens and certain aliens convicted of aggravated felonies).
        Before 2003, the Department of Justice, through the Immigration and Naturali-
    zation Service (“INS”), was also responsible for providing immigration-related
    administrative services and generally enforcing the immigration laws. In the
    Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, Congress
    transferred most of these functions to DHS, giving it primary responsibility both
    for initiating removal proceedings and for carrying out final orders of removal. See
    6 U.S.C. §§ 101 et seq.; see also Clark v. Martinez, 
    543 U.S. 371
    , 374 n.1 (2005)
    (noting that the immigration authorities previously exercised by the Attorney
    General and INS “now reside” in the Secretary of Homeland Security and DHS).
    The Act divided INS’s functions among three different agencies within DHS: U.S.
    Citizenship and Immigration Services (“USCIS”), which oversees legal immigra-
    tion into the United States and provides immigration and naturalization services to
    aliens; ICE, which enforces federal laws governing customs, trade, and immigra-
    tion; and U.S. Customs and Border Protection (“CBP”), which monitors and
    secures the nation’s borders and ports of entry. See Pub. L. No. 107-296, §§ 403,
    442, 451, 471, 116 Stat. 2135, 2178, 2193, 2195, 2205; see also Name Change
    From the Bureau of Citizenship and Immigration Services to U.S. Citizenship and
    Immigration Services, 69 Fed. Reg. 60938, 60938 (Oct. 13, 2004); Name Change
    of Two DHS Components, 75 Fed. Reg. 12445, 12445 (Mar. 16, 2010). The
    Secretary of Homeland Security is thus now “charged with the administration and
    
    
    
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    enforcement of [the INA] and all other laws relating to the immigration and
    naturalization of aliens.” 8 U.S.C. § 1103(a)(1).
        As a general rule, when Congress vests enforcement authority in an executive
    agency, that agency has the discretion to decide whether a particular violation of
    the law warrants prosecution or other enforcement action. This discretion is rooted
    in the President’s constitutional duty to “take Care that the Laws be faithfully
    executed,” U.S. Const. art. II, § 3, and it reflects a recognition that the “faithful[]”
    execution of the law does not necessarily entail “act[ing] against each technical
    violation of the statute” that an agency is charged with enforcing. Heckler v.
    Chaney, 
    470 U.S. 821
    , 831 (1985). Rather, as the Supreme Court explained in
    Chaney, the decision whether to initiate enforcement proceedings is a complex
    judgment that calls on the agency to “balanc[e] . . . a number of factors which are
    peculiarly within its expertise.” Id. These factors include “whether agency
    resources are best spent on this violation or another, whether the agency is likely
    to succeed if it acts, whether the particular enforcement action requested best fits
    the agency’s overall policies, and . . . whether the agency has enough resources to
    undertake the action at all.” Id. at 831; cf. United States v. Armstrong, 
    517 U.S. 456
    , 465 (1996) (recognizing that exercises of prosecutorial discretion in criminal
    cases involve consideration of “‘[s]uch factors as the strength of the case, the
    prosecution’s general deterrence value, the Government’s enforcement priorities,
    and the case’s relationship to the Government’s overall enforcement plan’”
    (quoting Wayte v. United States, 
    470 U.S. 598
    , 607 (1985))). In Chaney, the Court
    considered and rejected a challenge to the Food and Drug Administration’s refusal
    to initiate enforcement proceedings with respect to alleged violations of the
    Federal Food, Drug, and Cosmetic Act, concluding that an agency’s decision not
    to initiate enforcement proceedings is presumptively immune from judicial review.
    See 470 U.S. at 832. The Court explained that, while Congress may “provide[]
    guidelines for the agency to follow in exercising its enforcement powers,” in the
    absence of such “legislative direction,” an agency’s non-enforcement determina-
    tion is, much like a prosecutor’s decision not to indict, a “special province of the
    Executive.” Id. at 832–33.
        The principles of enforcement discretion discussed in Chaney apply with par-
    ticular force in the context of immigration. Congress enacted the INA against a
    background understanding that immigration is “a field where flexibility and the
    adaptation of the congressional policy to infinitely variable conditions constitute
    the essence of the program.” United States ex rel. Knauff v. Shaughnessy, 
    338 U.S. 537
    , 543 (1950) (internal quotation marks omitted). Consistent with this under-
    standing, the INA vested the Attorney General (now the Secretary of Homeland
    Security) with broad authority to “establish such regulations; . . . issue such
    instructions; and perform such other acts as he deems necessary for carrying out
    his authority” under the statute. 8 U.S.C. § 1103(a)(3). Years later, when Congress
    created the Department of Homeland Security, it expressly charged DHS with
    responsibility for “[e]stablishing national immigration enforcement policies and
    
    
    
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    priorities.” Homeland Security Act of 2002, Pub. L. No. 107-296, § 402(5), 116
    Stat. 2135, 2178 (codified at 6 U.S.C. § 202(5)).
        With respect to removal decisions in particular, the Supreme Court has recog-
    nized that “the broad discretion exercised by immigration officials” is a “principal
    feature of the removal system” under the INA. Arizona, 132 S. Ct. at 2499. The
    INA expressly authorizes immigration officials to grant certain forms of discre-
    tionary relief from removal for aliens, including parole, 8 U.S.C. § 1182(d)(5)(A);
    asylum, id. § 1158(b)(1)(A); and cancellation of removal, id. § 1229b. But in
    addition to administering these statutory forms of relief, “[f]ederal officials, as an
    initial matter, must decide whether it makes sense to pursue removal at all.”
    Arizona, 132 S. Ct. at 2499. And, as the Court has explained, “[a]t each stage” of
    the removal process—“commenc[ing] proceedings, adjudicat[ing] cases, [and]
    execut[ing] removal orders”—immigration officials have “discretion to abandon
    the endeavor.” Am.-Arab Anti-Discrim. Comm., 525 U.S. at 483 (quoting 8 U.S.C.
    § 1252(g) (alterations in original)). Deciding whether to pursue removal at each of
    these stages implicates a wide range of considerations. As the Court observed in
    Arizona:
    
           Discretion in the enforcement of immigration law embraces immedi-
           ate human concerns. Unauthorized workers trying to support their
           families, for example, likely pose less danger than alien smugglers or
           aliens who commit a serious crime. The equities of an individual
           case may turn on many factors, including whether the alien has chil-
           dren born in the United States, long ties to the community, or a rec-
           ord of distinguished military service. Some discretionary decisions
           involve policy choices that bear on this Nation’s international rela-
           tions. . . . The foreign state may be mired in civil war, complicit in
           political persecution, or enduring conditions that create a real risk
           that the alien or his family will be harmed upon return. The dynamic
           nature of relations with other countries requires the Executive
           Branch to ensure that enforcement policies are consistent with this
           Nation’s foreign policy with respect to these and other realities.
    
    132 S. Ct. at 2499.
       Immigration officials’ discretion in enforcing the laws is not, however, unlim-
    ited. Limits on enforcement discretion are both implicit in, and fundamental to, the
    Constitution’s allocation of governmental powers between the two political
    branches. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 
    343 U.S. 579
    , 587–
    88 (1952). These limits, however, are not clearly defined. The open-ended nature
    of the inquiry under the Take Care Clause—whether a particular exercise of
    discretion is “faithful[]” to the law enacted by Congress—does not lend itself
    easily to the application of set formulas or bright-line rules. And because the
    exercise of enforcement discretion generally is not subject to judicial review, see
    
    
    
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    Chaney, 470 U.S. at 831–33, neither the Supreme Court nor the lower federal
    courts have squarely addressed its constitutional bounds. Rather, the political
    branches have addressed the proper allocation of enforcement authority through
    the political process. As the Court noted in Chaney, Congress “may limit an
    agency’s exercise of enforcement power if it wishes, either by setting substantive
    priorities, or by otherwise circumscribing an agency’s power to discriminate
    among issues or cases it will pursue.” Id. at 833. The history of immigration policy
    illustrates this principle: Since the INA was enacted, the Executive Branch has on
    numerous occasions exercised discretion to extend various forms of immigration
    relief to categories of aliens for humanitarian, foreign policy, and other reasons.
    When Congress has been dissatisfied with Executive action, it has responded, as
    Chaney suggests, by enacting legislation to limit the Executive’s discretion in
    enforcing the immigration laws.1
        Nonetheless, the nature of the Take Care duty does point to at least four general
    (and closely related) principles governing the permissible scope of enforcement
    discretion that we believe are particularly relevant here. First, enforcement
    decisions should reflect “factors which are peculiarly within [the enforcing
    agency’s] expertise.” Chaney, 470 U.S. at 831. Those factors may include
    considerations related to agency resources, such as “whether the agency has
    enough resources to undertake the action,” or “whether agency resources are best
    spent on this violation or another.” Id. Other relevant considerations may include
    “the proper ordering of [the agency’s] priorities,” id. at 832, and the agency’s
    assessment of “whether the particular enforcement action [at issue] best fits the
    agency’s overall policies,” id. at 831.
        Second, the Executive cannot, under the guise of exercising enforcement dis-
    cretion, attempt to effectively rewrite the laws to match its policy preferences. See
    id. at 833 (an agency may not “disregard legislative direction in the statutory
    scheme that [it] administers”). In other words, an agency’s enforcement decisions
    should be consonant with, rather than contrary to, the congressional policy
    underlying the statutes the agency is charged with administering. Cf. Youngstown,
    343 U.S. at 637 (Jackson, J., concurring) (“When the President takes measures
    incompatible with the expressed or implied will of Congress, his power is at its
    lowest ebb.”); Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 
    551 U.S. 644
    , 658 (2007) (explaining that where Congress has given an agency the power to
    administer a statutory scheme, a court will not vacate the agency’s decision about
    the proper administration of the statute unless, among other things, the agency
    “‘has relied on factors which Congress had not intended it to consider’” (quoting
    
    
        1
          See, e.g., Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law, 119 Yale
    L.J. 458, 503–05 (2009) (describing Congress’s response to its dissatisfaction with the Executive’s use
    of parole power for refugee populations in the 1960s and 1970s); see also, e.g., infra note 5 (discussing
    legislative limitations on voluntary departure and extended voluntary departure).
    
    
    
    
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    Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 
    463 U.S. 29
    , 43 (1983))).
       Third, the Executive Branch ordinarily cannot, as the Court put it in Chaney,
    “‘consciously and expressly adopt[] a general policy’ that is so extreme as to
    amount to an abdication of its statutory responsibilities.” 470 U.S. at 833 n.4
    (quoting Adams v. Richardson, 
    480 F.2d 1159
    , 1162 (D.C. Cir. 1973) (en banc));
    see id. (noting that in situations where an agency had adopted such an extreme
    policy, “the statute conferring authority on the agency might indicate that such
    decisions were not ‘committed to agency discretion’”). Abdication of the duties
    assigned to the agency by statute is ordinarily incompatible with the constitutional
    obligation to faithfully execute the laws. But see, e.g., Presidential Authority to
    Decline to Execute Unconstitutional Statutes, 
    18 Op. O.L.C. 199
    , 200 (1994)
    (noting that under the Take Care Clause, “the President is required to act in
    accordance with the laws—including the Constitution, which takes precedence
    over other forms of law”).
       Finally, lower courts, following Chaney, have indicated that non-enforcement
    decisions are most comfortably characterized as judicially unreviewable exercises
    of enforcement discretion when they are made on a case-by-case basis. See, e.g.,
    Kenney v. Glickman, 
    96 F.3d 1118
    , 1123 (8th Cir. 1996); Crowley Caribbean
    Transp., Inc. v. Peña, 
    37 F.3d 671
    , 676–77 (D.C. Cir. 1994). That reading of
    Chaney reflects a conclusion that case-by-case enforcement decisions generally
    avoid the concerns mentioned above. Courts have noted that “single-shot non-
    enforcement decisions” almost inevitably rest on “the sort of mingled assessments
    of fact, policy, and law . . . that are, as Chaney recognizes, peculiarly within the
    agency’s expertise and discretion.” Crowley Caribbean Transp., 37 F.3d at 676–
    77 (emphasis omitted). Individual enforcement decisions made on the basis of
    case-specific factors are also unlikely to constitute “general polic[ies] that [are] so
    extreme as to amount to an abdication of [the agency’s] statutory responsibilities.”
    Id. at 677 (quoting Chaney, 477 U.S. at 833 n.4). That does not mean that all
    “general policies” respecting non-enforcement are categorically forbidden: Some
    “general policies” may, for example, merely provide a framework for making
    individualized, discretionary assessments about whether to initiate enforcement
    actions in particular cases. Cf. Reno v. Flores, 
    507 U.S. 292
    , 313 (1993) (explain-
    ing that an agency’s use of “reasonable presumptions and generic rules” is not
    incompatible with a requirement to make individualized determinations). But a
    general policy of non-enforcement that forecloses the exercise of case-by-case
    discretion poses “special risks” that the agency has exceeded the bounds of its
    enforcement discretion. Crowley Caribbean Transp., 37 F.3d at 677.
    
                                              B.
    
       We now turn, against this backdrop, to DHS’s proposed prioritization policy. In
    their exercise of enforcement discretion, DHS and its predecessor, INS, have long
    
    
    
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    employed guidance instructing immigration officers to prioritize the enforcement
    of the immigration laws against certain categories of aliens and to deprioritize
    their enforcement against others. See, e.g., INS Operating Instructions
    § 103(a)(1)(i) (1962); Memorandum for All Field Office Directors, ICE, et al.,
    from John Morton, Director, ICE, Re: Exercising Prosecutorial Discretion
    Consistent with the Civil Immigration Enforcement Priorities of the Agency for the
    Apprehension, Detention, and Removal of Aliens (June 17, 2011); Memorandum
    for All ICE Employees, from John Morton, Director, ICE, Re: Civil Immigration
    Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens
    (Mar. 2, 2011); Memorandum for Regional Directors, INS, et al., from Doris
    Meissner, Commissioner, INS, Re: Exercising Prosecutorial Discretion (Nov. 17,
    2000). The policy DHS proposes, which is similar to but would supersede earlier
    policy guidance, is designed to “provide clearer and more effective guidance in the
    pursuit” of DHS’s enforcement priorities; namely, “threats to national security,
    public safety and border security.” Johnson Prioritization Memorandum at 1.
        Under the proposed policy, DHS would identify three categories of undocu-
    mented aliens who would be priorities for removal from the United States. See
    generally id. at 3–5. The highest priority category would include aliens who pose
    particularly serious threats to national security, border security, or public safety,
    including aliens engaged in or suspected of espionage or terrorism, aliens convict-
    ed of offenses related to participation in criminal street gangs, aliens convicted of
    certain felony offenses, and aliens apprehended at the border while attempting to
    enter the United States unlawfully. See id. at 3. The second-highest priority would
    include aliens convicted of multiple or significant misdemeanor offenses; aliens
    who are apprehended after unlawfully entering the United States who cannot
    establish that they have been continuously present in the United States since
    January 1, 2014; and aliens determined to have significantly abused the visa or
    visa waiver programs. See id. at 3–4. The third priority category would include
    other aliens who have been issued a final order of removal on or after January 1,
    2014. See id. at 4. The policy would also provide that none of these aliens should
    be prioritized for removal if they “qualify for asylum or another form of relief
    under our laws.” Id. at 3–5.
        The policy would instruct that resources should be directed to these priority
    categories in a manner “commensurate with the level of prioritization identified.”
    Id. at 5. It would, however, also leave significant room for immigration officials to
    evaluate the circumstances of individual cases. See id. (stating that the policy
    “requires DHS personnel to exercise discretion based on individual circumstanc-
    es”). For example, the policy would permit an ICE Field Office Director, CBP
    Sector Chief, or CBP Director of Field Operations to deprioritize the removal of
    an alien falling in the highest priority category if, in her judgment, “there are
    compelling and exceptional factors that clearly indicate the alien is not a threat to
    national security, border security, or public safety and should not therefore be an
    enforcement priority.” Id. at 3. Similar discretionary provisions would apply to
    
    
    
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    aliens in the second and third priority categories.2 The policy would also provide a
    non-exhaustive list of factors DHS personnel should consider in making such
    deprioritization judgments.3 In addition, the policy would expressly state that its
    terms should not be construed “to prohibit or discourage the apprehension,
    detention, or removal of aliens unlawfully in the United States who are not
    identified as priorities,” and would further provide that “[i]mmigration officers
    and attorneys may pursue removal of an alien not identified as a priority” if, “in
    the judgment of an ICE Field Office Director, removing such an alien would serve
    an important federal interest.” Id. at 5.
        DHS has explained that the proposed policy is designed to respond to the prac-
    tical reality that the number of aliens who are removable under the INA vastly
    exceeds the resources Congress has made available to DHS for processing and
    carrying out removals. The resource constraints are striking. As noted, DHS has
    informed us that there are approximately 11.3 million undocumented aliens in the
    country, but that Congress has appropriated sufficient resources for ICE to remove
    fewer than 400,000 aliens each year, a significant percentage of whom are
    typically encountered at or near the border rather than in the interior of the
    country. See E-mail for Karl R. Thompson, Principal Deputy Assistant Attorney
    General, Office of Legal Counsel, from David Shahoulian, Deputy General
    Counsel, DHS, Re: Immigration Opinion (Nov. 19, 2014) (“Shahoulian E-mail”).
    The proposed policy explains that, because DHS “cannot respond to all immigra-
    tion violations or remove all persons illegally in the United States,” it seeks to
    “prioritize the use of enforcement personnel, detention space, and removal assets”
    to “ensure that use of its limited resources is devoted to the pursuit of” DHS’s
    highest priorities. Johnson Prioritization Memorandum at 2.
        In our view, DHS’s proposed prioritization policy falls within the scope of its
    lawful discretion to enforce the immigration laws. To begin with, the policy is
    based on a factor clearly “within [DHS’s] expertise.” Chaney, 470 U.S. at 831.
    Faced with sharply limited resources, DHS necessarily must make choices about
    which removals to pursue and which removals to defer. DHS’s organic statute
    itself recognizes this inevitable fact, instructing the Secretary to establish “national
    
    
        2
          Under the proposed policy, aliens in the second tier could be deprioritized if, “in the judgment of
    an ICE Field Office Director, CBP Sector Chief, CBP Director of Field Operations, USCIS District
    Director, or USCIS Service Center Director, there are factors indicating the alien is not a threat to
    national security, border security, or public safety, and should not therefore be an enforcement
    priority.” Johnson Prioritization Memorandum at 4. Aliens in the third tier could be deprioritized if, “in
    the judgment of an immigration officer, the alien is not a threat to the integrity of the immigration
    system or there are factors suggesting the alien should not be an enforcement priority.” Id. at 5.
        3
          These factors include “extenuating circumstances involving the offense of conviction; extended
    length of time since the offense of conviction; length of time in the United States; military service;
    family or community ties in the United States; status as a victim, witness or plaintiff in civil or criminal
    proceedings; or compelling humanitarian factors such as poor health, age, pregnancy, a young child or
    a seriously ill relative.” Johnson Prioritization Memorandum at 6.
    
    
    
    
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    immigration enforcement policies and priorities.” 6 U.S.C. § 202(5). And an
    agency’s need to ensure that scarce enforcement resources are used in an effective
    manner is a quintessential basis for the use of prosecutorial discretion. See
    Chaney, 470 U.S. at 831 (among the factors “peculiarly within [an agency’s]
    expertise” are “whether agency resources are best spent on this violation or
    another” and “whether the agency has enough resources to undertake the action at
    all”).
        The policy DHS has proposed, moreover, is consistent with the removal priori-
    ties established by Congress. In appropriating funds for DHS’s enforcement
    activities—which, as noted, are sufficient to permit the removal of only a fraction
    of the undocumented aliens currently in the country—Congress has directed DHS
    to “prioritize the identification and removal of aliens convicted of a crime by the
    severity of that crime.” Department of Homeland Security Appropriations Act,
    2014, Pub. L. No. 113-76, div. F, tit. II, 128 Stat. 5, 251 (“DHS Appropriations
    Act”). Consistent with this directive, the proposed policy prioritizes individuals
    convicted of criminal offenses involving active participation in a criminal street
    gang, most offenses classified as felonies in the convicting jurisdiction, offenses
    classified as “aggravated felonies” under the INA, and certain misdemeanor
    offenses. Johnson Prioritization Memorandum at 3–4. The policy ranks these
    priority categories according to the severity of the crime of conviction. The policy
    also prioritizes the removal of other categories of aliens who pose threats to
    national security or border security, matters about which Congress has demon-
    strated particular concern. See, e.g., 8 U.S.C. § 1226(c)(1)(D) (providing for
    detention of aliens charged with removability on national security grounds); id.
    § 1225(b) & (c) (providing for an expedited removal process for certain aliens
    apprehended at the border). The policy thus raises no concern that DHS has relied
    “on factors which Congress had not intended it to consider.” Nat’l Ass’n of Home
    Builders, 551 U.S. at 658.
        Further, although the proposed policy is not a “single-shot non-enforcement
    decision,” neither does it amount to an abdication of DHS’s statutory responsibili-
    ties, or constitute a legislative rule overriding the commands of the substantive
    statute. Crowley Caribbean Transp., 37 F.3d at 676–77. The proposed policy
    provides a general framework for exercising enforcement discretion in individual
    cases, rather than establishing an absolute, inflexible policy of not enforcing the
    immigration laws in certain categories of cases. Given that the resources Congress
    has allocated to DHS are sufficient to remove only a small fraction of the total
    population of undocumented aliens in the United States, setting forth written
    guidance about how resources should presumptively be allocated in particular
    cases is a reasonable means of ensuring that DHS’s severely limited resources are
    systematically directed to its highest priorities across a large and diverse agency,
    as well as ensuring consistency in the administration of the removal system. The
    proposed policy’s identification of categories of aliens who constitute removal
    
    
    
    
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             DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present
    
    
    priorities is also consistent with the categorical nature of Congress’s instruction to
    prioritize the removal of criminal aliens in the DHS Appropriations Act.
       And, significantly, the proposed policy does not identify any category of re-
    movable aliens whose removal may not be pursued under any circumstances.
    Although the proposed policy limits the discretion of immigration officials to
    expend resources to remove non-priority aliens, it does not eliminate that discre-
    tion entirely. It directs immigration officials to use their resources to remove aliens
    in a manner “commensurate with the level of prioritization identified,” but (as
    noted above) it does not “prohibit or discourage the apprehension, detention, or
    removal of aliens unlawfully in the United States who are not identified as
    priorities.” Johnson Prioritization Memorandum at 5. Instead, it authorizes the
    removal of even non-priority aliens if, in the judgment of an ICE Field Office
    Director, “removing such an alien would serve an important federal interest,” a
    standard the policy leaves open-ended. Id. Accordingly, the policy provides for
    case-by-case determinations about whether an individual alien’s circumstances
    warrant the expenditure of removal resources, employing a broad standard that
    leaves ample room for the exercise of individualized discretion by responsible
    officials. For these reasons, the proposed policy avoids the difficulties that might
    be raised by a more inflexible prioritization policy and dispels any concern that
    DHS has either undertaken to rewrite the immigration laws or abdicated its
    statutory responsibilities with respect to non-priority aliens.4
    
                                                       II.
    
       We turn next to the permissibility of DHS’s proposed deferred action programs
    for certain aliens who are parents of U.S. citizens, lawful permanent residents
    (“LPRs”), or DACA recipients, and who are not removal priorities under the
    proposed policy discussed above. We begin by discussing the history and current
    practice of deferred action. We then discuss the legal authorities on which deferred
    
         4
           In Crane v. Napolitano, a district court recently concluded in a non-precedential opinion that the
    INA “mandates the initiation of removal proceedings whenever an immigration officer encounters an
    illegal alien who is not ‘clearly and beyond a doubt entitled to be admitted.’” Opinion and Order
    Respecting Pl. App. for Prelim. Inj. Relief, No. 3:12-cv-03247-O, 
    2013 WL 1744422
    , at *5 (N.D. Tex.
    Apr. 23) (quoting 8 U.S.C. § 1225(b)(2)(A)). The court later dismissed the case for lack of jurisdiction.
    See Crane v. Napolitano, No. 3:12-cv-03247-O, 
    2013 WL 8211660
    , at *4 (N.D. Tex. July 31).
    Although the opinion lacks precedential value, we have nevertheless considered whether, as it suggests,
    the text of the INA categorically forecloses the exercise of enforcement discretion with respect to aliens
    who have not been formally admitted. The district court’s conclusion is, in our view, inconsistent with
    the Supreme Court’s reading of the INA as permitting immigration officials to exercise enforcement
    discretion at any stage of the removal process, including when deciding whether to initiate removal
    proceedings against a particular alien. See Arizona, 132 S. Ct. at 2499; Am.-Arab Anti-Discrim. Comm.,
    525 U.S. at 483–84. It is also difficult to square with authority holding that the presence of mandatory
    language in a statute, standing alone, does not necessarily limit the Executive Branch’s enforcement
    discretion, see, e.g., Chaney, 470 U.S. at 835; Inmates of Attica Corr. Facility v. Rockefeller, 
    477 F.2d 375
    , 381 (2d Cir. 1973).
    
    
    
    
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                         Opinions of the Office of Legal Counsel in Volume 38
    
    
    action relies and identify legal principles against which the proposed use of
    deferred action can be evaluated. Finally, we turn to an analysis of the proposed
    deferred action programs themselves, beginning with the program for parents of
    U.S. citizens and LPRs, and concluding with the program for parents of DACA
    recipients.
    
                                                      A.
    
        In immigration law, the term “deferred action” refers to an exercise of adminis-
    trative discretion in which immigration officials temporarily defer the removal of
    an alien unlawfully present in the United States. Am.-Arab Anti-Discrim. Comm.,
    525 U.S. at 484 (citing 6 Charles Gordon et al., Immigration Law and Procedure
    § 72.03[2][h] (1998)); see USCIS, Standard Operating Procedures for Handling
    Deferred Action Requests at USCIS Field Offices at 3 (2012) (“USCIS SOP”); INS
    Operating Instructions § 103.1(a)(1)(ii) (1977). It is one of a number of forms of
    discretionary relief—in addition to such statutory and non-statutory measures as
    parole, temporary protected status, deferred enforced departure, and extended
    voluntary departure—that immigration officials have used over the years to
    temporarily prevent the removal of undocumented aliens.5
    
    
        5
          Parole is available to aliens by statute “for urgent humanitarian reasons or significant public
    benefit.” 8 U.S.C. § 1182(d)(5)(A). Among other things, parole gives aliens the ability to adjust their
    status without leaving the United States if they are otherwise eligible for adjustment of status, see id.
    § 1255(a), and may eventually qualify them for Federal means-tested benefits, see id. §§ 1613,
    1641(b)(4). Temporary protected status is available to nationals of designated foreign states affected by
    armed conflicts, environmental disasters, and other extraordinary conditions. Id. § 1254a. Deferred
    enforced departure, which “has no statutory basis” but rather is an exercise of “the President’s
    constitutional powers to conduct foreign relations,” may be granted to nationals of appropriate foreign
    states. USCIS, Adjudicator’s Field Manual § 38.2(a) (2014). Extended voluntary departure was a
    remedy derived from the voluntary departure statute, which, before its amendment in 1996, permitted
    the Attorney General to make a finding of removability if an alien agreed to voluntarily depart the
    United States, without imposing a time limit for the alien’s departure. See 8 U.S.C. §§ 1252(b), 1254(e)
    (1988 & Supp. II 1990); cf. 8 U.S.C. § 1229c (current provision of the INA providing authority to grant
    voluntary departure, but limiting such grants to 120 days). Some commentators, however, suggested
    that extended voluntary departure was in fact a form of “discretionary relief formulated administrative-
    ly under the Attorney General’s general authority for enforcing immigration law.” Sharon Stephan,
    Cong. Research Serv., 85-599 EPW, Extended Voluntary Departure and Other Grants of Blanket Relief
    from Deportation at 1 (Feb. 23, 1985). It appears that extended voluntary departure is no longer used
    following enactment of the Immigration Act of 1990, which established the temporary protected status
    program. See U.S. Citizenship and Immigration Services Fee Schedule, 75 Fed. Reg. 33446, 33457
    (June 11, 2010) (proposed rule) (noting that “since 1990 neither the Attorney General nor the Secretary
    have designated a class of aliens for nationality-based ‘extended voluntary departure,’ and there no
    longer are aliens in the United States benefiting from such a designation,” but noting that deferred
    enforced departure is still used); H.R. Rep. No. 102-123, at 2 (1991) (indicating that in establishing
    temporary protected status, Congress was “codif[ying] and supersed[ing]” extended voluntary
    departure). See generally Andorra Bruno et al., Cong. Research Serv., Analysis of June 15, 2012 DHS
    Memorandum, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the
    United States as Children at 5–10 (July 13, 2012) (“CRS Immigration Report”).
    
    
    
    
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           DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present
    
    
        The practice of granting deferred action dates back several decades. For many
    years after the INA was enacted, INS exercised prosecutorial discretion to grant
    “non-priority” status to removable aliens who presented “appealing humanitarian
    factors.” Letter for Leon Wildes, from E. A. Loughran, Associate Commissioner,
    INS at 2 (July 16, 1973) (defining a “non-priority case” as “one in which the
    Service in the exercise of discretion determines that adverse action would be
    unconscionable because of appealing humanitarian factors”); see INS Operating
    Instructions § 103.1(a)(1)(ii) (1962). This form of administrative discretion was
    later termed “deferred action.” Am.-Arab Anti-Discrim. Comm., 525 U.S. at 484;
    see INS Operating Instructions § 103.1(a)(1)(ii) (1977) (instructing immigration
    officers to recommend deferred action whenever “adverse action would be
    unconscionable because of the existence of appealing humanitarian factors”).
        Although the practice of granting deferred action “developed without express
    statutory authorization,” it has become a regular feature of the immigration
    removal system that has been acknowledged by both Congress and the Supreme
    Court. Am.-Arab Anti-Discrim. Comm., 525 U.S. at 484 (internal quotation marks
    omitted); see id. at 485 (noting that a congressional enactment limiting judicial
    review of decisions “to commence proceedings, adjudicate cases, or execute
    removal orders against any alien under [the INA]” in 8 U.S.C. § 1252(g) “seems
    clearly designed to give some measure of protection to ‘no deferred action’
    decisions and similar discretionary determinations”); see also, e.g., 8 U.S.C.
    § 1154(a)(1)(D)(i)(II), (IV) (providing that certain individuals are “eligible for
    deferred action”). Deferred action “does not confer any immigration status”—i.e.,
    it does not establish any enforceable legal right to remain in the United States—
    and it may be revoked by immigration authorities at their discretion. USCIS SOP
    at 3, 7. Assuming it is not revoked, however, it represents DHS’s decision not to
    seek the alien’s removal for a specified period of time.
        Under longstanding regulations and policy guidance promulgated pursuant to
    statutory authority in the INA, deferred action recipients may receive two
    additional benefits. First, relying on DHS’s statutory authority to authorize certain
    aliens to work in the United States, DHS regulations permit recipients of deferred
    action to apply for work authorization if they can demonstrate an “economic
    necessity for employment.” 8 C.F.R. § 274a.12(c)(14); see 8 U.S.C. § 1324a(h)(3)
    (defining an “unauthorized alien” not entitled to work in the United States as an
    alien who is neither an LPR nor “authorized to be . . . employed by [the INA] or
    by the Attorney General [now the Secretary of Homeland Security]”). Second,
    DHS has promulgated regulations and issued policy guidance providing that aliens
    who receive deferred action will temporarily cease accruing “unlawful presence”
    for purposes of 8 U.S.C. § 1182(a)(9)(B)(i) and (a)(9)(C)(i)(I). 8 C.F.R.
    § 214.14(d)(3); 28 C.F.R. § 1100.35(b)(2); Memorandum for Field Leadership,
    from Donald Neufeld, Acting Associate Director, Domestic Operations Direc-
    torate, USCIS, Re: Consolidation of Guidance Concerning Unlawful Presence for
    Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act at 42
    
    
    
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                         Opinions of the Office of Legal Counsel in Volume 38
    
    
    (May 6, 2009) (“USCIS Consolidation of Guidance”) (noting that “[a]ccrual of
    unlawful presence stops on the date an alien is granted deferred action”); see
    8 U.S.C. § 1182(a)(9)(B)(ii) (providing that an alien is “unlawfully present” if,
    among other things, he “is present in the United States after the expiration of the
    period of stay authorized by the Attorney General”).6
        Immigration officials today continue to grant deferred action in individual cases
    for humanitarian and other purposes, a practice we will refer to as “ad hoc
    deferred action.” Recent USCIS guidance provides that personnel may recommend
    ad hoc deferred action if they “encounter cases during [their] normal course of
    business that they feel warrant deferred action.” USCIS SOP at 4. An alien may
    also apply for ad hoc deferred action by submitting a signed, written request to
    USCIS containing “[a]n explanation as to why he or she is seeking deferred
    action” along with supporting documentation, proof of identity, and other records.
    Id. at 3.
        For decades, INS and later DHS have also implemented broader programs that
    make discretionary relief from removal available for particular classes of aliens. In
    many instances, these agencies have made such broad-based relief available
    through the use of parole, temporary protected status, deferred enforced departure,
    or extended voluntary departure. For example, from 1956 to 1972, INS imple-
    mented an extended voluntary departure program for physically present aliens who
    were beneficiaries of approved visa petitions—known as “Third Preference” visa
    petitions—relating to a specific class of visas for Eastern Hemisphere natives. See
    United States ex rel. Parco v. Morris, 
    426 F. Supp. 976
    , 979–80 (E.D. Pa. 1977).
    Similarly, for several years beginning in 1978, INS granted extended voluntary
    departure to nurses who were eligible for H-1 visas. Voluntary Departure for Out-
    of-Status Nonimmigrant H-1 Nurses, 43 Fed. Reg. 2776, 2776 (Jan. 19, 1978). In
    addition, in more than two dozen instances dating to 1956, INS and later DHS
    granted parole, temporary protected status, deferred enforced departure, or
    extended voluntary departure to large numbers of nationals of designated foreign
    states. See, e.g., CRS Immigration Report at 20–23; Cong. Research Serv.,
    ED206779, Review of U.S. Refugee Resettlement Programs and Policies at 9, 12–
    14 (1980). And in 1990, INS implemented a “Family Fairness” program that
    authorized granting extended voluntary departure and work authorization to the
    estimated 1.5 million spouses and children of aliens who had been granted legal
    status under the Immigration Reform and Control Act of 1986, Pub. L. No. 99-
    603, 100 Stat. 3359 (“IRCA”). See Memorandum for Regional Commissioners,
    
    
        6
          Section 1182(a)(9)(B)(i) imposes three- and ten-year bars on the admission of aliens (other than
    aliens admitted to permanent residence) who departed or were removed from the United States after
    periods of unlawful presence of between 180 days and one year, or one year or more. Section
    1182(a)(9)(C)(i)(I) imposes an indefinite bar on the admission of any alien who, without being
    admitted, enters or attempts to reenter the United States after previously having been unlawfully
    present in the United States for an aggregate period of more than one year.
    
    
    
    
                                                     14
           DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present
    
    
    INS, from Gene McNary, Commissioner, INS, Re: Family Fairness: Guidelines
    for Voluntary Departure under 8 CFR 242.5 for the Ineligible Spouses and
    Children of Legalized Aliens (Feb. 2, 1990) (“Family Fairness Memorandum”);
    see also CRS Immigration Report at 10.
        On at least five occasions since the late 1990s, INS and later DHS have also
    made discretionary relief available to certain classes of aliens through the use of
    deferred action:
        1. Deferred Action for Battered Aliens Under the Violence Against Women Act.
    INS established a class-based deferred action program in 1997 for the benefit of
    self-petitioners under the Violence Against Women Act of 1994 (“VAWA”), Pub.
    L. No. 103-322, tit. IV, 108 Stat. 1796, 1902. VAWA authorized certain aliens
    who have been abused by U.S. citizen or LPR spouses or parents to self-petition
    for lawful immigration status, without having to rely on their abusive family
    members to petition on their behalf. Id. § 40701(a) (codified as amended at
    8 U.S.C. § 1154(a)(1)(A)(iii)–(iv), (vii)). The INS program required immigration
    officers who approved a VAWA self-petition to assess, “on a case-by-case basis,
    whether to place the alien in deferred action status” while the alien waited for a
    visa to become available. Memorandum for Regional Directors et al., INS, from
    Paul W. Virtue, Acting Executive Associate Commissioner, INS, Re: Supple-
    mental Guidance on Battered Alien Self-Petitioning Process and Related Issues
    at 3 (May 6, 1997). INS noted that “[b]y their nature, VAWA cases generally
    possess factors that warrant consideration for deferred action.” Id. But because
    “[i]n an unusual case, there may be factors present that would militate against
    deferred action,” the agency instructed officers that requests for deferred action
    should still “receive individual scrutiny.” Id. In 2000, INS reported to Congress
    that, because of this program, no approved VAWA self-petitioner had been
    removed from the country. See Battered Women Immigrant Protection Act:
    Hearings on H.R. 3083 Before the Subcomm. on Immigration and Claims of the H.
    Comm. on the Judiciary, 106th Cong. at 43 (July 20, 2000) (“H.R. 3083 Hear-
    ings”).
        2. Deferred Action for T and U Visa Applicants. Several years later, INS insti-
    tuted a similar deferred action program for applicants for nonimmigrant status or
    visas made available under the Victims of Trafficking and Violence Protection Act
    of 2000 (“VTVPA”), Pub. L. No. 106-386, 114 Stat. 1464. That Act created two
    new nonimmigrant classifications: a “T visa” available to victims of human
    trafficking and their family members, and a “U visa” for victims of certain other
    crimes and their family members. Id. §§ 107(e), 1513(b)(3) (codified at 8 U.S.C.
    § 1101(a)(15)(T)(i), (U)(i)). In 2001, INS issued a memorandum directing
    immigration officers to locate “possible victims in the above categories,” and to
    use “[e]xisting authority and mechanisms such as parole, deferred action, and
    stays of removal” to prevent those victims’ removal “until they have had the
    opportunity to avail themselves of the provisions of the VTVPA.” Memorandum
    
    
    
    
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                     Opinions of the Office of Legal Counsel in Volume 38
    
    
    for Michael A. Pearson, Executive Associate Commissioner, INS, from Michael
    D. Cronin, Acting Executive Associate Commissioner, INS, Re: Victims of
    Trafficking and Violence Protection Act of 2000 (VTVPA) Policy Memorandum
    #2—“T” and “U” Nonimmigrant Visas at 2 (Aug. 30, 2001). In subsequent
    memoranda, INS instructed officers to make “deferred action assessment[s]” for
    “all [T visa] applicants whose applications have been determined to be bona fide,”
    Memorandum for Johnny N. Williams, Executive Associate Commissioner, INS,
    from Stuart Anderson, Executive Associate Commissioner, INS, Re: Deferred
    Action for Aliens with Bona Fide Applications for T Nonimmigrant Status at 1
    (May 8, 2002), as well as for all U visa applicants “determined to have submitted
    prima facie evidence of [their] eligibility,” Memorandum for the Director,
    Vermont Service Center, INS, from William R. Yates, USCIS, Re: Centralization
    of Interim Relief for U Nonimmigrant Status Applicants at 5 (Oct. 8, 2003). In
    2002 and 2007, INS and DHS promulgated regulations embodying these policies.
    See 8 C.F.R. § 214.11(k)(1), (k)(4), (m)(2) (promulgated by New Classification for
    Victims of Severe Forms of Trafficking in Persons; Eligibility for “T” Nonimmi-
    grant Status, 67 Fed. Reg. 4784, 4800–01 (Jan. 31, 2002)) (providing that any
    T visa applicant who presents “prima facie evidence” of his eligibility should have
    his removal “automatically stay[ed]” and that applicants placed on a waiting list
    for visas “shall maintain [their] current means to prevent removal (deferred action,
    parole, or stay of removal)”); id. § 214.14(d)(2) (promulgated by New Classifica-
    tion for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status,
    72 Fed. Reg. 53014, 53039 (Sept. 17, 2007)) (“USCIS will grant deferred action or
    parole to U-1 petitioners and qualifying family members while the U-1 petitioners
    are on the waiting list” for visas.).
       3. Deferred Action for Foreign Students Affected by Hurricane Katrina. As a
    consequence of the devastation caused by Hurricane Katrina in 2005, several
    thousand foreign students became temporarily unable to satisfy the requirements
    for maintaining their lawful status as F-1 nonimmigrant students, which include
    “pursuit of a ‘full course of study.’” USCIS, Interim Relief for Certain Foreign
    Academic Students Adversely Affected by Hurricane Katrina: Frequently Asked
    Questions (FAQ) at 1 (Nov. 25, 2005) (quoting 8 C.F.R. § 214.2(f)(6)), available
    at http//www.uscis.gov/sites/default/files/USCIS/Humanitarian/Special%20Situati
    ons/Previous%20Special%20Situations%20By%20Topic/faq-interim-student-relie
    f-hurricane-katrina.pdf (last visited Nov. 19, 2014). DHS announced that it would
    grant deferred action to these students “based on the fact that [their] failure to
    maintain status is directly due to Hurricane Katrina.” Id. at 7. To apply for
    deferred action under this program, students were required to send a letter
    substantiating their need for deferred action, along with an application for work
    authorization. Press Release, USCIS, USCIS Announces Interim Relief for Foreign
    Students Adversely Impacted by Hurricane Katrina at 1–2 (Nov. 25, 2005),
    available at http://www.uscis.gov/sites/default/files/files/pressrelease/F1Student_
    11_25_05_PR.pdf (last visited Nov. 19, 2014). USCIS explained that such
    
    
    
                                             16
            DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present
    
    
    requests for deferred action would be “decided on a case-by-case basis” and that it
    could not “provide any assurance that all such requests will be granted.” Id. at 1.
        4. Deferred Action for Widows and Widowers of U.S. Citizens. In 2009, DHS
    implemented a deferred action program for certain widows and widowers of U.S.
    citizens. USCIS explained that “no avenue of immigration relief exists for the
    surviving spouse of a deceased U.S. citizen if the surviving spouse and the U.S.
    citizen were married less than 2 years at the time of the citizen’s death” and
    USCIS had not yet adjudicated a visa petition on the spouse’s behalf. Memoran-
    dum for Field Leadership, USCIS, from Donald Neufeld, Acting Associate
    Director, USCIS, Re: Guidance Regarding Surviving Spouses of Deceased U.S.
    Citizens and Their Children at 1 (Sept. 4, 2009). “In order to address humanitarian
    concerns arising from cases involving surviving spouses of U.S. citizens,” USCIS
    issued guidance permitting covered surviving spouses and “their qualifying
    children who are residing in the United States” to apply for deferred action. Id.
    at 2, 6. USCIS clarified that such relief would not be automatic, but rather would
    be unavailable in the presence of, for example, “serious adverse factors, such as
    national security concerns, significant immigration fraud, commission of other
    crimes, or public safety reasons.” Id. at 6.7
        5. Deferred Action for Childhood Arrivals. Announced by DHS in 2012,
    DACA makes deferred action available to “certain young people who were
    brought to this country as children” and therefore “[a]s a general matter . . . lacked
    the intent to violate the law.” Memorandum for David Aguilar, Acting Commis-
    sioner, CBP, et al., from Janet Napolitano, Secretary, DHS, Re: Exercising
    Prosecutorial Discretion with Respect to Individuals Who Came to the United
    States as Children at 1 (June 15, 2012) (“Napolitano Memorandum”). An alien is
    eligible for DACA if she was under the age of 31 when the program began;
    arrived in the United States before the age of 16; continuously resided in the
    United States for at least 5 years immediately preceding June 15, 2012; was
    physically present on June 15, 2012; satisfies certain educational or military
    service requirements; and neither has a serious criminal history nor “poses a threat
    to national security or public safety.” See id. DHS evaluates applicants’ eligibility
    for DACA on a case-by-case basis. See id. at 2; USCIS, Deferred Action for
    Childhood Arrivals (DACA) Toolkit: Resources for Community Partners at 11
    (“DACA Toolkit”). Successful DACA applicants receive deferred action for a
    
       7
          Several months after the deferred action program was announced, Congress eliminated the re-
    quirement that an alien be married to a U.S. citizen “for at least 2 years at the time of the citizen’s
    death” to retain his or her eligibility for lawful immigration status. Department of Homeland Security
    Appropriations Act, 2010, Pub. L. No. 111-83, § 568(c), 123 Stat. 2142, 2186 (2009). Concluding that
    this legislation rendered its surviving spouse guidance “obsolete,” USCIS withdrew its earlier guidance
    and treated all pending applications for deferred action as visa petitions. See Memorandum for
    Executive Leadership, USCIS, from Donald Neufeld, Acting Associate Director, USCIS, et al., Re:
    Additional Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and Their Children
    (REVISED) at 3, 10 (Dec. 2, 2009).
    
    
    
    
                                                     17
                          Opinions of the Office of Legal Counsel in Volume 38
    
    
    period of two years, subject to renewal. See DACA Toolkit at 11. DHS has stated
    that grants of deferred action under DACA may be terminated at any time, id.
    at 16, and “confer[] no substantive right, immigration status or pathway to
    citizenship,” Napolitano Memorandum at 3.8
        Congress has long been aware of the practice of granting deferred action, in-
    cluding in its categorical variety, and of its salient features; and it has never acted
    to disapprove or limit the practice.9 On the contrary, it has enacted several pieces
    of legislation that have either assumed that deferred action would be available in
    certain circumstances, or expressly directed that deferred action be extended to
    certain categories of aliens. For example, as Congress was considering VAWA
    reauthorization legislation in 2000, INS officials testified before Congress about
    their deferred action program for VAWA self-petitioners, explaining that
    “[a]pproved [VAWA] self-petitioners are placed in deferred action status,” such
    that “[n]o battered alien who has filed a[n approved] self petition . . . has been
    deported.” H.R. 3083 Hearings at 43. Congress responded by not only acknowl-
    edging but also expanding the deferred action program in the 2000 VAWA
    reauthorization legislation, providing that children who could no longer self-
    petition under VAWA because they were over the age of 21 would nonetheless be
    “eligible for deferred action and work authorization.” Victims of Trafficking and
    
    
    
    
       8
          Before DACA was announced, our Office was consulted about whether such a program would be
    legally permissible. As we orally advised, our preliminary view was that such a program would be
    permissible, provided that immigration officials retained discretion to evaluate each application on an
    individualized basis. We noted that immigration officials typically consider factors such as having been
    brought to the United States as a child in exercising their discretion to grant deferred action in
    individual cases. We explained, however, that extending deferred action to individuals who satisfied
    these and other specified criteria on a class-wide basis would raise distinct questions not implicated by
    ad hoc grants of deferred action. We advised that it was critical that, like past policies that made
    deferred action available to certain classes of aliens, the DACA program require immigration officials
    to evaluate each application for deferred action on a case-by-case basis, rather than granting deferred
    action automatically to all applicants who satisfied the threshold eligibility criteria. We also noted that,
    although the proposed program was predicated on humanitarian concerns that appeared less particular-
    ized and acute than those underlying certain prior class-wide deferred action programs, the concerns
    animating DACA were nonetheless consistent with the types of concerns that have customarily guided
    the exercise of immigration enforcement discretion.
        9
          Congress has considered legislation that would limit the practice of granting deferred action, but it
    has never enacted such a measure. In 2011, a bill was introduced in both the House and the Senate that
    would have temporarily suspended DHS’s authority to grant deferred action except in narrow
    circumstances. See H.R. 2497, 112th Cong. (2011); S. 1380, 112th Cong. (2011). Neither chamber,
    however, voted on the bill. This year, the House passed a bill that purported to bar any funding for
    DACA or other class-wide deferred action programs, H.R. 5272, 113th Cong. (2014), but the Senate
    has not considered the legislation. Because the Supreme Court has instructed that unenacted legislation
    is an unreliable indicator of legislative intent, see Red Lion Broad. Co. v. FCC, 
    395 U.S. 367
    , 381 n.11
    (1969), we do not draw any inference regarding congressional policy from these unenacted bills.
    
    
    
    
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            DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present
    
    
    Violence Protection Act of 2000, Pub. L. No. 106-386, § 1503(d)(2), 114 Stat.
    1464, 1522 (codified at 8 U.S.C. § 1154(a)(1)(D)(i)(II), (IV)).10
        Congress demonstrated a similar awareness of INS’s (and later DHS’s) de-
    ferred action program for bona fide T and U visa applicants. As discussed above,
    that program made deferred action available to nearly all individuals who could
    make a prima facie showing of eligibility for a T or U visa. In 2008 legislation,
    Congress authorized DHS to “grant . . . an administrative stay of a final order of
    removal” to any such individual. William Wilberforce Trafficking Victims
    Protection Reauthorization Act of 2008, Pub. L. No. 110-457, § 204, 122 Stat.
    5044, 5060 (codified at 8 U.S.C. § 1227(d)(1)). Congress further clarified that
    “[t]he denial of a request for an administrative stay of removal under this subsec-
    tion shall not preclude the alien from applying for . . . deferred action.” Id. It also
    directed DHS to compile a report detailing, among other things, how long DHS’s
    “specially trained [VAWA] Unit at the [USCIS] Vermont Service Center” took to
    adjudicate victim-based immigration applications for “deferred action,” along with
    “steps taken to improve in this area.” Id. § 238. Representative Berman, the bill’s
    sponsor, explained that the Vermont Service Center should “strive to issue work
    authorization and deferred action” to “[i]mmigrant victims of domestic violence,
    sexual assault and other violence crimes . . . in most instances within 60 days of
    filing.” 154 Cong. Rec. 24603 (2008).
        In addition, in other enactments, Congress has specified that certain classes of
    individuals should be made “eligible for deferred action.” These classes include
    certain immediate family members of LPRs who were killed on September 11,
    2001, USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 423(b), 115 Stat. 272,
    361, and certain immediate family members of certain U.S. citizens killed in
    combat, National Defense Authorization Act for Fiscal Year 2004, Pub. L. No.
    108-136, § 1703(c)–(d), 117 Stat. 1392, 1694. In the same legislation, Congress
    made these individuals eligible to obtain lawful status as “family-sponsored
    immigrant[s]” or “immediate relative[s]” of U.S. citizens. Pub. L. No. 107-56,
    § 423(b), 115 Stat. 272, 361; Pub. L. No. 108-136, § 1703(c)(1)(A), 117 Stat.
    1392, 1694; see generally Scialabba v. Cuellar de Osorio, 
    134 S. Ct. 2191
    , 2197
    (2014) (plurality opinion) (explaining which aliens typically qualify as family-
    sponsored immigrants or immediate relatives).
        Finally, Congress acknowledged the practice of granting deferred action in the
    REAL ID Act of 2005, Pub. L. No. 109-13, div. B, 119 Stat. 231, 302 (codified at
    
    
        10
           Five years later, in the Violence Against Women and Department of Justice Reauthorization Act
    of 2005, Pub. L. No. 109-162, 119 Stat. 2960, Congress specified that, “[u]pon the approval of a
    petition as a VAWA self-petitioner, the alien . . . is eligible for work authorization.” Id. § 814(b)
    (codified at 8 U.S.C. § 1154(a)(1)(K)). One of the Act’s sponsors explained that while this provision
    was intended to “give[] DHS statutory authority to grant work authorization . . . without having to rely
    upon deferred action . . . [t]he current practice of granting deferred action to approved VAWA self-
    petitioners should continue.” 151 Cong. Rec. 29334 (2005) (statement of Rep. Conyers).
    
    
    
    
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    49 U.S.C. § 30301 note), which makes a state-issued driver’s license or identifica-
    tion card acceptable for federal purposes only if the state verifies, among other
    things, that the card’s recipient has “[e]vidence of [l]awful [s]tatus.” Congress
    specified that, for this purpose, acceptable evidence of lawful status includes proof
    of, among other things, citizenship, lawful permanent or temporary residence, or
    “approved deferred action status.” Id. § 202(c)(2)(B)(viii).
    
                                              B.
    
       The practice of granting deferred action, like the practice of setting enforce-
    ment priorities, is an exercise of enforcement discretion rooted in DHS’s authority
    to enforce the immigration laws and the President’s duty to take care that the laws
    are faithfully executed. It is one of several mechanisms by which immigration
    officials, against a backdrop of limited enforcement resources, exercise their
    “broad discretion” to administer the removal system—and, more specifically, their
    discretion to determine whether “it makes sense to pursue removal” in particular
    circumstances. Arizona, 132 S. Ct. at 2499.
       Deferred action, however, differs in at least three respects from more familiar
    and widespread exercises of enforcement discretion. First, unlike (for example) the
    paradigmatic exercise of prosecutorial discretion in a criminal case, the conferral
    of deferred action does not represent a decision not to prosecute an individual for
    past unlawful conduct; it instead represents a decision to openly tolerate an
    undocumented alien’s continued presence in the United States for a fixed period
    (subject to revocation at the agency’s discretion). Second, unlike most exercises of
    enforcement discretion, deferred action carries with it benefits in addition to non-
    enforcement itself; specifically, the ability to seek employment authorization and
    suspension of unlawful presence for purposes of 8 U.S.C. § 1182(a)(9)(B)(i) and
    (a)(9)(C)(i)(I). Third, class-based deferred action programs, like those for VAWA
    recipients and victims of Hurricane Katrina, do not merely enable individual
    immigration officials to select deserving beneficiaries from among those aliens
    who have been identified or apprehended for possible removal—as is the case with
    ad hoc deferred action—but rather set forth certain threshold eligibility criteria and
    then invite individuals who satisfy these criteria to apply for deferred action status.
       While these features of deferred action are somewhat unusual among exercises
    of enforcement discretion, the differences between deferred action and other
    exercises of enforcement discretion are less significant than they might initially
    appear. The first feature—the toleration of an alien’s continued unlawful pres-
    ence—is an inevitable element of almost any exercise of discretion in immigration
    enforcement. Any decision not to remove an unlawfully present alien—even
    through an exercise of routine enforcement discretion—necessarily carries with it
    a tacit acknowledgment that the alien will continue to be present in the United
    States without legal status. Deferred action arguably goes beyond such tacit
    acknowledgment by expressly communicating to the alien that his or her unlawful
    
    
    
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             DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present
    
    
    presence will be tolerated for a prescribed period of time. This difference is not, in
    our view, insignificant. But neither does it fundamentally transform deferred
    action into something other than an exercise of enforcement discretion: As we
    have previously noted, deferred action confers no lawful immigration status,
    provides no path to lawful permanent residence or citizenship, and is revocable at
    any time in the agency’s discretion.
       With respect to the second feature, the additional benefits deferred action con-
    fers—the ability to apply for work authorization and the tolling of unlawful
    presence—do not depend on background principles of agency discretion under
    DHS’s general immigration authorities or the Take Care Clause at all, but rather
    depend on independent and more specific statutory authority rooted in the text of
    the INA. The first of those authorities, DHS’s power to prescribe which aliens are
    authorized to work in the United States, is grounded in 8 U.S.C. § 1324a(h)(3),
    which defines an “unauthorized alien” not entitled to work in the United States as
    an alien who is neither an LPR nor “authorized to be . . . employed by [the INA]
    or by the Attorney General [now the Secretary of Homeland Security].” This
    statutory provision has long been understood to recognize the authority of the
    Secretary (and the Attorney General before him) to grant work authorization to
    particular classes of aliens. See 8 C.F.R. § 274a.12; see also Perales v. Casillas,
    
    903 F.2d 1043
    , 1048–50 (5th Cir. 1990) (describing the authority recognized by
    section 1324a(h)(3) as “permissive” and largely “unfettered”).11 Although the INA
    
        11
           Section 1324a(h)(3) was enacted in 1986 as part of IRCA. Before then, the INA contained no
    provisions comprehensively addressing the employment of aliens or expressly delegating the authority
    to regulate the employment of aliens to a responsible federal agency. INS assumed the authority to
    prescribe the classes of aliens authorized to work in the United States under its general responsibility to
    administer the immigration laws. In 1981, INS promulgated regulations codifying its existing
    procedures and criteria for granting employment authorization. See Employment Authorization to
    Aliens in the United States, 46 Fed. Reg. 25079, 25080–81 (May 5, 1981) (citing 8 U.S.C. § 1103(a)).
    Those regulations permitted certain categories of aliens who lacked lawful immigration status,
    including deferred action recipients, to apply for work authorization under certain circumstances.
    8 C.F.R. § 109.1(b)(7) (1982). In IRCA, Congress introduced a “comprehensive scheme prohibiting the
    employment of illegal aliens in the United States,” Hoffman Plastic Compounds, Inc. v. NLRB, 
    535 U.S. 137
    , 147 (2002), to be enforced primarily through criminal and civil penalties on employers who
    knowingly employ an “unauthorized alien.” As relevant here, Congress defined an “unauthorized
    alien” barred from employment in the United States as an alien who “is not . . . either (A) an alien
    lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by
    the Attorney General.” 8 U.S.C. § 1324a(h)(3) (emphasis added). Shortly after IRCA was enacted, INS
    denied a petition to rescind its employment authorization regulation, rejecting an argument that “the
    phrase ‘authorized to be so employed by this Act or the Attorney General’ does not recognize the
    Attorney General’s authority to grant work authorization except to those aliens who have already been
    granted specific authorization by the Act.” Employment Authorization; Classes of Aliens Eligible, 52
    Fed. Reg. 46092, 46093 (Dec. 4, 1987). Because the same statutory phrase refers both to aliens
    authorized to be employed by the INA and aliens authorized to be employed by the Attorney General,
    INS concluded that the only way to give effect to both references is to conclude “that Congress, being
    fully aware of the Attorney General’s authority to promulgate regulations, and approving of the manner
    in which he has exercised that authority in this matter, defined ‘unauthorized alien’ in such fashion as
    to exclude aliens who have been authorized employment by the Attorney General through the
    
    
    
    
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                         Opinions of the Office of Legal Counsel in Volume 38
    
    
    requires the Secretary to grant work authorization to particular classes of aliens,
    see, e.g., 8 U.S.C. § 1158(c)(1)(B) (aliens granted asylum), it places few limita-
    tions on the Secretary’s authority to grant work authorization to other classes of
    aliens. Further, and notably, additional provisions of the INA expressly contem-
    plate that the Secretary may grant work authorization to aliens lacking lawful
    immigration status—even those who are in active removal proceedings or, in
    certain circumstances, those who have already received final orders of removal.
    See id. § 1226(a)(3) (permitting the Secretary to grant work authorization to an
    otherwise work-eligible alien who has been arrested and detained pending a
    decision whether to remove the alien from the United States); id. § 1231(a)(7)
    (permitting the Secretary under certain narrow circumstances to grant work
    authorization to aliens who have received final orders of removal). Consistent with
    these provisions, the Secretary has long permitted certain additional classes of
    aliens who lack lawful immigration status to apply for work authorization,
    including deferred action recipients who can demonstrate an economic necessity
    for employment. See 8 C.F.R. § 274a.12(c)(14); see also id. § 274a.12(c)(8)
    (applicants for asylum), (c)(10) (applicants for cancellation of removal); supra
    note 11 (discussing 1981 regulations).
        The Secretary’s authority to suspend the accrual of unlawful presence of de-
    ferred action recipients is similarly grounded in the INA. The relevant statutory
    provision treats an alien as “unlawfully present” for purposes of 8 U.S.C.
    § 1182(a)(9)(B)(i) and (a)(9)(C)(i)(I) if he “is present in the United States after the
    expiration of the period of stay authorized by the Attorney General.” 8 U.S.C.
    § 1182(a)(9)(B)(ii). That language contemplates that the Attorney General (and
    now the Secretary) may authorize an alien to stay in the United States without
    accruing unlawful presence under section 1182(a)(9)(B)(i) or section
    1182(a)(9)(C)(i). And DHS regulations and policy guidance interpret a “period of
    stay authorized by the Attorney General” to include periods during which an alien
    has been granted deferred action. See 8 C.F.R. § 214.14(d)(3); 28 C.F.R.
    § 1100.35(b)(2); USCIS Consolidation of Guidance at 42.
        The final unusual feature of deferred action programs is particular to class-
    based programs. The breadth of such programs, in combination with the first two
    features of deferred action, may raise particular concerns about whether immigra-
    tion officials have undertaken to substantively change the statutory removal
    system rather than simply adapting its application to individual circumstances. But
    the salient feature of class-based programs—the establishment of an affirmative
    application process with threshold eligibility criteria—does not in and of itself
    cross the line between executing the law and rewriting it. Although every class-
    wide deferred action program that has been implemented to date has established
    
    regulatory process, in addition to those who are authorized employment by statute.” Id.; see Commodity
    Futures Trading Comm’n v. Schor, 
    478 U.S. 833
    , 844 (1986) (stating that “considerable weight must
    be accorded” an agency’s “contemporaneous interpretation of the statute it is entrusted to administer”).
    
    
    
    
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            DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present
    
    
    certain threshold eligibility criteria, each program has also left room for case-by-
    case determinations, giving immigration officials discretion to deny applications
    even if the applicant fulfills all of the program criteria. See supra pp. 15–18. Like
    the establishment of enforcement priorities discussed in Part I, the establishment
    of threshold eligibility criteria can serve to avoid arbitrary enforcement decisions
    by individual officers, thereby furthering the goal of ensuring consistency across a
    large agency. The guarantee of individualized, case-by-case review helps avoid
    potential concerns that, in establishing such eligibility criteria, the Executive is
    attempting to rewrite the law by defining new categories of aliens who are
    automatically entitled to particular immigration relief. See Crowley Caribbean
    Transp., 37 F.3d at 676–77; see also Chaney, 470 U.S. at 833 n.4. Furthermore,
    while permitting potentially eligible individuals to apply for an exercise of
    enforcement discretion is not especially common, many law enforcement agencies
    have developed programs that invite violators of the law to identify themselves to
    the authorities in exchange for leniency.12 Much as is the case with those pro-
    grams, inviting eligible aliens to identify themselves through an application
    process may serve the agency’s law enforcement interests by encouraging lower-
    priority individuals to identify themselves to the agency. In so doing, the process
    may enable the agency to better focus its scarce resources on higher enforcement
    priorities.
        Apart from the considerations just discussed, perhaps the clearest indication
    that these features of deferred action programs are not per se impermissible is the
    fact that Congress, aware of these features, has repeatedly enacted legislation
    appearing to endorse such programs. As discussed above, Congress has not only
    directed that certain classes of aliens be made eligible for deferred action pro-
    grams—and in at least one instance, in the case of VAWA beneficiaries, directed
    the expansion of an existing program—but also ranked evidence of approved
    deferred action status as evidence of “lawful status” for purposes of the REAL ID
    Act. These enactments strongly suggest that when DHS in the past has decided to
    grant deferred action to an individual or class of individuals, it has been acting in a
    manner consistent with congressional policy “‘rather than embarking on a frolic of
    its own.’” United States v. Riverside Bayview Homes, Inc., 
    474 U.S. 121
    , 139
    
        12
           For example, since 1978, the Department of Justice’s Antitrust Division has implemented a
    “leniency program” under which a corporation that reveals an antitrust conspiracy in which it
    participated may receive a conditional promise that it will not be prosecuted. See Dep’t of Justice,
    Frequently Asked Questions Regarding the Antitrust Division’s Leniency Program and Model Leniency
    Letters (November 19, 2008), available at http://www.justice.gov/atr/public/criminal/239583.pdf (last
    visited Nov. 19, 2014); see also Internal Revenue Manual § 9.5.11.9(2) (Revised IRS Voluntary
    Disclosure Practice), available at http://www.irs.gov/uac/Revised-IRS-Voluntary-Disclosure-Practice
    (last visited Nov. 19, 2014) (explaining that a taxpayer’s voluntary disclosure of misreported tax
    information “may result in prosecution not being recommended”); U.S. Marshals Service, Fugitive Safe
    Surrender FAQs, available at http://www.usmarshals.gov/safesurrender/faqs.html (last visited Nov. 19,
    2014) (stating that fugitives who surrender at designated sites and times under the “Fugitive Safe
    Surrender” program are likely to receive “favorable consideration”).
    
    
    
    
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                     Opinions of the Office of Legal Counsel in Volume 38
    
    
    (1985) (quoting Red Lion Broad. Co. v. FCC, 
    395 U.S. 367
    , 375 (1969)); cf. id. at
    137–39 (concluding that Congress acquiesced in an agency’s assertion of regulato-
    ry authority by “refus[ing] . . . to overrule” the agency’s view after it was specifi-
    cally “brought to Congress’[s] attention,” and further finding implicit congression-
    al approval in legislation that appeared to acknowledge the regulatory authority in
    question); Dames & Moore v. Regan, 
    453 U.S. 654
    , 680 (1981) (finding that
    Congress “implicitly approved the practice of claim settlement by executive
    agreement” by enacting the International Claims Settlement Act of 1949, which
    “create[d] a procedure to implement” those very agreements).
       Congress’s apparent endorsement of certain deferred action programs does not
    mean, of course, that a deferred action program can be lawfully extended to any
    group of aliens, no matter its characteristics or its scope, and no matter the
    circumstances in which the program is implemented. Because deferred action, like
    the prioritization policy discussed above, is an exercise of enforcement discretion
    rooted in the Secretary’s broad authority to enforce the immigration laws and the
    President’s duty to take care that the laws are faithfully executed, it is subject to
    the same four general principles previously discussed. See supra pp. 6–7. Thus,
    any expansion of deferred action to new classes of aliens must be carefully
    scrutinized to ensure that it reflects considerations within the agency’s expertise,
    and that it does not seek to effectively rewrite the laws to match the Executive’s
    policy preferences, but rather operates in a manner consonant with congressional
    policy expressed in the statute. See supra pp. 6–7 (citing Youngstown, 343 U.S. at
    637, and Nat’l Ass’n of Home Builders, 551 U.S. at 658). Immigration officials
    cannot abdicate their statutory responsibilities under the guise of exercising
    enforcement discretion. See supra p. 7 (citing Chaney, 470 U.S. at 833 n.4). And
    any new deferred action program should leave room for individualized evaluation
    of whether a particular case warrants the expenditure of resources for enforcement.
    See supra p. 7 (citing Glickman, 96 F.3d at 1123, and Crowley Caribbean Transp.,
    37 F.3d at 676–77).
       Furthermore, because deferred action programs depart in certain respects from
    more familiar and widespread exercises of enforcement discretion, particularly
    careful examination is needed to ensure that any proposed expansion of deferred
    action complies with these general principles, so that the proposed program does
    not, in effect, cross the line between executing the law and rewriting it. In
    analyzing whether the proposed programs cross this line, we will draw substantial
    guidance from Congress’s history of legislation concerning deferred action. In the
    absence of express statutory guidance, the nature of deferred action programs
    Congress has implicitly approved by statute helps to shed light on Congress’s own
    understandings about the permissible uses of deferred action. Those understand-
    ings, in turn, help to inform our consideration of whether the proposed deferred
    action programs are “faithful[]” to the statutory scheme Congress has enacted.
    U.S. Const. art. II, § 3.
    
    
    
    
                                             24
           DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present
    
    
                                              C.
    
       We now turn to the specifics of DHS’s proposed deferred action programs.
    DHS has proposed implementing a policy under which an alien could apply for,
    and would be eligible to receive, deferred action if he or she: (1) is not an en-
    forcement priority under DHS policy; (2) has continuously resided in the United
    States since before January 1, 2010; (3) is physically present in the United States
    both when DHS announces its program and at the time of application for deferred
    action; (4) has a child who is a U.S. citizen or LPR; and (5) presents “no other
    factors that, in the exercise of discretion, make[] the grant of deferred action
    inappropriate.” Johnson Deferred Action Memorandum at 4. You have also asked
    about the permissibility of a similar program that would be open to parents of
    children who have received deferred action under the DACA program. We first
    address DHS’s proposal to implement a deferred action program for the parents of
    U.S. citizens and LPRs, and then turn to the permissibility of the program for
    parents of DACA recipients in the next section.
    
                                              1.
    
        We begin by considering whether the proposed program for the parents of U.S.
    citizens and LPRs reflects considerations within the agency’s expertise. DHS has
    offered two justifications for the proposed program for the parents of U.S. citizens
    and LPRs. First, as noted above, severe resource constraints make it inevitable that
    DHS will not remove the vast majority of aliens who are unlawfully present in the
    United States. Consistent with Congress’s instruction, DHS prioritizes the removal
    of individuals who have significant criminal records, as well as others who present
    dangers to national security, public safety, or border security. See supra p. 10.
    Parents with longstanding ties to the country and who have no significant criminal
    records or other risk factors rank among the agency’s lowest enforcement
    priorities; absent significant increases in funding, the likelihood that any individu-
    al in that category will be determined to warrant the expenditure of severely
    limited enforcement resources is very low. Second, DHS has explained that the
    program would serve an important humanitarian interest in keeping parents
    together with children who are lawfully present in the United States, in situations
    where such parents have demonstrated significant ties to community and family in
    this country. See Shahoulian E-mail.
        With respect to DHS’s first justification, the need to efficiently allocate scarce
    enforcement resources is a quintessential basis for an agency’s exercise of
    enforcement discretion. See Chaney, 470 U.S. at 831. Because, as discussed
    earlier, Congress has appropriated only a small fraction of the funds needed for
    full enforcement, DHS can remove no more than a small fraction of the individu-
    als who are removable under the immigration laws. See supra p. 9. The agency
    must therefore make choices about which violations of the immigration laws it
    
    
    
    
                                              25
                     Opinions of the Office of Legal Counsel in Volume 38
    
    
    will prioritize and pursue. And as Chaney makes clear, such choices are entrusted
    largely to the Executive’s discretion. 470 U.S. at 831.
        The deferred action program DHS proposes would not, of course, be costless.
    Processing applications for deferred action and its renewal requires manpower and
    resources. See Arizona, 132 S. Ct. at 2521 (Scalia, J., concurring in part and
    dissenting in part). But DHS has informed us that the costs of administering the
    proposed program would be borne almost entirely by USCIS through the collec-
    tion of application fees. See Shahoulian E-mail; see also 8 U.S.C. § 1356(m);
    8 C.F.R. § 103.7(b)(1)(i)(C), (b)(1)(i)(HH). DHS has indicated that the costs of
    administering the deferred action program would therefore not detract in any
    significant way from the resources available to ICE and CBP—the enforcement
    arms of DHS—which rely on money appropriated by Congress to fund their
    operations. See Shahoulian E-mail. DHS has explained that, if anything, the
    proposed deferred action program might increase ICE’s and CBP’s efficiency by
    in effect using USCIS’s fee-funded resources to enable those enforcement
    divisions to more easily identify non-priority aliens and focus their resources on
    pursuing aliens who are strong candidates for removal. See id. The proposed
    program, in short, might help DHS address its severe resource limitations, and at
    the very least likely would not exacerbate them. See id.
        DHS does not, however, attempt to justify the proposed program solely as a
    cost-saving measure, or suggest that its lack of resources alone is sufficient to
    justify creating a deferred action program for the proposed class. Rather, as noted
    above, DHS has explained that the program would also serve a particularized
    humanitarian interest in promoting family unity by enabling those parents of U.S.
    citizens and LPRs who are not otherwise enforcement priorities and who have
    demonstrated community and family ties in the United States (as evidenced by the
    length of time they have remained in the country) to remain united with their
    children in the United States. Like determining how best to respond to resource
    constraints, determining how to address such “human concerns” in the immigra-
    tion context is a consideration that is generally understood to fall within DHS’s
    expertise. Arizona, 132 S. Ct. at 2499.
        This second justification for the program also appears consonant with congres-
    sional policy embodied in the INA. Numerous provisions of the statute reflect a
    particular concern with uniting aliens with close relatives who have attained
    lawful immigration status in the United States. See, e.g., Fiallo v. Bell, 
    430 U.S. 787
    , 795 n.6 (1977); INS v. Errico, 
    385 U.S. 214
    , 220 n.9 (1966) (“‘The legislative
    history of the Immigration and Nationality Act clearly indicates that the Con-
    gress . . . was concerned with the problem of keeping families of United States
    citizens and immigrants united.’” (quoting H.R. Rep. No. 85-1199, at 7 (1957)).
    The INA provides a path to lawful status for the parents, as well as other immedi-
    ate relatives, of U.S. citizens: U.S. citizens aged twenty-one or over may petition
    for parents to obtain visas that would permit them to enter and permanently reside
    
    
    
    
                                             26
             DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present
    
    
    in the United States, and there is no limit on the overall number of such petitions
    that may be granted. See 8 U.S.C. § 1151(b)(2)(A)(i); see also Cuellar de Osorio,
    134 S. Ct. at 2197–99 (describing the process for obtaining a family-based
    immigrant visa). And although the INA contains no parallel provision permitting
    LPRs to petition on behalf of their parents, it does provide a path for LPRs to
    become citizens, at which point they too can petition to obtain visas for their
    parents. See, e.g., 8 U.S.C. § 1427(a) (providing that aliens are generally eligible
    to become naturalized citizens after five years of lawful permanent residence); id.
    § 1430(a) (alien spouses of U.S. citizens become eligible after three years of
    lawful permanent residence); Demore v. Kim, 
    538 U.S. 510
    , 544 (2003).13
    Additionally, the INA empowers the Attorney General to cancel the removal of,
    and adjust to lawful permanent resident status, aliens who have been physically
    present in the United States for a continuous period of not less than ten years,
    exhibit good moral character, have not been convicted of specified offenses, and
    have immediate relatives who are U.S. citizens or LPRs and who would suffer
    exceptional hardship from the alien’s removal. 8 U.S.C. § 1229b(b)(1). DHS’s
    proposal to focus on the parents of U.S. citizens and LPRs thus tracks a congres-
    sional concern, expressed in the INA, with uniting the immediate families of
    individuals who have permanent legal ties to the United States.
       At the same time, because the temporary relief DHS’s proposed program would
    confer to such parents is sharply limited in comparison to the benefits Congress
    has made available through statute, DHS’s proposed program would not operate to
    circumvent the limits Congress has placed on the availability of those benefits.
    The statutory provisions discussed above offer the parents of U.S. citizens and
    LPRs the prospect of permanent lawful status in the United States. The cancella-
    tion of removal provision, moreover, offers the prospect of receiving such status
    
    
       13
           The INA does permit LPRs to petition on behalf of their spouses and children even before they
    have attained citizenship. See 8 U.S.C. § 1153(a)(2). However, the exclusion of LPRs’ parents from
    this provision does not appear to reflect a congressional judgment that, until they attain citizenship,
    LPRs lack an interest in being united with their parents comparable to their interest in being united with
    their other immediate relatives. The distinction between parents and other relatives originated with a
    1924 statute that exempted the wives and minor children of U.S. citizens from immigration quotas,
    gave “preference status”—eligibility for a specially designated pool of immigrant visas—to other
    relatives of U.S. citizens, and gave no favorable treatment to the relatives of LPRs. Immigration Act of
    1924, Pub. L. No. 68-139, §§ 4(a), 6, 43 Stat. 153, 155–56. In 1928, Congress extended preference
    status to LPRs’ wives and minor children, reasoning that because such relatives would be eligible for
    visas without regard to any quota when their LPR relatives became citizens, granting preference status
    to LPRs’ wives and minor children would “hasten[]” the “family reunion.” S. Rep. No. 70-245, at 2
    (1928); see Act of May 29, 1928, ch. 914, 45 Stat. 1009, 1009–10. The special visa status for wives and
    children of LPRs thus mirrored, and was designed to complement, the special visa status given to wives
    and minor children of U.S. citizens. In 1965, Congress eliminated the basis on which the distinction
    had rested by exempting all “immediate relatives” of U.S. citizens, including parents, from numerical
    restrictions on immigration. Pub. L. No. 89-236, § 1, 79 Stat. 911, 911. But it did not amend eligibility
    for preference status for relatives of LPRs to reflect that change. We have not been able to discern any
    rationale for this omission in the legislative history or statutory text of the 1965 law.
    
    
    
    
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    immediately, without the delays generally associated with the family-based
    immigrant visa process. DHS’s proposed program, in contrast, would not grant the
    parents of U.S. citizens and LPRs any lawful immigration status, provide a path to
    permanent residence or citizenship, or otherwise confer any legally enforceable
    entitlement to remain in the United States. See USCIS SOP at 3. It is true that, as
    we have discussed, a grant of deferred action would confer eligibility to apply for
    and obtain work authorization, pursuant to the Secretary’s statutory authority to
    grant such authorization and the longstanding regulations promulgated thereunder.
    See supra pp. 13, 21–22. But unlike the automatic employment eligibility that
    accompanies LPR status, see 8 U.S.C. § 1324a(h)(3), this authorization could be
    granted only on a showing of economic necessity, and would last only for the
    limited duration of the deferred action grant, see 8 C.F.R. § 274a.12(c)(14).
        The other salient features of the proposal are similarly consonant with con-
    gressional policy. The proposed program would focus on parents who are not
    enforcement priorities under the prioritization policy discussed above—a policy
    that, as explained earlier, comports with the removal priorities set by Congress.
    See supra p. 10. The continuous residence requirement is likewise consistent
    with legislative judgments that extended periods of continuous residence are
    indicative of strong family and community ties. See IRCA, Pub. L. No. 99-603,
    § 201(a), 100 Stat. 3359, 3394 (1986) (codified as amended at 8 U.S.C.
    § 1255a(a)(2)) (granting lawful status to certain aliens unlawfully present in the
    United States since January 1, 1982); id. § 302(a) (codified as amended at
    8 U.S.C. § 1160) (granting similar relief to certain agricultural workers); H.R.
    Rep. No. 99-682, pt. 1, at 49 (1986) (stating that aliens present in the United
    States for five years “have become a part of their communities[,] . . . have strong
    family ties here which include U.S. citizens and lawful residents[,] . . . have
    built social networks in this country[, and] . . . have contributed to the United
    States in myriad ways”); S. Rep. No. 99-132, at 16 (1985) (deporting aliens who
    “have become well settled in this country” would be a “wasteful use of the
    Immigration and Naturalization Service’s limited enforcement resources”); see
    also Arizona, 132 S. Ct. at 2499 (noting that “[t]he equities of an individual
    case” turn on factors “including whether the alien has . . . long ties to the
    community”).
        We also do not believe DHS’s proposed program amounts to an abdication of
    its statutory responsibilities, or a legislative rule overriding the commands of the
    statute. As discussed earlier, DHS’s severe resource constraints mean that, unless
    circumstances change, it could not as a practical matter remove the vast majority
    of removable aliens present in the United States. The fact that the proposed
    program would defer the removal of a subset of these removable aliens—a subset
    that ranks near the bottom of the list of the agency’s removal priorities—thus does
    not, by itself, demonstrate that the program amounts to an abdication of DHS’s
    responsibilities. And the case-by-case discretion given to immigration officials
    under DHS’s proposed program alleviates potential concerns that DHS has
    
    
    
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            DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present
    
    
    abdicated its statutory enforcement responsibilities with respect to, or created a
    categorical, rule-like entitlement to immigration relief for, the particular class of
    aliens eligible for the program. An alien who meets all the criteria for deferred
    action under the program would receive deferred action only if he or she “pre-
    sent[ed] no other factors that, in the exercise of discretion,” would “make[] the
    grant of deferred action inappropriate.” Johnson Deferred Action Memorandum
    at 4. The proposed policy does not specify what would count as such a factor; it
    thus leaves the relevant USCIS official with substantial discretion to determine
    whether a grant of deferred action is warranted. In other words, even if an alien is
    not a removal priority under the proposed policy discussed in Part I, has continu-
    ously resided in the United States since before January 1, 2010, is physically
    present in the country, and is a parent of an LPR or a U.S. citizen, the USCIS
    official evaluating the alien’s deferred action application must still make a
    judgment, in the exercise of her discretion, about whether that alien presents any
    other factor that would make a grant of deferred action inappropriate. This feature
    of the proposed program ensures that it does not create a categorical entitlement to
    deferred action that could raise concerns that DHS is either impermissibly
    attempting to rewrite or categorically declining to enforce the law with respect to a
    particular group of undocumented aliens.
        Finally, the proposed deferred action program would resemble in material
    respects the kinds of deferred action programs Congress has implicitly approved in
    the past, which provides some indication that the proposal is consonant not only
    with interests reflected in immigration law as a general matter, but also with
    congressional understandings about the permissible uses of deferred action. As
    noted above, the program uses deferred action as an interim measure for a group
    of aliens to whom Congress has given a prospective entitlement to lawful immi-
    gration status. While Congress has provided a path to lawful status for the parents
    of U.S. citizens and LPRs, the process of obtaining that status “takes time.”
    Cuellar de Osorio, 134 S. Ct. at 2199. The proposed program would provide a
    mechanism for families to remain together, depending on their circumstances, for
    some or all of the intervening period.14 Immigration officials have on several
    
    
        14
           DHS’s proposed program would likely not permit all potentially eligible parents to remain
    together with their children for the entire duration of the time until a visa is awarded. In particular,
    undocumented parents of adult citizens who are physically present in the country would be ineligible to
    adjust their status without first leaving the country if they had never been “inspected and admitted or
    paroled into the United States.” 8 U.S.C. § 1255(a) (permitting the Attorney General to adjust to
    permanent resident status certain aliens present in the United States if they become eligible for
    immigrant visas). They would thus need to leave the country to obtain a visa at a U.S. consulate
    abroad. See id. § 1201(a); Cuellar de Osorio, 134 S. Ct. at 2197–99. But once such parents left the
    country, they would in most instances become subject to the 3- or 10-year bar under 8 U.S.C.
    § 1182(a)(9)(B)(i) and therefore unable to obtain a visa unless they remained outside the country for
    the duration of the bar. DHS’s proposed program would nevertheless enable other families to stay
    together without regard to the 3- or 10-year bar. And even as to those families with parents who would
    become subject to that bar, the proposed deferred action program would have the effect of reducing the
    
    
    
    
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                         Opinions of the Office of Legal Counsel in Volume 38
    
    
    occasions deployed deferred action programs as interim measures for other classes
    of aliens with prospective entitlements to lawful immigration status, including
    VAWA self-petitioners, bona fide T and U visa applicants, certain immediate
    family members of certain U.S. citizens killed in combat, and certain immediate
    family members of aliens killed on September 11, 2001. As noted above, each of
    these programs has received Congress’s implicit approval—and, indeed, in the
    case of VAWA self-petitioners, a direction to expand the program beyond its
    original bounds. See supra pp. 18–20.15 In addition, much like these and other
    programs Congress has implicitly endorsed, the program serves substantial and
    particularized humanitarian interests. Removing the parents of U.S. citizens and
    LPRs—that is, of children who have established permanent legal ties to the United
    States—would separate them from their nuclear families, potentially for many
    years, until they were able to secure visas through the path Congress has provided.
    During that time, both the parents and their U.S. citizen or LPR children would be
    deprived of both the economic support and the intangible benefits that families
    provide.
        We recognize that the proposed program would likely differ in size from these
    prior deferred action programs. Although DHS has indicated that there is no
    reliable way to know how many eligible aliens would actually apply for or would
    be likely to receive deferred action following individualized consideration under
    the proposed program, it has informed us that approximately 4 million individuals
    could be eligible to apply. See Shahoulian E-mail. We have thus considered
    whether the size of the program alone sets it at odds with congressional policy or
    the Executive’s duties under the Take Care Clause. In the absence of express
    statutory guidance, it is difficult to say exactly how the program’s potential size
    bears on its permissibility as an exercise of executive enforcement discretion. But
    because the size of DHS’s proposed program corresponds to the size of a popula-
    tion to which Congress has granted a prospective entitlement to lawful status
    
    
    amount of time the family had to spend apart, and could enable them to adjust the timing of their
    separation according to, for example, their children’s needs for care and support.
        15
           Several extended voluntary departure programs have been animated by a similar rationale, and
    the most prominent of these programs also received Congress’s implicit approval. In particular, as
    noted above, the Family Fairness policy, implemented in 1990, authorized granting extended voluntary
    departure and work authorization to the estimated 1.5 million spouses and children of aliens granted
    legal status under IRCA—aliens who would eventually “acquire lawful permanent resident status” and
    be able to petition on behalf of their family members. Family Fairness Memorandum at 1; see supra
    pp. 14–15. Later that year, Congress granted the beneficiaries of the Family Fairness program an
    indefinite stay of deportation. See Immigration Act of 1990, Pub. L. No. 101-649, § 301, 104 Stat.
    4978, 5030. Although it did not make that grant of relief effective for nearly a year, Congress clarified
    that “the delay in effectiveness of this section shall not be construed as reflecting a Congressional
    belief that the existing family fairness program should be modified in any way before such date.” Id.
    § 301(g). INS’s policies for qualifying Third Preference visa applicants and nurses eligible for H-1
    nonimmigrant status likewise extended to aliens with prospective entitlements to lawful status. See
    supra p. 14.
    
    
    
    
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           DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present
    
    
    without numerical restriction, it seems to us difficult to sustain an argument, based
    on numbers alone, that DHS’s proposal to grant a limited form of administrative
    relief as a temporary interim measure exceeds its enforcement discretion under the
    INA. Furthermore, while the potential size of the program is large, it is neverthe-
    less only a fraction of the approximately 11 million undocumented aliens who
    remain in the United States each year because DHS lacks the resources to remove
    them; and, as we have indicated, the program is limited to individuals who would
    be unlikely to be removed under DHS’s proposed prioritization policy. There is
    thus little practical danger that the program, simply by virtue of its size, will
    impede removals that would otherwise occur in its absence. And although we are
    aware of no prior exercises of deferred action of the size contemplated here, INS’s
    1990 Family Fairness policy, which Congress later implicitly approved, made a
    comparable fraction of undocumented aliens—approximately four in ten—
    potentially eligible for discretionary extended voluntary departure relief. Compare
    CRS Immigration Report at 22 (estimating the Family Fairness policy extended to
    1.5 million undocumented aliens), with Office of Policy and Planning, INS,
    Estimates of the Unauthorized Immigrant Population Residing in the United
    States: 1990 to 2000 at 10 (2003) (estimating an undocumented alien population
    of 3.5 million in 1990); see supra notes 5 & 15 (discussing extended voluntary
    departure and Congress’s implicit approval of the Family Fairness policy). This
    suggests that DHS’s proposed deferred action program is not, simply by virtue of
    its relative size, inconsistent with what Congress has previously considered a
    permissible exercise of enforcement discretion in the immigration context.
        In light of these considerations, we believe the proposed expansion of deferred
    action to the parents of U.S. citizens and LPRs is lawful. It reflects considera-
    tions—responding to resource constraints and to particularized humanitarian
    concerns arising in the immigration context—that fall within DHS’s expertise. It is
    consistent with congressional policy, since it focuses on a group—law-abiding
    parents of lawfully present children who have substantial ties to the community—
    that Congress itself has granted favorable treatment in the immigration process.
    The program provides for the exercise of case-by-case discretion, thereby avoiding
    creating a rule-like entitlement to immigration relief or abdicating DHS’s en-
    forcement responsibilities for a particular class of aliens. And, like several
    deferred action programs Congress has approved in the past, the proposed program
    provides interim relief that would prevent particularized harm that could otherwise
    befall both the beneficiaries of the program and their families. We accordingly
    conclude that the proposed program would constitute a permissible exercise of
    DHS’s enforcement discretion under the INA.
    
                                              2.
    
       We now turn to the proposed deferred action program for the parents of DACA
    recipients. The relevant considerations are, to a certain extent, similar to those
    
    
    
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    discussed above: Like the program for the parents of U.S. citizens and LPRs, the
    proposed program for parents of DACA recipients would respond to severe
    resource constraints that dramatically limit DHS’s ability to remove aliens who are
    unlawfully present, and would be limited to individuals who would be unlikely to
    be removed under DHS’s proposed prioritization policy. And like the proposed
    program for LPRs and U.S. citizens, the proposed program for DACA parents
    would preserve a significant measure of case-by-case discretion not to award
    deferred action even if the general eligibility criteria are satisfied.
        But the proposed program for parents of DACA recipients is unlike the pro-
    posed program for parents of U.S. citizens and LPRs in two critical respects. First,
    although DHS justifies the proposed program in large part based on considerations
    of family unity, the parents of DACA recipients are differently situated from the
    parents of U.S. citizens and LPRs under the family-related provisions of the
    immigration law. Many provisions of the INA reflect Congress’s general concern
    with not separating individuals who are legally entitled to live in the United States
    from their immediate family members. See, e.g., 8 U.S.C. § 1151(b)(2)(A)(i)
    (permitting citizens to petition for parents, spouses and children); id.
    § 1229b(b)(1) (allowing cancellation of removal for relatives of citizens and
    LPRs). But the immigration laws do not express comparable concern for uniting
    persons who lack lawful status (or prospective lawful status) in the United States
    with their families. DACA recipients unquestionably lack lawful status in the
    United States. See DACA Toolkit at 8 (“Deferred action . . . does not provide you
    with a lawful status.”). Although they may presumptively remain in the United
    States, at least for the duration of the grant of deferred action, that grant is both
    time-limited and contingent, revocable at any time in the agency’s discretion.
    Extending deferred action to the parents of DACA recipients would therefore
    expand family-based immigration relief in a manner that deviates in important
    respects from the immigration system Congress has enacted and the policies that
    system embodies.
        Second, as it has been described to us, the proposed deferred action program
    for the parents of DACA recipients would represent a significant departure from
    deferred action programs that Congress has implicitly approved in the past.
    Granting deferred action to the parents of DACA recipients would not operate as
    an interim measure for individuals to whom Congress has given a prospective
    entitlement to lawful status. Such parents have no special prospect of obtaining
    visas, since Congress has not enabled them to self-petition—as it has for VAWA
    self-petitioners and individuals eligible for T or U visas—or enabled their
    undocumented children to petition for visas on their behalf. Nor would granting
    deferred action to parents of DACA recipients, at least in the absence of other
    factors, serve interests that are comparable to those that have prompted implemen-
    tation of deferred action programs in the past. Family unity is, as we have
    discussed, a significant humanitarian concern that underlies many provisions of
    the INA. But a concern with furthering family unity alone would not justify the
    
    
    
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           DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present
    
    
    proposed program, because in the absence of any family member with lawful
    status in the United States, it would not explain why that concern should be
    satisfied by permitting family members to remain in the United States. The
    decision to grant deferred action to DACA parents thus seems to depend critically
    on the earlier decision to make deferred action available to their children. But we
    are aware of no precedent for using deferred action in this way, to respond to
    humanitarian needs rooted in earlier exercises of deferred action. The logic
    underlying such an expansion does not have a clear stopping point: It would
    appear to argue in favor of extending relief not only to parents of DACA recipi-
    ents, but also to the close relatives of any alien granted deferred action through
    DACA or any other program, those relatives’ close relatives, and perhaps the
    relatives (and relatives’ relatives) of any alien granted any form of discretionary
    relief from removal by the Executive.
        For these reasons, the proposed deferred action program for the parents of
    DACA recipients is meaningfully different from the proposed program for the
    parents of U.S. citizens and LPRs. It does not sound in Congress’s concern for
    maintaining the integrity of families of individuals legally entitled to live in the
    United States. And unlike prior deferred action programs in which Congress has
    acquiesced, it would treat the Executive’s prior decision to extend deferred action
    to one population as justifying the extension of deferred action to additional
    populations. DHS, of course, remains free to consider whether to grant deferred
    action to individual parents of DACA recipients on an ad hoc basis. But in the
    absence of clearer indications that the proposed class-based deferred action
    program for DACA parents would be consistent with the congressional policies
    and priorities embodied in the immigration laws, we conclude that it would not be
    permissible.
    
                                              III.
    
        In sum, for the reasons set forth above, we conclude that DHS’s proposed
    prioritization policy and its proposed deferred action program for parents of U.S.
    citizens and lawful permanent residents would be legally permissible, but that the
    proposed deferred action program for parents of DACA recipients would not be
    permissible.
    
                                                    KARL R. THOMPSON
                                          Principal Deputy Assistant Attorney General
                                                    Office of Legal Counsel
    
    
    
    
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