1 

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 permissible 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 
Opinions of the Office of Legal Counsel in Volume 38 

2 

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 authorization 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 prioritization policy and its proposed deferred action program for parents of U.S. citizens 

and lawful permanent residents would be permissible exercises of DHS’s discretion 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 
DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present 

3 

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 Immigration 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 administered 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 Naturalization 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 immigration into the United States and provides immigration and naturalization services to 

aliens; ICE, which enforces federal laws governing customs, trade, and immigration; 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 
Opinions of the Office of Legal Counsel in Volume 38 

4 

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 determination 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 particular 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 understanding, 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 
DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present 

5 

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 recognized 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 discretionary 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 immediate human concerns. Unauthorized workers trying to support their 

families, for example, likely pose less danger than alien smugglers or 

aliens who commit a serious crime. The equities of an individual 

case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions 

involve policy choices that bear on this Nation’s international relations. . . . 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, unlimited. 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 
Opinions of the Office of Legal Counsel in Volume 38 

6 

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 discretion, 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). 
DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present 

7 

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 nonenforcement 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) (explaining 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 
Opinions of the Office of Legal Counsel in Volume 38 

8 

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 undocumented 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 convicted 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 circumstances”). 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 
DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present 

9 

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 practical 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 immigration 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. 
Opinions of the Office of Legal Counsel in Volume 38 

10 

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 priorities 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 demonstrated 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 responsibilities, 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 
DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present 

11 

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 removable 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 discretion 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). 
Opinions of the Office of Legal Counsel in Volume 38 

12 

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 administrative 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 administratively 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”). 
DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present 

13 

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 Directorate, 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 
Opinions of the Office of Legal Counsel in Volume 38 

14 

(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 implemented 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 Outof-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. 
DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present 

15 

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: Supplemental 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 Hearings”). 

2. Deferred Action for T and U Visa Applicants. Several years later, INS instituted 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 
Opinions of the Office of Legal Counsel in Volume 38 

16 

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

17 

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. Memorandum 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 Commissioner, 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 requirement 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). 
Opinions of the Office of Legal Counsel in Volume 38 

18 

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, including 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 acknowledging but also expanding the deferred action program in the 2000 VAWA 

reauthorization legislation, providing that children who could no longer selfpetition 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 particularized 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. 
DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present 

19 

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) deferred 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 subsection 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 familysponsored 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 selfpetitioners should continue.” 151 Cong. Rec. 29334 (2005) (statement of Rep. Conyers). 
Opinions of the Office of Legal Counsel in Volume 38 

20 

49 U.S.C. § 30301 note), which makes a state-issued driver’s license or identification 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 enforcement 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 nonenforcement 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 presence—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 
DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present 

21 

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 confers—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 
Opinions of the Office of Legal Counsel in Volume 38 

22 

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 limitations on the Secretary’s authority to grant work authorization to other classes of 

aliens. Further, and notably, additional provisions of the INA expressly contemplate 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 deferred 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 classbased programs. The breadth of such programs, in combination with the first two 

features of deferred action, may raise particular concerns about whether immigration 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 classwide 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”). 
DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present 

23 

certain threshold eligibility criteria, each program has also left room for case-bycase 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 programs, inviting eligible aliens to identify themselves through an application 

process may serve the agency’s law enforcement interests by encouraging lowerpriority 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 programs—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”). 
Opinions of the Office of Legal Counsel in Volume 38 

24 

(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 regulatory authority by “refus[ing] . . . to overrule” the agency’s view after it was specifically “brought to Congress’[s] attention,” and further finding implicit congressional 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 understandings, 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. 
DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present 

25 

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 enforcement 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 individual 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 individuals 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 
Opinions of the Office of Legal Counsel in Volume 38 

26 

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 collection 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 immigration 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 congressional 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 Congress . . . 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 immediate 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 
DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present 

27 

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 congressional 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 cancellation 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. 
Opinions of the Office of Legal Counsel in Volume 38 

28 

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

29 

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 “present[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 continuously 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 immigration 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 
Opinions of the Office of Legal Counsel in Volume 38 

30 

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

31 

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 nevertheless 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 considerations—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 enforcement 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 
Opinions of the Office of Legal Counsel in Volume 38 

32 

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

33 

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 recipients, 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