An Overview of Discretionary Reprieves from Removal: Deferred Action, DACA, TPS, and Others
Released: 2018-04-10T00:00:00

Introduction

The Immigration and Nationality Act (INA) establishes a system of rules as to which non-U.S. nationals (aliens) may enter the United States and under what conditions. It sets forth, for instance, three primary categories—family-based, employment-based, and diversity-based—through which an alien may qualify for an immigrant visa and thereby seek admission to the United States as a lawful permanent resident (LPR). The INA also establishes requirements for the admission of refugees, and delineates the categories of aliens who may be admitted temporarily as nonimmigrants for particular purposes such as study, tourism, or temporary work.

Those aliens who enter or remain in the country in violation of the INA's restrictions generally are subject to removal based on their presence within the United States alone . As a consequence, the Department of Homeland Security (DHS)—the federal agency primarily responsible for enforcing the INA—has a statutory basis to seek the removal of such aliens even if they have not committed crimes or violated other INA provisions. According to recent estimates, there are currently between ten and twelve million aliens in the United States whose presence violates the INA. They arrive in two ways primarily: (1) surreptitiously, by crossing the border without inspection; or (2) on a temporary nonimmigrant visa (e.g., on a B-1/B-2 tourist visa, which typically allows them to remain for six months), which they then overstay. DHS has estimated in the past that its resources allow it to remove a maximum of 400,000 aliens per year who are present in violation of the INA.

For reasons that may range from administrative convenience to humanitarian concerns, immigration authorities sometimes decide not to seek the removal of unlawfully present aliens —either during a specified timeframe or indefinitely—and communicate that decision to the affected aliens. Well-known examples of such decisions include grants of deferred action, protections granted under the Deferred Action for Childhood Arrivals (DACA) initiative, and Temporary Protected Status (TPS). The former two types of reprieves confer assurances from DHS, premised on its enforcement discretion, that the agency will not seek an alien's removal, often during a defined time period. The latter, TPS, is a statutory mechanism that allows immigration authorities to grant temporary protection from removal to aliens from countries experiencing upheaval or instability.

This report refers to executive decisions not to seek removal as "discretionary reprieves from removal" because their effective period generally depends on the duration of the Executive's inclination not to seek removal and because the reprieves (unlike statutory legalization mechanisms such as cancellation of removal, registry, or asylum ) do not confer LPR status or create a direct avenue to that status. (However, in some jurisdictions, TPS may facilitate adjustment to LPR status for aliens who otherwise qualify for immigrant visas in a family-based, employment-based, or diversity-based category.) Discretionary reprieves from removal do not, in other words, offer steadfast protection from removal, although they typically confer eligibility for work authorization, among other benefits. A burgeoning body of legal scholarship about discretionary reprieves has coined an array of terms for the peculiar sort of relief that they provide, including "quasi-legal status," "liminal" or "twilight" status, and the "status of nonstatus." In recent decades, discretionary reprieves have grown in prevalence and become an increasingly significant aspect of the federal government's regulation of the unlawfully present population. The prevalence of discretionary reprieves may well decline in the near term, however, as a result of changes in executive policy concerning DACA, TPS, and Deferred Enforced Departure (DED).

This report provides an overview of discretionary reprieves from removal. It discusses the primary sources of authority on which discretionary reprieves are premised and describes, in general, the nature of the protections that they confer. The report concludes with a glossary of the principal types of discretionary reprieves.

Sources of Executive Authority to Grant Discretionary Reprieves from Removal

The Executive's power to grant most of the existing forms of discretionary reprieves—including deferred action, DACA, and DED, among others—is typically attributed to its enforcement discretion: that is, its authority to determine the best method for enforcing federal immigration law. This enforcement discretion includes the authority to prioritize some cases over others to conserve resources or avoid unjust results. Criminal prosecutors in the United States possess a similar type of discretion. They need not prosecute every crime of which they become aware, and their ability to set prosecution priorities that maximize the impact of their limited resources is considered fundamental to the American criminal justice system. Drawing from this criminal law tradition, courts, immigration officials, and commentators often call the Executive's authority to decline to seek removal of some unlawfully present aliens "prosecutorial discretion," even though removal proceedings are civil rather than criminal in nature.

Enforcement discretion in the immigration context has unique attributes that distinguish it from prosecutorial discretion in the criminal context. The INA puts no general statute of limitations on removal. Thus, the Executive's decision not to seek removal of an alien lacks the definitive quality of many decisions not to prosecute crimes, which become irreversible if an applicable statute of limitations expires. Aliens present in violation of the INA remain removable indefinitely (unless they otherwise acquire a legal status), so an assurance that the Executive will not seek their removal at a particular juncture does not redress their long-term situation. Further, perhaps as a consequence of this reality, a discretionary reprieve from removal differs from a decision not to prosecute a crime in that a discretionary reprieve from removal often carries a fixed term, which can typically be renewed. DACA, for instance, carries a two-year renewable term.

Over time, the Executive has employed its enforcement discretion to grant various types of reprieves under inconstant terminology. In 1974, John Lennon famously pursued a type of reprieve called "nonpriority status," which his lawyer accused the Immigration and Naturalization Service (INS) of keeping secret. Soon thereafter, the INS adopted the term "deferred action," which DHS continues to use today for a reprieve from removal granted under its general enforcement discretion. Immigration authorities have also, however, granted reprieves under the labels "Extended Voluntary Departure" (EVD), DED, and DACA. In some instances, such as DACA, these labels denote a particular reprieve type's focus on a discrete group. In other instances, such as with EVD and DED, the bureaucratic terminology seems to supply multiple labels for the same type of reprieve. The criteria for granting the reprieves (other than the statutorily authorized reprieves discussed below) are generally set forth in agency manuals and policy memoranda, although for some reprieve types it can be difficult to locate a controlling document. Federal statute does not set the criteria for reprieves grounded in enforcement discretion; nor does a particular law supply explicit authorization for the Executive to grant such reprieves, although scattered provisions of the INA reference deferred action and describe narrow categories of aliens as eligible to receive it. In recent years, questions have arisen as to whether the Executive may lawfully use its enforcement discretion to provide reprieves in a programmatic fashion for large populations of aliens that meet specific criteria, instead of granting reprieves on a purely case-by-case basis. The Supreme Court has yet to decide this issue.

Although most types of discretionary reprieves from removal are grounded entirely in enforcement discretion, a few types have a statutory footing. First, the INA expressly gives DHS authority to grant immigration parole on a case-by-case basis to certain aliens, providing legal permission for their physical presence in the United States without granting them admission (thereby leaving them "at the boundary line" of the United States for most immigration purposes). DHS interprets its parole authority to encompass two types of discretionary grants of parole with implications for aliens whose presence violates the INA: parole-in-place and advance parole. Second, the INA gives DHS authority to grant TPS relief to nationals from designated countries, which resembles a discretionary reprieve in many respects but confers more rigid protection from removal than most reprieves because the bases for terminating TPS are statutorily limited. Although TPS eligibility is not limited to unlawfully present aliens, TPS may be particularly consequential for aliens who otherwise lack a legal foothold to remain in the United States. Finally, the INA gives DHS and immigration courts authority to grant some types of discretionary reprieves in conjunction with the removal process, including voluntary departure, stays of removal, and orders of supervision. (Other types of reprieves granted during removal proceedings, such as administrative closure, have a basis only in principles of executive discretion and docket management.)

Nature of Protections for Recipients: In General

The principal benefit of a discretionary reprieve is the temporary assurance it provides to an unlawfully present alien that he or she does not face imminent removal, even though his or her presence in the United States violates the INA. The nature of the Executive's ability to retract this assurance—and the resulting reliability of the assurance to the alien—varies by reprieve type. A grant of TPS to an individual alien, due to the applicable statutory parameters, is relatively difficult for DHS to withdraw during the grant's validity period. In contrast, DHS asserts that it may terminate a grant of deferred action or DACA at its discretion, although the Administrative Procedure Act and constitutional principles may require DHS to have an adequate justification for doing so. No type of reprieve offers a bulwark against removal as rigid as the statutorily authorized presence that comes with LPR, refugee, and asylee status, whose holders can be removed only if they acquired their status unlawfully (e.g., through fraud) or if they engage in specified forms of misconduct. Aliens present in violation of the INA who receive discretionary reprieves remain technically removable under the inadmissibility or deportability grounds of the INA, and, except in the case of TPS recipients, do not have a statutory defense against removal based on the reprieve itself.

Discretionary reprieves also typically carry advantages beyond protection from removal, including eligibility to seek an employment authorization document (EAD) from DHS that allows aliens to work legally in the United States . Perhaps most significantly, under DHS regulations, recipients of most types of reprieves are not considered "unlawfully present" within the United States. This is because DHS has "authorized" the aliens' presence by granting them reprieves. As a consequence, time spent in the United States on deferred action, TPS, and most other types of reprieves does not count toward the accumulation of unlawful presence for purposes of the three- and ten-year bars on admission set forth in INA § 212(a)(9)(B)(i) (although a reprieve does not cure, for purposes of the bars, any unlawful presence already accumulated). A discretionary reprieve may also trigger eligibility for certain benefits or programs for which "lawful presence" is a qualifying criterion, such as in-state university tuition under certain state laws. More generally, even though state governments typically have broad discretion to deny state benefits to unlawfully present aliens, that discretion might be more limited in the event that such aliens are granted a discretionary reprieve from removal by the federal government.

It is often said that discretionary reprieves do not confer lawful immigration status. But "lawful immigration status" is an imprecise term. The INA uses variations of it in some places but does not define it. Although a determination that an alien lacks "lawful immigration status" triggers consequences under some INA provisions—most notably, a potential bar to adjustment of status —it does little to describe the alien's legal condition in a formal sense. According to DHS regulations, TPS holders do not have "lawful status," even though they have a statutory protection against removal. Nonimmigrants, however, indisputably possess lawful status, but it can be revoked more easily than TPS. Similarly, under the DHS definition, parole is a lawful status, even though it, too, can be terminated at DHS's discretion. Perhaps the only concrete legal meaning that can be attributed to the term "lawful immigration status" is that aliens who lack it—including those unlawfully present aliens who are granted discretionary reprieves—are removable under the inadmissibility or deportability grounds of the INA.

When understood as a general concept rather than a formal legal term, however, "lawful immigration status" usefully describes the bundle of statutorily defined privileges and protections that come with the major statuses set forth in the INA (LPR, asylee, refugee, and nonimmigrant status). To say that unlawfully present aliens who receive discretionary reprieves do not have lawful immigration status means, generally speaking, that they lack most such privileges and protections or possess them only as a matter of executive grace. For example, aliens who receive discretionary reprieves generally cannot work legally unless DHS, in its discretion, authorizes them to do so (unlike LPRs, refugees, asylees, and some nonimmigrants); they have no statutorily established prospects of remaining permanently in the United States (unlike LPRs, asylees, and refugees); they are generally subject to removal by virtue of their presence within the United States alone (unlike all aliens with LPR, refugee, asylee, and unexpired nonimmigrant status); they have no legal basis to facilitate the admission of immediate relatives into the United States (unlike LPRs, refugees and asylees in some circumstances, and some nonimmigrants); they face considerable restrictions on eligibility for federal public benefits (particularly as compared with LPRs, refugees, and asylees); and, unless DHS decides to grant them advance parole, they generally cannot travel abroad with any legal basis to request re-entry to the United States (unlike all aliens with one of the four major statuses, except some nonimmigrants). Strictly speaking, it is not correct to say that discretionary reprieves bestow no statutorily defined protections: TPS recipients have a statutory defense against removal, and recipients of most discretionary reprieves garner some advantages grounded in statute by virtue of DHS's authorization of their presence. Generally speaking, however, the legal situation of aliens granted discretionary reprieves from removal ranks so low along the spectrum of immigration categories as to not be considered "lawful immigration status" in common parlance (even though most reprieves vitiate unlawful presence).

In summary, recipients of discretionary reprieves obtain a temporary assurance against removal that varies in reliability by reprieve type. Such aliens, in most cases, are not unlawfully present in the United States during the term of the reprieve. Such aliens do not, however, possess "lawful immigration status," in the narrow sense that they remain technically removable under the INA's inadmissibility or deportability provisions and in the more general sense that they do not enjoy most of the statutorily fixed protections that come with LPR, refugee, asylee, and nonimmigrant status.

Glossary of Discretionary Reprieves

This glossary describes the principal types of discretionary reprieves from removal granted by DHS or the Attorney General. The glossary is divided into three categories: (1) reprieves premised upon enforcement discretion or presidential foreign policy powers (i.e., reprieves granted without express statutory authorization); (2) reprieves premised upon statutory authorization; and (3) reprieves granted exclusively in contemplation of or in connection with the removal process. The categories overlap—most of the reprieves in category (3) have statutory foundations, and the reprieves in categories (1) and (2) can be granted to aliens before or after the initiation of removal proceedings —but are nonetheless useful in conceptualizing the array of discretionary reprieves from removal available under current law and executive policy.

For additional information, or for information about any type of discretionary reprieve not listed below, please contact the author.

Generally Available Reprieves Premised upon Enforcement Discretion or Executive Powers

Deferred Action . DHS regulations describe deferred action as "an act of administrative convenience to the government which gives some cases lower priority." Thus, the term serves as a generic label for a decision by DHS not to remove an inadmissible or deportable alien pursuant to its enforcement discretion. Some other types of discretionary reprieves, such as DACA, are forms of deferred action tailored to particular groups or circumstances. By regulation, deferred action recipients qualify for work authorization if they show "an economic necessity for employment." They are not considered unlawfully present for purposes of the three- and ten-year bars on admission to the United States that the INA imposes on aliens who depart the country after being unlawfully present for more than 180 days. According to DHS employment authorization data, only a small number of people receive generic deferred action each year as opposed to DACA. There does not appear to be one central, publicly available agency memorandum or policy document that governs the criteria and procedures for deferred action. According to one agency manual, when DHS grants deferred action, it informs recipients so that they may seek employment authorization. DHS apparently does not specify a particular time period for which a grant of generic deferred action is valid (unlike DACA), but DHS does periodically review each grant. DHS claims authority to terminate a grant of deferred action at any time in its discretion.

D eferred A ction for C hildhood A rrivals (DACA) . DACA is a type of deferred action for aliens present in violation of the INA who meet the following criteria:

came to the United States under the age of sixteen; have continuously resided in the United States since June 15, 2007, and were present in the United States on June 15, 2012; are in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans; have not been convicted of certain criminal offenses and do not pose a threat to national security or public safety; and were under the age of thirty-one on June 15, 2012.

The Secretary of Homeland Security created DACA by memorandum in 2012. As a result, DACA has clearer eligibility criteria and application procedures than generic deferred action. A grant of DACA lasts two years, subject to renewal. DACA generally confers the same collateral advantages as generic deferred action (eligibility for work authorization, no unlawful presence). Also like generic deferred action, DHS claims authority to terminate a grant of DACA at its discretion, although its internal Standard Operating Procedures (SOP) apparently set forth specific bases (such as fraud or criminal issues) for DACA termination. There is ongoing litigation over whether the Administrative Procedure Act (APA) or the Constitution restricts DHS's ability to terminate an individual DACA grant without proper justification or in a manner that does not follow the SOP. There is also ongoing litigation over the extent of DHS's authority to rescind the DACA program in its entirety. DHS announced plans to rescind the DACA program effective March 5, 2018, but federal courts have enjoined the rescission in most respects on the ground that it is likely "arbitrary and capricious" under the APA.

Deferred Enforced Departure (DED) . DHS describes DED as follows:

[A] temporary, discretionary, administrative stay of removal granted to aliens from designated countries. Unlike TPS [which is authorized by statute], DED emanates from the President's constitutional powers to conduct foreign relations and has no statutory basis . . . . The President designates DED for nationals of a particular country through either an Executive Order or a Presidential Memorandum.

DED resembles TPS in that it protects nationals of certain designated countries from removal, except that DED is rooted in inherent executive power rather than in statutory authority. Eligibility criteria depend on the relevant presidential directive. DED recipients are generally eligible for work authorization. They do not accrue unlawful presence during the period of DED. According to USCIS, an individual cannot be removed while he or she possesses DED. Agency materials do not make provision for the termination of an individual's DED grant. Currently, Liberia is the only country designated for DED, but the Trump Administration has decided to terminate that designation effective March 31, 2019.

Extended Voluntary Departure (EVD). EVD was an earlier version of DED that fell mostly into disuse with the advent of DED in 1990, although DHS apparently continues to grant EVD to a small number of aliens. Under EVD, the Attorney General—rather than the President—designated countries for protection due to unstable conditions.

Nonpriority Status. Prior to 1975, immigration authorities used the term "nonpriority status" to describe the type of reprieve now labeled deferred action.

Generally Available Reprieves Granted Pursuant to Statutory Authority

Temporary Protected Status (TPS) . Section 244 of the INA authorizes DHS to grant TPS to aliens who are nationals of countries that the Secretary of Homeland Security has designated as unsafe for return because of armed conflict, natural disaster, or other extraordinary conditions. A country's initial TPS designation is valid for up to 18 months and may be extended for up to 18 months, in the Secretary of Homeland Security's discretion, with no limit on the number of extensions. Some countries, such as Sudan and Nicaragua, have been designated for TPS since the late 1990s, although the Trump Administration recently announced its intention not to extend those designations or the designations of Haiti and El Salvador when they expire in late 2018 and 2019.

To qualify for TPS, nationals of designated countries must have resided in the United States since a specified date (usually, a date around the onset of the destabilizing conditions) and must meet certain other requirements set forth in the INA. An alien granted TPS qualifies for work authorization and does not accrue unlawful presence for purposes of the three- and ten-year bars to admission. TPS provides statutorily based protection from removal: an alien cannot be removed while enrolled, and DHS may only withdraw the protection from an individual alien for specified statutory reasons (such as failure to maintain continuous residence in the United States or failure to comply with a yearly registration requirement). Significantly, some (but not all) courts have held that a grant of TPS satisfies the lawful entry requirement for adjustment of status under INA § 245(a), such that aliens who enter the country surreptitiously and then receive TPS may adjust to LPR status if they become eligible for an immigrant visa on an independent basis (such as a qualifying family relationship with a U.S. citizen).

Parole . The INA authorizes DHS to "parole" inadmissible aliens into the United States, on a case-by-case basis, "for urgent humanitarian reasons or significant public benefit." Paroled aliens are considered unadmitted for purposes of the INA despite their physical presence within the United States. Parole offers little formal protection against removal: DHS typically grants parole for a fixed period but has discretion to terminate the parole whenever it determines that "neither humanitarian reasons nor public benefit warrants the continued presence of the alien in the United States." Paroled aliens may obtain work authorization and do not accrue unlawful presence while the parole remains valid. DHS interprets its parole authority to include two types of discretionary grants of parole potentially relevant to aliens present in the United States in violation of the INA:

Parole in place . Although the parole power generally applies to aliens seeking to enter the country, DHS claims the authority to grant parole to aliens who are physically present in the United States following surreptitious entry. DHS calls this exercise of the parole power "parole in place" and, as a matter of policy, appears to reserve it primarily for the immediate relatives of certain members of the U.S. Armed Forces. Parole in place removes significant legal obstacles to an unlawfully present alien's ability to obtain LPR status without leaving the United States, if the alien qualifies for an immigrant visa on an independent basis (such as a qualifying family relationship with a U.S. citizen).

Advance Parole . Advance parole, another exercise of the executive parole authority directed toward physically present aliens, allows aliens to depart the United States with parole already approved, so as to facilitate their re-entry. Upon being paroled back into the country, such aliens receive the same advantages as recipients of parole in place and other parolees (e.g., eligibility for work authorization and a clearer path to adjustment of status).

Reprieves Granted Exclusively in Connection with the Removal Process

Administrative Closure . When Immigration and Customs Enforcement (ICE, a component of DHS responsible for interior enforcement) decides to discontinue temporarily a removal proceeding against a particular alien before the Department of Justice's Executive Office of Immigration Review (EOIR)—because ICE deems the case low-priority, because the alien has obtained or is seeking a form of discretionary relief such as DACA, or for some other reason—ICE may ask the presiding immigration judge to place the proceeding in a status called "administrative closure." An immigration judge may also place removal proceedings in administrative closure upon the alien's motion and over the government's objection, although this course of events may be less common. The effect of administrative closure is to suspend but not terminate the removal proceeding. As such, administrative closure offers little formal protection from removal: the alien cannot be removed while the proceedings are suspended, but ICE can move to re-activate the proceedings at any time and will likely succeed in doing so if the alien is not in the midst of pursuing independent protections from removal outside of immigration court. Furthermore, administrative closure does not itself confer any additional rights or protections, such as work authorization or lawful presence. However, administrative closure is often granted in conjunction with other discretionary reprieves that do provide additional protections. For example, an alien whose removal case is placed in administrative closure may also have enrolled in DACA, which confers eligibility for work authorization and vitiates unlawful presence.

Voluntary Departure . The INA authorizes grants of a brief discretionary reprieve called "voluntary departure" for aliens who agree to leave the United States at their own expense either before or prior to the conclusion of removal proceedings. For aliens not yet in removal proceedings, DHS may grant a voluntary departure period of 120 days or less. For aliens in removal proceedings, either DHS or the immigration judge may grant voluntary departure for a maximum period of 120 days. At the conclusion of removal proceedings, the immigration judge alone may grant voluntary departure for a maximum of 60 days. Voluntary departure does not confer eligibility for work authorization but does suspend the accumulation of unlawful presence for purposes of the three- and ten-year bars on admission following the alien's departure or removal from the United States. Aliens who fail to leave the country within the voluntary departure period are subject to a fine and become ineligible to receive, for a period of ten years, adjustment of status, cancellation of removal, and certain other forms of relief from removal.

Stay of Removal . DHS, an immigration judge, or the Board of Immigration Appeals may stay a final order of removal against an alien to allow him or her to pursue relief or in light of practical or humanitarian considerations. A stay of removal does not confer eligibility for work authorization under DHS regulations, but an order of supervision—which often accompanies a stay—does confer such eligibility in some circumstances. Unlawful presence does not accrue during a stay of removal for purposes of the three- and ten-year bars on admission.

Order of Supervision (OSUP). If DHS does not remove an alien within ninety days of the date that a removal order becomes final—either because DHS cannot identify an appropriate destination country or because of practical or public interest-related considerations—in most cases DHS places the alien under an "order of supervision." An OSUP requires the alien to check in periodically with DHS and may impose other restrictions. DHS regulations provide for the grant of work authorization to aliens present pursuant to OSUPs—subject, however, to criteria stricter than those that govern work authorization for other types of discretionary reprieves. An OSUP does not, by itself, suspend the accumulation of unlawful presence for purposes of the three- and ten year bars on admission. At least one federal court has held that due process principles restrict the reasons and the manner in which DHS may revoke an OSUP.