b'Prioritizing and Deferring Removal of Certain\nAliens Unlawfully Present in the United States\nThe Department of Homeland Security\xe2\x80\x99s proposed policy to prioritize the removal of\ncertain aliens unlawfully present in the United States would be a permissible exercise\nof DHS\xe2\x80\x99s discretion to enforce the immigration laws.\nDHS\xe2\x80\x99s proposed deferred action program for parents of U.S. citizens and legal permanent\nresidents would also be a permissible exercise of DHS\xe2\x80\x99s discretion to enforce the immigration laws.\nDHS\xe2\x80\x99s proposed deferred action program for parents of recipients of deferred action\nunder the Deferred Action for Childhood Arrivals program would not be a permissible\nexercise of DHS\xe2\x80\x99s enforcement discretion.\nNovember 19, 2014\n\nMEMORANDUM OPINION FOR THE\nSECRETARY OF HOMELAND SECURITY\nAND THE COUNSEL TO THE PRESIDENT *\nYou have asked two questions concerning the scope of the Department\nof Homeland Security\xe2\x80\x99s discretion to enforce the immigration laws. First,\nyou have asked whether, in light of the limited resources available to the\nDepartment (\xe2\x80\x9cDHS\xe2\x80\x9d) to remove aliens unlawfully present in the United\n* Editor\xe2\x80\x99s Note: This opinion has been withdrawn. The opinion\xe2\x80\x99s principal subject, the\nDeferred Action for Parents of Americans and Lawful Permanent Residents (\xe2\x80\x9cDAPA\xe2\x80\x9d)\npolicy, was preliminarily enjoined before it went into effect. See Texas v. United States,\n86 F. Supp. 3d 591 (S.D. Tex.), aff \xe2\x80\x99d, 809 F.3d 134 (5th Cir. 2015), aff \xe2\x80\x99d by an equally\ndivided Court, 136 S. Ct. 2271 (2016). Based on the reasoning in the Fifth Circuit\xe2\x80\x99s\ndecision, on September 4, 2017, Attorney General Sessions concluded that the related\nDeferred Action for Childhood Arrivals (\xe2\x80\x9cDACA\xe2\x80\x9d) policy, which is briefly discussed in\nfootnote 8 of this opinion, was unlawful. See Letter for Elaine Duke, Acting Secretary of\nHomeland Security, from Jefferson B. Sessions III, Attorney General (Sept. 4, 2017).\nAlthough the Acting Secretary of Homeland Security announced the rescission of DACA\non September 5, 2017, the Supreme Court vacated that decision and remanded for further\nproceedings. See Dep\xe2\x80\x99t of Homeland Sec. v. Regents of Univ. of Cal., 140 S. Ct. 1891\n(2020). In order to maximize the Acting Secretary\xe2\x80\x99s discretion on remand, and without\nregard to the merits of the legal issues, Attorney General Barr withdrew Attorney General\nSessions\xe2\x80\x99 September 4, 2017 letter and, for the same reason, further directed this Office to\nwithdraw this opinion. See Letter for Chad F. Wolf, Acting Secretary of Homeland\nSecurity, from William P. Barr, Attorney General (June 30, 2020).\n\n39\n\n\x0c38 Op. O.L.C. 39 (2014)\n\nStates, it would be legally permissible for the Department to implement a\npolicy prioritizing the removal of certain categories of aliens over others.\nDHS has explained that although there are approximately 11.3 million\nundocumented aliens in the country, it has the resources to remove fewer\nthan 400,000 such aliens each year. DHS\xe2\x80\x99s proposed policy would prioritize the removal of aliens who present threats to national security, public\nsafety, or border security. Under the proposed policy, DHS officials could\nremove an alien who did not fall into one of these categories provided that\nan Immigration and Customs Enforcement (\xe2\x80\x9cICE\xe2\x80\x9d) Field Office Director\ndetermined that \xe2\x80\x9cremoving such an alien would serve an important federal\ninterest.\xe2\x80\x9d Draft Memorandum for Thomas S. Winkowski, Acting Director,\nICE, et al., from Jeh Charles Johnson, Secretary of Homeland Security,\nRe: Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants at 5 (Nov. 17, 2014) (\xe2\x80\x9cJohnson Prioritization Memorandum\xe2\x80\x9d).\nSecond, you have asked whether it would be permissible for DHS to\nextend deferred action, a form of temporary administrative relief from\nremoval, to certain aliens who are the parents of children who are present\nin the United States. Specifically, DHS has proposed to implement a\nprogram under which an alien could apply for, and would be eligible to\nreceive, deferred action if he or she is not a DHS removal priority under\nthe policy described above; has continuously resided in the United States\nsince before January 1, 2010; has a child who is either a U.S. citizen or a\nlawful permanent resident; is physically present in the United States both\nwhen DHS announces its program and at the time of application for\ndeferred action; and presents \xe2\x80\x9cno other factors that, in the exercise of\ndiscretion, make[] the grant of deferred action inappropriate.\xe2\x80\x9d Draft\nMemorandum for Leon Rodriguez, Director, U.S. Citizenship and Immigration Services, et al., from Jeh Charles Johnson, Secretary of Homeland\nSecurity, Re: Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and Others at 4\n(Nov. 17, 2014) (\xe2\x80\x9cJohnson Deferred Action Memorandum\xe2\x80\x9d). You have\nalso asked whether DHS could implement a similar program for parents of\nindividuals who have received deferred action under the Deferred Action\nfor Childhood Arrivals (\xe2\x80\x9cDACA\xe2\x80\x9d) program.\nAs has historically been true of deferred action, these proposed deferred\naction programs would not \xe2\x80\x9clegalize\xe2\x80\x9d any aliens who are unlawfully\n40\n\n\x0cPrioritizing and Deferring Removal of Certain Unlawfully Present Aliens\n\npresent in the United States: Deferred action does not confer any lawful\nimmigration status, nor does it provide a path to obtaining permanent\nresidence or citizenship. Grants of deferred action under the proposed\nprograms would, rather, represent DHS\xe2\x80\x99s decision not to seek an alien\xe2\x80\x99s\nremoval for a prescribed period of time. See generally Reno v. Am.-Arab\nAnti-Discrim. Comm., 525 U.S. 471, 483\xe2\x80\x9384 (1999) (describing deferred\naction). Under decades-old regulations promulgated pursuant to authority\ndelegated by Congress, see 8 U.S.C. \xc2\xa7\xc2\xa7 1103(a)(3), 1324a(h)(3), aliens\nwho are granted deferred action\xe2\x80\x94like certain other categories of aliens\nwho do not have lawful immigration status, such as asylum applicants\xe2\x80\x94\nmay apply for authorization to work in the United States in certain\ncircumstances, 8 C.F.R. \xc2\xa7 274a.12(c)(14) (providing that deferred action\nrecipients may apply for work authorization if they can show an \xe2\x80\x9ceconomic necessity for employment\xe2\x80\x9d); see also id. \xc2\xa7 109.1(b)(7) (1982).\nUnder DHS policy guidance, a grant of deferred action also suspends\nan alien\xe2\x80\x99s accrual of unlawful presence for purposes of 8 U.S.C.\n\xc2\xa7 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\nunlawfully present for specified periods of time. A grant of deferred\naction under the proposed programs would remain in effect for three\nyears, subject to renewal, and could be terminated at any time at DHS\xe2\x80\x99s\ndiscretion. See Johnson Deferred Action Memorandum at 2, 5.\nFor the reasons discussed below, we conclude that DHS\xe2\x80\x99s proposed\nprioritization policy and its proposed deferred action program for parents\nof U.S. citizens and lawful permanent residents would be permissible\nexercises of DHS\xe2\x80\x99s discretion to enforce the immigration laws. We further\nconclude that, as it has been described to us, the proposed deferred action\nprogram for parents of DACA recipients would not be a permissible\nexercise of enforcement discretion.\nI.\nWe first address DHS\xe2\x80\x99s authority to prioritize the removal of certain\ncategories of aliens over others. We begin by discussing some of the\nsources and limits of DHS\xe2\x80\x99s enforcement discretion under the immigration laws, and then analyze DHS\xe2\x80\x99s proposed prioritization policy in light\nof these considerations.\n41\n\n\x0c38 Op. O.L.C. 39 (2014)\n\nA.\nDHS\xe2\x80\x99s authority to remove aliens from the United States rests on the\nImmigration and Nationality Act of 1952 (\xe2\x80\x9cINA\xe2\x80\x9d), as amended, 8 U.S.C.\n\xc2\xa7 1101 et seq. In the INA, Congress established a comprehensive scheme\ngoverning immigration and naturalization. The INA specifies certain\ncategories of aliens who are inadmissible to the United States. See\n8 U.S.C. \xc2\xa7 1182. It also specifies \xe2\x80\x9cwhich aliens may be removed from the\nUnited States and the procedures for doing so.\xe2\x80\x9d Arizona v. United States,\n132 S. Ct. 2492, 2499 (2012). \xe2\x80\x9cAliens may be removed if they were\ninadmissible at the time of entry, have been convicted of certain crimes,\nor meet other criteria set by federal law.\xe2\x80\x9d Id. (citing 8 U.S.C. \xc2\xa7 1227);\nsee 8 U.S.C. \xc2\xa7 1227(a) (providing that \xe2\x80\x9c[a]ny alien . . . in and admitted to\nthe United States shall, upon the order of the Attorney General, be removed if the alien\xe2\x80\x9d falls within one or more classes of deportable aliens); see also 8 U.S.C. \xc2\xa7 1182(a) (listing classes of aliens ineligible to\nreceive visas or be admitted to the United States). Removal proceedings\nordinarily take place in federal immigration courts administered by the\nExecutive Office for Immigration Review, a component of the Department of Justice. See id. \xc2\xa7 1229a (governing removal proceedings); see\nalso id. \xc2\xa7\xc2\xa7 1225(b)(1)(A), 1228(b) (setting out expedited removal procedures for certain arriving aliens and certain aliens convicted of aggravated felonies).\nBefore 2003, the Department of Justice, through the Immigration and\nNaturalization Service (\xe2\x80\x9cINS\xe2\x80\x9d), 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,\n116 Stat. 2135, Congress transferred most of these functions to DHS,\ngiving it primary responsibility both for initiating removal proceedings\nand for carrying out final orders of removal. See 6 U.S.C. \xc2\xa7 101 et seq.;\nsee also Clark v. Martinez, 543 U.S. 371, 374 n.1 (2005) (noting that the\nimmigration authorities previously exercised by the Attorney General and\nINS \xe2\x80\x9cnow reside\xe2\x80\x9d in the Secretary of Homeland Security and DHS). The\nAct divided INS\xe2\x80\x99s functions among three different agencies within DHS:\nU.S. Citizenship and Immigration Services (\xe2\x80\x9cUSCIS\xe2\x80\x9d), which oversees\nlegal immigration into the United States and provides immigration and\nnaturalization services to aliens; ICE, which enforces federal laws governing customs, trade, and immigration; and U.S. Customs and Border Protection (\xe2\x80\x9cCBP\xe2\x80\x9d), which monitors and secures the Nation\xe2\x80\x99s borders and\n42\n\n\x0cPrioritizing and Deferring Removal of Certain Unlawfully Present Aliens\n\nports of entry. See Homeland Security Act \xc2\xa7\xc2\xa7 403, 442, 451, 471, 116\nStat. at 2178, 2193, 2195, 2205; see also Name Change from the Bureau\nof Citizenship and Immigration Services to U.S. Citizenship and Immigration Services, 69 Fed. Reg. 60,938, 60,938 (Oct. 13, 2004); Name Change\nof Two DHS Components, 75 Fed. Reg. 12,445, 12,445 (Mar. 16, 2010).\nThe Secretary of Homeland Security is thus now \xe2\x80\x9ccharged with the administration and enforcement of [the INA] and all other laws relating to\nthe immigration and naturalization of aliens.\xe2\x80\x9d 8 U.S.C. \xc2\xa7 1103(a)(1).\nAs 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.\nThis discretion is rooted in the President\xe2\x80\x99s constitutional duty to \xe2\x80\x9ctake\nCare that the Laws be faithfully executed,\xe2\x80\x9d U.S. Const. art. II, \xc2\xa7 3, and it\nreflects a recognition that the \xe2\x80\x9cfaithful[]\xe2\x80\x9d execution of the law does not\nnecessarily entail \xe2\x80\x9cact[ing] against each technical violation of the statute\xe2\x80\x9d\nthat an agency is charged with enforcing. Heckler v. Chaney, 470 U.S.\n821, 831 (1985). Rather, as the Supreme Court explained in Chaney, the\ndecision whether to initiate enforcement proceedings is a complex judgment that calls on the agency to \xe2\x80\x9cbalanc[e] . . . a number of factors which\nare peculiarly within its expertise.\xe2\x80\x9d Id. These factors include \xe2\x80\x9cwhether\nagency resources are best spent on this violation or another, whether the\nagency is likely to succeed if it acts, whether the particular enforcement\naction requested best fits the agency\xe2\x80\x99s overall policies, and . . . whether\nthe agency has enough resources to undertake the action at all.\xe2\x80\x9d Id.; cf.\nUnited States v. Armstrong, 517 U.S. 456, 465 (1996) (recognizing that\nexercises of prosecutorial discretion in criminal cases involve consideration of \xe2\x80\x9c\xe2\x80\x98[s]uch factors as the strength of the case, the prosecution\xe2\x80\x99s\ngeneral deterrence value, the Government\xe2\x80\x99s enforcement priorities, and\nthe case\xe2\x80\x99s relationship to the Government\xe2\x80\x99s overall enforcement plan\xe2\x80\x99\xe2\x80\x9d\n(quoting Wayte v. United States, 470 U.S. 598, 607 (1985))). In Chaney,\nthe Court considered and rejected a challenge to the Food and Drug Administration\xe2\x80\x99s refusal to initiate enforcement proceedings with respect to\nalleged violations of the Federal Food, Drug, and Cosmetic Act, concluding that an agency\xe2\x80\x99s decision not to initiate enforcement proceedings is\npresumptively immune from judicial review. See 470 U.S. at 832. The\nCourt explained that, while Congress may \xe2\x80\x9cprovide[] guidelines for the\nagency to follow in exercising its enforcement powers,\xe2\x80\x9d in the absence of\nsuch \xe2\x80\x9clegislative direction,\xe2\x80\x9d an agency\xe2\x80\x99s non-enforcement determination\n43\n\n\x0c38 Op. O.L.C. 39 (2014)\n\nis, much like a prosecutor\xe2\x80\x99s decision not to indict, a \xe2\x80\x9cspecial province of\nthe Executive.\xe2\x80\x9d Id. at 832\xe2\x80\x9333.\nThe principles of enforcement discretion discussed in Chaney apply\nwith particular force in the context of immigration. Congress enacted the\nINA against a background understanding that immigration is \xe2\x80\x9ca field\nwhere flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program.\xe2\x80\x9d United\nStates ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950) (internal\nquotation marks omitted). Consistent with this understanding, the INA\nvested the Attorney General (now the Secretary of Homeland Security)\nwith broad authority to \xe2\x80\x9cestablish such regulations; . . . issue such instructions; and perform such other acts as he deems necessary for carrying out\nhis authority\xe2\x80\x9d under the statute. 8 U.S.C. \xc2\xa7 1103(a)(3). Years later, when\nCongress created DHS, it expressly charged DHS with responsibility for\n\xe2\x80\x9c[e]stablishing national immigration enforcement policies and priorities.\xe2\x80\x9d\nHomeland Security Act \xc2\xa7 402(5), 116 Stat. at 2178 (codified at 6 U.S.C.\n\xc2\xa7 202(5)).\nWith respect to removal decisions in particular, the Supreme Court has\nrecognized that \xe2\x80\x9cthe broad discretion exercised by immigration officials\xe2\x80\x9d\nis a \xe2\x80\x9cprincipal feature of the removal system\xe2\x80\x9d under the INA. Arizona,\n132 S. Ct. at 2499. The INA expressly authorizes immigration officials to\ngrant certain forms of discretionary relief from removal for aliens, including parole, 8 U.S.C. \xc2\xa7 1182(d)(5)(A); asylum, id. \xc2\xa7 1158(b)(1)(A);\nand cancellation of removal, id. \xc2\xa7 1229b. But in addition to administering\nthese statutory forms of relief, \xe2\x80\x9c[f ]ederal officials, as an initial matter,\nmust decide whether it makes sense to pursue removal at all.\xe2\x80\x9d Arizona,\n132 S. Ct. at 2499. And, as the Court has explained, \xe2\x80\x9c[a]t each stage\xe2\x80\x9d of\nthe removal process\xe2\x80\x94\xe2\x80\x9ccommenc[ing] proceedings, adjudicat[ing] cases,\n[and] execut[ing] removal orders\xe2\x80\x9d\xe2\x80\x94immigration officials have \xe2\x80\x9cdiscretion to abandon the endeavor.\xe2\x80\x9d Am.-Arab Anti-Discrim. Comm., 525 U.S.\nat 483 (alterations in original) (quoting 8 U.S.C. \xc2\xa7 1252(g)). Deciding\nwhether to pursue removal at each of these stages implicates a wide\nrange of considerations. As the Court observed in Arizona:\nDiscretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their\nfamilies, for example, likely pose less danger than alien smugglers\nor aliens who commit a serious crime. The equities of an individual\ncase may turn on many factors, including whether the alien has chil44\n\n\x0cPrioritizing and Deferring Removal of Certain Unlawfully Present Aliens\n\ndren born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions\ninvolve policy choices that bear on this Nation\xe2\x80\x99s international relations. . . . The foreign state may be mired in civil war, complicit in\npolitical persecution, or enduring conditions that create a real risk\nthat the alien or his family will be harmed upon return. The dynamic\nnature of relations with other countries requires the Executive\nBranch to ensure that enforcement policies are consistent with this\nNation\xe2\x80\x99s foreign policy with respect to these and other realities.\n132 S. Ct. at 2499.\nImmigration officials\xe2\x80\x99 discretion in enforcing the laws is not, however,\nunlimited. Limits on enforcement discretion are both implicit in, and\nfundamental to, the Constitution\xe2\x80\x99s allocation of governmental powers\nbetween the two political branches. See, e.g., Youngstown Sheet & Tube\nCo. v. Sawyer, 343 U.S. 579, 587\xe2\x80\x9388 (1952). These limits, however, are\nnot clearly defined. The open-ended nature of the inquiry under the Take\nCare Clause\xe2\x80\x94whether a particular exercise of discretion is \xe2\x80\x9cfaithful[]\xe2\x80\x9d to\nthe law enacted by Congress\xe2\x80\x94does not lend itself easily to the application\nof set formulas or bright-line rules. And because the exercise of enforcement discretion generally is not subject to judicial review, see Chaney,\n470 U.S. at 831\xe2\x80\x9333, neither the Supreme Court nor the lower federal\ncourts have squarely addressed its constitutional bounds. Rather, the\npolitical branches have addressed the proper allocation of enforcement\nauthority through the political process. As the Court noted in Chaney,\nCongress \xe2\x80\x9cmay limit an agency\xe2\x80\x99s exercise of enforcement power if it\nwishes, either by setting substantive priorities, or by otherwise circumscribing an agency\xe2\x80\x99s power to discriminate among issues or cases it will\npursue.\xe2\x80\x9d Id. at 833. The history of immigration policy illustrates this\nprinciple: 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\nother reasons. When Congress has been dissatisfied with executive action,\nit has responded, as Chaney suggests, by enacting legislation to limit the\nExecutive\xe2\x80\x99s discretion in enforcing the immigration laws. 1\n1 See, e.g., Adam B. Cox & Cristina M. Rodr\xc3\xadguez, The President and Immigration\nLaw, 119 Yale L.J. 458, 503\xe2\x80\x9305 (2009) (describing Congress\xe2\x80\x99s response to its dissatisfaction with the Executive\xe2\x80\x99s use of parole power for refugee populations in the 1960s and\n\n45\n\n\x0c38 Op. O.L.C. 39 (2014)\n\nNonetheless, the nature of the Take Care duty does point to at least\nfour general (and closely related) principles governing the permissible\nscope of enforcement discretion that we believe are particularly relevant\nhere. First, enforcement decisions should reflect \xe2\x80\x9cfactors which are\npeculiarly within [the enforcing agency\xe2\x80\x99s] expertise.\xe2\x80\x9d Chaney, 470 U.S.\nat 831. Those factors may include considerations related to agency resources, such as \xe2\x80\x9cwhether the agency has enough resources to undertake\nthe action,\xe2\x80\x9d or \xe2\x80\x9cwhether agency resources are best spent on this violation\nor another.\xe2\x80\x9d Id. Other relevant considerations may include \xe2\x80\x9cthe proper\nordering of [the agency\xe2\x80\x99s] priorities,\xe2\x80\x9d id. at 832, and the agency\xe2\x80\x99s assessment of \xe2\x80\x9cwhether the particular enforcement action [at issue] best fits\nthe agency\xe2\x80\x99s overall policies,\xe2\x80\x9d id. at 831.\nSecond, the Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy\npreferences. See id. at 833 (an agency may not \xe2\x80\x9cdisregard legislative\ndirection in the statutory scheme that [it] administers\xe2\x80\x9d). In other words, an\nagency\xe2\x80\x99s enforcement decisions should be consonant with, rather than\ncontrary to, the congressional policy underlying the statutes the agency is\ncharged with administering. Cf. Youngstown, 343 U.S. at 637 (Jackson, J.,\nconcurring) (\xe2\x80\x9cWhen the President takes measures incompatible with the\nexpressed or implied will of Congress, his power is at its lowest ebb.\xe2\x80\x9d);\nNat\xe2\x80\x99l Ass\xe2\x80\x99n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658\n(2007) (explaining that where Congress has given an agency the power to\nadminister a statutory scheme, a court will not vacate the agency\xe2\x80\x99s decision about the proper administration of the statute unless, among other\nthings, the agency \xe2\x80\x9c\xe2\x80\x98has relied on factors which Congress had not intended it to consider\xe2\x80\x99\xe2\x80\x9d (quoting Motor Vehicle Mfrs. Ass\xe2\x80\x99n of U.S., Inc. v.\nState Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983))).\nThird, the Executive Branch ordinarily cannot, as the Court put it in\nChaney, \xe2\x80\x9c\xe2\x80\x98consciously and expressly adopt[] a general policy\xe2\x80\x99 that is so\nextreme as to amount to an abdication of its statutory responsibilities.\xe2\x80\x9d\n470 U.S. at 833 n.4 (quoting Adams v. Richardson, 480 F.2d 1159, 1162\n(D.C. Cir. 1973) (en banc)); see id. (noting that in situations where an\nagency had adopted such an extreme policy, \xe2\x80\x9cthe statute conferring authority on the agency might indicate that such decisions were not \xe2\x80\x98com1970s); see also, e.g., infra note 5 (discussing legislative limitations on voluntary departure and extended voluntary departure).\n\n46\n\n\x0cPrioritizing and Deferring Removal of Certain Unlawfully Present Aliens\n\nmitted to agency discretion\xe2\x80\x99\xe2\x80\x9d). Abdication of the duties assigned to the\nagency by statute is ordinarily incompatible with the constitutional obligation to faithfully execute the laws. But see, e.g., Presidential Authority to\nDecline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199, 200\n(1994) (noting that under the Take Care Clause, \xe2\x80\x9cthe President is required\nto act in accordance with the laws\xe2\x80\x94including the Constitution, which\ntakes precedence over other forms of law\xe2\x80\x9d).\nFinally, lower courts, following Chaney, have indicated that nonenforcement decisions are most comfortably characterized as judicially\nunreviewable exercises of enforcement discretion when they are made on\na case-by-case basis. See, e.g., Kenney v. Glickman, 96 F.3d 1118, 1123\n(8th Cir. 1996); Crowley Caribbean Transp., Inc. v. Pe\xc3\xb1a, 37 F.3d 671,\n676\xe2\x80\x9377 (D.C. Cir. 1994). That reading of Chaney reflects a conclusion\nthat case-by-case enforcement decisions generally avoid the concerns\nmentioned above. Courts have noted that \xe2\x80\x9csingle-shot non-enforcement\ndecisions\xe2\x80\x9d almost inevitably rest on \xe2\x80\x9cthe sort of mingled assessments of\nfact, policy, and law . . . that are, as Chaney recognizes, peculiarly within\nthe agency\xe2\x80\x99s expertise and discretion.\xe2\x80\x9d Crowley Caribbean Transp., 37\nF.3d at 676 \xe2\x80\x9377 (emphasis omitted). Individual enforcement decisions\nmade on the basis of case-specific factors are also unlikely to constitute\n\xe2\x80\x9cgeneral polic[ies] that [are] so extreme as to amount to an abdication of\n[the agency\xe2\x80\x99s] statutory responsibilities.\xe2\x80\x9d Id. at 677 (quoting Chaney, 477\nU.S. at 833 n.4). That does not mean that all \xe2\x80\x9cgeneral policies\xe2\x80\x9d respecting\nnon-enforcement are categorically forbidden: Some \xe2\x80\x9cgeneral policies\xe2\x80\x9d\nmay, for example, merely provide a framework for making individualized,\ndiscretionary assessments about whether to initiate enforcement actions in\nparticular cases. Cf. Reno v. Flores, 507 U.S. 292, 313 (1993) (explaining\nthat an agency\xe2\x80\x99s use of \xe2\x80\x9creasonable presumptions and generic rules\xe2\x80\x9d is not\nincompatible with a requirement to make individualized determinations).\nBut a general policy of non-enforcement that forecloses the exercise of\ncase-by-case discretion poses \xe2\x80\x9cspecial risks\xe2\x80\x9d that the agency has exceeded\nthe bounds of its enforcement discretion. Crowley Caribbean Transp.,\n37 F.3d at 677.\nB.\nWe now turn, against this backdrop, to DHS\xe2\x80\x99s proposed prioritization\npolicy. In their exercise of enforcement discretion, DHS and its predeces47\n\n\x0c38 Op. O.L.C. 39 (2014)\n\nsor, INS, have long employed guidance instructing immigration officers\nto prioritize the enforcement of the immigration laws against certain\ncategories of aliens and to deprioritize their enforcement against others.\nSee, e.g., INS Operating Instructions \xc2\xa7 103(a)(1)(i) (1962); Memorandum\nfor All Field Office Directors, ICE, et al., from John Morton, Director,\nICE, Re: Exercising Prosecutorial Discretion Consistent with the Civil\nImmigration Enforcement Priorities of the Agency for the Apprehension,\nDetention, and Removal of Aliens (June 17, 2011); Memorandum for All\nICE Employees from John Morton, Director, ICE, Re: Civil Immigration\nEnforcement: Priorities for the Apprehension, Detention, and Removal of\nAliens (Mar. 2, 2011); Memorandum for Regional Directors, INS, et al.,\nfrom Doris Meissner, Commissioner, INS, Re: Exercising Prosecutorial\nDiscretion (Nov. 17, 2000). The policy DHS proposes, which is similar to\nbut would supersede earlier policy guidance, is designed to \xe2\x80\x9cprovide\nclearer and more effective guidance in the pursuit\xe2\x80\x9d of DHS\xe2\x80\x99s enforcement\npriorities: namely, \xe2\x80\x9cthreats to national security, public safety and border\nsecurity.\xe2\x80\x9d Johnson Prioritization Memorandum at 1.\nUnder the proposed policy, DHS would identify three categories of\nundocumented aliens who would be priorities for removal from the\nUnited States. See generally id. at 3\xe2\x80\x935. The highest priority category\nwould include aliens who pose particularly serious threats to national\nsecurity, border security, or public safety, including aliens engaged in or\nsuspected of espionage or terrorism, aliens convicted of offenses related\nto participation in criminal street gangs, aliens convicted of certain\nfelony offenses, and aliens apprehended at the border while attempting to\nenter the United States unlawfully. See id. at 3. The second-highest\npriority would include aliens convicted of multiple or significant misdemeanor offenses; aliens who are apprehended after unlawfully entering\nthe United States who cannot establish that they have been continuously\npresent in the United States since January 1, 2014; and aliens determined\nto have significantly abused the visa or visa waiver programs. See id. at\n3\xe2\x80\x934. The third priority category would include other aliens who have\nbeen issued a final order of removal on or after January 1, 2014. See id.\nat 4. The policy would also provide that none of these aliens should be\nprioritized for removal if they \xe2\x80\x9cqualify for asylum or another form of\nrelief under our laws.\xe2\x80\x9d Id. at 3\xe2\x80\x935.\n48\n\n\x0cPrioritizing and Deferring Removal of Certain Unlawfully Present Aliens\n\nThe policy would instruct that resources should be directed to these\npriority categories in a manner \xe2\x80\x9ccommensurate with the level of prioritization identified.\xe2\x80\x9d Id. at 5. It would, however, also leave significant room\nfor immigration officials to evaluate the circumstances of individual\ncases. See id. (stating that the policy \xe2\x80\x9crequires DHS personnel to exercise\ndiscretion based on individual circumstances\xe2\x80\x9d). For example, the policy\nwould permit an ICE Field Office Director, CBP Sector Chief, or CBP\nDirector of Field Operations to deprioritize the removal of an alien falling\nin the highest priority category if, in her judgment, \xe2\x80\x9cthere are compelling\nand exceptional factors that clearly indicate the alien is not a threat to\nnational security, border security, or public safety and should not therefore be an enforcement priority.\xe2\x80\x9d Id. at 3. Similar discretionary provisions\nwould apply to aliens in the second and third priority categories. 2 The\npolicy would also provide a non-exhaustive list of factors DHS personnel\nshould consider in making such deprioritization judgments. 3 In addition,\nthe policy would expressly state that its terms should not be construed \xe2\x80\x9cto\nprohibit or discourage the apprehension, detention, or removal of aliens\nunlawfully in the United States who are not identified as priorities,\xe2\x80\x9d and\nwould further provide that \xe2\x80\x9c[i]mmigration officers and attorneys may\npursue removal of an alien not identified as a priority\xe2\x80\x9d if, \xe2\x80\x9cin the judgment of an ICE Field Office Director, removing such an alien would\nserve an important federal interest.\xe2\x80\x9d Id. at 5.\nDHS has explained that the proposed policy is designed to respond to\nthe practical reality that the number of aliens who are removable under\nUnder the proposed policy, aliens in the second tier could be deprioritized if, \xe2\x80\x9cin the\njudgment of an ICE Field Office Director, CBP Sector Chief, CBP Director of Field\nOperations, USCIS District Director, or USCIS Service Center Director, there are factors\nindicating the alien is not a threat to national security, border security, or public safety,\nand should not therefore be an enforcement priority.\xe2\x80\x9d Johnson Prioritization Memorandum at 4. Aliens in the third tier could be deprioritized if, \xe2\x80\x9cin the judgment of an immigration officer, the alien is not a threat to the integrity of the immigration system or there\nare factors suggesting the alien should not be an enforcement priority.\xe2\x80\x9d Id. at 5.\n3 These factors include \xe2\x80\x9cextenuating circumstances involving the offense of conviction; extended length of time since the offense of conviction; length of time in the United\nStates; military service; family or community ties in the United States; status as a victim,\nwitness or plaintiff in civil or criminal proceedings; or compelling humanitarian factors\nsuch as poor health, age, pregnancy, a young child or a seriously ill relative.\xe2\x80\x9d Id. at 6.\n2\n\n49\n\n\x0c38 Op. O.L.C. 39 (2014)\n\nthe INA vastly exceeds the resources Congress has made available to\nDHS for processing and carrying out removals. The resource constraints\nare striking. As noted, DHS has informed us that there are approximately\n11.3 million undocumented aliens in the country, but that Congress has\nappropriated sufficient resources for ICE to remove fewer than 400,000\naliens each year, a significant percentage of whom are typically encountered at or near the border rather than in the interior of the country. See\nE-mail for Karl R. Thompson, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from David Shahoulian, Deputy General\nCounsel, DHS, Re: Immigration Opinion (Nov. 19, 2014) (\xe2\x80\x9cShahoulian\nE-mail\xe2\x80\x9d). The proposed policy explains that, because DHS \xe2\x80\x9ccannot respond to all immigration violations or remove all persons illegally in the\nUnited States,\xe2\x80\x9d it seeks to \xe2\x80\x9cprioritize the use of enforcement personnel,\ndetention space, and removal assets\xe2\x80\x9d to \xe2\x80\x9censure that use of its limited\nresources is devoted to the pursuit of\xe2\x80\x9d DHS\xe2\x80\x99s highest priorities. Johnson\nPrioritization Memorandum at 2.\nIn our view, DHS\xe2\x80\x99s proposed prioritization policy falls within the scope\nof its lawful discretion to enforce the immigration laws. To begin with,\nthe policy is based on a factor clearly \xe2\x80\x9cwithin [DHS\xe2\x80\x99s] expertise.\xe2\x80\x9d\nChaney, 470 U.S. at 831. Faced with sharply limited resources, DHS\nnecessarily must make choices about which removals to pursue and which\nremovals to defer. DHS\xe2\x80\x99s organic statute itself recognizes this inevitable\nfact, instructing the Secretary to establish \xe2\x80\x9cnational immigration enforcement policies and priorities.\xe2\x80\x9d 6 U.S.C. \xc2\xa7 202(5). And an agency\xe2\x80\x99s need to\nensure that scarce enforcement resources are used in an effective manner\nis a quintessential basis for the use of prosecutorial discretion. See\nChaney, 470 U.S. at 831 (among the factors \xe2\x80\x9cpeculiarly within [an agency\xe2\x80\x99s] expertise\xe2\x80\x9d are \xe2\x80\x9cwhether agency resources are best spent on this\nviolation or another\xe2\x80\x9d and \xe2\x80\x9cwhether the agency has enough resources to\nundertake the action at all\xe2\x80\x9d).\nThe policy DHS has proposed, moreover, is consistent with the removal\npriorities established by Congress. In appropriating funds for DHS\xe2\x80\x99s\nenforcement activities\xe2\x80\x94which, as noted, are sufficient to permit the\nremoval of only a fraction of the undocumented aliens currently in the\ncountry\xe2\x80\x94Congress has directed DHS to \xe2\x80\x9cprioritize the identification and\nremoval of aliens convicted of a crime by the severity of that crime.\xe2\x80\x9d\n50\n\n\x0cPrioritizing and Deferring Removal of Certain Unlawfully Present Aliens\n\nDepartment of Homeland Security Appropriations Act, 2014, Pub. L. No.\n113-76, div. F, tit. II, 128 Stat. 5, 251 (\xe2\x80\x9cDHS Appropriations Act\xe2\x80\x9d). Consistent with this directive, the proposed policy prioritizes individuals\nconvicted of criminal offenses involving active participation in a criminal\nstreet gang, most offenses classified as felonies in the convicting jurisdiction, offenses classified as \xe2\x80\x9caggravated felonies\xe2\x80\x9d under the INA, and\ncertain misdemeanor offenses. Johnson Prioritization Memorandum at\n3\xe2\x80\x934. The policy ranks these priority categories according to the severity of\nthe crime of conviction. The policy also prioritizes the removal of other\ncategories of aliens who pose threats to national security or border security, matters about which Congress has demonstrated particular concern.\nSee, e.g., 8 U.S.C. \xc2\xa7 1226(c)(1)(D) (providing for detention of aliens\ncharged with removability on national security grounds); id. \xc2\xa7 1225(b),\n(c) (providing for an expedited removal process for certain aliens apprehended at the border). The policy thus raises no concern that DHS has\nrelied \xe2\x80\x9con factors which Congress had not intended it to consider.\xe2\x80\x9d Nat\xe2\x80\x99l\nAss\xe2\x80\x99n of Home Builders, 551 U.S. at 658.\nFurther, although the proposed policy is not a \xe2\x80\x9csingle-shot non-enforcement decision,\xe2\x80\x9d neither does it amount to an abdication of DHS\xe2\x80\x99s statutory responsibilities, or constitute a legislative rule overriding the commands of the substantive statute. Crowley Caribbean Transp., 37 F.3d at\n676\xe2\x80\x9377. The proposed policy provides a general framework for exercising\nenforcement discretion in individual cases, rather than establishing an\nabsolute, inflexible policy of not enforcing the immigration laws in certain categories of cases. Given that the resources Congress has allocated\nto DHS are sufficient to remove only a small fraction of the total population of undocumented aliens in the United States, setting forth written\nguidance about how resources should presumptively be allocated in particular cases is a reasonable means of ensuring that DHS\xe2\x80\x99s severely limited resources are systematically directed to its highest priorities across a\nlarge and diverse agency, as well as ensuring consistency in the administration of the removal system. The proposed policy\xe2\x80\x99s identification of\ncategories of aliens who constitute removal priorities is also consistent\nwith the categorical nature of Congress\xe2\x80\x99s instruction to prioritize the\nremoval of criminal aliens in the DHS Appropriations Act.\n51\n\n\x0c38 Op. O.L.C. 39 (2014)\n\nAnd, significantly, the proposed policy does not identify any category\nof 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\nnot eliminate that discretion entirely. It directs immigration officials to\nuse their resources to remove aliens in a manner \xe2\x80\x9ccommensurate with the\nlevel of prioritization identified,\xe2\x80\x9d but (as noted above) it does not \xe2\x80\x9cprohibit or discourage the apprehension, detention, or removal of aliens unlawfully in the United States who are not identified as priorities.\xe2\x80\x9d Johnson\nPrioritization Memorandum at 5. Instead, it authorizes the removal of\neven non-priority aliens if, in the judgment of an ICE Field Office Director, \xe2\x80\x9cremoving such an alien would serve an important federal interest,\xe2\x80\x9d a\nstandard the policy leaves open-ended. Id. Accordingly, the policy provides for case-by-case determinations about whether an individual alien\xe2\x80\x99s\ncircumstances warrant the expenditure of removal resources, employing a\nbroad standard that leaves ample room for the exercise of individualized\ndiscretion by responsible officials. For these reasons, the proposed policy\navoids the difficulties that might be raised by a more inflexible prioritization policy and dispels any concern that DHS has either undertaken to\nrewrite the immigration laws or abdicated its statutory responsibilities\nwith respect to non-priority aliens. 4\n\nIn Crane v. Napolitano, a district court recently concluded in a non-precedential\nopinion that the INA \xe2\x80\x9cmandates the initiation of removal proceedings whenever an\nimmigration officer encounters an illegal alien who is not \xe2\x80\x98clearly and beyond a doubt\nentitled to be admitted.\xe2\x80\x99\xe2\x80\x9d No. 3:12-cv-03247-O, 2013 WL 1744422, at *5 (N.D. Tex. Apr.\n23, 2013) (quoting 8 U.S.C. \xc2\xa7 1225(b)(2)(A)). The court later dismissed the case for lack\nof jurisdiction. See Crane v. Napolitano, No. 3:12-cv-03247-O, 2013 WL 8211660, at *4\n(N.D. Tex. July 31, 2013). Although the opinion lacks precedential value, we have\nnevertheless 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\xe2\x80\x99s conclusion is, in our view, inconsistent with the Supreme\nCourt\xe2\x80\x99s reading of the INA as permitting immigration officials to exercise enforcement\ndiscretion at any stage of the removal process, including when deciding whether to initiate\nremoval proceedings against a particular alien. See Arizona, 132 S. Ct. at 2499; Am.-Arab\nAnti-Discrim. Comm., 525 U.S. at 483\xe2\x80\x9384. It is also difficult to square with authority\nholding that the presence of mandatory language in a statute, standing alone, does not\nnecessarily limit the Executive Branch\xe2\x80\x99s enforcement discretion. See, e.g., Chaney, 470\n4\n\n52\n\n\x0cPrioritizing and Deferring Removal of Certain Unlawfully Present Aliens\n\nII.\nWe turn next to the permissibility of DHS\xe2\x80\x99s proposed deferred action\nprograms for certain aliens who are parents of U.S. citizens, lawful permanent residents (\xe2\x80\x9cLPRs\xe2\x80\x9d), or DACA recipients, and who are not removal\npriorities 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 action relies and identify legal\nprinciples 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\nand LPRs, and concluding with the program for parents of DACA recipients.\nA.\nIn immigration law, the term \xe2\x80\x9cdeferred action\xe2\x80\x9d refers to an exercise of\nadministrative discretion in which immigration officials temporarily defer\nthe removal of an alien unlawfully present in the United States. Am.-Arab\nAnti-Discrim. Comm., 525 U.S. at 484 (citing 6 Charles Gordon et al.,\nImmigration Law and Procedure \xc2\xa7 72.03[2][h] (1998)); see USCIS,\nStandard Operating Procedures for Handling Deferred Action Requests\nat USCIS Field Offices at 3 (2012) (\xe2\x80\x9cUSCIS SOP\xe2\x80\x9d); INS Operating\nInstructions \xc2\xa7 103.1(a)(1)(ii) (1977). It is one of a number of forms of\ndiscretionary relief\xe2\x80\x94in addition to such statutory and non-statutory\nmeasures as parole, temporary protected status, deferred enforced departure, and extended voluntary departure\xe2\x80\x94that immigration officials have\nused over the years to temporarily prevent the removal of undocumented\naliens. 5\nU.S. at 835; Inmates of Attica Corr. Facility v. Rockefeller, 477 F.2d 375, 381 (2d Cir.\n1973).\n5 Parole is available to aliens by statute \xe2\x80\x9cfor urgent humanitarian reasons or significant\npublic benefit.\xe2\x80\x9d 8 U.S.C. \xc2\xa7 1182(d)(5)(A). Among other things, parole gives aliens the\nability to adjust their status without leaving the United States if they are otherwise eligible\nfor adjustment of status, see id. \xc2\xa7 1255(a), and may eventually qualify them for federal\nmeans-tested benefits, see id. \xc2\xa7\xc2\xa7 1613, 1641(b)(4). Temporary protected status is available to nationals of designated foreign states affected by armed conflicts, environmental\ndisasters, and other extraordinary conditions. Id. \xc2\xa7 1254a. Deferred enforced departure,\n\n53\n\n\x0c38 Op. O.L.C. 39 (2014)\n\nThe practice of granting deferred action dates back several decades.\nFor many years after the INA was enacted, INS exercised prosecutorial\ndiscretion to grant \xe2\x80\x9cnon-priority\xe2\x80\x9d status to removable aliens who presented \xe2\x80\x9cappealing humanitarian factors.\xe2\x80\x9d Letter for Leon Wildes from\nE.A. Loughran, Associate Commissioner, INS at 2 (July 16, 1973)\n(defining a \xe2\x80\x9cnon-priority case\xe2\x80\x9d as \xe2\x80\x9cone in which the Service in the\nexercise of discretion determines that adverse action would be unconscionable because of appealing humanitarian factors\xe2\x80\x9d); see INS Operating Instructions \xc2\xa7 103.1(a)(1)(ii) (1962). This form of administrative\ndiscretion was later termed \xe2\x80\x9cdeferred action.\xe2\x80\x9d Am.-Arab Anti-Discrim.\nComm., 525 U.S. at 484; see INS Operating Instructions \xc2\xa7 103.1(a)(1)(ii)\n(1977) (instructing immigration officers to recommend deferred action\nwhenever \xe2\x80\x9cadverse action would be unconscionable because of the existence of appealing humanitarian factors\xe2\x80\x9d).\n\nwhich \xe2\x80\x9chas no statutory basis\xe2\x80\x9d but rather is an exercise of \xe2\x80\x9cthe President\xe2\x80\x99s constitutional\npowers to conduct foreign relations,\xe2\x80\x9d may be granted to nationals of appropriate foreign\nstates. USCIS, Adjudicator\xe2\x80\x99s Field Manual \xc2\xa7 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\nalien agreed to voluntarily depart the United States, without imposing a time limit for the\nalien\xe2\x80\x99s departure. See 8 U.S.C. \xc2\xa7\xc2\xa7 1252(b), 1254(e) (1988 & Supp. II 1990); cf. 8 U.S.C.\n\xc2\xa7 1229c (current provision of the INA providing authority to grant voluntary departure,\nbut limiting such grants to 120 days). Some commentators, however, suggested that\nextended voluntary departure was in fact a form of \xe2\x80\x9cdiscretionary relief formulated\nadministratively under the Attorney General\xe2\x80\x99s general authority for enforcing immigration\nlaw.\xe2\x80\x9d 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\nappears that extended voluntary departure is no longer used following enactment of the\nImmigration Act of 1990, which established the temporary protected status program. See\nU.S. Citizenship and Immigration Services Fee Schedule, 75 Fed. Reg. 33,446, 33,457\n(June 11, 2010) (proposed rule) (noting that \xe2\x80\x9csince 1990 neither the Attorney General nor\nthe Secretary have designated a class of aliens for nationality-based \xe2\x80\x98extended voluntary\ndeparture,\xe2\x80\x99 and there no longer are aliens in the United States benefiting from such a\ndesignation,\xe2\x80\x9d but noting that deferred enforced departure is still used); H.R. Rep. No. 102123, at 2 (1991) (indicating that in establishing temporary protected status, Congress was\n\xe2\x80\x9ccodif [ying] and supersed[ing]\xe2\x80\x9d extended voluntary departure). See generally Andorra\nBruno et al., Cong. Research Serv., Analysis of June 15, 2012 DHS Memorandum,\nExercising Prosecutorial Discretion with Respect to Individuals Who Came to the United\nStates as Children at 5\xe2\x80\x9310 (July 13, 2012) (\xe2\x80\x9cCRS Immigration Report\xe2\x80\x9d).\n\n54\n\n\x0cPrioritizing and Deferring Removal of Certain Unlawfully Present Aliens\n\nAlthough the practice of granting deferred action \xe2\x80\x9cdeveloped without\nexpress statutory authorization,\xe2\x80\x9d it has become a regular feature of the\nimmigration removal system that has been acknowledged by both Congress and the Supreme Court. Am.-Arab Anti-Discrim. Comm., 525 U.S.\nat 484 (internal quotation marks omitted); see id. at 485 (noting that a\ncongressional enactment limiting judicial review of decisions \xe2\x80\x9cto commence proceedings, adjudicate cases, or execute removal orders against\nany alien under [the INA]\xe2\x80\x9d in 8 U.S.C. \xc2\xa7 1252(g) \xe2\x80\x9cseems clearly designed to give some measure of protection to \xe2\x80\x98no deferred action\xe2\x80\x99 decisions and similar discretionary determinations\xe2\x80\x9d); see also, e.g., 8 U.S.C.\n\xc2\xa7 1154(a)(1)(D)(i)(II), (IV) (providing that certain individuals are \xe2\x80\x9celigible for deferred action\xe2\x80\x9d). Deferred action \xe2\x80\x9cdoes not confer any immigration status\xe2\x80\x9d\xe2\x80\x94i.e., it does not establish any enforceable legal right to\nremain in the United States\xe2\x80\x94and it may be revoked by immigration\nauthorities at their discretion. USCIS SOP at 3, 7. Assuming it is not\nrevoked, however, it represents DHS\xe2\x80\x99s decision not to seek the alien\xe2\x80\x99s\nremoval for a specified period of time.\nUnder longstanding regulations and policy guidance promulgated\npursuant to statutory authority in the INA, deferred action recipients\nmay receive two additional benefits. First, relying on DHS\xe2\x80\x99s statutory\nauthority to authorize certain aliens to work in the United States, DHS\nregulations permit recipients of deferred action to apply for work authorization if they can demonstrate an \xe2\x80\x9ceconomic necessity for employment.\xe2\x80\x9d 8 C.F.R. \xc2\xa7 274a.12(c)(14); see 8 U.S.C. \xc2\xa7 1324a(h)(3) (defining\nan \xe2\x80\x9cunauthorized alien\xe2\x80\x9d not entitled to work in the United States as an\nalien who is neither an LPR nor \xe2\x80\x9cauthorized to be . . . employed by [the\nINA] or by the Attorney General [now the Secretary of Homeland Security]\xe2\x80\x9d). Second, DHS has promulgated regulations and issued policy\nguidance providing that aliens who receive deferred action will temporarily cease accruing \xe2\x80\x9cunlawful presence\xe2\x80\x9d for purposes of 8 U.S.C.\n\xc2\xa7 1182(a)(9)(B)(i) and (a)(9)(C)(i)(I). 8 C.F.R. \xc2\xa7 214.14(d)(3); 28 C.F.R.\n\xc2\xa7 1100.35(b)(2); Memorandum for Field Leadership from Donald\nNeufeld, Acting Associate Director, Domestic Operations Directorate,\nUSCIS, Re: Consolidation of Guidance Concerning Unlawful Presence\nfor Purposes of Sections 212(a)(9)(B)( i ) and 212(a)(9)(C)( i )( I ) of the\nAct at 42 (May 6, 2009) (\xe2\x80\x9cUSCIS Consolidation of Guidance\xe2\x80\x9d) (noting\nthat \xe2\x80\x9c[a]ccrual of unlawful presence stops on the date an alien is granted\n55\n\n\x0c38 Op. O.L.C. 39 (2014)\n\ndeferred action\xe2\x80\x9d); see 8 U.S.C. \xc2\xa7 1182(a)(9)(B)(ii) (providing that an\nalien is \xe2\x80\x9cunlawfully present\xe2\x80\x9d if, among other things, he \xe2\x80\x9cis present in the\nUnited States after the expiration of the period of stay authorized by the\nAttorney General\xe2\x80\x9d). 6\nImmigration officials today continue to grant deferred action in individual cases for humanitarian and other purposes, a practice we will refer\nto as \xe2\x80\x9cad hoc deferred action.\xe2\x80\x9d Recent USCIS guidance provides that\npersonnel may recommend ad hoc deferred action if they \xe2\x80\x9cencounter cases\nduring [their] normal course of business that they feel warrant deferred\naction.\xe2\x80\x9d USCIS SOP at 4. An alien may also apply for ad hoc deferred\naction by submitting a signed, written request to USCIS containing \xe2\x80\x9c[a]n\nexplanation as to why he or she is seeking deferred action\xe2\x80\x9d along with\nsupporting documentation, proof of identity, and other records. Id. at 3.\nFor decades, INS and later DHS have also implemented broader programs that make discretionary relief from removal available for particular\nclasses of aliens. In many instances, these agencies have made such\nbroad-based relief available through the use of parole, temporary protected status, deferred enforced departure, or extended voluntary departure.\nFor example, from 1956 to 1972, INS implemented an extended voluntary\ndeparture program for physically present aliens who were beneficiaries of\napproved visa petitions\xe2\x80\x94known as \xe2\x80\x9cThird Preference\xe2\x80\x9d visa petitions\xe2\x80\x94\nrelating to a specific class of visas for Eastern Hemisphere natives. See\nUnited States ex rel. Parco v. Morris, 426 F. Supp. 976, 979\xe2\x80\x9380 (E.D. Pa.\n1977). Similarly, for several years beginning in 1978, INS granted extended voluntary departure to nurses who were eligible for H-1 visas.\nVoluntary Departure for Out-of-Status Nonimmigrant H-1 Nurses, 43\nFed. Reg. 2776, 2776 (Jan. 19, 1978). In addition, in more than two dozen\ninstances dating to 1956, INS and later DHS granted parole, temporary\nprotected status, deferred enforced departure, or extended voluntary\ndeparture to large numbers of nationals of designated foreign states.\nSection 1182(a)(9)(B)(i) imposes three- and ten-year bars on the admission of aliens\n(other than aliens admitted to permanent residence) who departed or were removed from\nthe United States after periods of unlawful presence of between 180 days and one year, or\none year or more. Section 1182(a)(9)(C)(i)(I) imposes an indefinite bar on the admission\nof any alien who, without being admitted, enters or attempts to reenter the United States\nafter previously having been unlawfully present in the United States for an aggregate\nperiod of more than one year.\n6\n\n56\n\n\x0cPrioritizing and Deferring Removal of Certain Unlawfully Present Aliens\n\nSee, e.g., CRS Immigration Report at 20\xe2\x80\x9323; Cong. Research Serv.,\nED206779, Review of U.S. Refugee Resettlement Programs and Policies\nat 9, 12\xe2\x80\x9314 (1980). And in 1990, INS implemented a \xe2\x80\x9cFamily Fairness\xe2\x80\x9d\nprogram that authorized granting extended voluntary departure and work\nauthorization to the estimated 1.5 million spouses and children of aliens\nwho had been granted legal status under the Immigration Reform and\nControl Act of 1986 (\xe2\x80\x9cIRCA\xe2\x80\x9d), Pub. L. No. 99-603, 100 Stat. 3359. See\nMemorandum for Regional Commissioners, INS, from Gene McNary,\nCommissioner, INS, Re: Family Fairness: Guidelines for Voluntary\nDeparture Under 8 CFR 242.5 for the Ineligible Spouses and Children of\nLegalized Aliens (Feb. 2, 1990) (\xe2\x80\x9cFamily Fairness Memorandum\xe2\x80\x9d); see\nalso CRS Immigration Report at 10.\nOn at least five occasions since the late 1990s, INS and later DHS have\nalso made discretionary relief available to certain classes of aliens through\nthe use of deferred action:\n1. Deferred Action for Battered Aliens Under the Violence Against\nWomen Act. INS established a class-based deferred action program in\n1997 for the benefit of self-petitioners under the Violence Against\nWomen Act of 1994 (\xe2\x80\x9cVAWA\xe2\x80\x9d), Pub. L. No. 103-322, tit. IV, 108 Stat.\n1796, 1902. VAWA authorized certain aliens who have been abused by\nU.S. citizen or LPR spouses or parents to self-petition for lawful immigration status, without having to rely on their abusive family members\nto petition on their behalf. Id. \xc2\xa7 40701(a) (codified as amended at\n8 U.S.C. \xc2\xa7 1154(a)(1)(A)(iii)\xe2\x80\x93(iv), (vii)). The INS program required\nimmigration officers who approved a VAWA self-petition to assess, \xe2\x80\x9con\na case-by-case basis, whether to place the alien in deferred action status\xe2\x80\x9d\nwhile the alien waited for a visa to become available. Memorandum for\nRegional Directors et al., INS, from Paul W. Virtue, Acting Executive\nAssociate Commissioner, INS, Re: Supplemental Guidance on Battered\nAlien Self-Petitioning Process and Related Issues at 3 (May 6, 1997).\nINS noted that \xe2\x80\x9c[b]y their nature, VAWA cases generally possess factors\nthat warrant consideration for deferred action.\xe2\x80\x9d Id. But because \xe2\x80\x9c[i]n an\nunusual case, there may be factors present that would militate against\ndeferred action,\xe2\x80\x9d the agency instructed officers that requests for deferred\naction should still \xe2\x80\x9creceive individual scrutiny.\xe2\x80\x9d Id. In 2000, INS reported to Congress that, because of this program, no approved VAWA selfpetitioner had been removed from the country. See Battered Women\n57\n\n\x0c38 Op. O.L.C. 39 (2014)\n\nImmigrant Protection Act: Hearings on H.R. 3083 Before the Subcomm.\non Immigration & Claims of the H. Comm. on the Judiciary, 106th Cong.\nat 43 (July 20, 2000) (\xe2\x80\x9cH.R. 3083 Hearings\xe2\x80\x9d).\n2. Deferred Action for T and U Visa Applicants. Several years later,\nINS instituted a similar deferred action program for applicants for\nnonimmigrant status or visas made available under the Victims of Trafficking and Violence Protection Act of 2000 (\xe2\x80\x9cVTVPA\xe2\x80\x9d), Pub. L. No.\n106-386, 114 Stat. 1464. That Act created two new nonimmigrant classifications: a \xe2\x80\x9cT visa\xe2\x80\x9d available to victims of human trafficking and their\nfamily members, and a \xe2\x80\x9cU visa\xe2\x80\x9d for victims of certain other crimes and\ntheir family members. Id. \xc2\xa7\xc2\xa7 107(e), 1513(b)(3) (codified at 8 U.S.C.\n\xc2\xa7 1101(a)(15)(T)(i), (U)(i)). In 2001, INS issued a memorandum directing\nimmigration officers to locate \xe2\x80\x9cpossible victims in the above categories,\xe2\x80\x9d\nand to use \xe2\x80\x9c[e]xisting authority and mechanisms such as parole, deferred\naction, and stays of removal\xe2\x80\x9d to prevent those victims\xe2\x80\x99 removal \xe2\x80\x9cuntil\nthey have had the opportunity to avail themselves of the provisions of the\nVTVPA.\xe2\x80\x9d Memorandum for Michael A. Pearson, Executive Associate\nCommissioner, INS, from Michael D. Cronin, Acting Executive Associate\nCommissioner, INS, Re: Victims of Trafficking and Violence Protection\nAct of 2000 (VTVPA) Policy Memorandum #2\xe2\x80\x94\xe2\x80\x9cT\xe2\x80\x9d and \xe2\x80\x9cU\xe2\x80\x9d Nonimmigrant Visas at 2 (Aug. 30, 2001). In subsequent memoranda, INS instructed officers to make \xe2\x80\x9cdeferred action assessment[s]\xe2\x80\x9d for \xe2\x80\x9call [T visa]\napplicants whose applications have been determined to be bona fide,\xe2\x80\x9d\nMemorandum for Johnny N. Williams, Executive Associate Commissioner, INS, from Stuart Anderson, Executive Associate Commissioner, INS,\nRe: 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\n\xe2\x80\x9cdetermined to have submitted prima facie evidence of [their] eligibility,\xe2\x80\x9d\nMemorandum 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\nDHS promulgated regulations embodying these policies. See 8 C.F.R.\n\xc2\xa7 214.11(k)(1), (k)(4), (m)(2) (promulgated by New Classification for\nVictims of Severe Forms of Trafficking in Persons; Eligibility for \xe2\x80\x9cT\xe2\x80\x9d\nNonimmigrant Status, 67 Fed. Reg. 4784, 4800\xe2\x80\x9301 (Jan. 31, 2002))\n(providing that any T visa applicant who presents \xe2\x80\x9cprima facie evidence\xe2\x80\x9d\nof his eligibility should have his removal \xe2\x80\x9cautomatically stay[ed]\xe2\x80\x9d and\n58\n\n\x0cPrioritizing and Deferring Removal of Certain Unlawfully Present Aliens\n\nthat applicants placed on a waiting list for visas \xe2\x80\x9cshall maintain [their]\ncurrent means to prevent removal (deferred action, parole, or stay of\nremoval)\xe2\x80\x9d); id. \xc2\xa7 214.14(d)(2) (promulgated by New Classification for\nVictims of Criminal Activity; Eligibility for \xe2\x80\x9cU\xe2\x80\x9d Nonimmigrant Status,\n72 Fed. Reg. 53,014, 53,039 (Sept. 17, 2007)) (\xe2\x80\x9cUSCIS will grant deferred action or parole to U-1 petitioners and qualifying family members\nwhile the U-1 petitioners are on the waiting list\xe2\x80\x9d for visas).\n3. Deferred Action for Foreign Students Affected by Hurricane\nKatrina. As a consequence of the devastation caused by Hurricane\nKatrina in 2005, several thousand foreign students became temporarily\nunable to satisfy the requirements for maintaining their lawful status as\nF-1 nonimmigrant students, which include \xe2\x80\x9cpursuit of a \xe2\x80\x98full course of\nstudy.\xe2\x80\x99\xe2\x80\x9d USCIS, Interim Relief for Certain Foreign Academic Students\nAdversely Affected by Hurricane Katrina: Frequently Asked Questions\n(FAQ) at 1 (Nov. 25, 2005) (quoting 8 C.F.R. \xc2\xa7 214.2(f)(6)), http://www.\nuscis.gov/sites/default/files/USCIS/Humanitarian/Special%20Situations/\nPrevious%20Special%20Situations%20By%20Topic/faq-interim-studentrelief-hurricane-katrina.pdf (last visited Nov. 19, 2014). DHS announced\nthat it would grant deferred action to these students \xe2\x80\x9cbased on the fact\nthat [their] failure to maintain status is directly due to Hurricane Katrina.\xe2\x80\x9d Id. at 7. To apply for deferred action under this program, students\nwere required to send a letter substantiating their need for deferred action, along with an application for work authorization. Press Release,\nUSCIS, USCIS Announces Interim Relief for Foreign Students Adversely\nImpacted by Hurricane Katrina at 1\xe2\x80\x932 (Nov. 25, 2005), http://www.\nuscis.gov/sites/default/files/files/pressrelease/F1Student_11_25_05_PR.\npdf (last visited Nov. 19, 2014). USCIS explained that such requests for\ndeferred action would be \xe2\x80\x9cdecided on a case-by-case basis\xe2\x80\x9d and that it\ncould not \xe2\x80\x9cprovide any assurance that all such requests will be granted.\xe2\x80\x9d\nId. at 1.\n4. Deferred Action for Widows and Widowers of U.S. Citizens. In\n2009, DHS implemented a deferred action program for certain widows\nand widowers of U.S. citizens. USCIS explained that \xe2\x80\x9cno avenue of\nimmigration relief exists for the surviving spouse of a deceased U.S.\ncitizen if the surviving spouse and the U.S. citizen were married less than\n2 years at the time of the citizen\xe2\x80\x99s death\xe2\x80\x9d and USCIS had not yet adjudicated a visa petition on the spouse\xe2\x80\x99s behalf. Memorandum for Field Lead59\n\n\x0c38 Op. O.L.C. 39 (2014)\n\nership, USCIS, from Donald Neufeld, Acting Associate Director, USCIS,\nRe: Guidance Regarding Surviving Spouses of Deceased U.S. Citizens\nand Their Children at 1 (Sept. 4, 2009). \xe2\x80\x9cIn order to address humanitarian\nconcerns arising from cases involving surviving spouses of U.S. citizens,\xe2\x80\x9d\nUSCIS issued guidance permitting covered surviving spouses and \xe2\x80\x9ctheir\nqualifying children who are residing in the United States\xe2\x80\x9d to apply for\ndeferred action. Id. at 2, 6. USCIS clarified that such relief would not be\nautomatic, but rather would be unavailable in the presence of, for example, \xe2\x80\x9cserious adverse factors, such as national security concerns, significant immigration fraud, commission of other crimes, or public safety\nreasons.\xe2\x80\x9d Id. at 6. 7\n5. Deferred Action for Childhood Arrivals. Announced by DHS in\n2012, DACA makes deferred action available to \xe2\x80\x9ccertain young people\nwho were brought to this country as children\xe2\x80\x9d and therefore \xe2\x80\x9c[a]s a general matter . . . lacked the intent to violate the law.\xe2\x80\x9d Memorandum for\nDavid Aguilar, Acting Commissioner, CBP, et al., from Janet Napolitano,\nSecretary, DHS, Re: Exercising Prosecutorial Discretion with Respect to\nIndividuals Who Came to the United States as Children at 1 (June 15,\n2012) (\xe2\x80\x9cNapolitano Memorandum\xe2\x80\x9d). An alien is eligible for DACA if she\nwas under the age of 31 when the program began; arrived in the United\nStates before the age of 16; continuously resided in the United States for\nat least 5 years immediately preceding June 15, 2012; was physically\npresent on June 15, 2012; satisfies certain educational or military service\nrequirements; and neither has a serious criminal history nor \xe2\x80\x9cposes a\nthreat to national security or public safety.\xe2\x80\x9d See id. DHS evaluates applicants\xe2\x80\x99 eligibility for DACA on a case-by-case basis. See id. at 2; USCIS,\nDeferred Action for Childhood Arrivals (DACA) Toolkit: Resources for\nCommunity Partners at 11 (\xe2\x80\x9cDACA Toolkit\xe2\x80\x9d). Successful DACA appli7 Several months after the deferred action program was announced, Congress eliminated the requirement that an alien be married to a U.S. citizen \xe2\x80\x9cfor at least 2 years at the\ntime of the citizen\xe2\x80\x99s death\xe2\x80\x9d to retain his or her eligibility for lawful immigration status.\nDepartment of Homeland Security Appropriations Act, 2010, Pub. L. No. 111-83,\n\xc2\xa7 568(c), 123 Stat. 2142, 2186 (2009). Concluding that this legislation rendered its\nsurviving spouse guidance \xe2\x80\x9cobsolete,\xe2\x80\x9d USCIS withdrew its earlier guidance and treated all\npending applications for deferred action as visa petitions. See Memorandum for Executive\nLeadership, USCIS, from Donald Neufeld, Acting Associate Director, USCIS, et al., Re:\nAdditional Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and Their\nChildren (REVISED) at 3, 10 (Dec. 2, 2009).\n\n60\n\n\x0cPrioritizing and Deferring Removal of Certain Unlawfully Present Aliens\n\ncants receive deferred action for a period of two years, subject to renewal.\nSee DACA Toolkit at 11. DHS has stated that grants of deferred action\nunder DACA may be terminated at any time, id. at 16, and \xe2\x80\x9cconfer[] no\nsubstantive right, immigration status or pathway to citizenship,\xe2\x80\x9d Napolitano Memorandum at 3. 8\nCongress has long been aware of the practice of granting deferred action, including in its categorical variety, and of its salient features; and it\nhas never acted to disapprove or limit the practice. 9 On the contrary, it\nhas enacted several pieces of legislation that have either assumed that\ndeferred action would be available in certain circumstances, or expressly\ndirected that deferred action be extended to certain categories of aliens.\nFor example, as Congress was considering VAWA reauthorization\nBefore 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\nsuch a program would be permissible, provided that immigration officials retained\ndiscretion 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\nas a child in exercising their discretion to grant deferred action in individual cases. We\nexplained, however, that extending deferred action to individuals who satisfied these and\nother specified criteria on a class-wide basis would raise distinct questions not implicated\nby ad hoc grants of deferred action. We advised that it was critical that, like past policies\nthat made deferred action available to certain classes of aliens, the DACA program\nrequire immigration officials to evaluate each application for deferred action on a caseby-case basis, rather than granting deferred action automatically to all applicants who\nsatisfied the threshold eligibility criteria. We also noted that, although the proposed\nprogram was predicated on humanitarian concerns that appeared less particularized and\nacute than those underlying certain prior class-wide deferred action programs, the concerns animating DACA were nonetheless consistent with the types of concerns that have\ncustomarily guided the exercise of immigration enforcement discretion.\n8\n\n9 Congress has considered legislation that would limit the practice of granting deferred\naction, but it has never enacted such a measure. In 2011, a bill was introduced in both the\nHouse and the Senate that would have temporarily suspended DHS\xe2\x80\x99s authority to grant\ndeferred action except in narrow circumstances. See H.R. 2497, 112th Cong. (2011);\nS. 1380, 112th Cong. (2011). Neither chamber, however, voted on the bill. This year, the\nHouse passed a bill that purported to bar any funding for DACA or other class-wide\ndeferred 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\nis an unreliable indicator of legislative intent, see Red Lion Broad. Co. v. FCC, 395 U.S.\n367, 381 n.11 (1969), we do not draw any inference regarding congressional policy from\nthese unenacted bills.\n\n61\n\n\x0c38 Op. O.L.C. 39 (2014)\n\nlegislation in 2000, INS officials testified before Congress about their\ndeferred action program for VAWA self-petitioners, explaining that\n\xe2\x80\x9c[a]pproved [VAWA] self-petitioners are placed in deferred action status,\xe2\x80\x9d such that \xe2\x80\x9c[n]o battered alien who has filed a[n approved] self\npetition . . . has been deported.\xe2\x80\x9d H.R. 3083 Hearings at 43. Congress\nresponded by not only acknowledging but also expanding the deferred\naction program in the 2000 VAWA reauthorization legislation, providing\nthat children who could no longer self-petition under VAWA because\nthey were over the age of 21 would nonetheless be \xe2\x80\x9celigible for deferred\naction and work authorization.\xe2\x80\x9d VTVPA \xc2\xa7 1503(d)(2), 114 Stat. at 1522\n(codified at 8 U.S.C. \xc2\xa7 1154(a)(1)(D)(i)(II), (IV)). 10\nCongress demonstrated a similar awareness of INS\xe2\x80\x99s (and later DHS\xe2\x80\x99s)\ndeferred action program for bona fide T and U visa applicants. As discussed above, that program made deferred action available to nearly all\nindividuals who could make a prima facie showing of eligibility for a T or\nU visa. In 2008 legislation, Congress authorized DHS to \xe2\x80\x9cgrant . . . an\nadministrative stay of a final order of removal\xe2\x80\x9d to any such individual.\nWilliam Wilberforce Trafficking Victims Protection Reauthorization Act\nof 2008, Pub. L. No. 110-457, \xc2\xa7 204, 122 Stat. 5044, 5060 (codified at\n8 U.S.C. \xc2\xa7 1227(d )(1)). Congress further clarified that \xe2\x80\x9c[t]he denial of a\nrequest for an administrative stay of removal under this subsection shall\nnot preclude the alien from applying for . . . deferred action.\xe2\x80\x9d Id. It also\ndirected DHS to compile a report detailing, among other things, how long\nDHS\xe2\x80\x99s \xe2\x80\x9cspecially trained [VAWA] Unit at the [USCIS] Vermont Service\nCenter\xe2\x80\x9d took to adjudicate victim-based immigration applications for\n\xe2\x80\x9cdeferred action,\xe2\x80\x9d along with \xe2\x80\x9csteps taken to improve in this area.\xe2\x80\x9d Id.\n\xc2\xa7 238. Representative Berman, the bill\xe2\x80\x99s sponsor, explained that the\nVermont Service Center should \xe2\x80\x9cstrive to issue work authorization and\ndeferred action\xe2\x80\x9d to \xe2\x80\x9c[i]mmigrant victims of domestic violence, sexual\nFive 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,\n\xe2\x80\x9c[u]pon the approval of a petition as a VAWA self-petitioner, the alien . . . is eligible for\nwork authorization.\xe2\x80\x9d Id. \xc2\xa7 814(b) (codified at 8 U.S.C. \xc2\xa7 1154(a)(1)(K)). One of the\nAct\xe2\x80\x99s sponsors explained that while this provision was intended to \xe2\x80\x9cgive[] DHS statutory\nauthority to grant work authorization . . . without having to rely upon deferred action . . .\n[t]he current practice of granting deferred action to approved VAWA self-petitioners\nshould continue.\xe2\x80\x9d 151 Cong. Rec. 29,334 (2005) (statement of Rep. Conyers).\n10\n\n62\n\n\x0cPrioritizing and Deferring Removal of Certain Unlawfully Present Aliens\n\nassault and other violence crimes . . . in most instances within 60 days of\nfiling.\xe2\x80\x9d 154 Cong. Rec. 24,603 (2008).\nIn addition, in other enactments, Congress has specified that certain\nclasses of individuals should be made \xe2\x80\x9celigible for deferred action.\xe2\x80\x9d These\nclasses include certain immediate family members of LPRs who were\nkilled on September 11, 2001, USA PATRIOT Act of 2001, Pub. L. No.\n107-56, \xc2\xa7 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, \xc2\xa7 1703(c)\xe2\x80\x93(d), 117\nStat. 1392, 1694 (2003). In the same legislation, Congress made these\nindividuals eligible to obtain lawful status as \xe2\x80\x9cfamily-sponsored immigrant[s]\xe2\x80\x9d or \xe2\x80\x9cimmediate relative[s]\xe2\x80\x9d of U.S. citizens. Pub. L. No. 107-56,\n\xc2\xa7 423(b), 115 Stat. at 361; Pub. L. No. 108-136, \xc2\xa7 1703(c)(1)(A), 117\nStat. at 1694. See generally Scialabba v. Cuellar de Osorio, 134 S. Ct.\n2191, 2197 (2014) (plurality opinion) (explaining which aliens typically\nqualify as family-sponsored immigrants or immediate relatives).\nFinally, Congress acknowledged the practice of granting deferred action in the REAL ID Act of 2005, Pub. L. No. 109-13, div. B, 119 Stat.\n231, 302 (codified at 49 U.S.C. \xc2\xa7 30301 note), which makes a state-issued\ndriver\xe2\x80\x99s license or identification card acceptable for federal purposes only\nif the state verifies, among other things, that the card\xe2\x80\x99s recipient has\n\xe2\x80\x9c[e]vidence of [l]awful [s]tatus.\xe2\x80\x9d Congress specified that, for this purpose,\nacceptable evidence of lawful status includes proof of, among other\nthings, citizenship, lawful permanent or temporary residence, or \xe2\x80\x9capproved deferred action status.\xe2\x80\x9d Id. \xc2\xa7 202(c)(2)(B)(viii).\nB.\nThe practice of granting deferred action, like the practice of setting enforcement priorities, is an exercise of enforcement discretion rooted in\nDHS\xe2\x80\x99s authority to enforce the immigration laws and the President\xe2\x80\x99s duty\nto take care that the laws are faithfully executed. It is one of several\nmechanisms by which immigration officials, against a backdrop of limited\nenforcement resources, exercise their \xe2\x80\x9cbroad discretion\xe2\x80\x9d to administer the\nremoval system\xe2\x80\x94and, more specifically, their discretion to determine\nwhether \xe2\x80\x9cit makes sense to pursue removal\xe2\x80\x9d in particular circumstances.\nArizona, 132 S. Ct. at 2499.\n63\n\n\x0c38 Op. O.L.C. 39 (2014)\n\nDeferred action, however, differs in at least three respects from more\nfamiliar and widespread exercises of enforcement discretion. First, unlike\n(for example) the paradigmatic exercise of prosecutorial discretion in a\ncriminal case, the conferral of deferred action does not represent a decision not to prosecute an individual for past unlawful conduct; it instead\nrepresents a decision to openly tolerate an undocumented alien\xe2\x80\x99s continued presence in the United States for a fixed period (subject to revocation\nat the agency\xe2\x80\x99s discretion). Second, unlike most exercises of enforcement\ndiscretion, 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.\n\xc2\xa7 1182(a)(9)(B)(i) and (a)(9)(C)(i)(I). Third, class-based deferred action\nprograms, like those for VAWA recipients and victims of Hurricane\nKatrina, do not merely enable individual immigration officials to select\ndeserving beneficiaries from among those aliens who have been identified or apprehended for possible removal\xe2\x80\x94as is the case with ad hoc\ndeferred action\xe2\x80\x94but rather set forth certain threshold eligibility criteria\nand then invite individuals who satisfy these criteria to apply for deferred\naction status.\nWhile these features of deferred action are somewhat unusual among\nexercises of enforcement discretion, the differences between deferred\naction and other exercises of enforcement discretion are less significant\nthan they might initially appear. The first feature\xe2\x80\x94the toleration of an\nalien\xe2\x80\x99s continued unlawful presence\xe2\x80\x94is an inevitable element of almost\nany exercise of discretion in immigration enforcement. Any decision not\nto remove an unlawfully present alien\xe2\x80\x94even through an exercise of\nroutine enforcement discretion\xe2\x80\x94necessarily carries with it a tacit acknowledgment that the alien will continue to be present in the United\nStates without legal status. Deferred action arguably goes beyond such\ntacit acknowledgment by expressly communicating to the alien that his or\nher unlawful presence will be tolerated for a prescribed period of time.\nThis 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\naction confers no lawful immigration status, provides no path to lawful\npermanent residence or citizenship, and is revocable at any time in the\nagency\xe2\x80\x99s discretion.\n64\n\n\x0cPrioritizing and Deferring Removal of Certain Unlawfully Present Aliens\n\nWith respect to the second feature, the additional benefits deferred action confers\xe2\x80\x94the ability to apply for work authorization and the tolling\nof unlawful presence\xe2\x80\x94do not depend on background principles of agency discretion under DHS\xe2\x80\x99s general immigration authorities or the Take\nCare Clause at all, but rather depend on independent and more specific\nstatutory authority rooted in the text of the INA. The first of those authorities, DHS\xe2\x80\x99s power to prescribe which aliens are authorized to work\nin the United States, is grounded in 8 U.S.C. \xc2\xa7 1324a(h)(3), which defines an \xe2\x80\x9cunauthorized alien\xe2\x80\x9d not entitled to work in the United States as\nan alien who is neither an LPR nor \xe2\x80\x9cauthorized to be . . . employed by\n[the INA] or by the Attorney General [now the Secretary of Homeland\nSecurity].\xe2\x80\x9d This statutory provision has long been understood to recognize the authority of the Secretary (and the Attorney General before him)\nto grant work authorization to particular classes of aliens. See 8 C.F.R.\n\xc2\xa7 274a.12; see also Perales v. Casillas, 903 F.2d 1043, 1048\xe2\x80\x9350 (5th Cir.\n1990) (describing the authority recognized by section 1324a(h)(3) as\n\xe2\x80\x9cpermissive\xe2\x80\x9d and largely \xe2\x80\x9cunfettered\xe2\x80\x9d). 11 Although the INA requires the\nSection 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\ndelegating the authority to regulate the employment of aliens to a responsible federal\nagency. INS assumed the authority to prescribe the classes of aliens authorized to work in\nthe United States under its general responsibility to administer the immigration laws. In\n1981, INS promulgated regulations codifying its existing procedures and criteria for\ngranting employment authorization. See Employment Authorization to Aliens in the\nUnited States, 46 Fed. Reg. 25,079, 25,080\xe2\x80\x9381 (May 5, 1981) (citing 8 U.S.C. \xc2\xa7 1103(a)).\nThose regulations permitted certain categories of aliens who lacked lawful immigration\nstatus, including deferred action recipients, to apply for work authorization under certain\ncircumstances. 8 C.F.R. \xc2\xa7 109.1(b)(7) (1982). In IRCA, Congress introduced a \xe2\x80\x9ccomprehensive scheme prohibiting the employment of illegal aliens in the United States,\xe2\x80\x9d\nHoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002), to be enforced\nprimarily through criminal and civil penalties on employers who knowingly employ an\n\xe2\x80\x9cunauthorized alien.\xe2\x80\x9d As relevant here, Congress defined an \xe2\x80\x9cunauthorized alien\xe2\x80\x9d barred\nfrom employment in the United States as an alien who \xe2\x80\x9cis not . . . either (A) an alien\nlawfully admitted for permanent residence, or (B) authorized to be so employed by this\nchapter or by the Attorney General.\xe2\x80\x9d 8 U.S.C. \xc2\xa7 1324a(h)(3) (emphasis added). Shortly\nafter IRCA was enacted, INS denied a petition to rescind its employment authorization\nregulation, rejecting an argument that \xe2\x80\x9cthe phrase \xe2\x80\x98authorized to be so employed by this\nAct or the Attorney General\xe2\x80\x99 does not recognize the Attorney General\xe2\x80\x99s authority to grant\nwork authorization except to those aliens who have already been granted specific authorization by the Act.\xe2\x80\x9d Employment Authorization; Classes of Aliens Eligible, 52 Fed. Reg.\n11\n\n65\n\n\x0c38 Op. O.L.C. 39 (2014)\n\nSecretary to grant work authorization to particular classes of aliens, see,\ne.g., 8 U.S.C. \xc2\xa7 1158(c)(1)(B) (aliens granted asylum), it places few limitations on the Secretary\xe2\x80\x99s authority to grant work authorization to other\nclasses of aliens. Further, and notably, additional provisions of the INA\nexpressly contemplate that the Secretary may grant work authorization to\naliens lacking lawful immigration status\xe2\x80\x94even those who are in active\nremoval proceedings or, in certain circumstances, those who have already\nreceived final orders of removal. See id. \xc2\xa7 1226(a)(3) (permitting the\nSecretary to grant work authorization to an otherwise work-eligible alien\nwho has been arrested and detained pending a decision whether to remove the alien from the United States); id. \xc2\xa7 1231(a)(7) (permitting the\nSecretary under certain narrow circumstances to grant work authorization\nto aliens who have received final orders of removal). Consistent with\nthese provisions, the Secretary has long permitted certain additional\nclasses of aliens who lack lawful immigration status to apply for work\nauthorization, including deferred action recipients who can demonstrate\nan economic necessity for employment. See 8 C.F.R. \xc2\xa7 274a.12(c)(14);\nsee also id. \xc2\xa7 274a.12(c)(8) (applicants for asylum), (c)(10) (applicants\nfor cancellation of removal); supra note 11 (discussing 1981 regulations).\nThe Secretary\xe2\x80\x99s authority to suspend the accrual of unlawful presence\nof deferred action recipients is similarly grounded in the INA. The relevant statutory provision treats an alien as \xe2\x80\x9cunlawfully present\xe2\x80\x9d for purposes of 8 U.S.C. \xc2\xa7 1182(a)(9)(B)(i) and (a)(9)(C)(i)(I) if he \xe2\x80\x9cis present in\nthe United States after the expiration of the period of stay authorized by\nthe Attorney General.\xe2\x80\x9d 8 U.S.C. \xc2\xa7 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 pres46,092, 46,093 (Dec. 4, 1987). Because the same statutory phrase refers both to aliens\nauthorized to be employed by the INA and aliens authorized to be employed by the\nAttorney General, INS concluded that the only way to give effect to both references is to\nconclude \xe2\x80\x9cthat Congress, being fully aware of the Attorney General\xe2\x80\x99s authority to promulgate regulations, and approving of the manner in which he has exercised that authority\nin this matter, defined \xe2\x80\x98unauthorized alien\xe2\x80\x99 in such fashion as to exclude aliens who have\nbeen authorized employment by the Attorney General through the regulatory process, in\naddition to those who are authorized employment by statute.\xe2\x80\x9d Id.; see Commodity Futures\nTrading Comm\xe2\x80\x99n v. Schor, 478 U.S. 833, 844 (1986) (stating that \xe2\x80\x9cconsiderable weight\nmust be accorded\xe2\x80\x9d an agency\xe2\x80\x99s \xe2\x80\x9ccontemporaneous interpretation of the statute it is entrusted to administer\xe2\x80\x9d).\n\n66\n\n\x0cPrioritizing and Deferring Removal of Certain Unlawfully Present Aliens\n\nence under section 1182(a)(9)(B)(i) or (a)(9)(C)(i). And DHS regulations\nand policy guidance interpret a \xe2\x80\x9cperiod of stay authorized by the Attorney\nGeneral\xe2\x80\x9d to include periods during which an alien has been granted deferred action. See 8 C.F.R. \xc2\xa7 214.14(d)(3); 28 C.F.R. \xc2\xa7 1100.35(b)(2);\nUSCIS Consolidation of Guidance at 42.\nThe final unusual feature of deferred action programs is particular to\nclass-based programs. The breadth of such programs, in combination with\nthe first two features of deferred action, may raise particular concerns\nabout whether immigration officials have undertaken to substantively\nchange the statutory removal system rather than simply adapting its application to individual circumstances. But the salient feature of class-based\nprograms\xe2\x80\x94the establishment of an affirmative application process with\nthreshold eligibility criteria\xe2\x80\x94does not in and of itself cross the line between executing the law and rewriting it. Although every class-wide\ndeferred action program that has been implemented to date has established\ncertain threshold eligibility criteria, each program has also left room for\ncase-by-case determinations, giving immigration officials discretion to\ndeny applications even if the applicant fulfills all of the program criteria.\nSee supra pp. 57\xe2\x80\x9361. Like the establishment of enforcement priorities\ndiscussed in Part I, the establishment of threshold eligibility criteria can\nserve to avoid arbitrary enforcement decisions by individual officers,\nthereby furthering the goal of ensuring consistency across a large agency.\nThe guarantee of individualized, case-by-case review helps avoid potential concerns that, in establishing such eligibility criteria, the Executive is\nattempting to rewrite the law by defining new categories of aliens who are\nautomatically entitled to particular immigration relief. See Crowley Caribbean Transp., 37 F.3d at 676\xe2\x80\x9377; see also Chaney, 470 U.S. at 833 n.4.\nFurthermore, while permitting potentially eligible individuals to apply for\nan exercise of enforcement discretion is not especially common, many law\nenforcement agencies have developed programs that invite violators of the\nlaw to identify themselves to the authorities in exchange for leniency. 12\nFor example, since 1978, the Department of Justice\xe2\x80\x99s Antitrust Division has implemented a \xe2\x80\x9cleniency program\xe2\x80\x9d 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\xe2\x80\x99t of Justice, Frequently Asked Questions Regarding the Antitrust Division\xe2\x80\x99s\nLeniency Program and Model Leniency Letters (Nov. 19, 2008), http://www.justice.gov/\natr/public/criminal/239583.pdf (last visited Nov. 19, 2014); see also Internal Revenue\n12\n\n67\n\n\x0c38 Op. O.L.C. 39 (2014)\n\nMuch as is the case with those programs, inviting eligible aliens to identify themselves through an application process may serve the agency\xe2\x80\x99s law\nenforcement interests by encouraging lower-priority individuals to identify themselves to the agency. In so doing, the process may enable the\nagency to better focus its scarce resources on higher enforcement priorities.\nApart 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\nabove, Congress has not only directed that certain classes of aliens be\nmade eligible for deferred action programs\xe2\x80\x94and in at least one instance,\nin the case of VAWA beneficiaries, directed the expansion of an existing\nprogram\xe2\x80\x94but also ranked evidence of approved deferred action status as\nevidence of \xe2\x80\x9clawful status\xe2\x80\x9d for purposes of the REAL ID Act. These\nenactments strongly suggest that when DHS in the past has decided to\ngrant deferred action to an individual or class of individuals, it has been\nacting in a manner consistent with congressional policy \xe2\x80\x9c\xe2\x80\x98rather than\nembarking on a frolic of its own.\xe2\x80\x99\xe2\x80\x9d United States v. Riverside Bayview\nHomes, Inc., 474 U.S. 121, 139 (1985) (quoting Red Lion Broad. Co. v.\nFCC, 395 U.S. 367, 375 (1969)); cf. id. at 137\xe2\x80\x9339 (concluding that Congress acquiesced in an agency\xe2\x80\x99s assertion of regulatory authority by\n\xe2\x80\x9crefus[ing] . . . to overrule\xe2\x80\x9d the agency\xe2\x80\x99s view after it was specifically\n\xe2\x80\x9cbrought to Congress\xe2\x80\x99[s] attention,\xe2\x80\x9d and further finding implicit congressional approval in legislation that appeared to acknowledge the regulatory\nauthority in question); Dames & Moore v. Regan, 453 U.S. 654, 680\n(1981) (finding that Congress \xe2\x80\x9cimplicitly approved the practice of claim\nsettlement by executive agreement\xe2\x80\x9d by enacting the International Claims\nSettlement Act of 1949, which \xe2\x80\x9ccreate[d] a procedure to implement\xe2\x80\x9d those\nvery agreements).\nManual \xc2\xa7 9.5.11.9(2) (Revised IRS Voluntary Disclosure Practice), http://www.irs.gov/\nuac/Revised-IRS-Voluntary-Disclosure-Practice (last visited Nov. 19, 2014) (explaining that a taxpayer\xe2\x80\x99s voluntary disclosure of misreported tax information \xe2\x80\x9cmay result in\nprosecution not being recommended\xe2\x80\x9d); U.S. Marshals Service, Fugitive Safe Surrender\nFAQs, http://www.usmarshals.gov/safesurrender/faqs.html (last visited Nov. 19, 2014)\n(stating that fugitives who surrender at designated sites and times under the \xe2\x80\x9cFugitive\nSafe Surrender\xe2\x80\x9d program are likely to receive \xe2\x80\x9cfavorable consideration\xe2\x80\x9d).\n\n68\n\n\x0cPrioritizing and Deferring Removal of Certain Unlawfully Present Aliens\n\nCongress\xe2\x80\x99s apparent endorsement of certain deferred action programs\ndoes not mean, of course, that a deferred action program can be lawfully\nextended to any group of aliens, no matter its characteristics or its scope,\nand no matter the circumstances in which the program is implemented.\nBecause deferred action, like the prioritization policy discussed above, is\nan exercise of enforcement discretion rooted in the Secretary\xe2\x80\x99s broad\nauthority to enforce the immigration laws and the President\xe2\x80\x99s duty to take\ncare that the laws are faithfully executed, it is subject to the same four\ngeneral principles previously discussed. See supra pp. 46\xe2\x80\x9347. Thus, any\nexpansion of deferred action to new classes of aliens must be carefully\nscrutinized to ensure that it reflects considerations within the agency\xe2\x80\x99s\nexpertise, and that it does not seek to effectively rewrite the laws to match\nthe Executive\xe2\x80\x99s policy preferences, but rather operates in a manner consonant with congressional policy expressed in the statute. See supra p. 46\n(citing Youngstown, 343 U.S. at 637, and Nat\xe2\x80\x99l Ass\xe2\x80\x99n of Home Builders,\n551 U.S. at 658). Immigration officials cannot abdicate their statutory\nresponsibilities under the guise of exercising enforcement discretion. See\nsupra pp. 46\xe2\x80\x9347 (citing Chaney, 470 U.S. at 833 n.4). And any new\ndeferred action program should leave room for individualized evaluation\nof whether a particular case warrants the expenditure of resources for\nenforcement. See supra p. 47 (citing Glickman, 96 F.3d at 1123, and\nCrowley Caribbean Transp., 37 F.3d at 676\xe2\x80\x9377).\nFurthermore, because deferred action programs depart in certain respects from more familiar and widespread exercises of enforcement\ndiscretion, particularly careful examination is needed to ensure that any\nproposed 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\nCongress\xe2\x80\x99s 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\nCongress\xe2\x80\x99s own understandings about the permissible uses of deferred\naction. Those understandings, in turn, help to inform our consideration of\nwhether the proposed deferred action programs are \xe2\x80\x9cfaithful[]\xe2\x80\x9d to the\nstatutory scheme Congress has enacted. U.S. Const. art. II, \xc2\xa7 3.\n69\n\n\x0c38 Op. O.L.C. 39 (2014)\n\nC.\nWe now turn to the specifics of DHS\xe2\x80\x99s proposed deferred action programs. DHS has proposed implementing a policy under which an alien\ncould apply for, and would be eligible to receive, deferred action if he or\nshe: (1) is not an enforcement priority under DHS policy; (2) has continuously resided in the United States since before January 1, 2010; (3) is\nphysically present in the United States both when DHS announces its\nprogram and at the time of application for deferred action; (4) has a child\nwho is a U.S. citizen or LPR; and (5) presents \xe2\x80\x9cno other factors that, in\nthe exercise of discretion, make[] the grant of deferred action inappropriate.\xe2\x80\x9d Johnson Deferred Action Memorandum at 4. You have also asked\nabout the permissibility of a similar program that would be open to parents of children who have received deferred action under the DACA\nprogram. We first address DHS\xe2\x80\x99s proposal to implement a deferred action\nprogram for the parents of U.S. citizens and LPRs, and then turn to the\npermissibility of the program for parents of DACA recipients in the next\nsubsection.\n1.\nWe begin by considering whether the proposed program for the parents\nof U.S. citizens and LPRs reflects considerations within the agency\xe2\x80\x99s\nexpertise. DHS has offered two justifications for the proposed program\nfor the parents of U.S. citizens and LPRs. First, as noted above, severe\nresource constraints make it inevitable that DHS will not remove the vast\nmajority of aliens who are unlawfully present in the United States. Consistent with Congress\xe2\x80\x99s instruction, DHS prioritizes the removal of individuals who have significant criminal records, as well as others who\npresent dangers to national security, public safety, or border security. See\nsupra pp. 50\xe2\x80\x9351. Parents with longstanding ties to the country and who\nhave no significant criminal records or other risk factors rank among the\nagency\xe2\x80\x99s lowest enforcement priorities; absent significant increases in\nfunding, 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\nserve an important humanitarian interest in keeping parents together with\nchildren who are lawfully present in the United States, in situations where\n70\n\n\x0cPrioritizing and Deferring Removal of Certain Unlawfully Present Aliens\n\nsuch parents have demonstrated significant ties to community and family\nin this country. See Shahoulian E-mail.\nWith respect to DHS\xe2\x80\x99s first justification, the need to efficiently allocate\nscarce enforcement resources is a quintessential basis for an agency\xe2\x80\x99s\nexercise of enforcement discretion. See Chaney, 470 U.S. at 831. Because,\nas discussed earlier, Congress has appropriated only a small fraction of\nthe funds needed for full enforcement, DHS can remove no more than a\nsmall fraction of the individuals who are removable under the immigration laws. See supra p. 49. The agency must therefore make choices about\nwhich violations of the immigration laws it will prioritize and pursue.\nAnd as Chaney makes clear, such choices are entrusted largely to the\nExecutive\xe2\x80\x99s discretion. 470 U.S. at 831.\nThe deferred action program DHS proposes would not, of course, be\ncostless. Processing applications for deferred action and its renewal requires manpower and resources. See Arizona, 132 S. Ct. at 2521 (Scalia, J.,\nconcurring in part and dissenting in part). But DHS has informed us that\nthe costs of administering the proposed program would be borne almost\nentirely by USCIS through the collection of application fees. See Shahoulian E-mail; see also 8 U.S.C. \xc2\xa7 1356(m); 8 C.F.R. \xc2\xa7 103.7(b)(1)(i)(C),\n(b)(1)(i)(HH). DHS has indicated that the costs of administering the\ndeferred action program would therefore not detract in any significant\nway from the resources available to ICE and CBP\xe2\x80\x94the enforcement arms\nof DHS\xe2\x80\x94which rely on money appropriated by Congress to fund their\noperations. See Shahoulian E-mail. DHS has explained that, if anything,\nthe proposed deferred action program might increase ICE\xe2\x80\x99s and CBP\xe2\x80\x99s\nefficiency by in effect using USCIS\xe2\x80\x99s fee-funded resources to enable\nthose enforcement divisions to more easily identify non-priority aliens\nand focus their resources on pursuing aliens who are strong candidates for\nremoval. See id. The proposed program, in short, might help DHS address\nits severe resource limitations, and at the very least likely would not\nexacerbate them. See id.\nDHS does not, however, attempt to justify the proposed program solely\nas a cost-saving measure, or suggest that its lack of resources alone is\nsufficient to justify creating a deferred action program for the proposed\nclass. Rather, as noted above, DHS has explained that the program would\nalso serve a particularized humanitarian interest in promoting family unity\nby enabling those parents of U.S. citizens and LPRs who are not other71\n\n\x0c38 Op. O.L.C. 39 (2014)\n\nwise enforcement priorities and who have demonstrated community and\nfamily ties in the United States (as evidenced by the length of time they\nhave remained in the country) to remain united with their children in the\nUnited States. Like determining how best to respond to resource constraints, determining how to address such \xe2\x80\x9chuman concerns\xe2\x80\x9d in the immigration context is a consideration that is generally understood to fall\nwithin DHS\xe2\x80\x99s expertise. Arizona, 132 S. Ct. at 2499.\nThis second justification for the program also appears consonant with\ncongressional policy embodied in the INA. Numerous provisions of the\nstatute reflect a particular concern with uniting aliens with close relatives\nwho have attained lawful immigration status in the United States. See,\ne.g., Fiallo v. Bell, 430 U.S. 787, 795 n.6 (1977); INS v. Errico, 385 U.S.\n214, 220 n.9 (1966) (\xe2\x80\x9c\xe2\x80\x98The legislative history of the Immigration and\nNationality Act clearly indicates that the Congress . . . was concerned\nwith the problem of keeping families of United States citizens and immigrants united.\xe2\x80\x99\xe2\x80\x9d (quoting H.R. Rep. No. 85-1199, at 7 (1957)). The INA\nprovides a path to lawful status for the parents, as well as other immediate\nrelatives, of U.S. citizens: U.S. citizens aged twenty-one or over may\npetition for parents to obtain visas that would permit them to enter and\npermanently reside in the United States, and there is no limit on the\noverall number of such petitions that may be granted. See 8 U.S.C.\n\xc2\xa7 1151(b)(2)(A)(i); see also Cuellar de Osorio, 134 S. Ct. at 2197\xe2\x80\x9399\n(describing the process for obtaining a family-based immigrant visa). And\nalthough the INA contains no parallel provision permitting LPRs to petition on behalf of their parents, it does provide a path for LPRs to become\ncitizens, at which point they too can petition to obtain visas for their\nparents. See, e.g., 8 U.S.C. \xc2\xa7 1427(a) (providing that aliens are generally\neligible to become naturalized citizens after five years of lawful permanent residence); id. \xc2\xa7 1430(a) (alien spouses of U.S. citizens become\neligible after three years of lawful permanent residence); Demore v. Kim,\n538 U.S. 510, 544 (2003). 13 Additionally, the INA empowers the Attorney\nThe INA does permit LPRs to petition on behalf of their spouses and children even\nbefore they have attained citizenship. See 8 U.S.C. \xc2\xa7 1153(a)(2). However, the exclusion\nof LPRs\xe2\x80\x99 parents from this provision does not appear to reflect a congressional judgment\nthat, until they attain citizenship, LPRs lack an interest in being united with their parents\ncomparable to their interest in being united with their other immediate relatives. The\ndistinction between parents and other relatives originated with a 1924 statute that exempt13\n\n72\n\n\x0cPrioritizing and Deferring Removal of Certain Unlawfully Present Aliens\n\nGeneral to cancel the removal of, and adjust to LPR status, aliens who\nhave been physically present in the United States for a continuous period\nof not less than ten years, exhibit good moral character, have not been\nconvicted of specified offenses, and have immediate relatives who are\nU.S. citizens or LPRs and who would suffer exceptional hardship from the\nalien\xe2\x80\x99s removal. 8 U.S.C. \xc2\xa7 1229b(b)(1). DHS\xe2\x80\x99s proposal to focus on the\nparents of U.S. citizens and LPRs thus tracks a congressional concern,\nexpressed in the INA, with uniting the immediate families of individuals\nwho have permanent legal ties to the United States.\nAt the same time, because the temporary relief DHS\xe2\x80\x99s proposed program would confer to such parents is sharply limited in comparison to the\nbenefits Congress has made available through statute, DHS\xe2\x80\x99s proposed\nprogram would not operate to circumvent the limits Congress has placed\non the availability of those benefits. The statutory provisions discussed\nabove offer the parents of U.S. citizens and LPRs the prospect of permanent lawful status in the United States. The cancellation of removal\nprovision, moreover, offers the prospect of receiving such status immediately, without the delays generally associated with the family-based\nimmigrant visa process. DHS\xe2\x80\x99s proposed program, in contrast, would not\ngrant the parents of U.S. citizens and LPRs any lawful immigration\nstatus, provide a path to permanent residence or citizenship, or otherwise\nconfer any legally enforceable entitlement to remain in the United States.\ned the wives and minor children of U.S. citizens from immigration quotas, gave \xe2\x80\x9cpreference status\xe2\x80\x9d\xe2\x80\x94eligibility for a specially designated pool of immigrant visas\xe2\x80\x94to other\nrelatives of U.S. citizens, and gave no favorable treatment to the relatives of LPRs.\nImmigration Act of 1924, Pub. L. No. 68-139, \xc2\xa7\xc2\xa7 4(a), 6, 43 Stat. 153, 155\xe2\x80\x9356. In 1928,\nCongress extended preference status to LPRs\xe2\x80\x99 wives and minor children, reasoning that\nbecause such relatives would be eligible for visas without regard to any quota when their\nLPR relatives became citizens, granting preference status to LPRs\xe2\x80\x99 wives and minor\nchildren would \xe2\x80\x9chasten[]\xe2\x80\x9d the \xe2\x80\x9cfamily reunion.\xe2\x80\x9d S. Rep. No. 70-245, at 2 (1928); see Pub.\nRes. No. 70-61, 45 Stat. 1009, 1009\xe2\x80\x9310 (1928). The special visa status for wives and\nchildren of LPRs thus mirrored, and was designed to complement, the special visa status\ngiven to wives and minor children of U.S. citizens. In 1965, Congress eliminated the basis\non which the distinction had rested by exempting all \xe2\x80\x9cimmediate relatives\xe2\x80\x9d of U.S.\ncitizens, including parents, from numerical restrictions on immigration. Pub. L. No. 89236, \xc2\xa7 1, 79 Stat. 911, 911. But it did not amend eligibility for preference status for\nrelatives of LPRs to reflect that change. We have not been able to discern any rationale\nfor this omission in the legislative history or statutory text of the 1965 law.\n\n73\n\n\x0c38 Op. O.L.C. 39 (2014)\n\nSee USCIS SOP at 3. It is true that, as we have discussed, a grant of\ndeferred action would confer eligibility to apply for and obtain work\nauthorization, pursuant to the Secretary\xe2\x80\x99s statutory authority to grant\nsuch authorization and the longstanding regulations promulgated thereunder. See supra pp. 55, 65\xe2\x80\x9366. But unlike the automatic employment\neligibility that accompanies LPR status, see 8 U.S.C. \xc2\xa7 1324a(h)(3), this\nauthorization could be granted only on a showing of economic necessity,\nand would last only for the limited duration of the deferred action grant,\nsee 8 C.F.R. \xc2\xa7 274a.12(c)(14).\nThe other salient features of the proposal are similarly consonant with\ncongressional policy. The proposed program would focus on parents who\nare not enforcement priorities under the prioritization policy discussed\nabove\xe2\x80\x94a policy that, as explained earlier, comports with the removal\npriorities set by Congress. See supra pp. 50\xe2\x80\x9351. The continuous residence\nrequirement is likewise consistent with legislative judgments that extended periods of continuous residence are indicative of strong family and\ncommunity ties. See IRCA \xc2\xa7 201(a), 100 Stat. at 3394 (codified as\namended at 8 U.S.C. \xc2\xa7 1255a(a)(2)) (granting lawful status to certain\naliens unlawfully present in the United States since January 1, 1982); id.\n\xc2\xa7 302(a) (codified as amended at 8 U.S.C. \xc2\xa7 1160) (granting similar relief\nto certain agricultural workers); H.R. Rep. No. 99-682, pt. 1, at 49 (1986)\n(stating that aliens present in the United States for five years \xe2\x80\x9chave become a part of their communities[,] . . . have strong family ties here which\ninclude U.S. citizens and lawful residents[,] . . . have built social networks\nin this country[, and] . . . have contributed to the United States in myriad\nways\xe2\x80\x9d); S. Rep. No. 99-132, at 16 (1985) (deporting aliens who \xe2\x80\x9chave\nbecome well settled in this country\xe2\x80\x9d would be a \xe2\x80\x9cwasteful use of the\nImmigration and Naturalization Service\xe2\x80\x99s limited enforcement resources\xe2\x80\x9d); see also Arizona, 132 S. Ct. at 2499 (noting that \xe2\x80\x9c[t]he equities\nof an individual case\xe2\x80\x9d turn on factors \xe2\x80\x9cincluding whether the alien has . . .\nlong ties to the community\xe2\x80\x9d).\nWe also do not believe DHS\xe2\x80\x99s proposed program amounts to an abdication of its statutory responsibilities, or a legislative rule overriding the\ncommands of the statute. As discussed earlier, DHS\xe2\x80\x99s severe resource\nconstraints mean that, unless circumstances change, it could not as a\npractical matter remove the vast majority of removable aliens present in\nthe United States. The fact that the proposed program would defer the\n74\n\n\x0cPrioritizing and Deferring Removal of Certain Unlawfully Present Aliens\n\nremoval of a subset of these removable aliens\xe2\x80\x94a subset that ranks near\nthe bottom of the list of the agency\xe2\x80\x99s removal priorities\xe2\x80\x94thus does not,\nby itself, demonstrate that the program amounts to an abdication of DHS\xe2\x80\x99s\nresponsibilities. And the case-by-case discretion given to immigration\nofficials under DHS\xe2\x80\x99s proposed program alleviates potential concerns that\nDHS has abdicated its statutory enforcement responsibilities with respect\nto, or created a categorical, rule-like entitlement to immigration relief for,\nthe particular class of aliens eligible for the program. An alien who meets\nall the criteria for deferred action under the program would receive deferred action only if he or she \xe2\x80\x9cpresent[ed] no other factors that, in the\nexercise of discretion,\xe2\x80\x9d would \xe2\x80\x9cmake[] the grant of deferred action inappropriate.\xe2\x80\x9d Johnson Deferred Action Memorandum at 4. The proposed\npolicy does not specify what would count as such a factor; it thus leaves\nthe relevant USCIS official with substantial discretion to determine\nwhether a grant of deferred action is warranted. In other words, even if an\nalien is not a removal priority under the proposed policy discussed in\nPart 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\nor a U.S. citizen, the USCIS official evaluating the alien\xe2\x80\x99s deferred action\napplication must still make a judgment, in the exercise of her discretion,\nabout whether that alien presents any other factor that would make a grant\nof deferred action inappropriate. This feature of the proposed program\nensures that it does not create a categorical entitlement to deferred action\nthat could raise concerns that DHS is either impermissibly attempting to\nrewrite or categorically declining to enforce the law with respect to a\nparticular group of undocumented aliens.\nFinally, the proposed deferred action program would resemble in material respects the kinds of deferred action programs Congress has implicitly\napproved in the past, which provides some indication that the proposal is\nconsonant 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\naction as an interim measure for a group of aliens to whom Congress has\ngiven a prospective entitlement to lawful immigration status. While Congress has provided a path to lawful status for the parents of U.S. citizens\nand LPRs, the process of obtaining that status \xe2\x80\x9ctakes time.\xe2\x80\x9d Cuellar de\nOsorio, 134 S. Ct. at 2199. The proposed program would provide a mech75\n\n\x0c38 Op. O.L.C. 39 (2014)\n\nanism for families to remain together, depending on their circumstances,\nfor some or all of the intervening period. 14 Immigration officials have on\nseveral occasions deployed deferred action programs as interim measures\nfor other classes of aliens with prospective entitlements to lawful immigration status, including VAWA self-petitioners, bona fide T and U visa\napplicants, certain immediate family members of certain U.S. citizens\nkilled in combat, and certain immediate family members of aliens killed\non September 11, 2001. As noted above, each of these programs has\nreceived Congress\xe2\x80\x99s implicit approval\xe2\x80\x94and, indeed, in the case of\nVAWA self-petitioners, a direction to expand the program beyond its\noriginal bounds. See supra pp. 61\xe2\x80\x9363. 15 In addition, much like these and\n\n14 DHS\xe2\x80\x99s proposed program would likely not permit all potentially eligible parents to\nremain together with their children for the entire duration of the time until a visa is\nawarded. In particular, undocumented parents of adult citizens who are physically present\nin the country would be ineligible to adjust their status without first leaving the country if\nthey had never been \xe2\x80\x9cinspected and admitted or paroled into the United States.\xe2\x80\x9d 8 U.S.C.\n\xc2\xa7 1255(a) (permitting the Attorney General to adjust to permanent resident status certain\naliens present in the United States if they become eligible for immigrant visas). They\nwould thus need to leave the country to obtain a visa at a U.S. consulate abroad. See id.\n\xc2\xa7 1201(a); Cuellar de Osorio, 134 S. Ct. at 2197\xe2\x80\x9399. But once such parents left the\ncountry, they would in most instances become subject to the 3- or 10-year bar under\n8 U.S.C. \xc2\xa7 1182(a)(9)(B)(i) and therefore unable to obtain a visa unless they remained\noutside the country for the duration of the bar. DHS\xe2\x80\x99s proposed program would nevertheless enable other families to stay together without regard to the 3- or 10-year bar. And\neven as to those families with parents who would become subject to that bar, the proposed\ndeferred action program would have the effect of reducing the amount of time the family\nhad to spend apart, and could enable them to adjust the timing of their separation according to, for example, their children\xe2\x80\x99s needs for care and support.\n15 Several extended voluntary departure programs have been animated by a similar\nrationale, and the most prominent of these programs also received Congress\xe2\x80\x99s implicit\napproval. In particular, as noted above, the Family Fairness policy, implemented in 1990,\nauthorized granting extended voluntary departure and work authorization to the estimated\n1.5 million spouses and children of aliens granted legal status under IRCA\xe2\x80\x94aliens who\nwould eventually \xe2\x80\x9cacquire lawful permanent resident status\xe2\x80\x9d and be able to petition on\nbehalf of their family members. Family Fairness Memorandum at 1; see supra p. 57. Later\nthat year, Congress granted the beneficiaries of the Family Fairness program an indefinite\nstay of deportation. See Immigration Act of 1990, Pub. L. No. 101-649, \xc2\xa7 301, 104 Stat.\n4978, 5030. Although it did not make that grant of relief effective for nearly a year,\nCongress clarified that \xe2\x80\x9cthe delay in effectiveness of this section shall not be construed as\nreflecting a Congressional belief that the existing family fairness program should be\n\n76\n\n\x0cPrioritizing and Deferring Removal of Certain Unlawfully Present Aliens\n\nother programs Congress has implicitly endorsed, the program serves\nsubstantial and particularized humanitarian interests. Removing the parents of U.S. citizens and LPRs\xe2\x80\x94that is, of children who have established\npermanent legal ties to the United States\xe2\x80\x94would separate them from their\nnuclear families, potentially for many years, until they were able to secure\nvisas through the path Congress has provided. During that time, both the\nparents and their U.S. citizen or LPR children would be deprived of both\nthe economic support and the intangible benefits that families provide.\nWe recognize that the proposed program would likely differ in size\nfrom these prior deferred action programs. Although DHS has indicated\nthat there is no reliable way to know how many eligible aliens would\nactually apply for or would be likely to receive deferred action following\nindividualized consideration under the proposed program, it has informed\nus that approximately 4 million individuals could be eligible to apply. See\nShahoulian E-mail. We have thus considered whether the size of the\nprogram alone sets it at odds with congressional policy or the Executive\xe2\x80\x99s\nduties under the Take Care Clause. In the absence of express statutory\nguidance, it is difficult to say exactly how the program\xe2\x80\x99s potential size\nbears on its permissibility as an exercise of executive enforcement discretion. But because the size of DHS\xe2\x80\x99s proposed program corresponds to the\nsize of a population to which Congress has granted a prospective entitlement to lawful status without numerical restriction, it seems to us difficult\nto sustain an argument, based on numbers alone, that DHS\xe2\x80\x99s proposal to\ngrant a limited form of administrative relief as a temporary interim measure exceeds its enforcement discretion under the INA. Furthermore, while\nthe potential size of the program is large, it is nevertheless only a fraction\nof the approximately 11 million undocumented aliens who remain in the\nUnited States each year because DHS lacks the resources to remove them;\nand, as we have indicated, the program is limited to individuals who\nwould be unlikely to be removed under DHS\xe2\x80\x99s proposed prioritization\npolicy. There is thus little practical danger that the program, simply by\nvirtue of its size, will impede removals that would otherwise occur in its\nabsence. And although we are aware of no prior exercises of deferred\nmodified in any way before such date.\xe2\x80\x9d Id. \xc2\xa7 301(g). INS\xe2\x80\x99s policies for qualifying Third\nPreference visa applicants and nurses eligible for H-1 nonimmigrant status likewise\nextended to aliens with prospective entitlements to lawful status. See supra p. 56.\n\n77\n\n\x0c38 Op. O.L.C. 39 (2014)\n\naction of the size contemplated here, INS\xe2\x80\x99s 1990 Family Fairness policy,\nwhich Congress later implicitly approved, made a comparable fraction of\nundocumented aliens\xe2\x80\x94approximately four in ten\xe2\x80\x94potentially eligible for\ndiscretionary extended voluntary departure relief. Compare CRS Immigration Report at 22 (estimating the Family Fairness policy extended to\n1.5 million undocumented aliens), with Office of Policy and Planning,\nINS, Estimates of the Unauthorized Immigrant Population Residing in the\nUnited States: 1990 to 2000 at 10 (2003) (estimating an undocumented\nalien population of 3.5 million in 1990); see supra notes 5, 15 (discussing\nextended voluntary departure and Congress\xe2\x80\x99s implicit approval of the\nFamily Fairness policy). This suggests that DHS\xe2\x80\x99s proposed deferred\naction program is not, simply by virtue of its relative size, inconsistent\nwith what Congress has previously considered a permissible exercise of\nenforcement discretion in the immigration context.\nIn light of these considerations, we believe the proposed expansion of\ndeferred action to the parents of U.S. citizens and LPRs is lawful. It\nreflects considerations\xe2\x80\x94responding to resource constraints and to particularized humanitarian concerns arising in the immigration context\xe2\x80\x94that\nfall within DHS\xe2\x80\x99s expertise. It is consistent with congressional policy,\nsince it focuses on a group\xe2\x80\x94law-abiding parents of lawfully present\nchildren who have substantial ties to the community\xe2\x80\x94that Congress itself\nhas granted favorable treatment in the immigration process. The program\nprovides for the exercise of case-by-case discretion, thereby avoiding\ncreating a rule-like entitlement to immigration relief or abdicating DHS\xe2\x80\x99s\nenforcement responsibilities for a particular class of aliens. And, like\nseveral deferred action programs Congress has approved in the past, the\nproposed 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\nprogram would constitute a permissible exercise of DHS\xe2\x80\x99s enforcement\ndiscretion under the INA.\n2.\nWe now turn to the proposed deferred action program for the parents of\nDACA recipients. The relevant considerations are, to a certain extent,\nsimilar to those discussed above: Like the program for the parents of U.S.\n78\n\n\x0cPrioritizing and Deferring Removal of Certain Unlawfully Present Aliens\n\ncitizens and LPRs, the proposed program for parents of DACA recipients\nwould respond to severe resource constraints that dramatically limit\nDHS\xe2\x80\x99s ability to remove aliens who are unlawfully present, and would be\nlimited to individuals who would be unlikely to be removed under DHS\xe2\x80\x99s\nproposed prioritization policy. And like the proposed program for LPRs\nand 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.\nBut the proposed program for parents of DACA recipients is unlike the\nproposed program for parents of U.S. citizens and LPRs in two critical\nrespects. First, although DHS justifies the proposed program in large part\nbased on considerations of family unity, the parents of DACA recipients\nare differently situated from the parents of U.S. citizens and LPRs under\nthe family-related provisions of the immigration law. Many provisions of\nthe INA reflect Congress\xe2\x80\x99s 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. \xc2\xa7 1151(b)(2)(A)(i) (permitting\ncitizens to petition for parents, spouses, and children); id. \xc2\xa7 1229b(b)(1)\n(allowing cancellation of removal for relatives of citizens and LPRs). But\nthe immigration laws do not express comparable concern for uniting\npersons who lack lawful status (or prospective lawful status) in the United\nStates with their families. DACA recipients unquestionably lack lawful\nstatus in the United States. See DACA Toolkit at 8 (\xe2\x80\x9cDeferred action . . .\ndoes not provide you with a lawful status.\xe2\x80\x9d). Although they may presumptively remain in the United States, at least for the duration of the grant of\ndeferred action, that grant is both time-limited and contingent, revocable\nat any time in the agency\xe2\x80\x99s discretion. Extending deferred action to the\nparents of DACA recipients would therefore expand family-based immigration relief in a manner that deviates in important respects from the\nimmigration system Congress has enacted and the policies that system\nembodies.\nSecond, as it has been described to us, the proposed deferred action\nprogram for the parents of DACA recipients would represent a significant\ndeparture from deferred action programs that Congress has implicitly\napproved in the past. Granting deferred action to the parents of DACA\nrecipients would not operate as an interim measure for individuals to\nwhom Congress has given a prospective entitlement to lawful status. Such\n79\n\n\x0c38 Op. O.L.C. 39 (2014)\n\nparents have no special prospect of obtaining visas, since Congress has\nnot enabled them to self-petition\xe2\x80\x94as it has for VAWA self-petitioners\nand individuals eligible for T or U visas\xe2\x80\x94or enabled their undocumented\nchildren to petition for visas on their behalf. Nor would granting deferred\naction to parents of DACA recipients, at least in the absence of other\nfactors, serve interests that are comparable to those that have prompted\nimplementation of deferred action programs in the past. Family unity is,\nas we have discussed, a significant humanitarian concern that underlies\nmany provisions of the INA. But a concern with furthering family unity\nalone would not justify the proposed program, because in the absence of\nany family member with lawful status in the United States, it would not\nexplain why that concern should be satisfied by permitting family members to remain in the United States. The decision to grant deferred action\nto DACA parents thus seems to depend critically on the earlier decision to\nmake deferred action available to their children. But we are aware of no\nprecedent 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\nappear to argue in favor of extending relief not only to parents of DACA\nrecipients, but also to the close relatives of any alien granted deferred\naction through DACA or any other program, those relatives\xe2\x80\x99 close relatives, and perhaps the relatives (and relatives\xe2\x80\x99 relatives) of any alien\ngranted any form of discretionary relief from removal by the Executive.\nFor these reasons, the proposed deferred action program for the parents\nof DACA recipients is meaningfully different from the proposed program\nfor the parents of U.S. citizens and LPRs. It does not sound in Congress\xe2\x80\x99s\nconcern for maintaining the integrity of families of individuals legally\nentitled to live in the United States. And unlike prior deferred action\nprograms in which Congress has acquiesced, it would treat the Executive\xe2\x80\x99s prior decision to extend deferred action to one population as justifying the extension of deferred action to additional populations. DHS, of\ncourse, remains free to consider whether to grant deferred action to individual parents of DACA recipients on an ad hoc basis. But in the absence\nof clearer indications that the proposed class-based deferred action program for DACA parents would be consistent with the congressional\npolicies and priorities embodied in the immigration laws, we conclude\nthat it would not be permissible.\n80\n\n\x0cPrioritizing and Deferring Removal of Certain Unlawfully Present Aliens\n\nIII.\nIn sum, for the reasons set forth above, we conclude that DHS\xe2\x80\x99s proposed prioritization policy and its proposed deferred action program for\nparents of U.S. citizens and lawful permanent residents would be legally\npermissible, but that the proposed deferred action program for parents of\nDACA recipients would not be permissible.\nKARL R. THOMPSON\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n81\n\n\x0c'