throbber
Nos. 18-587, 18-588 and 18-589
`
`In the
`Supreme Court of the United States
`
`DEPARTMENT OF HOMELAND SECURITY, et al.,
`Petitioners,
`
`v.
`REGENTS OF THE UNIVERSITY
`OF CALIFORNIA, et al.,
`
`Respondents.
`DONALD J. TRUMP, PRESIDENT
`OF THE UNITED STATES, et al.,
`
`Petitioners,
`
`v.
`NATIONAL ASSOCIATION FOR THE
`ADVANCEMENT OF COLORED PEOPLE, et al.,
`Respondents.
`(For Continuation of Caption See Inside Cover)
`
`On Writs Of CertiOrari tO the United states COUrts
`Of appeal fOr the ninth, dC and seCOnd CirCUits
`
`BRIEF OF FORMER HOMELAND SECURITY
`AND IMMIGRATION OFFICIALS AS AMICI CURIAE
`IN SUPPORT OF RESPONDENTS
`
`Jeh c. Johnson
`lIzA M. VelAzquez
`dAVId c. kIMbAll-stAnley
`PAul, WeIss, rIFkInd, WhArton
`& GArrIson llP
`1285 Avenue of the Americas
`New York, NY 10019
`(212) 373-3000
`MAshA G. hAnsFord
`PAul, WeIss, rIFkInd, WhArton
`& GArrIson llP
`2001 K Street, NW
`Washington, DC 20006
`(202) 223-7300
`
`kAren l. dunn
`JoshuA rIley
`Menno GoedMAn
`AndreA r. Flores
`boIes schIller Flexner llP
`1401 New York Avenue, NW
`Washington, DC 20005
`(202) 237-2727
`Albert GIAnG
`Counsel of Record
`boIes schIller Flexner llP
`725 South Figueroa Street
`Los Angeles, CA 90017
`(213) 629-9040
`agiang@bsfllp.com
`Counsel for Amici Curiae
`
`291551
`
`

`

`KEVIN K. MCALEENAN, ACTING SECRETARY
`OF HOMELAND SECURITY, et al.,
`Petitioners,
`
`v.
`MARTIN JONATHAN BATALLA VIDAL, et al.,
`Respondents.
`
`

`

`
`
`
`
`i
`
`TABLE OF CONTENTS
`
`
`
`Page
`
`TABLE OF CONTENTS ............................................... i
`
`TABLE OF AUTHORITIES ....................................... ii
`
`INTEREST OF AMICI CURIAE ................................. 1
`
`SUMMARY OF ARGUMENT ..................................... 6
`
`STATEMENT OF THE CASE ..................................... 7
`
`ARGUMENT ............................................................. 12
`
`I. Deferred Action Is Firmly Rooted in
`Historical Practice .......................................... 12
`
`II. Allowing Deferred Action Recipients to
`Apply
`for Work Authorization
`Is
`Consistent With Historical Practice and
`Benefits the United States ............................. 25
`
`A. Work authorization is permitted under
`federal law ................................................. 26
`
`B. Work authorization is consistent with
`historical practice ...................................... 27
`
`CONCLUSION .......................................................... 34
`
`
`
`
`
`
`
`

`

`
`
`
`
`
`
`ii
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases:
`
`Arizona v. United States,
`567 U.S. 387 (2012) .............................................. 10
`
`Hotel & Rest. Emps. Union, Local 25 v. Smith,
`846 F.2d 1499 (D.C. Cir. 1988) ............................ 16
`
`United States v. Texas,
`136 S. Ct. 2271 (2016) .......................................... 26
`
`
`
`Statutes:
`
`6 U.S.C. § 202(5) ........................................................ 13
`
`8 U.S.C. § 1103 .......................................................... 29
`
`8 U.S.C. § 1182(a)(4) ................................................. 26
`
`8 U.S.C. § 1231(a)(7) ................................................. 32
`
`8 U.S.C. § 1324a(a)(1) ............................................... 29
`
`8 U.S.C. § 1324a(h)(3) ................................... 27, 29, 31
`
`Pub. L. No. 82-414, 66 Stat. 163 ............................... 14
`
`Pub. L. No. 93-518, 88 Stat. 1652 ............................. 28
`
`Pub. L. No. 97-113, 95 Stat. 1519 ............................. 17
`
`Pub. L. No. 99-603, 100 Stat. 3359 ..................... 17, 29
`
`Pub. L. No. 101-649, 104 Stat. 4978 ......................... 22
`
`Pub. L. No. 104-208, 110 Stat. 3009-546 .................. 32
`
`

`

`
`
`
`
`
`
`iii
`
`Pub. L. No. 106-386, 114 Stat. 1464 ......................... 33
`
`
`
`Regulations:
`
`8 C.F.R. § 109.1(b)(6) ................................................. 29
`
`8 C.F.R. § 214.2(c) ..................................................... 28
`
`8 C.F.R. § 214.14(d)(3) ............................................... 24
`
`8 C.F.R. § 274a.12(c)(11) ........................................... 33
`
`8 C.F.R. § 274a.12(c)(14) ......................... 13, 17, 26, 33
`
`Sup. Ct. R. 37.3(a) ....................................................... 1
`
`
`
`Other Authorities:
`
`17 Fed. Reg. 11,488 (Dec. 19, 1952) .......................... 27
`
`46 Fed. Reg. 25,079 (May 5, 1981) ............................ 17
`
`46 Fed. Reg. 25,080 (May 5, 1981) ............................ 29
`
`46 Fed. Reg. 25,081 (May 5, 1981) ...................... 17, 29
`
`51 Fed. Reg. 39,385 (Oct. 28, 1986) .......................... 30
`
`51 Fed. Reg. 39,386 (Oct. 28, 1986) .......................... 30
`
`52 Fed. Reg. 46,092 (Dec. 4, 1987) ...................... 30, 31
`
`52 Fed. Reg. 46,093 (Dec. 4, 1987) ...................... 30, 31
`
`72 Fed. Reg. 53,014 (Sept. 17, 2007) ........................ 24
`
`Alan C. Nelson, Legalization and Family
`Fairness: An Analysis (Oct. 21, 1987) ................. 18
`
`

`

`
`
`
`
`
`
`iv
`
`Camilo Montoya-Galvez, Trump Administration
`to Process Some Deferred Deportation
`Requests from Sick Immigrants, CBS News
`(Sept. 2, 2019) ...................................................... 25
`
`Executive Grants of Temporary Immigration
`Relief, 1956-Present, Am. Immigr. Counsel
`(Oct. 2014) ............................................................ 14
`
`Gene McNary, INS Comm’r, to INS Reg’l
`Comm’rs, Family Fairness: Guidelines for
`Voluntary Departure Under 8 CFR 242.5 for
`the Ineligible Spouses and Children of
`Legalized Aliens (Feb. 2, 1990) ............................ 19
`
`Hearing Before the H. Comm. on the Judiciary,
`114th Cong. (Feb. 25, 2015) ................................... 8
`
`Immigration Act of 1989 (Part 2): Hearing before
`the Subcomm. on Immigration, Refugees, and
`International Law of the H. Comm. on the
`Judiciary at 56, 101st Cong. (Feb. 21, 1990) ...... 20
`
`Immigration Reform and Control Act of 1983:
`Hearings
`before
`the
`Subcomm.
`on
`Immigration, Refugees, and Int’l Law of the
`H. Comm. on the Judiciary, 98th Cong. 1441
`(1983) .................................................................... 30
`
`Jeffrey S. Passel et al., As Growth Stalls,
`Unauthorized
`Immigrant
`Population
`Becomes More Settled, Pew Res. Ctr. (Sept. 3,
`2014) ..................................................................... 20
`
`

`

`
`
`
`
`
`
`v
`
`Jens Manuel Krogstad et al., 5 Facts About
`Illegal Immigration in the U.S., Pew Res.
`Ctr. (June 12, 2019) ............................................... 7
`
`Jie Zong et al., A Profile of Current DACA
`Recipients by Education, Industry, and
`Occupation, Migration Pol’y Inst. (Nov. 2017) .... 11
`
`Kathryn Watson, Pentagon Says DACA
`Recipients in Military Number Fewer than
`900, CBS News (Sept. 6, 2017) ............................ 11
`
`Letter from Robert McConnell, Dep’t of Justice,
`to Rep. Romano Mazzoli (Apr. 4, 1983) ............... 30
`
`from Andorra Bruno et al.,
`Memorandum
`of
`June
`15,
`2012 DHS
`Analysis
`Memorandum, Exercising
`Prosecutorial
`Discretion with Respect to Individuals Who
`Came to the United States as Children Cong.
`Res. Serv. (July 13, 2012) .................................... 13
`
`Memorandum from Janet Napolitano to David
`V. Aguilar et al., Sec’y of Homeland Sec.,
`Exercising Prosecutorial Discretion with
`Respect to Individuals Who Came to the
`United States as Children (June 15, 2012) .... 9, 10
`
`Memorandum from Michael D. Cronin, Acting
`Exec. Assoc. Comm’r, INS, to Michael A.
`Pearson, Exec. Assoc. Comm’r, Off. of
`Programs, INS, VTVPA of 2000 Policy
`Memorandum
`#2—“T”
`and
`“U”
`Nonimmigrant Visas (Aug. 30, 2001) .................. 33
`
`

`

`
`
`
`
`
`
`vi
`
`Virtue,
`Paul W.
`from
`Memorandum
`Supplemental Guidance on Battered Alien
`Self-Petitioning Process and Related Issues
`(May 6, 1997) ........................................................ 22
`
`President Dwight D. Eisenhower, Statement by
`the President Concerning the Entry into the
`United States of Adopted Foreign-Born
`Orphans (Oct. 26, 1956) ................................. 13, 14
`
`President George H.W. Bush, Statement on
`Signing the Immigration Act of 1990 (Nov.
`29, 1990) ............................................................... 21
`
`President William J. Clinton, Memorandum for
`the Attorney General: Measures Regarding
`Certain Liberians in the United States (Sept.
`27, 1999) ................................................... 22, 23, 32
`
`President William J. Clinton, Memorandum on
`Deferred Enforced Departure for Haitians
`(Dec. 23, 1997) ................................................ 32, 33
`
`Raquel Muñiz et al., DACAmented Law
`Students and Lawyers in the Trump Era,
`Ctr. Am. Progress (June 7, 2018) ........................ 11
`
`Recent Developments, 67 No. 6 Interpreter
`Releases (Feb. 5, 1990) .................................. 18, 20
`
`Revision of Immigration, Naturalization, and
`Nationality Laws: Joint Hearing Before the
`S. & H.R. Subcomms. on the Judiciary, 82d
`Cong. 713 (1951)................................................... 14
`
`

`

`
`
`
`
`
`
`vii
`
`Roberto G. Gonzalez et al., Taking Giant Leaps
`Forward: Experiences of a Range of DACA
`Beneficiaries at the 5-Year Mark, Ctr. Am.
`Progress (June 22, 2017) ..................................... 11
`
`Sam Bernsen, Lawful Work for Nonimmigrants,
`48 No. 21 Interpreter Releases (June 21,
`1971) ..................................................................... 28
`
`Sam Bernsen, Leave to Labor, 52 No. 35
`Interpreter Releases (Sept. 2, 1975) .................... 28
`
`Statement from Dean Manning on the End of the
`DACA Program, Harv. L. Sch. (Sept. 5, 2017) .... 11
`
`Steven Kopits, Apprehensions, Illegal Entries
`Forecast for 2019 (August), Princeton Pol’y
`Advisors (Sept. 10, 2019) ....................................... 7
`
`Ted Hesson, DHS Walks Back Decision to Halt
`Medical Deportation Relief, Politico (Sept. 19,
`2019) ..................................................................... 25
`
`Tom Wong et al., Results from 2019 National
`DACA Study, Ctr. Am. Progress (2019) .............. 11
`
`U.S. Customs & Border Patrol, United States
`Border Patrol Nationwide Illegal Alien
`Apprehensions Fiscal Years 1925 – 2018 .............. 7
`
`U.S. Customs & Border Protection, CBP
`Enforcement Statistics FY 2019 ............................ 7
`
`U.S. Immigr. & Customs Enforcement, Fiscal
`Year 2018 ICE Enforcement and Removal
`Operations Report .................................................. 8
`
`

`

`
`
`
`
`
`
`viii
`
`USCIS Policy Manual § 38.2 ..................................... 15
`
`USCIS, Interim Relief for Certain Foreign
`Academic Students Adversely Affected by
`Hurricane Katrina, Frequently Asked
`Questions (Nov. 25, 2005) .................................... 23
`
`USCIS, Liberia Temporary Protected Status
`(TPS) Questions and Answers (Sept. 27,
`2002) ..................................................................... 23
`
`USCIS, Press Release, USCIS Announces
`Interim Relief
`for Foreign Students
`Adversely Impacted by Hurricane Katrina
`(Nov. 25, 2005) ..................................................... 33
`
`
`
`

`

`
`
`INTEREST OF AMICI CURIAE1
`
`Amici are former leaders of the U.S. Department
`of Homeland Security (“DHS”) and its component or
`predecessor agencies. Amici had direct involvement
`in the creation and administration of Deferred Action
`for Childhood Arrivals (“DACA”) specifically and/or
`responsibility for administering and enforcing our
`nation’s immigrations laws generally.
`
`Jeh C. Johnson served as Secretary of DHS from
`December 2013 to January 2017, where he was re-
`sponsible for enforcement and administration of the
`nation’s immigration laws. Previously, Secretary
`Johnson served as General Counsel of the U.S. De-
`partment of Defense (2009–2012), General Counsel
`of the U.S. Air Force (1998–2001), and as an Assis-
`tant U.S. Attorney in the Southern District of New
`York (1989–1991).
`
`Alejandro Mayorkas served as Deputy Secretary
`of DHS from December 2013 to October 2016. Prior
`to that, Deputy Secretary Mayorkas was Director of
`U.S. Citizenship
`and
`Immigration Services
`(“USCIS”) from August 2009 to December 2013; in
`
`
`
`1 The parties have consented to the filing of this brief. Pur-
`suant to Rule 37.3(a), written consents to the filing of this brief
`are on file with the Clerk of the Court. No counsel for a party
`authored this brief in whole or in part, and no such counsel or
`party made a monetary contribution intended to fund the prep-
`aration or submission of this brief. No person other than the
`amici curiae, or their counsel, made a monetary contribution to
`the preparation or submission of this brief.
`
`

`

`
`
`
`
`2
`
`
`
`
`
`
`
`
`
`
`
`that role, he was directly responsible for the launch,
`implementation, and subsequent administration of
`DACA. Earlier in his career, Deputy Secretary
`Mayorkas was United States Attorney for the Cen-
`tral District of California (1998–2001).
`
`Leon Rodriguez served as Director of USCIS from
`2014 to 2017, where he was also directly responsible
`for the administration of DACA. From 2007 to 2011,
`Mr. Rodriguez served in leadership positions at the
`Department of Health and Human Services and the
`Department of Justice.
`
`Gil Kerlikowske served as Commissioner of U.S.
`Customs and Border Protection from March 2014 to
`January 2017. Previously, Commissioner Kerlikow-
`ske was Director of the Office of National Drug Con-
`trol Policy (2009–2014) and served as the Commis-
`sioner or Chief of Police in four different cities, in-
`cluding an eight-year term in Seattle, Washington
`(2001–2009).
`
`John T. Morton served as Director of Immigration
`and Customs Enforcement (“ICE”) from May 2009 to
`August 2013. Previously, Mr. Morton served in lead-
`ership positions at the Department of Justice and
`was an Assistant U.S. Attorney in the Eastern Dis-
`trict of Virginia (1999–2006).
`
`Stevan E. Bunnell served as General Counsel of
`DHS from December 2013 to January 2017. Prior to
`that, he held various positions in law enforcement,
`
`

`

`
`
`
`
`3
`
`
`
`
`
`
`
`
`
`
`
`including Chief of the Criminal Division in the U.S.
`Attorney’s Office for the District of Columbia.
`
`Russell C. Deyo served as Acting Deputy Secre-
`tary of DHS from November 2016 to January 2017.
`Previously, Mr. Deyo served as Under Secretary for
`Management at DHS from May 2015 to November
`2016. He also served as an Assistant U.S. Attorney
`for the District of New Jersey (1978–1985).
`
`Bo Cooper served as General Counsel of the Im-
`migration and Naturalization Service (“INS”) from
`1999 until 2003.2
`
`T. Alexander Aleinikoff served as General Coun-
`sel and then as Executive Associate Commissioner
`for Programs of the INS from 1994 to 1997.
`
`Roxana Bacon served as Chief Counsel of USCIS
`from 2009 to 2011.
`
`Seth Grossman served as Chief of Staff to the
`General Counsel of DHS from 2010 to 2011, Deputy
`General Counsel of DHS from 2011 to 2013, and as
`Counselor to the Secretary at the same agency in
`2013.
`
`Stephen H. Legomsky served as Chief Counsel of
`
`
`
`2 The INS is the predecessor agency to the federal offices
`within DHS that now have responsibility for enforcing the na-
`tion’s immigration laws.
`
`

`

`
`
`
`
`4
`
`
`
`
`
`
`
`
`
`
`
`USCIS from 2011 to 2013 and as Senior Counselor to
`the Secretary of DHS on immigration from July to
`October 2015.
`
`Jonathan E. Meyer served as Deputy General
`Counsel of DHS from 2014 to 2016 and as Senior
`Counselor to the General Counsel from 2011 to 2014.
`Previously, he served as Deputy Assistant Attorney
`General at the Department of Justice (2000–2001,
`2009–2011).
`
`John R. Sandweg served as Acting Director of
`ICE from 2013 to 2014, as Acting General Counsel of
`DHS from 2012 to 2013, as Senior Counselor to the
`Secretary of DHS from 2010 to 2012, and as Chief of
`Staff to the General Counsel of the same agency from
`2009 to 2010.
`
`David A. Martin served as Principal Deputy Gen-
`eral Counsel of DHS from January 2009 through De-
`cember 2010 (including four months as Acting Gen-
`eral Counsel) and as General Counsel of the INS
`from August 1995 to January 1998.
`
`Paul Virtue served as General Counsel of the INS
`from 1998 to 1999. He also served as Executive Asso-
`ciate Commissioner of the INS from 1997 to 1998
`and as Deputy General Counsel from 1988 to 1997.
`
`Paul M. Rosen served as Chief of Staff to the Sec-
`retary of DHS from 2015 to 2017. Previously, Mr.
`Rosen served in various positions at DHS from 2013
`to 2015. Earlier in his career, Mr. Rosen served at
`
`

`

`
`
`
`
`5
`
`
`
`
`
`
`
`
`
`
`
`the U.S. Department of Justice (2009–2013) and as
`Counsel to the U.S. Senate Judiciary Committee for
`then-Senator Joseph R. Biden, Jr. (2006–2009).
`
`Amici submit this brief to offer their first-hand
`perspective on the virtue, historical pedigree, and
`lawfulness of deferred action in the enforcement of
`federal immigration law and to provide context as to
`why a decision to rescind DACA as unlawful cannot
`and should not stand.
`
`

`

`
`
`
`
`6
`
`
`
`
`
`
`
`
`
`
`
`SUMMARY OF ARGUMENT
`
`DACA is not government benevolence, inaction,
`or—as some have derisively labeled it—“amnesty.”
`Rather, as the amici can personally attest, DACA is
`sound, smart policy given the inherent limitations of
`government resources. It confers no legal status and
`it serves important government interests (including
`public safety and national security) by encouraging
`young people who are the lowest priorities for re-
`moval, but who live in the shadows of American life,
`to come forward, engage in their communities, and
`contribute to the economy.
`
`Discretionary relief policies have existed within
`the landscape of executive branch authority for dec-
`ades and have been used by administrations of both
`political parties. DACA is thus neither novel nor un-
`precedented. The authority to adopt DACA and the
`accompanying authority to issue work authorization
`both derive from the prosecutorial discretion routine-
`ly exercised by the executive branch and from Con-
`gress’ broad delegations of authority in the immigra-
`tion context. Further statutory authority expressly
`endorsing the manner in which that prosecutorial
`discretion is exercised is not necessary.
`
`
`
`

`

`
`
`
`
`7
`
`
`
`
`
`
`
`
`
`
`
`STATEMENT OF THE CASE
`
`There are an estimated 11 million people present
`in this country without documentation. Another
`300,000 to 450,000 immigrants are apprehended try-
`ing to enter the country illegally each year. This
`year, the figure likely will approach 850,000—the
`highest in over a decade.3
`
`Historically, the executive branch has lacked the
`resources required to take action against every per-
`son residing in the United States who may be re-
`movable. The institutions and personnel of immigra-
`tion enforcement—including
`immigration courts,
`judges, federal attorneys, asylum officers, and DHS
`enforcement and removal personnel—can remove on-
`ly a small fraction of those who are removable. Re-
`
`
`
`3 Jens Manuel Krogstad et al., 5 Facts About Illegal Immi-
`gration
`in
`the U.S., Pew Res. Ctr.
`(June 12, 2019),
`https://pewrsr.ch/2lpzIfn; U.S. Customs & Border Protection,
`CBP Enforcement Statistics FY 2019, http://bit.ly/2lhBbo7; Ste-
`ven Kopits, Apprehensions, Illegal Entries Forecast for 2019
`(August), Princeton Pol’y Advisors
`(Sept. 10, 2019),
`http://bit.ly/2mqdY36; U.S. Customs & Border Patrol, United
`States Border Patrol Nationwide Illegal Alien Apprehensions
`Fiscal Years 1925 – 2018, http://bit.ly/2mQqMzV.
`
`

`

`
`
`
`
`8
`
`
`
`
`
`
`
`
`
`
`
`cently, the government has removed 220,000 to
`260,000 people per year from the country’s interior.4
`
`Inevitably, then, choices must be made. Priorities
`for removal must be developed. Prosecutorial discre-
`tion must be exercised.
`
`For more than fifty years, presidents and their
`administrations have done just that: exercising pros-
`ecutorial discretion to prioritize enforcement against
`those individuals who pose threats to public safety or
`national security, while deferring action against and
`authorizing the right to work (where economically
`necessary) for those who do not.
`
`The Obama Administration was no exception.
`Just as seven of his predecessors had done, including
`nearly every president since Eisenhower, President
`Obama implemented deferred action, whereby immi-
`gration officials exercised discretion to defer the re-
`moval of young people who otherwise were in the
`United States unlawfully. See generally Hearing Be-
`fore the H. Comm. on the Judiciary, 114th Cong.
`(Feb. 25, 2015) (Written Testimony of Stephen H.
`Legomsky at 2–26), http://bit.ly/2lFGM7I (explaining
`the legality of such policies, including DACA).
`
`
`
`4 U.S. Immigr. & Customs Enforcement, Fiscal Year 2018
`ICE Enforcement and Removal Operations Report 10,
`http://bit.ly/2mwAVl3.
`
`

`

`
`
`
`
`9
`
`
`
`
`
`
`
`
`
`
`
`Established on June 15, 2012, DACA authorizes
`the deferral of removal and other proceedings on a
`case-by-case basis for young people who were under
`the age of sixteen when they entered the United
`States, under the age of thirty-one as of June 15,
`2012, and who meet specific educational and public-
`safety criteria. See Memorandum from Janet Napoli-
`tano to David V. Aguilar et al., Sec’y of Homeland
`Sec., Exercising Prosecutorial Discretion with Respect
`to Individuals Who Came to the United States as
`Children 1–2 (June 15, 2012), http://bit.ly/2mVOUkJ
`(“Napolitano Memorandum”). Importantly, however,
`satisfying these criteria is a necessary, but not suffi-
`cient, condition to receiving deferred action under
`DACA; immigration officials retain authority to deny
`deferred action even to those individuals who satisfy
`these criteria. See Br. for Amici DACA Recipients &
`State of New Jersey at 9–25.
`
`Deferred action for DACA recipients is “especially
`justified,” because they “were brought to this country
`as children” and many “know only this country as
`home.” Napolitano Memorandum at 1–2. President
`Obama recognized that it would cause irreparable
`harm to remove these individuals to countries where
`they lacked familial or economic ties. There is thus a
`compelling humanitarian interest in affording DACA
`recipients some explicit protection against removal.
`
`
`
`

`

`
`
`
`
`10
`
`
`
`
`
`
`
`
`
`
`
`Like deferred action and similar policies before it,
`DACA is not available to anyone who has been con-
`victed of certain offenses or to anyone who poses a
`threat to national security. Id. at 1. DACA’s empha-
`sis on public safety and national security is con-
`sistent with historical practice—immigration en-
`forcement generally has prioritized dangerous crimi-
`nals and those apprehended at the border. See gen-
`erally Arizona v. United States, 567 U.S. 387, 396–97
`(2012).
`
`DACA’s authorizing memorandum provides that
`USCIS “shall accept applications to determine
`whether these individuals qualify for work authori-
`zation during this period of deferred action.” Napoli-
`tano Memorandum at 3. Significantly, however, the
`authorizing memorandum confers neither a right to
`work nor a right to petition DHS for approval to
`work. Rather, a DACA recipient is eligible to apply
`for work authorization under a federal regulation
`that predates DACA and has been available for dec-
`ades to qualifying recipients of discretionary relief.
`
`Since its adoption, DACA has been an over-
`whelming success. As of 2017, before the Trump Ad-
`ministration attempted to rescind DACA on the in-
`correct assertion that its hands were tied legally,
`nearly fifty-five percent of DACA recipients were
`employed, while sixty-two percent of those not in the
`
`

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`labor force were enrolled in school.5 The DACA popu-
`lation includes students, teachers,6 licensed physi-
`cians,7 members of the U.S. military,8 students at top
`law schools,9 and those admitted to practice law in
`various states.10 In short, today’s DACA population
`is by-and-large either full-time employed or other-
`wise in school. In the course of their duties, amici
`
`
`
`5 Jie Zong et al., A Profile of Current DACA Recipients by
`Education, Industry, and Occupation, Migration Pol’y Inst.
`(Nov. 2017), http://bit.ly/2lrezS1; see also Tom Wong et al., Re-
`sults from 2019 National DACA Study, Ctr. Am. Progress 2, 6
`(2019), https://ampr.gs/2lWJyWp (explaining that, since their
`applications were approved, seventy percent of DACA recipients
`have enrolled in educational programs that were previously un-
`available to them and almost sixty percent became employed for
`the first time).
`
`6 See Roberto G. Gonzalez et al., Taking Giant Leaps For-
`ward: Experiences of a Range of DACA Beneficiaries at the 5-
`Year Mark, Ctr. Am. Progress 5
`(June 22, 2017),
`https://ampr.gs/2lu5tDU.
`
`7 Ibid.
`
`8 Kathryn Watson, Pentagon Says DACA Recipients in Mili-
`tary Number Fewer than 900, CBS News (Sept. 6, 2017),
`https://cbsn.ws/2kTFlSR.
`
`9 Statement from Dean Manning on the End of the DACA
`Program, Harv. L. Sch. (Sept. 5, 2017), http://bit.ly/2kWugjZ.
`
`10 Raquel Muñiz et al., DACAmented Law Students and
`Lawyers in the Trump Era, Ctr. Am. Progress (June 7, 2018),
`https://ampr.gs/2lrqFKM.
`
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`12
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`personally met a number of these outstanding young
`people who, after years of living in this country, have
`become de facto Americans.
`
`Amici know from personal experience that DACA
`is sound, smart policy, and firmly rooted in prece-
`dent. Now, after more than seven years, rescinding
`DACA is neither compelled by law nor warranted in
`fact. President Trump himself has observed that
`DACA recipients should “rest easy” because the “pol-
`icy of [his] administration [is] to allow the dreamers
`to stay.” J.A. 435. The human cost of now rescinding
`DACA on the erroneous assertion that the law com-
`pels it would be enormous; it is no overstatement to
`say that if DACA perishes, many of the 700,000
`young people who placed their faith in the U.S. gov-
`ernment would be gravely harmed.
`
`ARGUMENT
`
`I. Deferred Action Is Firmly Rooted in Historical
`Practice.
`
`Deferred action, including discretionary, system-
`atic relief granted on a case-by-case basis to large
`numbers of people otherwise removable, has in vari-
`ous forms occupied the landscape of executive au-
`
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`13
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`thority for decades.11 Federal law long has recog-
`nized this reality, codifying and sanctioning deferred
`action as “an act of administrative convenience to the
`government which gives some cases lower priority.” 8
`C.F.R. § 274a.12(c)(14) (2019); see also 6 U.S.C.
`§ 202(5) (2018) (making the Secretary of Homeland
`Security “responsible” for “establishing national im-
`migration enforcement policies and priorities”).
`
`Below are a handful of salient examples, all of
`which involve executive action that occurred absent,
`or in excess of, statutory authority granted by Con-
`gress.
`
`Eisenhower Administration. In 1956, Presi-
`dent Eisenhower “paroled” approximately one thou-
`sand foreign-born children who had been adopted by
`American citizens overseas but who were barred en-
`try into the United States by statutory quotas. Pres-
`ident Dwight D. Eisenhower, Statement by the Presi-
`dent Concerning the Entry into the United States of
`Adopted Foreign-Born Orphans (Oct. 26, 1956),
`
`
`
`11 See, e.g., Memorandum from Andorra Bruno et al., Analy-
`sis of June 15, 2012 DHS Memorandum, Exercising Prosecuto-
`rial Discretion with Respect to Individuals Who Came to the
`United States as Children 20–23, Cong. Res. Serv. (July 13,
`2012), http://bit.ly/2liwPNz (“CRS Analysis”).
`
`

`

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`14
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`(“Eisenhower Statement”).12
`http://bit.ly/2mtocQe
`With this authority, President Eisenhower was em-
`powered to permit the physical presence in the coun-
`try of individuals who otherwise were inadmissible
`under the governing statutes.13 The President ex-
`plained that he had been “particularly concerned
`over the hardship” the quotas imposed, especially on
`members of the Armed Forces who were “forced to
`leave their adopted children behind” after completing
`tours of duty. Eisenhower Statement at 1. The Presi-
`dent adopted the parole policy in the face of Congres-
`sional inaction. Ibid.
`
`As the Cold War entered its second decade, the
`Eisenhower Administration began to use the parole
`power as an instrument of foreign policy.14 For ex-
`ample, President Eisenhower ordered the parole of
`
`
`
`12 See Executive Grants of Temporary Immigration Relief,
`1956–Present, Am.
`Immigr. Counsel 3
`(Oct. 2014),
`http://bit.ly/2lstw6k (“AIC Report”).
`
`13 See Immigration and Nationality Act, Pub. L. No. 82-414,
`§ 212(d)(5), 66 Stat. 163, 188 (1952); see also Revision of Immi-
`gration, Naturalization, and Nationality Laws: Joint Hearing
`Before the S. & H. Subcomms. on the Judiciary, 82d Cong. 713
`(1951) (Statement of Peyton Ford, Deputy Att’y Gen.) (recogniz-
`ing a long history of executive parole “under emergent and hu-
`manitarian circumstances” absent any authorizing “provision in
`existing law” before 1952).
`
`14 See AIC Report at 3.
`
`

`

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`15
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`Cubans fleeing their country’s oppressive communist
`regime.15 The Kennedy, Johnson, and Nixon Admin-
`istrations continued this parole program, which ul-
`timately allowed over 600,000 otherwise inadmissi-
`ble persons to enter the United States.16
`
`Ford & Carter Administrations. The Ford and
`Carter Administrations each granted “Extended Vol-
`untary Departure”17 to certain classes of immigrants,
`many of whom came from war-torn or communist
`countries, including individuals of Lebanese and
`
`
`
`15 Ibid.
`
`16 Ibid.
`
`17 Since 1990 and continuing through today, Extended Vol-
`untary Departure has been known as Deferred Enforced Depar-
`ture. USCIS Policy Manual § 38.2, https://bit.ly/2mnY09H.
`These terms refer to “a temporary, discretionary, administra-
`tive stay of removal granted to aliens from designated coun-
`tries.” Ibid.
`
`

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`16
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`Ethiopian descent.18 Under these deferred action pol-
`icies, immigration officials “temporarily suspend[ed]
`enforcement” of the immigration laws for “particular
`group[s] of aliens.” Hotel & Rest. Emps. Union, Local
`25 v. Smith, 846 F.2d 1499, 1510 (D.C. Cir. 1988) (en
`banc) (per curiam) (separate opinion of Mikva, J.).19
`
`Reagan Administration. The Reagan Admin-
`istration made two significant contributions to the
`history of deferred action. First, it continued and
`broadened the use of deferred action, in particular by
`implementing the Family Fairness Program.20 Sec-
`ond, and of equal importance, President Reagan’s
`INS promulgated a regulation enabling deferred ac-
`
`
`18 See AIC Report at 4. Petitioners suggest that this policy
`“had a plausible basis” in the Immigration and Nationality Act.
`Pet. Br. at 49. But as the United States previously recognized,
`Extended Voluntary Departure was distinct from the statutori-
`ly authorized policy. See id. at 49 n.10; see also Hotel & Rest.
`Emps. Union, Local 25 v. Smith, 846 F.2d 1499, 1519 (D.C. Cir.
`1988) (en banc) (per curiam) (separate opinion of Silberman, J.)
`(affirming Extended Voluntary Departure as the President’s
`“extrastatutory decision to withhold enforcement”). In our view,
`informed by decades of collective work administering our na-
`tion’s immigration laws, Extended Voluntary Departure was
`clearly distinct from the policy authorized by statute. Because it
`did not in fact have express statutory authorization, the policy
`is indistinguishable from DACA.
`
`19 See also AIC Report at 3–5; CRS Analysis at 20–21.
`
`20 CRS Analysis at 21–22.
`
`

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`tion recipients to apply for work authorization. See
`46 Fed. Reg. 25,079, 25,081 (May 5, 1981). This regu-
`lation remains in effect and applies to present-day
`deferred action recipients, including those covered by
`DACA. 8 C.F.R. § 274a.12(c)(14).
`
`At the start of President Reagan’s term, Congress
`expressly approved the Administration’s continued
`use of Extended Voluntary Departure as a means of
`prosecutorial discretion for certain citizens of El Sal-
`vador who claimed a risk of persecution in their
`homeland. See International Security and Develop-
`ment Cooperation Act of 1981, Pub. L. No. 97-113,
`§ 731, 95 Stat. 1519, 1557 (“It is the sense of the
`Congress that the administration should continue to
`review, on a case-by-case basis, petitions for extend-
`ed voluntary departure made by citizens of El Salva-
`dor who claim that they are subject to persecution in
`their homeland, and should take full account of the
`civil strife in El Salvador in making decisions on
`such petitions.”).
`
`Later, following passage of the Immigration Re-
`form and Control Act of 1986 (“IRCA”), President
`Reagan’s Administration established t

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