No. 18-587
`
`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.
`
`ON WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`BRIEF FOR AMICUS CURIAE
`IMMIGRATION LAW SCHOLARS
`IN SUPPORT OF THE RESPONDENTS
`
`Harry Lee
`Counsel of Record
`Johanna Dennehy
`STEPTOE & JOHNSON LLP
`1330 Connecticut Ave. NW
`Washington, D.C. 20036
`hlee@steptoe.com
`(202) 429 8112
`
`Additional Captions Listed on Inside Cover
`
`
`
`
`
`
`
`
`
`
`
`
`
`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.
`
`ON WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`BRIEF FOR AMICUS CURIAE
`IMMIGRATION LAW SCHOLARS
`IN SUPPORT OF THE RESPONDENTS
`
`Harry Lee
`Counsel of Record
`Johanna Dennehy
`STEPTOE & JOHNSON LLP
`1330 Connecticut Ave. NW
`Washington, D.C. 20036
`hlee@steptoe.com
`(202) 429 8112
`
`Additional Captions Listed on Inside Cover
`
`
`
`
`
`
`
`
`
`
`
`
`
`DONALD J. TRUMP, PRESIDENT OF THE UNITED
`STATES, ET AL.,
`Petitioners,
`
`—v.—
`
`NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
`COLORED PEOPLE, ET AL.,
`Respondents.
`
`
`
`ON WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`KEVIN K. MCALEENAN, ACTING SECRETARY OF
`HOMELAND SECURITY, ET AL.,
`Petitioners,
`
`—v.—
`
`MARTIN JONATHAN BATALLA VIDAL, ET AL.,
`Respondents.
`
`
`
`ON WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
`
`
`
`
`
`i
`
`TABLE OF CONTENTS
`TABLE OF AUTHORITIES ............................... ii
`INTEREST OF AMICI CURIAE ........................ 1
`SUMMARY OF ARGUMENT ............................. 1
`ARGUMENT ........................................................ 3
`I. THE EXECUTIVE BRANCH HAS LONG
`USED PROSECUTORIAL DISCRETION
`AND CATEGORY-BASED DEFERRED
`ACTION INITIATIVES IN SETTING
`PRIORITIES FOR IMMIGRATION
`ENFORCEMENT .......................................... 3
`II. THE DACA INITIATIVE FITS SQUARELY
`INTO THE EXECUTIVE BRANCH’S
`LONGSTANDING USE OF CATEGORY-
`BASED DEFERRED ACTION
`INITIATIVES .............................................. 16
`III. THE DACA INITIATIVE IS A LAWFUL
`EXERCISE OF DISCRETION IN
`IMMIGRATION ENFORCEMENT ........... 18
`CONCLUSION .................................................. 37
`APPENDIX ........................................................ 1a
`
`
`
`
`
`
`
`
`ii
`
`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`Arizona v. United States,
`567 U.S. 387 (2012) ......................................... 5, 16
`Arpaio v. Obama,
`27 F. Supp. 3d 185 (D.D.C. 2014) ................. 21, 35
`Crane v. Johnson,
`783 F.3d 244 (5th Cir. 2015) ............................... 21
`Heckler v. Chaney,
`470 U.S. 821 (1985) ............................................. 16
`
`Hotel & Rest. Emps. Union, Local 25 v.
`Smith,
`846 F.2d 1499 (D.C. Cir. 1988) ........................... 29
`Regents v. U.S. Dep’t of Homeland Sec.,
`908 F.3d 476 (9th Cir. 2018) ................................. 8
`
`Reno v. American-Arab Anti-Discrimination
`Committee,
`525 U.S. 471 (1999) ............................................. 16
`SEC v. Chenery Corp.,
`332 U.S. 194 (1947) ............................................. 20
`Texas v. United States,
`86 F. Supp. 3d 591 (S.D. Tex. 2015) ................... 18
`
`
`
`
`
`iii
`
`Texas v. United States,
`328 F. Supp. 3d 662 (S.D. Tex. 2018) .................. 18
`Texas v. United States,
`809 F.3d 134 (5th Cir. 2015) ............................... 20
`United States v. Texas,
`136 S. Ct. 2271 (2016) ......................................... 18
`Constitutions
`U.S. CONST. art. II, § 3 .............................................. 21
`Statutes
`6 U.S.C. § 202(5) ....................................................... 14
`8 U.S.C. § 1103(a) ............................................... 14, 30
`8 U.S.C. § 1182(a)(9)(B)(ii) ................................. 30, 32
`8 U.S.C. § 1229b ........................................................ 24
`8 U.S.C. § 1324a(h)(3) ............................................... 31
`Immigration and Nationality Act § 237(d)(2)
`(codified at 8 U.S.C. § 1227(d)(2)) ....................... 14
`Victims of Trafficking and Violence
`Protection Act of 2000, Pub. L. No. 106-
`386, 114 Stat. 1464 .............................................. 14
`Regulations
`8 C.F.R. § 214.14(d)(3) ........................................ 30, 32
`8 C.F.R. § 274a.12(c)(14) ................................. 8, 24, 30
`
`
`
`iv
`
`28 C.F.R. § 1100.35(b)(2) .................................... 30, 32
`Other Authorities
`64 No. 41 Interpreter Releases 1191 (Oct.
`26, 1987) ............................................................... 10
`67 No. 6 Interpreter Releases 153 (Feb. 5,
`1990) ..................................................................... 10
`67 No. 8 Interpreter Releases 204 (Feb. 26,
`1990) ..................................................................... 10
`Am. Imm. Council, Reagan-Bush Family
`Fairness: A Chronological History 1-2
`(Dec. 2014) ........................................................... 10
`American Progress, What We Know About
`DACA Recipients in the United States
`(Sept. 5, 2019) ...................................................... 28
`Memorandum from Sam Bernsen, Gen.
`Counsel of INS, Legal Opinion
`Regarding Service Exercise of
`Prosecutorial Discretion (July 15, 1976) .............. 7
`Jennifer M. Chacón, Producing Liminal
`Legality, 92 DENVER L. R. 709 (2015) .................. 34
`Elise Foley, Officials Refuse to Budge on
`Deportation of Students, Families, THE
`HUFFINGTON POST (updated June 1,
`2011) ..................................................................... 34
`
`
`
`v
`
`Statement of Karen T. Grisez on behalf of
`the American Bar Association to the U.S.
`Senate Committee on the Judiciary (May
`18, 2011) ............................................................... 13
`Marvine Howe, New Policy Aids Families of
`Aliens, N.Y. TIMES at B3 (Mar. 5, 1990) ............. 10
`INS Operations Instructions, O.I.
`§ 242.10(a)(6)(i) (1956) ...................................... 6, 9
`Memorandum from Jeh Charles Johnson,
`Sec’y of Homeland Security, Policies for
`the Apprehension, Detention, and
`Removal of Undocumented Immigrants
`(Nov. 20, 2014) ................................................... 4, 8
`Stephen H. Legomsky & Cristina M.
`Rodriguez, IMMIGRATION AND REFUGEE
`LAW AND POLICY 1115 (5th ed. 2009) .................... 9
`Written Testimony of Stephen H.
`Legomsky, The John S. Lehmann
`University Professor at the Washington
`University School of Law, in
`Unconstitutionality of Obama’s Executive
`Actions on Immigration: Hearing Before
`the H. Comm. on the Judiciary, 114th
`Cong. 61-90 (2015) ........................................ passim
`Letter from Members of Congress to Janet
`Reno, Attorney General, Department of
`Justice, Guidelines for Use of
`Prosecutorial Discretion in Removal
`Proceedings (Nov. 4, 1999) .................................. 15
`
`
`
`vi
`
`Kate Manuel & Tom Garvey, Congressional
`Research Service, Prosecutorial
`Discretion in Immigration Enforcement
`(Dec. 27, 2013) ..................................................... 22
`Memorandum from Gene McNary, Comm’r
`of INS, Family Fairness: Guidelines for
`Voluntary Departure Under 8 C.F.R.
`242.5 for Ineligible Spouses and
`Children of Legalized Aliens (Feb. 2,
`1990) ............................................................... 10, 28
`Memorandum from Doris Meissner, Comm’r
`of INS, Exercising Prosecutorial
`Discretion (Nov. 17, 2000) ............................... 7, 13
`Memorandum from John Morton, Dir., U.S.
`Immigration & Customs Enforcement,
`Civil Immigration Enforcement:
`Priorities for the Apprehension,
`Detention, and Removal of Aliens (Mar.
`2, 2011) ................................................................... 4
`Memorandum from John Morton, Dir., U.S.
`Immigration & Customs Enforcement,
`Policy No. 10075.1, Exercising
`Prosecutorial Discretion Consistent with
`the Civil Immigration Enforcement
`Priorities of the Agency for the
`Apprehension, Detention, and Removal
`of Aliens (June 17, 2011) ....................................... 7
`
`
`
`vii
`
`Hiroshi Motomura, The President’s
`Dilemma: Executive Authority,
`Enforcement, and the Rule of Law in
`Immigration Law, 55 WASHBURN L.J. 1,
`28 (2015). ............................................................. 22
`Decl. of Donald W. Neufeld, Texas v. United
`States, 86 F. Supp. 3d 591 (S.D. Tex.
`2015) (No. B-14-254), ECF No. 130 att.
`11 .......................................................................... 35
`Memorandum from Donald Neufeld, Acting
`Assoc. Dir. of USCIS, Guidance
`Regarding Surviving Spouses of
`Deceased U.S. Citizens and Their
`Children (Sept. 4, 2009) ...................................... 12
`Office of Legal Counsel, U.S. Dept. of
`Justice, The Department of Homeland
`Security’s Authority to Prioritize
`Removal of Certain Aliens Unlawfully
`Present in the United States and to
`Defer Removal of Others (Nov. 19, 2014). .......... 14
`Press Release, USCIS Announces Interim
`Relief for Foreign Students Adversely
`Impacted by Hurricane Katrina (Nov.
`25, 2005) ............................................................... 11
`David Reimers, STILL THE GOLDEN DOOR:
`THE THIRD WORLD COMES TO AMERICA
`(1986) ..................................................................... 9
`
`
`
`viii
`
`Nicole Prchal Svajlenka, Center for
`American Progress, What We Know
`About DACA Recipients in the United
`States (Sept. 5, 2019) ........................................... 27
`Paul W. Virtue, Acting Exec. Assoc. Comm’r
`of INS, Supplemental Guidance on
`Battered Alien Self-Petitioning Process
`and Related Issues (May 6, 1997) ....................... 11
`Shoba S. Wadhia, BEYOND DEPORTATION:
`THE ROLE OF PROSECUTORIAL
`DISCRETION IN IMMIGRATION CASES
`(2015) ..................................................... 5, 9, 13, 22
`Shoba S. Wadhia, In Defense of DACA,
`Deferred Action, and the DREAM Act, 91
`TEX. L.R. 59 (2013)............................................... 22
`Shoba Sivaprasad Wadhia, Demystifying
`Employment Authorization and
`Prosecutorial Discretion in Immigration
`Cases, 6 COLUM. J. RACE & LAW 1 (2016) ............ 31
`Shoba Sivaprasad Wadhia, The Role of
`Prosecutorial Discretion in Immigration
`Law, 9 CONN. PUB. INT’L L.J. 243 (2010) .............. 5
`U.S.C.I.S. Adjudicator’s Field Manual
`38.2(a)(2007) .......................................................... 8
`U.S.C.I.S., Deferred Enforced Departure –
`Liberia (last updated Apr. 4, 2019) ..................... 12
`U.S. Citizenship & Imm. Servs., DHS
`DACA FAQs Q1 ................................................... 32
`
`
`
`ix
`
`Memorandum from Johnny N. Williams,
`Exec. Assoc. Comm’r, Off. of Field Ops.,
`INS, Family Unity Benefits and
`Unlawful Presence (Jan. 27, 2003) ..................... 13
`Memorandum from William R. Yates, Assoc.
`Dir. of Ops., U.S.C.I.S., Centralization of
`Interim Relief for U Nonimmigrant
`Status Applicants (Oct. 8, 2003) ......................... 11
`Memorandum from William R. Yates, Assoc.
`Dir. of Ops., U.S.C.I.S., Assessment of
`Deferred Action Requests for Interim
`Relief from U Nonimmigrant Status
`Aliens in Removal Proceedings (May 6,
`2004) ..................................................................... 11
`
`
`
`
`
`
`1
`
`INTEREST OF AMICI CURIAE1
`
`
`Amici are 124 scholars of immigration law who
`have testified, lectured, researched, written, and
`advocated at length on immigration issues, including
`the principal subject of this appeal: The power of the
`Executive Branch to craft and deploy immigration-
`related deferred action policies. This brief reflects
`amici’s long-standing interest in and knowledge
`regarding the historical use of deferred-action
`initiatives in immigration enforcement, as well as the
`legal doctrines and precedent supporting such use.
`
` complete list of amici is set forth in Appendix
`
`
`SUMMARY OF ARGUMENT
`
` A
`
`A.
`
`the Department of
`In September 2017,
`Homeland Security (DHS) rescinded the agency’s
`Deferred Action for Childhood Arrivals (“DACA”)
`policy, purportedly on the basis that the policy was
`unconstitutional and otherwise unlawful. After
`unsuccessfully defending that position in court, DHS
`
`
` 1
`
`
`
`Pursuant to Supreme Court Rule 37.6, amici curiae
`affirm that no counsel for a party authored this brief in
`whole or in part; that no party or counsel for a party
`made a monetary contribution toward the preparation or
`submission of this brief; and that no person other than
`the amici curiae or their counsels made a monetary
`contribution to its preparation or submission. Pursuant
`to Supreme Court Rule 37.3, each party has consented to
`the filing of this brief, and copies of the consents are on
`file with the Clerk of the Court.
`
`
`
`2
`
`issued a second, post-hoc memoranda that offered
`additional reasons for rescinding DACA, including the
`assertion that the current administration prefers to
`determine eligibility for deferred action on an ad hoc,
`case-by-case basis rather than a policy by which
`immigrants who meet certain threshold criteria may
`obtain deferred action after the exercise of case-by-
`case review by immigration officials.
`
`While the parties debate in their briefs DHS’s
`ability to rely on post-hoc rationalizations for agency
`decisions, amici respectfully submit this brief for the
`purpose of demonstrating to the Court that DHS’s
`originally stated basis for rescission—the purported
`unconstitutionality and/or illegality of DACA—is not
`supported by legal precedent or historical practice.
`Amici can state this conclusion with confidence
`because they have devoted their careers to studying
`and researching immigration law, including the
`means by which the Executive Branch has exercised
`its discretion to identify which cases present a high
`priority
`for
`removal, and which
`low-priority
`immigrants may appropriately be placed at the ‘end of
`the line.’
`
`By submitting this brief, amici seek to provide
`the Court with the benefit of their expertise and
`knowledge regarding the
`long-standing use of
`deferred action and other forms of prosecutorial
`discretion in immigration enforcement. Specifically,
`amici catalogue the numerous instances in which the
`Executive Branch has exercised its discretion to
`provide temporary relief to categories of immigrants
`
`
`
`3
`
`who it determines, in its discretion, merit temporary
`relief from removal. These historical examples reveal
`that the exercise of discretion
`in
`immigration
`enforcement has long been driven by humanitarian
`considerations. Amici also identify the legal sources of
`prosecutorial discretion, and explain the ways in
`which Congress and the courts have supported and
`affirmed the validity of the exercise of discretion in
`setting priorities for immigration enforcement. And in
`an effort to be as helpful as possible, amici respond to
`the grounds on which DHS initially relied to rescind
`DACA, as well as the new arguments DHS has
`advanced in litigation, and explain why both fail to
`establish that DACA marks an unlawful departure
`from historical practice and precedent.
`
`
`ARGUMENT
`
`I.
`
`THE EXECUTIVE BRANCH HAS LONG
`USED PROSECUTORIAL DISCRETION
`AND CATEGORY-BASED DEFERRED
`ACTION INITIATIVES IN SETTING
`PRIORITIES FOR IMMIGRATION
`ENFORCEMENT
`The DACA initiative is a form of prosecutorial
`discretion, a
`long-established and well-accepted
`practice in nearly every area of civil and criminal law
`enforcement. As a general matter, prosecutorial
`discretion in immigration enforcement provides a
`temporary reprieve from removal. But the use of
`prosecutorial discretion, while broad, has its limits:
`The Executive Branch does not have the discretion to
`grant permanent residency or eligibility to naturalize
`in the United States. Such powers are reserved to
`
`
`
`4
`
`Congress.
`Where Congress appropriates fewer resources
`than will permit full enforcement, the use of
`prosecutorial discretion is unavoidable. DHS does not
`dispute that it cannot remove every undocumented
`immigrant who
`enters
`the
`country without
`authorization or enters under a valid visa that
`expires. When DACA was first announced, there were
`approximately 11 million undocumented immigrants
`living in the United States, yet Congress appropriated
`funds that allowed executive agencies to remove only
`400,000 per year—less than 4% of that population.2
`DHS spends all of the money appropriated to it each
`year to remove this small percentage, and thus it must
`decide, within its broad discretion, those who are the
`highest removal priorities, and those who are not.3 See
`
`
`from John Morton, Dir., U.S.
`See Memorandum
`Immigration & Customs Enforcement, Civil Immigration
`Enforcement: Priorities for the Apprehension, Detention,
`and Removal of Aliens at 1 (Mar. 2, 2011), http://
`www.ice.gov/doclib/news/releases/2011/110302washingt
`ondc.pdf, superseded by Memorandum from Jeh Charles
`Johnson, Sec’y of Homeland Security, Policies for the
`Apprehension,
`Detention,
`and
`Removal
`of
`Undocumented
`Immigrants
`(Nov.
`20,
`2014),
`https://www.dhs.gov/sites/default/files/publications/14_1
`120_memo_prosecutorial_discretion.pdf.
`See Unconstitutionality of Obama’s Executive Actions on
`Immigration: Hearing Before the H. Comm. on the
`Judiciary, 114th Cong. 61-90 (2015) (written testimony
`of Stephen H. Legomsky, The John S. Lehmann
`University Professor at the Washington University
`School of Law)
`(hereinafter
`“Legomsky Written
`Testimony”); Shoba Sivaprasad Wadhia, The Role of
`
` 2
`
`
`
`3
`
`
`
`
`
`
`5
`
`Arizona v. United States, 567 U.S. 387, 396 (2012) (“A
`principal feature of the removal system is the broad
`discretion exercised by immigration officials.”).
`A.
`Given that the resources appropriated to
`immigration enforcement permit removal of only a
`small fraction of undocumented immigrants, the
`Executive Branch has long exercised prosecutorial
`discretion
`in setting
`immigration enforcement
`priorities, including through the use of deferred
`action.
`in
`Prosecutorial discretion played a role
`immigration enforcement long before the Executive
`Branch began its current practice of issuing and
`publicizing formal memoranda and guidance, such as
`the 2012 DACA Memorandum. In the 1970s, attorney
`Leon Wildes learned through his representation of
`John Lennon and Yoko Ono that the INS had for many
`years granted “nonpriority status” to prevent the
`deportation
`of
`immigrants who
`presented
`“sympathetic” cases for non-enforcement.4 Shortly
`
`
`
`Prosecutorial Discretion in Immigration Law, 9 CONN.
`PUB. INT’L L.J. 243, 268 (2010) (explaining that a just
`response to limited federal resources for immigration
`enforcement is to prioritize the removal of bad actors
`and, conversely, shift removal of noncitizens with
`desirable qualities to a lower priority).
`Shoba S. Wadhia, BEYOND DEPORTATION: THE ROLE OF
`PROSECUTORIAL DISCRETION IN IMMIGRATION CASES 14-
`17 (2015).
`
`
`
`4
`
`
`
`
`
`
`6
`
`after Wildes made this discovery, INS published its
`first formal, public deferred-action guidance in the
`form of “Operations Instructions,” which required
`agents to consider deferred action “[i]n every case
`where the district director determines that adverse
`action would be unconscionable because of the
`existence of appealing humanitarian factors.”5 The
`instructions identified factors for INS agents and
`officers to use in determining whether to refer a
`removal or deportation case for deferred action. These
`factors included (i) an immigrant’s age; (ii) the
`number of years he or she had been present in the
`United States; (iii) whether any health condition
`required care in the United States; (iv) how removal
`of the immigrant would affect family remaining in the
`United States; and (v) the extent to which the
`immigrant had engaged
`in criminal or other
`disfavored conduct.6
`Long before the Department of Justice’s Office
`of Legal Counsel issued its 2014 opinion concerning
`the legality of DACA, extended DACA, and DAPA
`(Pet’n App. 102a-110a), federal immigration officials
`issued guidance documents that affirmed the legal
`basis for using prosecutorial discretion in immigration
`enforcement and directed officers
`to exercise
`discretion judiciously at every stage of enforcement.
`One of the first publicly available memoranda
`
`
`Id. at 17 (citing INS Operations Instructions, O.I.
`§ 103.1(a)(1)(ii) (1975)).
`Id. at 187 n.8(ii) (citing INS Operations Instructions, O.I.
`§ 103.1(a)(1)(ii) (1975)).
`
` 5
`
`
`
`6
`
`
`
`
`
`
`7
`
`promulgated by a federal official was authored in 1976
`by then-INS General Counsel Sam Bernsen.7 The
`Bernsen Memorandum explained that prosecutorial
`discretion is rooted in the common law, and identified
`the “Take Care” clause of the United States
`Constitution as a source of authority to exercise
`prosecutorial discretion over immigration matters.8 In
`2000, INS Commissioner Doris Meissner expanded
`upon the Bernsen Memorandum and provided
`additional guidance regarding the use of prosecutorial
`discretion in immigration enforcement.9 During the
`last administration, additional memoranda setting
`out policies to govern the exercise of prosecutorial
`discretion were issued by the Director of U.S.
`Immigration and Customs Enforcement and, later, by
`the Secretary of DHS.10 Deferred action was
`
`
`Memorandum from Sam Bernsen, Gen. Counsel of INS,
`Legal Opinion Regarding Service Exercise
`of
`Prosecutorial
`Discretion
`(July
`15,
`1976),
`https://www.ice.gov/doclib/foia/prosecutorial-
`discretion/service-exercise-pd.pdf.
`Id.
`Memorandum from Doris Meissner, Comm’r of INS,
`Exercising Prosecutorial Discretion (Nov. 17, 2000),
`http://library.niwap.org/wp-content/uploads/2015/IMM-
`Memo-ProsDiscretion.pdf.
`Memorandum from John Morton, Dir., U.S. Immigration
`& Customs Enforcement, Policy No. 10075.1, Exercising
`Prosecutorial Discretion Consistent with the Civil
`Immigration Enforcement Priorities of the Agency for the
`Apprehension, Detention, and Removal of Aliens (June
`17,
`2011),
`https://www.ice.gov/doclib/secure-
`communities/pdf/prosecutorial-discretion-memo.pdf;
`Memorandum from Jeh Charles Johnson, Sec’y of DHS,
`
` 7
`
`
`
`8
`9
`
`10
`
`
`
`
`
`
`8
`
`mentioned specifically in nearly every one of the
`aforementioned guidance documents. Moreover, a
`federal immigration regulation in place since 1981
`recognizes 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).
`Since 1960, the INS and its successor, DHS,
`have adopted at least 20 policies reflecting the use of
`prosecutorial discretion with respect to large, defined
`categories of undocumented immigrants.11 Many of
`these policies included the use of “extended voluntary
`departure”
`(now known as “deferred enforced
`departure”), under which
`the President may
`temporarily delay removal of certain classes of
`individuals.12 Historical policies that applied such
`prosecutorial discretion to categories of immigrants
`include:
` In 1956, Present Dwight D. Eisenhower
`used prosecutorial discretion in grants of
`
`
`on Policies for the Apprehension, Detention and Removal
`of Undocumented
`Immigrants
`(Nov. 20, 2014),
`https://www.dhs.gov/sites/default/files/publications/14_1
`120_memo_prosecutorial_discretion.pdf.
`See Regents v. U.S. Dep’t of Homeland Sec., 908 F.3d 476,
`488 (9th Cir. 2018) (citing Andorra Bruno et al., Cong.
`Research Serv., Analysis of June 15, 2012 DHS
`Memorandum, Exercising Prosecutorial Discretion with
`Respect to Individuals Who Came to the United States as
`Children (July 13, 2012)).
`See U.S.C.I.S. Adjudicator’s Field Manual 38.2(a)(2007),
`https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0
`-0-0-1/0-0-0-16606/0-0-0-16764.html#0-0-0-591.
`
`
`
`11
`
`12
`
`
`
`
`
`
`9
`
`“parole” to authorize thousands of
`Hungarian “Freedom Fighters” (who had
`been fighting against Soviet incursions)
`to enter the United States.13
` In the same year, the Eisenhower
`Administration
`implemented
`an
`extended voluntary departure program
`for certain beneficiaries of a program for
`skilled or other workers.14
` In 1981, President Ronald Reagan issued
`temporary
`relief
`from deportation
`through extended voluntary departure to
`thousands of Polish nationals who were
`residing in the United States when
`Poland declared martial law.15
` In 1987, the Reagan Administration
`announced
`the
`“Family Fairness”
`executive action to defer deportations of
`children whose parents were eligible for
`permanent residency under the newly
`enacted
`Immigration Reform
`and
`
`
`
`See Wadhia, BEYOND DEPORTATION at 29-30.
`See INS Operations Instructions, O.I. § 242.10(a)(6)(i)
`(1956).
`See Stephen H. Legomsky & Cristina M. Rodriguez,
`IMMIGRATION AND REFUGEE LAW AND POLICY 1115-17
`(5th ed. 2009); David Reimers, STILL THE GOLDEN DOOR:
`THE THIRD WORLD COMES TO AMERICA 202 (1986).
`
`
`13
`14
`
`15
`
`
`
`
`
`
`10
`
`Control Act of 1986 (IRCA).16 Under
`President George H.W. Bush, the Family
`Fairness policy was expanded to defer
`deportations of the spouses and children
`of
`immigrants who qualified
`for
`permanent residence under the same
`statute.17 The Bush Administration
`predicted that the policy would affect 1.5
`million non-citizen spouses and children
`of immigrants (expected at the time to
`affect 40%
`of
`the undocumented
`immigrant population).18
` Under President William Jefferson
`Clinton, the INS established a deferred
`action initiative for survivors of abuse by
`
`
`
`See 64 No. 41 Interpreter Releases 1191 (Oct. 26, 1987);
`see also Am. Imm. Council, Reagan-Bush Family
`Fairness: A Chronological History 1-2 (Dec. 2014),
`https://www.americanimmigrationcouncil.org/sites/defa
`ult/files/research/reagan_bush_family_fairness_final_0.
`pdf.
`Marvine Howe, New Policy Aids Families of Aliens, N.Y.
`TIMES
`at
`B3
`(Mar.
`5,
`1990),
`https://www.nytimes.com/1990/03/05/nyregion/new-
`policy-aids-families-of-aliens.html; 67 No. 8 Interpreter
`Releases 204 (Feb. 26, 1990); 67 No. 6 Interpreter
`Releases 153 (Feb. 5, 1990).
`See Memorandum from Gene McNary, Comm’r of INS,
`Family Fairness: Guidelines for Voluntary Departure
`Under 8 C.F.R. 242.5 for Ineligible Spouses and Children
`of Legalized Aliens at 1-2 (Feb. 2, 1990); see also
`Legomsky Written Testimony at 83–85.
`
`
`16
`
`17
`
`18
`
`
`
`
`
`
`11
`
`U.S.-citizen spouses.19
` In 2003, then-INS Director of Operations
`William Yates published memoranda
`that directed INS officers
`to use
`prosecutorial
`discretion
`(including
`deferred action) to protect victims who
`were eligible for statutory protections
`such as an “U” visa.20
` In 2005, President George W. Bush’s
`administration instituted a deferred-
`action policy for foreign students affected
`by Hurricane Katrina.21
`
`
`
`Paul W. Virtue, Acting Exec. Assoc. Comm’r of INS,
`Supplemental Guidance on Battered Alien Self-
`Petitioning Process and Related Issues (May 6, 1997).
`Memorandum from William R. Yates, Assoc. Dir. of Ops.,
`U.S.C.I.S., Centralization of Interim Relief for U
`Nonimmigrant Status Applicants
`(Oct. 8, 2003),
`http:///www.uscis.gov/sites/default/files/USCIS/Laws/Me
`moranda/Static_Files_Memoranda/Archives%201998-
`2008/2003/ucntrl100803.pdf; Memorandum
`from
`William R. Yates, Assoc. Dir. of Ops., U.S.C.I.S.,
`Assessment of Deferred Action Requests for Interim
`Relief from U Nonimmigrant Status Aliens in Removal
`Proceedings
`(May
`6,
`2004),
`https://www.uscis.gov/sites/default/files/USCIS/Laws/M
`emoranda/Static_Files_Memoranda/Archives%201998-
`2008/2004/uprcd050604.pdf.
`Press Release, USCIS Announces Interim Relief for
`Foreign Students Adversely Impacted by Hurricane
`Katrina
`(Nov.
`25,
`2005),
`
`
`19
`
`20
`
`21
`
`
`
`
`
`
`12
`
`later, President Bush’s
` Two years
`administration announced a policy of
`deferred enforced departure applicable
`to certain Liberians, in recognition of the
`ongoing Liberian armed conflict. The
`policy has been extended for periods of
`twelve to eighteen months at a time,
`most recently by President Donald J.
`Trump in March 2019.22
` And in 2009, President Barack Obama
`implemented deferred action for widows
`and widowers whose visa applications
`had not been adjudicated when their
`U.S.-citizen spouses died.23
`As a general matter, agency officials have recognized
`that prosecutorial discretion should be informed by
`humanitarian considerations, and have regularly
`reminded agents to take humanitarian factors into
`account when deciding which cases may be eligible for
`
`
`
`https://www.uscis.gov/sites/default/files/files/pressreleas
`e/F1Student_11_25_05_PR.pdf.
`U.S.C.I.S., Deferred Enforced Departure – Liberia,
`https://www.uscis.gov/humanitarian/deferred-enforced-
`departure/ded-granted-country-liberia/ded-granted-
`country-liberia (last updated Apr. 4, 2019).
`Memorandum from Donald Neufeld, Acting Assoc. Dir. of
`USCIS, Guidance Regarding Surviving Spouses of
`Deceased U.S. Citizens and Their Children (Sept. 4,
`2009), https://www.uscis.gov/sites/default/files/USCIS/
`Laws/Memoranda/2009/June%202009/surviving-
`spouses-deferred-action-guidance.pdf.
`
`
`
`22
`
`23
`
`
`
`
`
`
`13
`
`deferred action.24 Thus, in addition to adopting
`policies directed at categories of immigrants who may
`warrant relief based on the same humanitarian
`considerations,
`INS and DHS have exercised
`discretion on a case-by-case basis to grant deferred
`action to people with serious medical conditions, those
`who entered the country at a young age, those who
`have strong family ties to citizens, and those with
`lengthy terms of residence in the United States.25
`B.
`Congress has effectively delegated to DHS (and
`INS before) the power and authority to make
`prosecutorial discretion decisions. It has explicitly
`charged the Secretary of Homeland Security with the
`“administration and enforcement of . . . all . . . laws
`
`
`
`See, e.g., Memorandum from Doris Meissner, Comm’r of
`INS, Exercising Prosecutorial Discretion (Nov. 17, 2000),
`http://library.niwap.org/wp-content/uploads/2015/IMM-
`Memo-ProsDiscretion.pdf; see also Memorandum from
`Johnny N. Williams, Exec. Assoc. Comm’r, Off. of Field
`Ops., INS, Family Unity Benefits and Unlawful Presence
`(Jan. 27, 2003) (reminding regional directors that they
`have authority to refrain from bringing charges on the
`basis of unlawful presence and may rely on
`humanitarian factors to make this assessment); see
`generally Wadhia, BEYOND DEPORTATION at 27-28
`(collecting examples).
`See Statement of Karen T. Grisez on behalf of the
`American Bar Association to the U.S. Senate Committee
`on the Judiciary at 7 (May 18, 2011), available at
`http:///www.americanbar.org/content/dam/aba/uncatego
`rized/2011/2011may18_grisezs_t.authcheckdam.pdf.
`
`
`24
`
`25
`
`
`
`
`
`
`14
`
`relating to . . . immigration and naturalization . . . ,” 8
`U.S.C. § 1103(a)(1), and has made the Secretary
`“responsible” for “[e]stablishing national immigration
`enforcement policies and priorities,” 6 U.S.C. § 202(5).
`Congress has also enacted numerous pieces of
`immigration
`legislation
`that assume
`that
`the
`Executive Branch has the power to grant deferred
`action to certain classes or categories of otherwise
`removable immigrants. As the Office of Legal Counsel
`recognized in 2014, “Congress has long been aware of
`the practice of granting deferred action, including in
`its categorical variety” and “has enacted several pieces
`of legislation that have either assumed that deferred
`action would be available in certain circumstances, or
`expressly directed that deferred action be extended to
`certain categories of aliens.”26 For instance, in Section
`237(d)(2) of the Immigration and Nationality Act
`(codified at 8 U.S.C. § 1227(d)(2)), Congress specified
`that the denial of a request for an administrative stay
`of an order of removal “shall not preclude the alien
`from applying for . . . deferred action.” Similarly,
`Section 1503(d)(3) of the Victims of Trafficking and
`Violence Protection Act of 2000, Pub. L. No. 106-386,
`114 Stat. 1464, 1522
`(codified at 8 U.S.C.
`§ 1154(a)(1)(D)(i)(II), (IV)), makes certain covered
`immigrants “eligible for deferred action and work
`authorization.”
`
`
`26
`
`
`
`Office of Legal Counsel, U.S. Dept. of Justice, The
`Department of Homeland Security’s Authority to
`Prioritize Removal of Certain Aliens Unlawfully Present
`in the United States and to Defer Removal of Others at
`18 (Nov. 19, 2014).
`
`
`
`15
`
`Moreover, members of Congress from both
`major political parties have urged the Executive
`Branch to de-prioritize specific categories of removal
`cases on humanitarian grounds. For instance, after
`Congress amended the INA in 1996 to mandate that
`INS detain “arriving aliens” (including asylum
`seekers) and limit the discretion of immigration
`judges to release detainees on bond, a bi-partisan
`group of twenty-eight members of Congress (including
`some co-sponsors of the 199
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