cap exec action briefing book full

8/10/2019 CAP Exec Action Briefing Book FULL

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Briefing Book on Executive ActionDecember 9, 12:30pm

Table of Contents

Page

1 Topline Talking Points on Immigration Executive Action

3 Topline Facts and Figures on Executive Action

6 Message Guidance: Executive Action Will Not Be a Magnetfor Future Unauthorized

Immigration

7 Message Guidance on Immigration Executive Action: Economics

9 Message Guidance on Immigration Executive Action: National Security

11 Message Guidance on Immigration Executive Action: Border Security

13 Memorandum: Legal Authority to Expand Deferred Action

27 Toplines: Executive Action on Immigration Will Benefit State Economies

30 State-by-State Economic Impacts of Deferred Action for 26 states


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Topline Talking Points on Immigration Executive Action

What:The Presidentsexecutive action contains a number of components that will strengthen our

border and national security, ensure that our enforcement resources are used to go after felons rather

than families, and will give five million people the chance to come out of the shadows and gain

temporary legal status. The main components include a new deferred action program for immigrants

who have been in the country for at least five years and have citizen or permanent resident children; an

expansion of the DACA program to eliminate the age cap and move the year of arrival forward; and

changes to our enforcement priorities to focus on terrorists, national security threats, and other serious

offenders first and foremost.

Top Lines: Policy, people, prosperity and public safety

President Obama is taking action within his legal authority to address our broken immigration

system, just as a bipartisan group of 11 presidents have done 39 times in the last 60 years.

This executive action is focusing enforcement resources on felons not families, making our

community safer and keep families together.

Bringing nearly five million people out of the shadows is a win for American workers and

taxpayers, with increased tax revenue, and an upward push on wages.

Executive action is not a substitute for legislation, and Congress still must act to pass a

permanent solution to our broken immigration system.

Key Points

President Obama is taking action within his legal authority to address our broken immigration system

President Obama is taking action within his legal authority to address our broken immigration

system. This is about good policy that keeps families together, grows our economy and makes

our country safer.

Eleven presidentsincluding Ronald Reagan, George H.W. Bush, and George W. Bushhave

acted 39 times to address immigration over the last 60 years.

In 1991, President George H.W. Bush took action that shielded 1.5 million people from

deportation, about 40 percent of the undocumented immigrants in the country at that time.

President Obamas action impacts a similar number of undocumented immigrants.

Executive action is focusing enforcement resources on felons not families

President Obamas executive action focuses our enforcement actions on felons not families,

enhancing public safety and taking steps to avoid ripping families apart.

Focusing on serious criminals and felons will make our communities safer.


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Our enforcement agencies will now have information on more than four million undocumented

immigrants who will come out of the shadows. They will register with the government and both

they and their employers will pay taxes.

Bringing nearly five million people out of the shadows is a win for American workers and taxpayers

Bringing five million people onto the books means that they and their employers have to pay

taxes, which benefits all Americans. CAP has estimated that in the first year of the program

alone, these five million immigrants will contribute $3 billion in payroll tax revenue alone, and

$22.6 billion over five years.

The costs of this action will be paid for by administrative fees paid by the immigrants

themselves.

Executive action is not a substitute for legislation, and Congress still must act

Speaker Boehner has had a bipartisan passed Senate bill sitting on his desk for more than a year.

The bipartisan Senate bill passed 68-32 in 2013, with support from 14 Republicans, one of the

few things this Congress has been able to do in a bipartisan way in years. That bill had the

strongest border security provisions in American history, but Boehner refused to bring it to a

vote.

Only Congress can solve our broken immigration system, but the President is taking actions

within his authority while Congress delays.


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Topline Facts and Figures on Executive Action

Only Congress can fix our nationsbroken immigration system once and for all. But in the face of

congressional paralysis on the issue, the president can and should take whatever steps are within his

authority to restore order and rationality to the system. There are obviouslimits on what the president

can do: for example, he cannot provide permanent status or citizenship to undocumented immigrants.

But he can unquestionably adoptan array of policies that will ensure enforcement resources are focused

on serious criminals rather than hard-working immigrants with deep roots in this country.

The administrative action that will have the broadest impact in focusing enforcement resources,

enhancing our security, and stabilizing communities across the country is an expansion of deferred

action to millions of low-priority immigrants. This will ensure that millions of undocumented immigrants

come forward, register with the government and undergo background checks. This will guarantee thatthey and their employers are paying their full share of taxes.

The president has broadlegal authority to take executive action on immigration.

Congress of course makes the laws. But the president has wide latitude in determining how to

go about enforcing those laws. From a legal perspective, there is no question that the president

has the power to broadly expand deferred action. The legal underpinning of deferred action is

prosecutorial discretion which is the decision to enforce, or not enforce, a particular law against

an individual. Every law enforcement agency in the world engages makes these determinations:

They are the inevitable by-product of enforcement in a universe of limited resources. And in the

immigration context, a decision to focus on violent offenders, for example, is a completelyunexceptional use of this executive authority.

Law scholars agree that the president has the legal authority. In September, 136 immigration

law professors penneda letter arguing that President Obama has broad legal authority on

immigration, and that his prosecutorial discretion power is backed by the Constitution.

Executive Action that provides discretionary relief from deportation has been usedby every single

president since Eisenhower.

ElevenU.S. presidents from both parties have taken executive actions on immigration 39 times

over the past 60 years.

Many of these executive policies have been sweeping in scope. George H.W. Bush, for example,

in accordance with his Family Fairness policy, deferred the deportationof up to1.5 million

undocumented spouses and children of individuals who were legalized under the Immigration

and Reform Act of 1986.

Executive Action will improve public safety and national security because it requires undocumented

immigrants to register with the government and undergo background checks.
http://www.immigrationpolicy.org/sites/default/files/docs/the_presidents_discretion_immigration_enforcement_and_the_rule_of_law_final_1.pdfhttp://cdn.americanprogress.org/wp-content/uploads/2014/07/FitzAdminRelief-report2.pdfhttp://cdn.americanprogress.org/wp-content/uploads/2014/07/FitzAdminRelief-report2.pdfhttps://pennstatelaw.psu.edu/_file/Law-Professor-Letter.pdfhttp://www.americanprogress.org/issues/immigration/news/2014/10/06/98321/by-the-numbers-every-president-since-eisenhower-has-taken-executive-action-on-immigration/http://www.americanprogress.org/issues/immigration/news/2014/10/06/98321/by-the-numbers-every-president-since-eisenhower-has-taken-executive-action-on-immigration/http://www.immigrationpolicy.org/sites/default/files/docs/executive_grants_of_temporary_immigration_relief_1956-present_final_4.pdfhttp://www.immigrationpolicy.org/sites/default/files/docs/executive_grants_of_temporary_immigration_relief_1956-present_final_4.pdfhttp://www.americanprogress.org/issues/immigration/news/2014/10/06/98321/by-the-numbers-every-president-since-eisenhower-has-taken-executive-action-on-immigration/http://www.americanprogress.org/issues/immigration/news/2014/10/06/98321/by-the-numbers-every-president-since-eisenhower-has-taken-executive-action-on-immigration/https://pennstatelaw.psu.edu/_file/Law-Professor-Letter.pdfhttp://cdn.americanprogress.org/wp-content/uploads/2014/07/FitzAdminRelief-report2.pdfhttp://cdn.americanprogress.org/wp-content/uploads/2014/07/FitzAdminRelief-report2.pdfhttp://www.immigrationpolicy.org/sites/default/files/docs/the_presidents_discretion_immigration_enforcement_and_the_rule_of_law_final_1.pdf


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Currently more than11 million undocumented immigrants are living in the United States and

their identities, addresses, and backgrounds are unknown to the government. Although the vast

majority of these individuals are hard-working, law-abiding and are deeply rooted in the U.S.,

their anonymity makes it harder for law enforcement to identify those individuals who

represent a threat to our communities. A policy that enables low-priority immigrants to come

forward, register with the government, and request a reprieve from removal, will help us focus

on high priorities.

Providing temporary legal status improves public safety as individualsno longer fear being

deported, and are more willing to communicate with the authorities and report crimes. It also

decreases their chances of being victimized because of their immigration status, when criminals

know that they will not go to the police because of they lack status. Our communities are safest

when everyone feels comfortable and safe to come forward to the legal authorities.

a.

Deferred action also opens opportunities for individuals to secure drivers licenses and auto

insurance. These policies help increase road safety by ensuring that undocumented immigrants

are driving with the appropriate training and financial safeguards. For example, a study showed

that around57% of individuals, who received a temporary relief from deportation under

Deferred Action for Childhood Arrivals (DACA) program, were able to receive their drivers

licenses. DACA, a 2012 executive action, provided relief to 553,197eligible undocumented

individuals who came to the U.S. as children.

Providing deferred action to low-priority undocumented immigrants will producelarge economic

benefits to the nation.

Undocumented immigrants who receive deferred action and temporary work permits will seetheir wages rise by 8.5 percentas they can work legally, and find jobs that match their skills.

If 5 million undocumented immigrants are eligible to apply for work permits, these workers will

add $3 billionmore in payroll taxes in the first year of the program. Over five years, these

workers will contribute $22.6 billion in payroll taxes to the U.S. economy.

Providing temporary legalization to undocumented workers will not undermine the job

opportunities or wages of American workers. Immigrants and native-born workers typically do

not compete for thesame jobs,but instead complement one another.

The public strongly supports fixing the immigration system

A2014 Gallup poll shows that 94 percentof Americans believed it is important for theadministration to take steps to deal with undocumented immigrants already living in the U.S.

this year.

A2014 Pew survey shows there is bipartisan support for providing legal status to undocumented

immigrants81 percentof Democrats and 64 percentof Republicans favor such policies.

Overall, 73 percentof all Americans sampled in the 2014 Pew surveyand 89 percentof

Latinossay that undocumented individuals who meet certain criteria should be allowed to stay

legally in the U.S.
http://www.pewhispanic.org/2014/09/03/as-growth-stalls-unauthorized-immigrant-population-becomes-more-settled/http://amvoice.3cdn.net/669182cf0231bbf4d6_kdm6bnsbj.pdfhttp://www.immigrationpolicy.org/sites/default/files/docs/two_years_and_counting_assessing_the_growing_power_of_daca_final.pdfhttp://www.immigrationpolicy.org/sites/default/files/docs/two_years_and_counting_assessing_the_growing_power_of_daca_final.pdfhttp://cdn.americanprogress.org/wp-content/uploads/2014/09/OakfordAdminRelief.pdfhttp://cdn.americanprogress.org/wp-content/uploads/2014/09/OakfordAdminRelief.pdfhttp://cdn.americanprogress.org/wp-content/uploads/2014/09/OakfordAdminRelief.pdfhttp://www.gallup.com/poll/1660/immigration.aspxhttp://www.people-press.org/2014/02/27/public-divided-over-increased-deportation-of-unauthorized-immigrants/#bipartisan-support-for-legal-status-for-undocumented-immigrantshttp://www.people-press.org/2014/02/27/public-divided-over-increased-deportation-of-unauthorized-immigrants/#bipartisan-support-for-legal-status-for-undocumented-immigrantshttp://www.gallup.com/poll/1660/immigration.aspxhttp://cdn.americanprogress.org/wp-content/uploads/2014/09/OakfordAdminRelief.pdfhttp://cdn.americanprogress.org/wp-content/uploads/2014/09/OakfordAdminRelief.pdfhttp://cdn.americanprogress.org/wp-content/uploads/2014/09/OakfordAdminRelief.pdfhttp://www.immigrationpolicy.org/sites/default/files/docs/two_years_and_counting_assessing_the_growing_power_of_daca_final.pdfhttp://amvoice.3cdn.net/669182cf0231bbf4d6_kdm6bnsbj.pdfhttp://www.pewhispanic.org/2014/09/03/as-growth-stalls-unauthorized-immigrant-population-becomes-more-settled/


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The Obama Administration has a strong record on border enforcement

Contrary to the conventional wisdom, the Obama administration did not ramp up enforcement or

deportations after he took office. Nor did he scale back enforcement. Instead, he attempted to

direct resources in a more targeted fashion by eliminating large work place raids, emphasizing

border enforcement over interior removals, and resetting the agencys priorities.

The Obama Administration inherited an immigration enforcement regime that had doubled in size

since 2002. In President Bushs last year in office, the budget for immigration and border

enforcement reached more than $17 billion and those resources were leveraged to deport 360,000

people. So the immigration enforcement apparatus was already built and in overdrive when

President Obama took office. Over the course of the last 6 years, the annual budget for immigration and border enforcement has

hovered between $17 and $18 billion with an average of roughly 400,000 removals each year.

It is true that there has been a slight uptick in the amount of funding Congress has appropriated

each year for enforcement purposes and in the number of removals that have been effected. But it

is also true that removals have comported more closely with articulated agency prioritiespeople

with criminal convictions, recent illegal entrants, and repeat immigration violators.

It is also true that attempted unlawful entriesa proxy for the number of people attempting to

enter the countryare at their lowest point in the last 40 years; concurrently, the likelihood of

apprehension at the border are at historic highs.

The best characterization of immigration and border enforcement under this administration is nota

ramping up and then a scaling back. It is more a matter of maintaining the inherited scale of

operations while charting a more targeted course by defining and implementing priorities.


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Message Guidance: Executive action will not be a magnetfor future unauthorized immigration:

Strict eligibility requirements: As with the Deferred Action program for DREAMers (aka DACA), the

new grant of deferred action for parents, the DAPA program, has strict eligibility requirements.

Applicants: Must have a citizen or permanent resident child, have been in the country for at least 5

years, and must have entered the country prior to January 1, 2010. No one who came more recently

than 2010, or enters in the future, will be eligible.

Executive action will not be a magnet: There is alsono evidencethat the last legalization program

signed by President Reagan in 1986 (the Immigration Reform and Control Act) incentivized the flow

of unauthorized immigrants. In fact, in the early 1990smore than five years after IRCAthe flow

of unauthorized immigrantsactually dropped.

DACA was not a magnet: There is no evidencethat the DACA program in 2012 caused a surge of

unauthorized migration:

o The uptick in child refugees at the southern border began well before the DACA

program was announced in FY 2012.

o Even taking into account these children, unauthorized migration is still at its lowest

point in the last 40 years.

o Pew estimates that the overall number of unauthorized migrants has stayed steady, not

rising.

New resources for border security: As part of the executive actions, DHS is putting in place newenforcement priorities which will put an even stronger emphasis at identifying, catching, and

removing immigrants caught trying to enter the country without status. These investmentsalong

with a newly announced strategy to coordinate efforts across federal agencies at the borderadd

to the unprecedented resources the administration has already put on the border, doubling the

border patrol, and adding a litany of technology to ensure 100 percent eyes on the border to see

anyone attempting to cross in real time, 24/7.
http://ecademy.agnesscott.edu/~mzavodny/documents/Demography_amnesty_000.pdfhttp://ecademy.agnesscott.edu/~mzavodny/documents/Demography_amnesty_000.pdfhttp://ecademy.agnesscott.edu/~mzavodny/documents/Demography_amnesty_000.pdfhttp://onlinelibrary.wiley.com/doi/10.1111/imre.12022/fullhttp://onlinelibrary.wiley.com/doi/10.1111/imre.12022/fullhttp://onlinelibrary.wiley.com/doi/10.1111/imre.12022/fullhttp://onlinelibrary.wiley.com/doi/10.1111/imre.12022/fullhttp://ecademy.agnesscott.edu/~mzavodny/documents/Demography_amnesty_000.pdf


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Message Guidance on Immigration Executive Action: Economics

Topline Message: Everyone agrees that our immigration system is broken and needs reform. While only

Congress has the power to fix the immigration system once and for all, until it acts, there are important

steps the president can take that will start fixing the system while also increasing tax revenues, and

strengthening our economy.

Today, 11 millions of immigrants are living and working in the United States without legal authorization.

Their lack of official status has relegated them to the margins of the formal economy. That keeps them

from realizing their economic potential and it keeps the government from collecting their, and their

employers,full share or taxes.

Enabling these immigrants to register with the government and request a reprieve from removal will

permit them to work legally, at least temporarily. That will provide these workers with the mobility tosecure jobs that will maximize their skill sets and enhance their productivity. It will also ensure that

these workers and their employers are on the books and paying their share of taxes.

Expanding deferred action will significantly strengthen our economy. When undocumented immigrants

get work authorization, they are able to shield themselves against workplace exploitation, move freely

across the labor market, and find jobs that best match their skills. That leads to a rise in wages and those

extra earnings get spent throughout the economy. That, in turn, drives up demand for goods and

services, and ultimately creates more jobs for all Americans.

Deferred action increases tax revenues, not competition:

A deferred action program will not increase the number of people looking for jobs in the U.S.,

thereby competing with American workers. There are already 8 million undocumented immigrants

working in the US. According to the Social Security Administration, only 38% of these workers and

their employers are paying payroll taxes. This means we are missing out on billions of dollars in tax

revenues each year.

Allowing 5 million low-priority undocumented immigrants to apply for work permits under deferred

action would create an avenue for these workers and their employers to get on the books and start

paying taxes, leading to a $22.6 billion increase in revenues,over five years.

Deferred action grows the economy:

Getting a work permit allows undocumented immigrants to move freely across the labor market andfind jobs that best match their skill. It is better for everyone and our economy when people are

working in jobs where they can utilize allof their skills. For example, everyone benefits when a

trained nurse is able to apply and get a job in a hospital instead of working as a nanny in someones

home.

Deferred action Increases the wages of American workers:


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Allowing undocumented immigrant to acquire a work permit will increase their earnings by 8.5%.

Immigrants will spend this extra earnings on things like cars, phones, and clothing. All of this extra

spending adds up, ultimately creating jobs and boosting wages for all workers.

Deferred action will NOT harm American workers:

Labor economist have consistently found that immigrants, including those who might receive

deferred action, and the native-born do not compete against each other because they have

different skill sets, and ultimately hold different jobs. In fact, as immigrants enter the labor

market, native-born workers move up the occupational ladder, with women and African

American workers being the most likely to do so.


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Message Guidance on Immigration Executive Action: National Security

Topline Message: Everyone agrees that our immigration system is broken and needs reform. While only

Congress has the power to fix the immigration system once and for all, until it acts, there are important

steps the president can take which will strengthen our national security.

Reliable data is the cornerstone of any national security strategy. But our broken immigration system

has led to a swollen undocumented population of more than11 millionpeople living in the United

States. We dont know their identities, addresses, or backgrounds. Although the vast majority of these

individuals are hard-working, law-abiding, and deeply rooted in the United States, their anonymity

makes it harder to identify those few individuals who may present a threat to their communities and the

country

A policy like deferred action, that brings low-priority immigrants forward to register with the

government, undergo background checks, and request a reprieve from removal provides the

government with critical data that it would not otherwise obtain. That data will enable the government

to focus its resources on serious criminals and people who might present a threat to national security

rather than hard-working individuals who are contributing to their communities. It also shrinks the

overall pool of people unknown to the government, making it easier to find and weed out serious

threats to the nation.

Executive action will improve national security:

Deferred action includes a rigorous application process that will eliminate any national security

threats. Applicants will have to register with the government and pass background checks before

they can receive the status, so no violent criminals, gang members, or terrorists will be able to take

advantage of the program.

Immigrants are already less likely to commit crimes than the native born: They arefar less likely to

be in prison than the native born, and crime rates are lowest in states with the greatest growth in

immigrant populations.

There is no correlation between unauthorized immigration and crime. In fact, even as the

unauthorized immigrant population has risen over the past two decades, the violent crime rate in

the U.S.has dropped significantly.

Allowing low-priority immigrants to come forward and request deferred action means that there will

be fewer people living in the shadows, beyond the reach of law enforcement. Instead, the

government will know who is here to contribute and who is here to do us harm.

Executive action is legal, and temporary:

There is no question that thepresident has the legal authorityto broadly expand deferred action.

The legal underpinning of deferred action is prosecutorial discretion and federal courts have

recognized the exercise of such discretion in the immigration context for decades.
http://www.pewhispanic.org/2014/09/03/as-growth-stalls-unauthorized-immigrant-population-becomes-more-settled/http://www.pewhispanic.org/2014/09/03/as-growth-stalls-unauthorized-immigrant-population-becomes-more-settled/http://www.pewhispanic.org/2014/09/03/as-growth-stalls-unauthorized-immigrant-population-becomes-more-settled/http://www.immigrationpolicy.org/just-facts/anecdotes-evidence-setting-record-straight-immigrants-and-crime-0http://www.immigrationpolicy.org/just-facts/anecdotes-evidence-setting-record-straight-immigrants-and-crime-0http://cdn.americanprogress.org/wp-content/uploads/2014/07/FitzAdminRelief-report2.pdfhttp://cdn.americanprogress.org/wp-content/uploads/2014/07/FitzAdminRelief-report2.pdfhttp://cdn.americanprogress.org/wp-content/uploads/2014/07/FitzAdminRelief-report2.pdfhttp://cdn.americanprogress.org/wp-content/uploads/2014/07/FitzAdminRelief-report2.pdfhttp://www.immigrationpolicy.org/just-facts/anecdotes-evidence-setting-record-straight-immigrants-and-crime-0http://www.immigrationpolicy.org/just-facts/anecdotes-evidence-setting-record-straight-immigrants-and-crime-0http://www.pewhispanic.org/2014/09/03/as-growth-stalls-unauthorized-immigrant-population-becomes-more-settled/


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There are clear and obviouslimits to what the president can do: for example, he cannot provide

permanent status or citizenship to undocumented immigrants. Anything he does can be undone by

the next president. Executive action is therefore neither a complete nor a permanent solution to the

problems plaguing the immigration system but rather an interim step to make it more effective and

functional until Congress acts.

Every president since Eisenhower has used executive authority on immigration:

All11 presidents from both parties have taken executive actions on immigration39 timesover

the past 60 years.

George H.W. Bush, for example, in accordance with his Family Fairness policy, deferred the

deportation of up to1.5 millionundocumented spouses and children of individuals who were

legalized under the Immigration Reform and Control Act of 1986. That was approximately 40%of the estimated undocumented population at the time.

Executive action will not be a magnetfor future unauthorized immigration:

As with the Deferred Action program for DREAMers (aka DACA), any expansion of deferred action

will have strict eligibility requirements and only apply to individuals who have been in the country

for a significant period of time (e.g. 5 or 10 years). Anyone who came more recently or after the

announcement will be ineligible.

There is alsono evidencethat the last legalization program signed by President Reagan in 1986 (the

Immigration Reform and Control Act) incentivized the flow of unauthorized immigrants. In fact, in

the early 1990smore than five years after IRCAthe flow of unauthorized immigrantsactually

dropped.

In any case, the massive buildup at the border since 1993 and especially over the last 10 years has

created a more secure border than ever before. Congress holds the key to providing lasting control

over the border by modernizing our legal immigration system and created legal channels that

effectively regulate our integrated labor market.

The public strongly supports fixing the immigration system:

A2014 Gallup poll shows that 94 percent of Americans believed it is important for the

administration to take steps to deal with undocumented immigrants already living in the U.S. this

year.

By a 57 to 39 percent margin, voters inElection Day exit pollspreferred offering legal status tounauthorized immigrants working in the U.S., rather than deporting them.
http://www.immigrationpolicy.org/sites/default/files/docs/the_presidents_discretion_immigration_enforcement_and_the_rule_of_law_final_1.pdfhttp://www.immigrationpolicy.org/sites/default/files/docs/executive_grants_of_temporary_immigration_relief_1956-present_final_4.pdfhttp://www.immigrationpolicy.org/sites/default/files/docs/executive_grants_of_temporary_immigration_relief_1956-present_final_4.pdfhttp://www.immigrationpolicy.org/sites/default/files/docs/executive_grants_of_temporary_immigration_relief_1956-present_final_4.pdfhttps://www.americanprogress.org/issues/immigration/news/2014/10/06/98321/by-the-numbers-every-president-since-eisenhower-has-taken-executive-action-on-immigration/http:/www.immigrationpolicy.org/sites/default/files/docs/executive_grants_of_temporary_immigration_relief_1956-present_final_4.pdfhttps://www.americanprogress.org/issues/immigration/news/2014/10/06/98321/by-the-numbers-every-president-since-eisenhower-has-taken-executive-action-on-immigration/http:/www.immigrationpolicy.org/sites/default/files/docs/executive_grants_of_temporary_immigration_relief_1956-present_final_4.pdfhttp://ecademy.agnesscott.edu/~mzavodny/documents/Demography_amnesty_000.pdfhttp://ecademy.agnesscott.edu/~mzavodny/documents/Demography_amnesty_000.pdfhttp://ecademy.agnesscott.edu/~mzavodny/documents/Demography_amnesty_000.pdfhttp://onlinelibrary.wiley.com/doi/10.1111/imre.12022/fullhttp://onlinelibrary.wiley.com/doi/10.1111/imre.12022/fullhttp://onlinelibrary.wiley.com/doi/10.1111/imre.12022/fullhttp://onlinelibrary.wiley.com/doi/10.1111/imre.12022/fullhttp://www.gallup.com/poll/1660/immigration.aspxhttp://newpartners.pr-optout.com/Tracking.aspx?Data=HHL%253d%253e286A%2526JDG%253c%253d1%2540348.LP%253f%2540083%253a&RE=MC&RI=4673619&Preview=False&DistributionActionID=43944&Action=Follow+Linkhttp://newpartners.pr-optout.com/Tracking.aspx?Data=HHL%253d%253e286A%2526JDG%253c%253d1%2540348.LP%253f%2540083%253a&RE=MC&RI=4673619&Preview=False&DistributionActionID=43944&Action=Follow+Linkhttp://newpartners.pr-optout.com/Tracking.aspx?Data=HHL%253d%253e286A%2526JDG%253c%253d1%2540348.LP%253f%2540083%253a&RE=MC&RI=4673619&Preview=False&DistributionActionID=43944&Action=Follow+Linkhttp://newpartners.pr-optout.com/Tracking.aspx?Data=HHL%253d%253e286A%2526JDG%253c%253d1%2540348.LP%253f%2540083%253a&RE=MC&RI=4673619&Preview=False&DistributionActionID=43944&Action=Follow+Linkhttp://www.gallup.com/poll/1660/immigration.aspxhttp://onlinelibrary.wiley.com/doi/10.1111/imre.12022/fullhttp://onlinelibrary.wiley.com/doi/10.1111/imre.12022/fullhttp://ecademy.agnesscott.edu/~mzavodny/documents/Demography_amnesty_000.pdfhttps://www.americanprogress.org/issues/immigration/news/2014/10/06/98321/by-the-numbers-every-president-since-eisenhower-has-taken-executive-action-on-immigration/http:/www.immigrationpolicy.org/sites/default/files/docs/executive_grants_of_temporary_immigration_relief_1956-present_final_4.pdfhttp://www.immigrationpolicy.org/sites/default/files/docs/executive_grants_of_temporary_immigration_relief_1956-present_final_4.pdfhttp://www.immigrationpolicy.org/sites/default/files/docs/executive_grants_of_temporary_immigration_relief_1956-present_final_4.pdfhttp://www.immigrationpolicy.org/sites/default/files/docs/the_presidents_discretion_immigration_enforcement_and_the_rule_of_law_final_1.pdf


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Message Guidance on Immigration Executive Action: Border Security

Topline: Our southern border with Mexico is safer than ever. We have more resources, agents, and

technology patrolling the border than ever, and the number of people crossing is at a40-year low. The

administration is deporting an average of400,000 people per year, with removals at the border

accounting for70 percent of all deportations in 2013. Executive action on immigration furthers the

concept ofprosecutorial discretion to direct immigration enforcement resources against serious

offenders, rather than otherwise law-abiding family and community members. Executive action will not

end all deportations, nor will it mean any lessening of a focus on securing the southern border.

The border is more secure than ever

Apprehensions at the southern bordera proxy for the number of people trying to cross without

authorizationare ata forty year low.o Even with the number of unaccompanied children arriving in the U.S., overall unauthorized

migration is still at its lowest point in a generation.

Unauthorized immigrants are more likely to be apprehended crossing the border than ever: The

median time between entry and apprehensions is nowjust 4 days.

The Border Patrol has doubled over the past decade, to over21,000 agents in FY 2013.

CBP has constructed651 miles of border fencing, over 99 percent of the Congressional requirement.

There ismore technology monitoring the southern border than ever before, including close to

12,000 ground sensors, close to 300 remote video surveillance points, and close to 200 mobile video

surveillance points.

Deportations are at record levels

Deportations werealready on the rise when President Obama took office, rising from only 189,000

people in 2001, to 360,000 in the final year of George W. Bushs presidency.

Over the past 6 years, the Obama administration has deported an average of400,000 people per

year, including 438,000 in FY 2013.

The Obama administration has puta focus on border enforcement first: Removals at the border

under President Bush had fallen to only 53 percent of all deportations in 2008, but by 2013, they

accounted for 70 percent of all deportations.

Executive action will not change the focus on securing the southern border

Allowing low-priority immigrants to come forward and request deferred action status, if theyregister and pass background checks, continues the policy of prosecutorial discretion which

prioritizes recent illegal entrants and serious criminals. It ensures that the focus is on serious threats

to community safety rather than otherwise law-abiding immigrants.

A program of deferred action will further focus the administrations efforts on tracking down serious

offenders, allowing immigration enforcement agencies to focus on them first and foremost.
http://www.cbp.gov/sites/default/files/documents/U.S.%20Border%20Patrol%20Fiscal%20Year%20Apprehension%20Statistics%201960-2013.pdfhttp://www.pewresearch.org/fact-tank/2014/10/02/u-s-deportations-of-immigrants-reach-record-high-in-2013/http://www.migrationpolicy.org/research/deportation-and-discretion-reviewing-record-and-options-changehttps://www.americanprogress.org/issues/immigration/report/2014/07/01/93042/what-the-president-can-do-on-immigration-if-congress-fails-to-act/http://www.cbp.gov/sites/default/files/documents/U.S.%20Border%20Patrol%20Fiscal%20Year%20Apprehension%20Statistics%201960-2013.pdfhttp://www.migrationpolicy.org/research/deportation-and-discretion-reviewing-record-and-options-changehttp://www.cbp.gov/sites/default/files/documents/U.S.%20Border%20Patrol%20Fiscal%20Year%20Staffing%20Statistics%201992-2013.pdfhttp://www.migrationpolicy.org/research/immigration-enforcement-united-states-rise-formidable-machineryhttp://fedscoop.com/dhs-secretary-touts-technology-reorganization-new-approach-border-security/http://www.pewresearch.org/fact-tank/2014/10/02/u-s-deportations-of-immigrants-reach-record-high-in-2013/http://www.pewresearch.org/fact-tank/2014/10/02/u-s-deportations-of-immigrants-reach-record-high-in-2013/http://www.migrationpolicy.org/research/deportation-and-discretion-reviewing-record-and-options-changehttp://www.migrationpolicy.org/research/deportation-and-discretion-reviewing-record-and-options-changehttp://www.pewresearch.org/fact-tank/2014/10/02/u-s-deportations-of-immigrants-reach-record-high-in-2013/http://www.pewresearch.org/fact-tank/2014/10/02/u-s-deportations-of-immigrants-reach-record-high-in-2013/http://fedscoop.com/dhs-secretary-touts-technology-reorganization-new-approach-border-security/http://www.migrationpolicy.org/research/immigration-enforcement-united-states-rise-formidable-machineryhttp://www.cbp.gov/sites/default/files/documents/U.S.%20Border%20Patrol%20Fiscal%20Year%20Staffing%20Statistics%201992-2013.pdfhttp://www.migrationpolicy.org/research/deportation-and-discretion-reviewing-record-and-options-changehttp://www.cbp.gov/sites/default/files/documents/U.S.%20Border%20Patrol%20Fiscal%20Year%20Apprehension%20Statistics%201960-2013.pdfhttps://www.americanprogress.org/issues/immigration/report/2014/07/01/93042/what-the-president-can-do-on-immigration-if-congress-fails-to-act/http://www.migrationpolicy.org/research/deportation-and-discretion-reviewing-record-and-options-changehttp://www.pewresearch.org/fact-tank/2014/10/02/u-s-deportations-of-immigrants-reach-record-high-in-2013/http://www.cbp.gov/sites/default/files/documents/U.S.%20Border%20Patrol%20Fiscal%20Year%20Apprehension%20Statistics%201960-2013.pdf


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Even as the president is protecting low-priority immigrants from removal, enforcement and removal

will continue unchanged. The administration will continue to deport people who enter without legal

status, and will continue to secure the border to keep them from entering in the first place.


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MEMORANDUM:LEGAL AUTHORITY TO EXPAND DEFERRED ACTIONTo: Interested Parties

From: Center for American Progress

Date: Nov. 12, 2014

Overview

A wide body of unambiguous federal case law makes clear that the Executive Branch has broadprosecutorial discretion over the enforcement of federal law. Prosecutorial discretion, of course, is the

decision by a prosecutor to enforce, or not enforce, the law against an individual in a specific instance.

That exercise of discretion is rooted in the Presidentsconstitutional authority to takeCare that the

Laws be faithfully executed,1and is the inevitable by-product of enforcement in a universe of limited

resources.

The courts have repeatedly affirmed that this broad discretionary authority extends to the

agency context, when a federal agency like the Department of Homeland Security is the decision-maker,

rather than a criminal prosecutor.2And more specifically, federal courts have explicitly concluded that it

extends to immigration matters.

3

In the immigration context today, where there is a profound mismatchbetween enforcement resources and enforcement targets, Executive Branch discretion in deciding how

to allocate those resources is unavoidable.

Judicial review of enforcement decisions based on prosecutorial discretion is disfavored

because, among other things, theGovernment's enforcement priorities, and the case's relationship to

the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts

are competent to undertake.4 And in the agency context, because the decision to initiate

1 U.S. Const. Art. II, 3; United States v. Armstrong, 517 U.S. 456, 447 (1996); Heckler v. Chaney,

470 U.S. 821, 832 (1985).2 See Heckler, 470 U.S. at 832.3 SeeArizona v. United States, 132 S. Ct. 2492, 2499 (2012) (Aprincipal feature of the removal

system is the broad discretion exercised by immigration officials. . . Federal officials, as an initial matter,

must decide whether it makes sense to pursue removal at all . . .).4 Wayte v. United States, 470 U.S. 598, 607 (1985).


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administrative actions sharesto some extent the characteristics of the decision of a prosecutor in the

executive branch [,+courts are similarly hesitant to review agency decisions not to enforce.5

Over the years there have been numerous written agency policies guiding the exercise of

discretion in immigration enforcement, the most recent of which was the June 2011 memo from John

Morton, the former Director of Immigration and Customs Enforcement (ICE).6These memos identify

what types of individuals and what types of conduct should be prioritized for enforcement and

conversely who and what should be low priorities. The current articulated prosecutorial discretion

standard for ICE and for Citizenship and Immigration Services (USCIS) isprincipally one of pursuing

those cases that meet the agencys priorities for federal immigration enforcement generally.7

Although prosecutorial discretion often occurs in the normal course of enforcement, thegovernment can also establish policies that allow individuals to come forward and request an exercise of

discretion in their case. And in the immigration arena, the government has exercised its discretion

through a variety of administrative mechanisms, including deferred action.

Deferred action is a discretionary determination, recognized in statute and regulation, to defer

removal of an individual as an act of prosecutorial discretion.8 Decisions are made on a case-by-case

basis following an individualized review of the applicantsrequest. For decades, federal officials in both

Republican and Democratic administrations have utilized deferred action in individual cases and

implemented policies that made it available to particular classes of people.

In short, prosecutorial discretion is so deeply ingrained in our constitutional architecture that it

amounts to an unexceptional exercise of executive power. Yet despite the wide latitude afforded the

executive branch, it is also true that the discretion is not unbounded and can be reinforced or

constrained (to some degree) by Congress.9 Several constitutional and statutory constraints establish

outer limits on the administrationsauthority to expand deferred action.

This brief provides additional background on deferred action and analyzes the constitutional and

statutory constraints on an expansion of deferred action. It concludes that, as long as the Administration

operates within those constraints, there are no legal obstacles to an expansion of deferred action.

5 Heckler, 470 U.S. at 832.6 Immigration and Customs Enforcement Memorandum, 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 Id.8 SeeINA Section 237(d)(2); 8 C.F.R. Section 274a.12(c)(14)9 SeeHeckler, 470 U.S. at 832-33


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Background

Immigration officers are entrusted with the power to make individualized enforcement

decisions based on the availability of resources, agency enforcement priorities, and humanitarian

concerns. A wide variety of individualized enforcement decisions are subject to prosecutorial discretion,

including initiating removal cases, granting deferred action, granting parole, staying a final order of

removal, executing a removal order, and deciding to issue or cancel a notice of detainer. 10

The Executive Branch has long used prosecutorial discretion in enforcing immigration law. As a

1959 textbook on immigration reform explained, Congresstraditionally has entrusted the enforcement

of its deportation policies to executive officers and this arrangement has been approved by the

courts.11

This practice has been constant through both Republican and Democratic administrations.During the George W. Bush Administration, for example, the Principal Legal Advisor for ICE explained the

Administration policy that some cases cryfor an exercise of prosecutorial discretion.12

Deferred action is also a long-standing practice. The Executive Branch has used it for decades to

ensure the efficient and effective administration of the Immigration and Nationality Act s(INA)

detention and deportation provisions. In fact, every President since Eisenhower has utilized deferred

action or similar administrative mechanisms to exercise discretion in removal decisions.13

For example, in 1977, the Attorney General temporarily suspended the deportation of the Silva

letterholders,who were foreign nationals from the Western Hemisphere living in the United States

without legal authorization. Their deportation was suspended during the pendency of a class action

filed on their behalf, which sought to reclaim 145,000 visa slots that were incorrectly counted against

the quota for their countries.14

Another example of the large scale use of deferred action came in 1990, when President George

H.W. BushsImmigration Commissioner expanded a blanket deferral of removal for all spouses and

10 Immigration and Customs Enforcement Memorandumat 2-3.11 Charles Gordon & Harry N. Rosenfeld, Immigration Law & Procedure 406 (1959).12

Immigration and Customers Enforcement Memorandum,Prosecutorial Discretion

, (Oct. 24,2005).13 See ExecutiveGrants of Temporary Immigration Relief, 1956-Present,American Immigration

Council, (Oct. 14, 2014), available at http://www.immigrationpolicy.org/just-facts/executive-grants-

temporary-immigration-relief-1956-present. 14 See CRS Memorandum, Analysisof June 15, 2012 DHS Memorandum, Exercising Prosecutorial

Discretion with Respect to Individuals Who Came to the United States as Children(July 13, 2012) (July

2012 CRS Memorandum).
http://www.immigrationpolicy.org/just-facts/executive-grants-temporary-immigration-relief-1956-presenthttp://www.immigrationpolicy.org/just-facts/executive-grants-temporary-immigration-relief-1956-presenthttp://www.immigrationpolicy.org/just-facts/executive-grants-temporary-immigration-relief-1956-presenthttp://www.immigrationpolicy.org/just-facts/executive-grants-temporary-immigration-relief-1956-present


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children of the individuals legalized under the 1986 Immigration Reform and Control Act.15That program

protected some 1.5 million individuals from removal, an estimated 40% of the undocumented

population at the time.

Moreover, federal regulations and policies have long authorized deferred action. Following the

actions taken on behalf of Silva letter holders, the Immigration and Naturalization Service (INS) in 1978

promulgated a broad statement regarding the availability of deferred action, which it revised in 1981.

That policy allowed INS district directors to recommend consideration of deferred action in appropriate

cases.16 The 1981 Instruction explained that: Thedeferred action category recognizes that the

Service has limited enforcement resources and that every attempt should be made administratively to

utilize these resources in a manner which will achieve the greatest impact under the immigration laws.

The executive branch has also issued a number of regulations providing for deferred action.17

In September 2012, USCIS implemented the Deferred Action for Childhood Arrivals (DACA)

program. DACA does not confer substantive rights, immigration status, or pathways to citizenship on

those that meet the programseligibility criteria.18 Instead, eligible individuals are granted the

opportunity to request a determination of whether they should be granted deferred action consistent

with DHSsexisting prosecutorial discretion policy.

For successful applicants, USCIS defers removal proceedings for two years, subject to renewal.

Under existing regulations, such individuals may apply for employment authorization. As of June 2014,

USCIS had accepted 685,544 requests for deferred action under the program. It had approved 580,946requests and rejected 23,883 requests, with the rest pending action.19

15 Id.16 SeeMadaLuna v. Fitzpatrick, 813 F.2d 1006, 1008 n.1(9th Cir. 1987).17 See, e.g., 8 C.F.R. 214.14(d) (allowing for deferred action in the U-visa context); 8 C.F.R.

214.11 (allowing deferred action to T visa applicants); 70 Fed. Reg. 70992-70996 (Nov. 25, 2005)

(providing deferred action to foreign students impacted by Hurricane Katrina).18 Childhood arrivals must make a request to USCIS for deferred action. In order to make a request

an applicant must have: (1) been younger than age 31 as of June 15, 2012; (2) come to the United Statesbefore age 16; (3) continuously resided in the United State for five consecutive years; (4) entered the

United States without inspection before June 15, 2012 (or have had lawful immigration status expire as

of that date); (5) graduated from high school, currently be in school, or be an honorably discharged

veteran of the Coast Guard or Armed Forces of the United States ; (6) not been convicted of a felony or

serious misdemeanor; and (7) been physically present in the United States on June 15, 2012.19 USCIS, Numberof I-821D, Consideration of Deferred Action for Childhood Arrivals by Fiscal

Year, Quarter, Intake, Biometrics and Case Status: 2012-2014,availableat
https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1987039985&pubNum=350&originationContext=document&transitionType=DocumentItem&contextData=(sc.Keycite)#co_pp_sp_350_1012https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1987039985&pubNum=350&originationContext=document&transitionType=DocumentItem&contextData=(sc.Keycite)#co_pp_sp_350_1012https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1987039985&pubNum=350&originationContext=document&transitionType=DocumentItem&contextData=(sc.Keycite)#co_pp_sp_350_1012https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1987039985&pubNum=350&originationContext=document&transitionType=DocumentItem&contextData=(sc.Keycite)#co_pp_sp_350_1012https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1987039985&pubNum=350&originationContext=document&transitionType=DocumentItem&contextData=(sc.Keycite)#co_pp_sp_350_1012https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1987039985&pubNum=350&originationContext=document&transitionType=DocumentItem&contextData=(sc.Keycite)#co_pp_sp_350_1012


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Constitutional Constraints

Notwithstanding the executive branchsbroad discretionary authority to expand deferred

action, the Constitution does impose constraints on the Executive Branchsdecision not to enforce the

removal provisions of the immigration laws in certain circumstances. First, the Constitution imposes a

duty on the President to takeCare that the Laws be faithfully executed,and thus prevents the

Executive Branch from refusing to enforce a law simply because the President disagrees with the law.

Second, the president may not selectively enforce the immigration laws based on constitutionally

suspect criteriasuch as race, gender, or religion. Third, the president may not usurp Congresssrole in

legislating. As discussed below, however, none of these limitations presents an obstacle to a deferred

action program modeled on the DACA program instituted in June 2012.

Take Care Clause

The first constitutional constraint on the Executive Branchsauthority to expand the use of

deferred action is the Take Care Clause of the Constitution, which provides that the President shall take

care that the Laws be faithfully executed.20 While one could conceive of an Executive Branch

enforcement policy that might violate the Take Care Clauseif, for example, the President simply

refused to enforce an immigration law at all because he substantively disagreed with itno such

objection can be raised against either DACA or any similarly constructed future deferred action program,

for at least three reasons.

First, the Obama Administration is actively enforcing and implementing U.S. immigration laws,

including the provisions for removal of persons present without authorization and (especially) criminal

aliens. Just last year, ICE removed more than 400,000 individuals, 99% of which met one or more of the

agencyscivil immigration enforcement priorities.21 ICEschoice to develop intelligent priorities for the

use of its enforcement resourcesto weigh national security, public safety, border security, and

humanitarian concernsdoes not violate the Take Care Clause. To the contrary, with limited budgetary

resources, ICE is compelled to prioritize cases to administer the immigration laws effectively and

efficiently.

http://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20

Forms%20Data/All%20Form%20Types/DACA/DACA_fy2014_qtr3.pdf20 U.S. Const. Art. II, 3.21 Marc R. Rosenblum & Kristen McCabe, Deportationand Discretion: Reviewing the Record and

the Option to Change(Migration Policy Institute, October 2014), available at

http://www.migrationpolicy.org/research/deportation-and-discretion-reviewing-record-and-options-

change
http://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/All%20Form%20Types/DACA/DACA_fy2014_qtr3.pdfhttp://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/All%20Form%20Types/DACA/DACA_fy2014_qtr3.pdfhttp://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/All%20Form%20Types/DACA/DACA_fy2014_qtr3.pdfhttp://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/All%20Form%20Types/DACA/DACA_fy2014_qtr3.pdf


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Second, the use of prosecutorial discretion in immigration enforcement is not a new

development that undercuts existing law, but rather has long been a central element of the immigration

system.22 Deferred action itself has been used in individual removal cases (e.g., John Lennon) and been

made available to specific classes of foreign nationals (e.g., foreign students impacted by Hurricane

Katrina, individuals applying for relief under the Violence Against Women Act, and widows and

widowers of U.S. citizens).

Third, we are not aware of any court decision invalidating a discretionary enforcement policy as

a violation of the Take Care Clause. Although that does not preclude a novel enforcement of that

constitutional provision, it makes such a challenge unlikely to succeed, particularly in light of the two

factors discussed above.

Selective Enforcement

The second constitutional constraint on deferred action is that the government cannot

selectively enforce laws on bases prohibited by the Constitution. An expanded deferred action policy

that utilized constitutionally suspect criteria, such as race, would raise serious constitutional questions.

But neither DACA nor the potentially broader use of deferred action modeled on DACA rests on any such

suspect criteria, making this constraint theoretical. (It bears noting that it appears unlikely that any

person or entity would even have the standing to raise such a challenge. Only an impacted member of

an otherwise protected class would be injured by selective prosecution, and foreign nationals generally

cannot assert selective prosecution as a defense to removal.

23

)

Separation of Powers

Any expansion of deferred action may also have to contend with two separation of powers

arguments that have been raised by critics of DACA. Those critics have charged that DACA is unlawful

either as a program implemented in direct contravention of Congressional will or as action taken

22 See supra at 2-3 (describing the constancy of prosecutorial discretion over several decades and

through administrations of either political party). Just last year ICE issued a prosecutorial discretion-

based enforcement directive urging restraint in enforcement actions against alien parents, legal

guardians, and primary caretakers of minors who are U.S. citizens or lawful permanent residents.U.S.C.I.S. Directive No. 11064.1,Facilitating Parental Interests in the Course of Civil Immigration

Enforcement Activities(August 23, 2013). The Parental Interests Directive does not yet apply to the

parents of children present in the United States with no permanent legal status ( e.g., DACA-eligible

minors).23 See Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 488 (1999) (Asa general

matter . . . an alien unlawfully in this country has no constitutional right to assert selective enforcement

as a defense against his deportation.).


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without an adequate delegation of authority by Congress. Neither argument is persuasive in the context

of DACA or with respect to a broader deferred action program modeled on DACA.

First, critics have charged that DACA is unlawful because it represents an attempt to afford an

immigration benefit to the same population of aliens to whom Congress has failed to extend relief. That

unenacted legislation, the DREAM Act, would confer conditional permanent resident status for certain

immigrant students and would also allow them to apply for permanent legal status as long as they

attend college or serve in the U.S. Armed Forces. This critique is not persuasive for at least two reasons.

First, although a substantially similar group of people would benefit under both programs, DACAunlike

the DREAM Actconfers no substantive rights, immigration status, or pathway to citizenship. Because

the DREAM Act would modify immigrantssubstantive rights under federal immigration law, legislation

would be required. DACA (and a broader form of deferred action) does not have that effect, but rather

constitutes a channeling of Executive Branch discretion within the constraints of existing law. The mere

fact that the Executive Branch might take a step that is within its broad enforcement authority but

which Congress has not specificallyauthorized, does not render that action contrary to congressional

intent.

Second, critics also charge that Congress did not provide the Executive Branch with intelligible

principlesto establish and implement the DACA program. This argument under the non-delegation

doctrine claims that 103(a)(3) of the INA is far too broad a grant of statutory authority to meet the

intelligible principles standard required for the Executive Branch to execute its lawmaking authority. 24

But the non-delegation doctrine has never been used to invalidate an exercise of executive enforcementdiscretion. That is because the doctrine acts as a limit on Congressspower to vest authority in the

Executive Branch, not on the Executive Branchsauthority itself. Congress always legislates against a

background that includes the fundamental principle that the Executive Branch has enforcement

discretion.

Moreover, since the mid-1930s,virtuallyevery delegation of lawmaking authority by Congress

to the Executive has been upheld*,+and it is highly unlikely that a court would apply this moribund

doctrine to an immigration program when Congress has repeatedly delegated power to the Executive

Branch in this arena.25 This issue poses no meaningful challenge to the expanded use of deferred action.

Statutory Constraints

Federal statutes also impose some specific constraints on the manner in which deferred action

may be expanded, who may benefit from the expansion, and the overall scale of the expansion. First,

24 See, e.g., Whitman v. Am. Trucking Assn.,Inc., 531 U.S. 457 (2001).25 Id.at 282.


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the Impoundment Control Act prohibits the taking of any. . . executive action or inaction which

effectively precludes the obligation or expenditure of budget authority,except in specific

circumstances that may not apply in this context. Second, appropriations riders require DHS to conduct

a background check before granting an immigration benefit, including deferred action, to any individual.

Third, the Immigration and Nationality Act also contains language explicitly regulating the granting of

immigration benefits, such as adjustment of status, so a deferred action program could not grant such

benefits. And fourth, the Administrative Procedure Act (APA) generally prohibits the creation of a new

substantive rule without engaging in notice-and-comment rulemaking. As with the constitutional

constraints described above, none of these limitations will prevent the expansion of a deferred action

program modeled on DACA.26

Impoundment Control Act

The Impoundment Control Act regulates the Presidentsauthority to impound, i.e.not spend,

funds that Congress has appropriated. There are two categories of impoundmentthat the President

26 Other objections that have been raised to DACA and the expansion of any such programs are

clearly meritless and warrant only brief discussion. For example, DACA has been challenged as in

conflict with 1225(b)(1)(A) of the Immigration and Nationality Act, which states: Ifan immigration

officer determines that an alien . . . who is arriving in the United States or . . . is inadmissible . . . the

officer shall orderthe alien removed from the United States without further hearing or review . . . . 8

U.S.C. 1225(b)(1)(A) (emphasis added). In Crane v. Napolitano, No. 3:12-cv-03247, 2013 WL 1744422(N.D. Tex. 2013), the court held that this provision prohibited immigration officials from granting

deferred action to arriving and inadmissible aliens, due to the mandatory shallin the statute. The case

was subsequently dismissed for lack of jurisdiction and has not been addressed by other courts. Indeed,

commentators have roundly criticized the Craneholding and its interpretation of shallin the INA

context. See, e.g.,Jeffrey A. Love & Arpit K. Garg, Presidential Inaction and the Separation of Powers,

112 Mich. L. Rev. 1195, 1200 (2014) (arguing that critics of DACA have not presented a cogent legal

argument and citing the Cranedecision as representing a minority view); Lauren Gilbert,Obama's Ruby

Slippers: Enforcement Discretion in the Absence of Immigration Reform, 116 W. Va. L. Rev. 255, 256

(2013) (discussing the Cranedecision but concluding that DACA falls squarely within the Presidents

powers); see alsoDavid A. Martin,A Defense of Immigration-Enforcement Discretion: The Legal and

Policy Flaws in Kris Kobach's Latest Crusade,122 Yale L.J. Online 167 (2012) (concluding the use ofshallin the INS affords the Executive Branch broad discretion over immigration enforcement

decisions). Further, Cranestreatment of the word shallis inconsistent with many other federal

decisions. See, e.g., Delgado v. Holder, 648 F.3d 1095 (9th Cir. 2011) (en banc) (holding that the

Attorney General has discretion to hold that a non-aggravated felony constitutes a particularlyserious

crimefor purposes of withholding of removal despite the statutesuse of shall);Matter of E-R-M &L-

R-M, 25 I. & N. Dec. 520 (2011) (holding that the shallin 1225(b)(2)(B) is permissive rather than

mandatory).


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appropriation.31 Consequently, DHS has substantial discretion over howit spends the appropriated

funds, so long as it stays within the very broad parameters of the statutory language. (Of course,

Congress could include more specific language in future appropriations bills.)

Third, an expanded deferred action policy would have at most a contingent, uncertain impact on

future enforcement spending. As an initial matter, the issuance of an expanded policy might, due to

implementation delays, have little to no impact on DHSsability to spend presently-appropriated funds.

Any impact on future expenditures would (A) only affect funds not yet appropriated; (B) result from

case-by-case decisionmaking, with each individual case having no material effect; and (C) be highly

contingent on funding and enforcement decisions made by future Congresses and agency officials. In

these circumstances, it is unclear whether a deferred-action policy would constitute an executive

action which effectively precludes the obligation or expenditure of budget authoritygoverned by the

Impoundment Control Act.

Fourth, as discussed above, the use of prosecutorial discretion is grounded in the Presidents

constitutional authority and well-established in the immigration context.32 Courts will hesitate to read

the Impoundment Control Act, in conjunction with appropriations legislation, to effectively override that

discretion by requiring the Executive Branch to spend fixed sums carrying out enforcement actions that

it would have otherwise declined to pursue.

Appropriations Restrictions

A rider on the Department of Homeland Security Appropriations Act of 2014 imposes a concrete

procedural limitation on any expanded deferred action policy. That provision requires that a

background check be performed on an alien before any immigration benefit is granted.33 Because

31 See Lincoln v. Vigil, 508 U.S. 182, 192 (1993) (*T+hevery point of a lump sum appropriation is to

give an agency the capacity to adapt to changing circumstances and meet its statutory responsibilities in

what it sees as the most effective or desirable way. . . . [A] fundamental principle of appropriations law

is that where Congress merely appropriates lump-sum amounts without statutorily restricting what can

be done with those funds, a clear inference arises that it does not intend to impose legally binding

restrictions . . ..);

UAW v. Donovan

, 746 F.2d 855, 860-861 (D.C. Cir. 1984) (Scalia, J.)(A

lump-sumappropriation leaves it to the recipient agency (as a matter of law, at least) to distribute the funds

among some or all of the permissible objects as it sees fit.)32 See, e.g.,Arizona v. United States, 132 S. Ct. 2492, 2499 (2012) (Aprincipal feature of the

removal system is the broad discretion exercised by immigration officials.)33 See 113 HR 3457, at 269 (SEC.524. None of the funds made available in this Act may be used

by United States Citizenship and Immigration Services to grant an immigration benefit unless the results

of background checks required by law to be completed prior to the granting of the benefit have been


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deferred action qualifies as an immigration benefit, any expanded deferred action policy must

incorporate background checks in the same manner that DACA already does.

An appropriations rider also provides that DHS shallmaintain a level of not less than 34,000

detention beds.34At present, DHS correctly interprets this language as a detention capacity

requirement rather than a detention utilization requirement. See [Testimony of Secretary Johnson

before House Appropriations Committee in March 2014]. As a result, this mandate would not conflict

with any expanded use of deferred action.

Immigration and Nationality Act

The Immigration and Nationality Act (INA)does not contain any express limits on deferred

action relief. Nevertheless, the INA does contain detailed rules for granting benefits that are more

permanent and substantial than deferred action. For example, the INAs adjustment of status provision

sets forth specific categories of persons who may apply for adjustment of status.35 The comprehensive

nature of that list implies that Congress did not authorize the Executive Branch to create new categories

of people who may receive a status adjustment. Consequently, any expanded deferred action program

should not attempt to authorize recipients to adjust their status directly or obtain other benefits in a

manner that contravenes existing law.

Administrative Procedure Act

The Administrative Procedure Act (APA)places procedural requirements on federal agencies.Section 553 of the Act requires agencies to afford notice of a proposed rulemaking and an opportunity

for public comment prior to a rulespromulgation, amendment, modification, or repeal. This process,

including the litigation that often follows, is frequently used by opponents of a policy to challenge or

delay a rule. However, interpretativerules, general statements of policy, [and] rules of agency

organization, practice or procedureare exempted from the notice and comment requirement.36 The

received by United States Citizenship and Immigration Services, and the results do not preclude thegranting of the benefit.).34

Department of Homeland Security, Consolidated Appropriations Act, 2014, P. L. 113-76, P. 128 Stat. 251.35 See8 U.S.C. 1154.36 5 U.S.C. 553(b)(3)(A). In determining the scope of this exception, the Supreme Court has

deferred to the definition of the term generalstatementsofpolicyin the 1947Attorney Generals

Manual on the Administrative Procedure Act(the Manual). SeeVermont Yankee Nuclear Power Corp. v.

Natural Resources Defense Council, 435 U.S. 519, 546 (1978).
https://a.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000546&cite=5USCAS553&originatingDoc=Ic76f72c5955c11d9a707f4371c9c34f0&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=(sc.Keycite)https://a.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000546&cite=5USCAS553&originationContext=document&transitionType=DocumentItem&contextData=(sc.Keycite)#co_pp_d801000002763https://a.next.westlaw.com/link/document/fulltext?findtype=y&sernum=1978114214&pubnum=708&originationcontext=document&transitiontype=documentitem&contextdata=(sc.keycite)https://a.next.westlaw.com/link/document/fulltext?findtype=y&sernum=1978114214&pubnum=708&originationcontext=document&transitiontype=documentitem&contextdata=(sc.keycite)https://a.next.westlaw.com/link/document/fulltext?findtype=y&sernum=1978114214&pubnum=708&originationcontext=document&transitiontype=documentitem&contextdata=(sc.keycite)https://a.next.westlaw.com/link/document/fulltext?findtype=y&sernum=1978114214&pubnum=708&originationcontext=document&transitiontype=documentitem&contextdata=(sc.keycite)https://a.next.westlaw.com/link/document/fulltext?findtype=y&sernum=1978114214&pubnum=708&originationcontext=document&transitiontype=documentitem&contextdata=(sc.keycite)https://a.next.westlaw.com/link/document/fulltext?findtype=y&sernum=1978114214&pubnum=708&originationcontext=document&transitiontype=documentitem&contextdata=(sc.keycite)https://a.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000546&cite=5USCAS553&originationContext=document&transitionType=DocumentItem&contextData=(sc.Keycite)#co_pp_d801000002763https://a.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000546&cite=5USCAS553&originatingDoc=Ic76f72c5955c11d9a707f4371c9c34f0&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=(sc.Keycite)


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Manual defines generalstatementsof policyas statementsissued by an agency to advise the public

prospectively of the manner in which the agency proposes to exercise a discretionary power.37

In the most directly pertinent case on point, a federal court of appeals held that the 1978 and

1981 Immigration and Naturalization Service (INS) Operating Instructions relating to deferred action

were general statements of INS policy, not subject to the requirements of notice-and-comment

rulemaking.38 In reaching its decision, the court addressed when an agency directive is considered a

substantive rule, for which notice and comment procedures are required, or a general statement of

policy, for which they are not.39

Under the APA, a general statement of policy preserves[the officials+flexibility and their

opportunity to make individualized determination*s+.40

To be such a generalstatement of policy,thedirective (1) must operate only prospectively, (2) must not establish a bindingnorm,and (3) must

leaveINS officials free to consider the individual facts in the various cases that arise.41

A key factor considered by most courts is whether the policy provides sufficient discretion to the

agency. For example, the Eleventh Circuit held that a new policy requiring detention for Haitian

immigrants without any discernible guidelines for discretionary parolea departure from prior policy

did not qualify as a general statement of policy because such a broadrule of detention with undefined

37 MadaLuna v. Fitzpatrick, 813 F.2d 1006, 101213(9th Cir. 1987) (citing the Manual, at 30. n. 3

(1947) (emphasis removed)).38

See813 F.2d at 1012.39

Id. at 1013.40

Id. (quotation marks omitted).41

Id. at 1014 (quotation marks omitted). Other circuits use similar analyses. See S.E.C. v. Markowski,

277 F. Appx903, 905 (11th Cir. 2008) (Thiscourt generally differentiates on the basis that general policy

statements leave agencies freeto exercise discretionwhereas rules establish bindingnorms.);Ctr. for Auto

Safety v. NatlHighway Traffic Safety Admin., 452 F.3d 798, 807 (D.C. Cir. 2006) (noting the difficulty in

distinguishing between generalstatements of policyand agency rules, and looking to whether the statement

reflect*s+final agency actionor constitute*s+binding rules.);Am. Hosp.Assnv. Bowen, 834 F.2d 1037, 1045

(D.C. Cir. 1987)(Agencyactions or statements falling within the three exemptions are not determinative of issuesor rights addressed. They express the agencysintended course of action, its tentative view of the meaning of a

particular statutory term, or internal house-keeping measures organizing agency activities. They do not, however,

foreclose alternate courses of action or conclusively affect rights of private parties.(internal quotation marks

omitted)); Burroughs Wellcome Co. v. Schweiker, 649 F.2d 221, 224 (4th Cir. 1981) (stating that the policy at issue

was a general statement of policy because it operated only prospectively and did not establish a bindingnorm,

but rather *t+heagency retain[ed] discretion to require clinical investigations in appropriate cases and to approve

or disapprove individual NDAs on a case-by-case basis.).
https://a.next.westlaw.com/link/document/fulltext?findtype=y&sernum=1987039985&pubnum=350&originationcontext=document&transitiontype=documentitem&contextdata=(sc.keycite)#co_pp_sp_350_1012https://a.next.westlaw.com/link/document/fulltext?findtype=y&sernum=1987039985&pubnum=350&originationcontext=document&transitiontype=documentitem&contextdata=(sc.keycite)#co_pp_sp_350_1012https://a.next.westlaw.com/link/document/fulltext?findtype=y&sernum=1987039985&pubnum=350&originationcontext=document&transitiontype=documentitem&contextdata=(sc.keycite)#co_pp_sp_350_1012https://a.next.westlaw.com/link/document/fulltext?findtype=y&sernum=1987039985&pubnum=350&originationcontext=document&transitiontype=documentitem&contextdata=(sc.keycite)#co_pp_sp_350_1012https://a.next.westlaw.com/link/document/fulltext?findtype=y&sernum=1987039985&pubnum=350&originationcontext=document&transitiontype=documentitem&contextdata=(sc.keycite)#co_pp_sp_350_1012https://a.next.westlaw.com/link/document/fulltext?findtype=y&sernum=1987039985&pubnum=350&originationcontext=document&transitiontype=documentitem&contextdata=(sc.keycite)#co_pp_sp_350_1012https://a.next.westlaw.com/link/document/fulltext?findtype=y&sernum=1987039985&pubnum=350&originationcontext=document&transitiontype=documentitem&contextdata=(sc.keycite)#co_pp_sp_350_1012


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exceptions is susceptible to rigid enforcement with no opportunity to avoid the rule's harsh results.42

In contrast, the Fourth Circuit allowed the revocation of an interim rule without notice and comment

where the rule was in fact a general statement of policy because authorities retained the discretion to

deny relief to aliens who established eligibility under the interim rule.43

DACAand any broadening of deferred action modeled on DACAplainly qualifies as a general

statement of policyunder the APA. The directive is intended to apply only prospectively to those who

seek relief and it does not create a hard and fast rule that amounts to a bindingnormnot everyone

who meets the criteria to request deferred action under DACA will receive it. Rather, those who meet

certain criteria are invited to request relief and then USCIS is freeto consider the individual facts in the

various cases that arisein determining whether or not to grant deferred action. The DACA policy does

not alter the agencysdiscretion to give or decline such relief. Instead, it merely articulates the fact that

such discretionary relief is potentially available to those with certain characteristics that suggest they

are a low enforcement priority, and then invites that specific class of individuals to request deferred

action.

Any expansion of deferred action to other low priority individuals that shares these

characteristics with DACA will be exempt from notice and comment rulemaking.

* * * * *

For additional information, please contact:

Marshall Fitz: [email protected] // 202-741-6378

Pat Collier: [email protected] // 202-741-6382

42Jean v. Nelson, 711 F.2d 1455, 1482 (11th Cir. 1983).

43Chen Zhou Chai v. Carroll, 48 F.3d. 1331 (4th Cir. 1995). Note that courts have not required that every

aspect of a policy incorporate discretion. In Haitian Centers Council, Inc. v. McNary, a memorandum

instructing INS officers to conduct a second round of interviews of certain asylum applicants that were

identical in form and substance to the first round was deemed to be a general statement of policy

becauseeven though the requirement to conduct the second set of interviews was mandatory the

policy itself did not changethe criteria [asylum seekers] must meet in order to receive asylum.Id., 807

F. Supp. 928 (E.D.N.Y. 1992).
mailto:[email protected]:[email protected]:[email protected]:[email protected]


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Kansas:26,000 undocumented immigrants are eligible for deferred action under the presidents

November 20th executive actions on immigration. If these immigrants are able to receive a temporary

work permit, it would lead to a$22 million increase in tax revenues, over five years. [link]

Kentucky: 15,000 undocumented immigrants are eligible for deferred action under the presidents


work permit, it would lead to a $31 million increase in tax revenues, over five years. [link]

Maryland:60,000 undocumented immigrants are eligible for deferred action under the presidents



Michigan: 35,000 undocumented immigrants are eligible for deferred action under the presidentsNovember 20th executive actions on immigration. If these immigrants are able to receive a temporary

work permit, it would lead to a $49.3 million increase in tax revenues, over five years. [link]

Minnesota: 31,000 undocumented immigrants are eligible for deferred action under the presidents



Missouri:21,000 undocumented immigrants are eligible for deferred action under the presidents


work permit, it would lead to a$27 million increase in tax revenues, over five years.[link]

Nebraska: 15,000 undocumented immigrants are eligible for deferred action under the presidents



Nevada:53,000 undocumented immigrants are eligible for deferred action under the presidents



New Jersey: 150,000 undocumented immigrants are eligible for deferred action under the presidents



New York:258,000 undocumented immigrants are eligible for deferred action under the presidents



North Carolina:122,000 undocumented immigrants are eligible for deferred action under the

presidentsNovember 20th executive actions on immigration. If these immigrants are able to receive a

temporary work permit, it would lead to a$197 million increase in tax revenues, over five years. [link]
https://www.scribd.com/doc/247296800/Economic-Benefits-of-Executive-Action-in-Kansashttps://www.scribd.com/doc/247296800/Economic-Benefits-of-Executive-Action-in-Kansashttps://www.scribd.com/doc/248188292/Economic-Benefits-of-Executive-Action-for-Kentuckyhttps://www.scribd.com/doc/247296799/Economic-Benefits-of-Executive-Action-in-Marylandhttps://www.scribd.com/doc/247296799/Economic-Benefits-of-Executive-Action-in-Marylandhttps://www.scribd.com/doc/248820224/Economic-Benefits-of-Executive-Action-for-Michiganhttps://www.scribd.com/doc/248188323/Economic-Benefits-of-Executive-Action-for-Minnesotahttps://www.scribd.com/doc/247296802/Economic-Benefits-of-Executive-Action-in-Missourihttps://www.scribd.com/doc/247296802/Economic-Benefits-of-Executive-Action-in-Missourihttps://www.scribd.com/doc/248188325/Economic-Benefits-of-Executive-Action-for-Nebraskahttps://www.scribd.com/doc/247196184/Economic-Benefits-of-Executive-Action-for-NVhttps://www.scribd.com/doc/247196184/Economic-Benefits-of-Executive-Action-for-NVhttps://www.scribd.com/doc/248188324/Economic-Benefits-of-Executive-Action-for-New-Jerseyhttps://www.scribd.com/doc/247196186/Economic-Benefits-of-Executive-Action-for-NYhttps://www.scribd.com/doc/247196186/Economic-Benefits-of-Executive-Action-for-NYhttps://www.scribd.com/doc/247196186/Economic-Benefits-of-Executive-Action-for-NYhttps://www.scribd.com/doc/247296805/Economic-Benefits-of-Executive-Action-in-North-Carolinahttps://www.scribd.com/doc/247296805/Economic-Benefits-of-Executive-Action-in-North-Carolinahttps://www.scribd.com/doc/247296805/Economic-Benefits-of-Executive-Action-in-North-Carolinahttps://www.scribd.com/doc/247196186/Economic-Benefits-of-Executive-Action-for-NYhttps://www.scribd.com/doc/248188324/Economic-Benefits-of-Executive-Action-for-New-Jerseyhttps://www.scribd.com/doc/247196184/Economic-Benefits-of-Executive-Action-for-NVhttps://www.scribd.com/doc/248188325/Economic-Benefits-of-Executive-Action-for-Nebraskahttps://www.scribd.com/doc/247296802/Economic-Benefits-of-Executive-Action-in-Missourihttps://www.scribd.com/doc/248188323/Economic-Benefits-of-Executive-Action-for-Minnesotahttps://www.scribd.com/doc/248820224/Economic-Benefits-of-Executive-Action-for-Michiganhttps://www.scribd.com/doc/247296799/Economic-Benefits-of-Executive-Action-in-Marylandhttps://www.scribd.com/doc/248188292/Economic-Benefits-of-Executive-Action-for-Kentuckyhttps://www.scribd.com/doc/247296800/Economic-Benefits-of-Executive-Action-in-Kansas


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Ohio:25,000 undocumented immigrants are eligible for deferred action under the presidents


work permit, it would lead to a$41 million increase in tax revenues, over five years.[link]

Oklahoma: 29,000 undocumented immigrants are eligible for deferred action under the presidents


work permit, it would lead to a $

cap exec action briefing book full

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