Proposed Rule2021-20898
Deferred Action for Childhood Arrivals
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 28, 2021
Issuing agencies
Homeland Security Department
Abstract
On June 15, 2012, the U.S. Department of Homeland Security (DHS) established the Deferred Action for Childhood Arrivals (DACA) policy. The policy--which describes the Secretary of Homeland Security's (Secretary's) exercise of her prosecutorial discretion in light of the limited resources that DHS has for removal of undocumented noncitizens--directed U.S. Citizenship and Immigration Services (USCIS) to create a process to defer removal of certain noncitizens who years earlier came to the United States as children, meet other criteria, and do not present other circumstances that would warrant removal. Since that time, more than 825,000 people have applied successfully for deferred action under this policy. On January 20, 2021, President Biden directed DHS, in consultation with the Attorney General, to take all appropriate actions to preserve and fortify DACA, consistent with applicable law. On July 16, 2021, the U.S. District Court for the Southern District of Texas vacated the June 2012 memorandum that created the DACA policy and what the court called the "DACA program," and it permanently enjoined DHS from "administering the DACA program and from reimplementing DACA without compliance with" the Administrative Procedure Act (APA). However, the district court temporarily stayed its vacatur and injunction with respect to most individuals granted deferred action under DACA on or before July 16, 2021, including with respect to their renewal requests. The district court's vacatur and injunction were based, in part, on its conclusion that the June 2012 memorandum announced a legislative rule that required notice-and-comment rulemaking. The district court further remanded the "DACA program" to DHS for further consideration. DHS has appealed the district court's decision. Pursuant to the Secretary's broad authorities to administer and enforce the immigration laws, consistent with the district court's direction to consider a number of issues on remand, and after careful consideration of the arguments and conclusions on which the district court's decision is based, DHS puts forward for consideration the following proposed rule. DHS invites public comments on the proposed rule and possible alternatives.
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<title>Federal Register, Volume 86 Issue 185 (Tuesday, September 28, 2021)</title>
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[Federal Register Volume 86, Number 185 (Tuesday, September 28, 2021)]
[Proposed Rules]
[Pages 53736-53816]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-20898]
[[Page 53735]]
Vol. 86
Tuesday,
No. 185
September 28, 2021
Part II
Department of Homeland Security
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8 CFR Parts 106, 236, and 274a
Deferred Action for Childhood Arrivals; Proposed Rule
Federal Register / Vol. 86 , No. 185 / Tuesday, September 28, 2021 /
Proposed Rules
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 106, 236, and 274a
[CIS No. 2691-21; DHS Docket No. USCIS-2021-0006]
RIN 1615-AC64
Deferred Action for Childhood Arrivals
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: On June 15, 2012, the U.S. Department of Homeland Security
(DHS) established the Deferred Action for Childhood Arrivals (DACA)
policy. The policy--which describes the Secretary of Homeland
Security's (Secretary's) exercise of her prosecutorial discretion in
light of the limited resources that DHS has for removal of undocumented
noncitizens--directed U.S. Citizenship and Immigration Services (USCIS)
to create a process to defer removal of certain noncitizens who years
earlier came to the United States as children, meet other criteria, and
do not present other circumstances that would warrant removal. Since
that time, more than 825,000 people have applied successfully for
deferred action under this policy. On January 20, 2021, President Biden
directed DHS, in consultation with the Attorney General, to take all
appropriate actions to preserve and fortify DACA, consistent with
applicable law. On July 16, 2021, the U.S. District Court for the
Southern District of Texas vacated the June 2012 memorandum that
created the DACA policy and what the court called the ``DACA program,''
and it permanently enjoined DHS from ``administering the DACA program
and from reimplementing DACA without compliance with'' the
Administrative Procedure Act (APA). However, the district court
temporarily stayed its vacatur and injunction with respect to most
individuals granted deferred action under DACA on or before July 16,
2021, including with respect to their renewal requests. The district
court's vacatur and injunction were based, in part, on its conclusion
that the June 2012 memorandum announced a legislative rule that
required notice-and-comment rulemaking. The district court further
remanded the ``DACA program'' to DHS for further consideration. DHS has
appealed the district court's decision. Pursuant to the Secretary's
broad authorities to administer and enforce the immigration laws,
consistent with the district court's direction to consider a number of
issues on remand, and after careful consideration of the arguments and
conclusions on which the district court's decision is based, DHS puts
forward for consideration the following proposed rule. DHS invites
public comments on the proposed rule and possible alternatives.
DATES: Written comments and related material must be submitted on or
before November 29, 2021.
ADDRESSES: You may submit comments on the entirety of this proposed
rulemaking package, identified by DHS Docket No. 2021-0006, through the
Federal eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the
website instructions for submitting comments.
Comments submitted in a manner other than the one listed above,
including emails or letters sent to DHS or USCIS officials, will not be
considered comments on the proposed rule and may not receive a response
from DHS. Please note that DHS and USCIS cannot accept any comments
that are hand-delivered or couriered. In addition, USCIS cannot accept
comments contained on any form of digital media storage devices, such
as CDs/DVDs and USB drives. USCIS also is not accepting mailed comments
at this time. If you cannot submit your comment by using <a href="https://www.regulations.gov">https://www.regulations.gov</a>, please contact Samantha Deshommes, Chief,
Regulatory Coordination Division, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
by telephone at (240) 721-3000 for alternate instructions.
For additional instructions on sending comments, see the ``Public
Participation'' heading of the SUPPLEMENTARY INFORMATION section of
this document.
FOR FURTHER INFORMATION CONTACT: Andria Strano, Acting Chief, Office of
Policy and Strategy, Division of Humanitarian Affairs, U.S. Citizenship
and Immigration Services, Department of Homeland Security, 5900 Capital
Gateway Drive, Camp Springs, MD 20746; telephone (240) 721-3000.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Executive Summary
A. Purpose of the Regulatory Action
B. Summary of Major Provisions of the Regulatory Action
C. Costs and Benefits
III. Background, Authority, and Purpose
A. History of Discretionary Reprieves From Removal
B. Litigation History
C. Forbearance From Enforcement Action
D. Employment Authorization
E. Lawful Presence
F. Fees
G. Advance Parole
H. Further Analysis, Alternatives, and Call for Comments
IV. Provisions of Proposed Rule
A. Section 106.2--Fees
B. Section 236.21--Applicability
C. Section 236.22--Discretionary Determination
D. Section 236.23--Procedures for Request, Terminations, and
Restrictions on Information Use
E. Section 236.24--Severability
F. Section 236.25--No Private Rights
V. Statutory and Regulatory Requirements
A. Executive Orders 12866 (Regulatory Planning and Review) and
13563 (Improving Regulation and Regulatory Review)
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act of 1995
D. Small Business Regulatory Enforcement Fairness Act of 1996
E. Executive Order 13132: Federalism
F. Executive Order 12988: Civil Justice Reform
G. Paperwork Reduction Act--Collection of Information
H. Family Assessment
I. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
J. National Environmental Policy Act
K. Executive Order 12630: Governmental Actions and Interference
With Constitutionally Protected Property Rights
L. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
List of Abbreviations
APA Administrative Procedure Act
AST Autonomous Surveillance Tower
BLS Bureau of Labor Statistics
CBP U.S. Customs and Border Protection
CEQ Council on Environmental Quality
CFR Code of Federal Regulations
CLAIMS Computer-Linked Application Information Management System
CPI-U Consumer Price Index for All Urban Consumers
DACA Deferred Action for Childhood Arrivals
DAPA Deferred Action for Parents of Americans and Lawful Permanent
Residents
DED Deferred enforced departure
DHS Department of Homeland Security
DOJ Department of Justice
DREAM Act Development, Relief, and Education for Alien Minors Act
EAD Employment authorization document
ELIS Electronic Immigration System
E.O. Executive Order
EOIR Executive Office for Immigration Review
EPS Egregious public safety
EVD Extended voluntary departure
FAIR Federation for American Immigration Reform
FLCRAA Farm Labor Contractor Registration Act Amendments of 1974
[[Page 53737]]
FR Federal Register
FY Fiscal Year
GED General Education Development
ICE U.S. Immigration and Customs Enforcement
IIRIRA Illegal Immigration Reform and Immigrant Responsibility Act
of 1996
IMMACT 90 Immigration Act of 1990
INA Immigration and Nationality Act of 1952
INS Immigration and Naturalization Service
IRCA Immigration Reform and Control Act of 1986
MPI Migration Policy Institute
NEPA National Environmental Policy Act
NOA Notice of action
NOIT Notice of intent to terminate
NTA Notice to appear
OCFO Office of the Chief Financial Officer
OI Operations Instructions
OIRA Office of Information and Regulatory Affairs
OIS Office of Immigration Statistics
OMB Office of Management and Budget
OPQ Office of Performance and Quality
PRA Paperwork Reduction Act of 1995
PRWORA Personal Responsibility and Work Opportunity Reconciliation
Act of 1996
Pub. L. Public Law
RFA Regulatory Flexibility Act
RIA Regulatory Impact Analysis
RIN Regulation Identifier Number
RTI Referral to ICE
SBREFA Small Business Regulatory Enforcement Fairness Act of 1996
Secretary Secretary of Homeland Security
SORN System of Record Notice
Stat. U.S. Statutes at Large
TPS Temporary Protected Status
UMRA Unfunded Mandates Reform Act of 1995
U.S.C. United States Code
USCIS U.S. Citizenship and Immigration Services
VAWA Violence Against Women Act of 1994
VPC Volume Projection Committee
VTVPA Victims of Trafficking and Violence Protection Act of 2000
I. Public Participation
DHS invites all interested parties to participate in this
rulemaking by submitting written data, views, comments, and arguments
on all aspects of this proposed rule. DHS also invites comments that
relate to the economic, environmental, or federalism effects of this
proposed rule. Comments must be submitted in English, or an English
translation must be provided. Comments that will provide the most
assistance to USCIS in implementing these changes will refer to a
specific portion of the proposed rule; explain the reason for any
recommended change; and include data, information, or authority that
supports such recommended change. Comments submitted in a manner other
than the one listed above, including emails or letters sent to DHS or
USCIS officials, will not be considered comments on the proposed rule
and may not receive a response from DHS.
Instructions: If you submit a comment, you must include the agency
name (U.S. Citizenship and Immigration Services) and the DHS Docket No.
USCIS-2021-0006 for this rulemaking. All comments or materials
submitted in the manner described above will be posted, without change,
to the Federal eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a> and
will include any personal information you provide. Therefore,
submitting this information makes it public. You may wish to consider
limiting the amount of personal information that you provide in any
voluntary public comment submission you make to DHS. DHS may withhold
from public viewing information provided in comments that it determines
may impact the privacy of an individual or is offensive. For additional
information, please read the Privacy Notice available at <a href="https://www.regulations.gov/privacy-notice">https://www.regulations.gov/privacy-notice</a>.
Docket: For access to the docket and to read background documents
or comments received, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, referencing
DHS Docket No. USCIS-2021-0006. You also may sign up for email alerts
on the online docket to be notified when comments are posted or a final
rule is published.
II. Executive Summary
A. Purpose of the Regulatory Action
On June 15, 2012, then-Secretary Janet Napolitano issued a
memorandum providing new guidance for the exercise of prosecutorial
discretion with respect to certain young people who came to the United
States years earlier as children, who have no current lawful
immigration status, and who were already generally low enforcement
priorities for removal.\1\ The Napolitano Memorandum states that DHS
will consider granting ``deferred action,'' on a case-by-case basis,
for individuals who:
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\1\ Memorandum from Janet Napolitano, Secretary, DHS, to David
V. Aguilar, Acting Commissioner, U.S. Customs and Border Protection
(CBP), et al. (June 15, 2012), <a href="https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf">https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf</a> (hereinafter Napolitano Memorandum).
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1. Came to the United States under the age of 16;
2. Continuously resided in the United States for at least 5 years
preceding June 15, 2012, and were present in the United States on that
date;
3. Are in school, have graduated from high school, have obtained a
General Education Development (GED) certificate, or are an honorably
discharged veteran of the Coast Guard or Armed Forces of the United
States;
4. Have not been convicted of a felony offense, a significant
misdemeanor offense, or multiple misdemeanor offenses, or otherwise do
not pose a threat to national security or public safety; and
5. Were not above the age of 30 on June 15, 2012.\2\
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\2\ Id.
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Individuals who request relief under this policy, meet the criteria
above, and pass a background check may be granted deferred action.\3\
Deferred action is a longstanding practice by which DHS and the former
Immigration and Naturalization Service (INS) have exercised their
discretion to forbear or assign lower priority to removal action in
certain cases for humanitarian reasons, administrative convenience, or
other reasonable prosecutorial discretion considerations.\4\
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\3\ Id.
\4\ See, e.g., Reno v. Am.-Arab Anti-Discrimination Comm., 525
U.S. 471, 484 (1999) (AADC); 8 CFR 274a.12(c)(14).
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In establishing this policy, known as DACA, then-Secretary
Napolitano emphasized that for the Department to use its limited
resources in a strong and sensible manner, it necessarily must exercise
prosecutorial discretion. Then-Secretary Napolitano observed that these
``young people . . . were brought to this country as children and know
only this country as home'' and as a general matter ``lacked the intent
to violate the law,'' reasoning that limited enforcement resources
should not be expended to ``remove productive young people to countries
where they may not have lived or even speak the language.'' \5\ The
Napolitano Memorandum also instructs that the individual circumstances
of each case must be considered and that deferred action should be
granted only where justified.\6\
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\5\ Napolitano Memorandum.
\6\ Id.
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Since 2012, more than 825,000 people have applied successfully for
deferred action under the DACA policy.\7\ On average, DACA recipients
arrived in the United States in 2001 and at the age of 6.\8\ In
addition, 38 percent of recipients
[[Page 53738]]
arrived before the age of 5.\9\ For many, this country is the only one
they have known as home. In the nearly 10 years since this policy was
announced, DACA recipients have grown into adulthood and built lives
for themselves and their loved ones in the United States. They have
gotten married and had U.S. citizen children. Over 250,000 children
have been born in the United States with at least one parent who is a
DACA recipient, and about 1.5 million people in the United States share
a home with a DACA recipient.\10\ DACA recipients have obtained
driver's licenses and credit cards, bought cars, and opened bank
accounts.\11\ In reliance on DACA, its recipients have enrolled in
degree programs, started businesses, obtained professional licenses,
and purchased homes.\12\ Depending on the health insurance that their
deferred action allowed them to obtain through employment or State-
sponsored government programs, DACA recipients have received improved
access to health insurance and medical care and have sought treatment
for long-term health issues.\13\ For DACA recipients and their family
members, the conferral of deferred action has increased DACA
recipients' sense of acceptance and belonging to a community, increased
their sense of hope for the future, and given them the confidence to
become more active members of their communities and increase their
civic engagement.\14\
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\7\ See USCIS, DACA Quarterly Report (FY 2021, Q1), <a href="https://www.uscis.gov/sites/default/files/document/data/DACA_performancedata_fy2021_qtr1.pdf">https://www.uscis.gov/sites/default/files/document/data/DACA_performancedata_fy2021_qtr1.pdf</a>. As of the end of CY 2021,
there were over 636,00 active DACA recipients in the United States.
See USCIS, Count of Active DACA Recipients By Month of Current DACA
Expiration (Dec. 31, 2020), <a href="https://www.uscis.gov/sites/default/files/document/data/Active_DACA_Recipients%E2%80%93December31%2C2020.pdf">https://www.uscis.gov/sites/default/files/document/data/Active_DACA_Recipients%E2%80%93December31%2C2020.pdf</a>.
\8\ DHS, USCIS, Office of Performance and Quality (OPQ),
Electronic Immigration System (ELIS) and Computer-Linked Application
Information Management System (CLAIMS) 3 Consolidated (queried Mar.
2021).
\9\ Id.
\10\ Nicole Prchal Svajlenka and Philip E. Wolgin, What We Know
About the Demographic and Economic Impacts of DACA Recipients:
Spring 2020 Edition, Center for American Progress (Apr. 6, 2020),
<a href="https://www.americanprogress.org/issues/immigration/news/2020/04/06/482676/know-demographic-economic-impacts-daca-recipients-spring-2020-edition">https://www.americanprogress.org/issues/immigration/news/2020/04/06/482676/know-demographic-economic-impacts-daca-recipients-spring-2020-edition</a> (hereinafter Svajlenka and Wolgin (2020)).
\11\ See Roberto G. Gonzales and Angie M. Bautista-Chavez, Two
Years and Counting: Assessing the Growing Power of DACA, American
Immigration Council (June 2014); Zen[eacute]n Jaimes P[eacute]rez, A
Portrait of Deferred Action for Childhood Arrivals Recipients:
Challenges and Opportunities Three Years Later, United We Dream
(Oct. 2015), <a href="https://unitedwedream.org/wp-content/uploads/2017/10/DACA-report-final-1.pdf">https://unitedwedream.org/wp-content/uploads/2017/10/DACA-report-final-1.pdf</a> (hereinafter Jaimes P[eacute]rez (2015));
Tom K. Wong, et al., Results from Tom K. Wong et al., 2020 National
DACA Study, <a href="https://cdn.americanprogress.org/content/uploads/2020/10/02131657/DACA-Survey-20201.pdf">https://cdn.americanprogress.org/content/uploads/2020/10/02131657/DACA-Survey-20201.pdf</a> (hereinafter Wong (2020)).
\12\ See Roberto G. Gonzales, et al., The Long-Term Impact of
DACA: Forging Futures Despite DACA's Uncertainty, Immigration
Initiative at Harvard (2019), <a href="https://immigrationinitiative.harvard.edu/files/hii/files/final_daca_report.pdf">https://immigrationinitiative.harvard.edu/files/hii/files/final_daca_report.pdf</a> (hereinafter Gonzales (2019)); Wong (2020).
\13\ Gonzales (2019).
\14\ Gonzales (2019); Jaimes P[eacute]rez (2015); Wong (2020).
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The DACA policy has encouraged its recipients to make significant
investments in their careers and education. Many DACA recipients report
that deferred action--and the employment authorization that DACA
permits them to request--has allowed them to obtain their first job or
move to a higher paying position more commensurate with their
skills.\15\ DACA recipients are employed in a wide range of
occupations, including management and business, education and training,
sales, office and administrative support, and food preparation;
thousands more are self-employed in their own businesses.\16\ They have
continued their studies, and some have become doctors, lawyers, nurses,
teachers, or engineers.\17\ About 30,000 are health care workers, and
many of them have helped care for their communities on the frontlines
during the COVID-19 pandemic.\18\ In 2017, 72 percent of the top 25
Fortune 500 companies employed at least one DACA recipient.\19\
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\15\ Roberto G. Gonzales, et al., Becoming DACAmented: Assessing
the Short-Term Benefits of Deferred Action for Childhood Arrivals
(DACA), 58 Am. Behav. Scientist 1852 (2014); Wong (2020); see also
Nolan G. Pope, The Effects of DACAmentation: The Impact of Deferred
Action for Childhood Arrivals on Unauthorized Immigrants, 143 J. of
Pub. Econ. 98 (2016), http://www.econweb.umd.edu/~pope/
daca_paper.pdf (hereinafter Pope (2016)) (finding that DACA
increased participation in the labor force for undocumented
immigrants).
\16\ Nicole Prchal Svajlenka, What We Know About DACA Recipients
in the United States, Center for American Progress (Sept. 5, 2019),
<a href="https://www.americanprogress.org/issues/immigration/news/2019/09/05/474177/know-daca-recipients-united-states">https://www.americanprogress.org/issues/immigration/news/2019/09/05/474177/know-daca-recipients-united-states</a>; Jie Zong, et al., A
Profile of Current DACA Recipients by Education, Industry, and
Occupation, Migration Policy Institute (Nov. 2017), <a href="https://www.migrationpolicy.org/sites/default/files/publications/DACA-Recipients-Work-Education-Nov2017-FS-FINAL.pdf">https://www.migrationpolicy.org/sites/default/files/publications/DACA-Recipients-Work-Education-Nov2017-FS-FINAL.pdf</a> (hereinafter Zong
(2017)).
\17\ See Gonzales (2019); Nicole Prchal Svajlenka, A Demographic
Profile of DACA Recipients on the Frontlines of the Coronavirus
Response, Center for American Progress (April 6, 2020), <a href="https://www.americanprogress.org/issues/immigration/news/2020/04/06/482708/demographic-profile-daca-recipients-frontlines-coronavirus-response">https://www.americanprogress.org/issues/immigration/news/2020/04/06/482708/demographic-profile-daca-recipients-frontlines-coronavirus-response</a>
(hereinafter Svajlenka (2020)); Wong (2020); Zong (2017).
\18\ Svajlenka (2020). DACA recipients who are health care
workers also are helping to alleviate a shortage of health care
professionals in the United States and they are more likely to work
in underserved communities where shortages are particularly dire.
Angela Chen, et al., PreHealth Dreamers: Breaking More Barriers
Survey Report at 27 (Sept. 2019) (presenting survey data showing
that 97 percent of undocumented students pursuing health and health-
science careers planned to work in an underserved community); Andrea
N. Garcia, et al., Factors Associated with Medical School Graduates'
Intention to Work with Underserved Populations: Policy Implications
for Advancing Workforce Diversity, Acad. Med. (Sept. 2017), <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5743635">https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5743635</a> (finding that
underrepresented minorities graduating from medical school are
nearly twice as likely as white students and students of other
minorities to report an intention to work with underserved
populations).
\19\ Tom K. Wong, et al., DACA Recipients' Economic and
Educational Gains Continue to Grow, Center for American Progress
(Aug. 28, 2017), <a href="https://www.americanprogress.org/issues/immigration/news/2017/08/28/437956/daca-recipients-economic-educational-gains-continue-grow">https://www.americanprogress.org/issues/immigration/news/2017/08/28/437956/daca-recipients-economic-educational-gains-continue-grow</a> (hereinafter Wong (2017)).
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As a result of these educational and employment opportunities, DACA
recipients make substantial contributions in taxes and economic
activity.\20\ According to one estimate, as of 2020, DACA recipients
and their households pay about $5.6 billion in annual Federal taxes and
about $3.1 billion in annual State and local taxes.\21\ In addition,
through their employment, they make significant contributions to Social
Security and Medicare funds.\22\ Approximately two-thirds of recipients
purchased their first car after receiving DACA,\23\ and an estimated
56,000 DACA recipients own homes and are directly responsible for
$566.7 million in annual mortgage payments.\24\ DACA recipients also
are estimated to pay $2.3 billion in rental payments each year.\25\
Because of this, the communities of DACA recipients--who reside in all
50 States and the District of Columbia \26\--in addition to the
recipients themselves, have grown to rely on the economic contributions
this policy facilitates.\27\ In
[[Page 53739]]
sum, despite the express limitations in the Napolitano Memorandum, over
the 9 years in which the DACA policy has been in effect, the good faith
investments recipients have made in both themselves and their
communities, and the investments that their communities have made in
them, have been, in the Department's judgment, substantial.
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\20\ Please see the Regulatory Impact Analysis (RIA) for this
proposed rule, which can be found in Section V.A. The RIA includes
analysis and estimates of the costs, benefits, and transfers that
DHS expects this rule to produce. Please note that the estimates
presented in the RIA are based on the specific methodologies
described therein. Figures may differ from those presented in the
sources discussed here. As noted below, USCIS welcomes input on the
methodologies employed in the RIA, as well as any other data,
information, and views related to the costs, benefits, and transfers
associated with this rulemaking.
\21\ Svajlenka and Wolgin (2020). See also Misha E. Hill and Meg
Wiehe, State & Local Tax Contributions of Young Undocumented
Immigrants, Institute on Taxation and Economic Policy (Apr. 2017)
(analyzing the State and local tax contributions of DACA-eligible
noncitizens in 2017).
\22\ Jose Maga[ntilde]a-Salgado and Tom K. Wong, Draining the
Trust Funds: Ending DACA and the Consequences to Social Security and
Medicare, Immigrant Legal Resource Center (Oct. 2017); see also Jose
Maga[ntilde]a-Salgado, Money on the Table: The Economic Cost of
Ending DACA, Immigrant Legal Resource Center (Dec. 2016) (analyzing
the Social Security and Medicare contributions of DACA recipients in
2016).
\23\ Wong (2017).
\24\ Svajlenka and Wolgin (2020).
\25\ Id.
\26\ USCIS, Deferred Action for Childhood Arrivals (DACA)
Quarterly Report (Fiscal Year 21, Q1) 6, <a href="https://www.uscis.gov/sites/default/files/document/data/DACA_performancedata_fy2021_qtr1.pdf">https://www.uscis.gov/sites/default/files/document/data/DACA_performancedata_fy2021_qtr1.pdf</a>.
\27\ Reasonable reliance on the existence of the DACA policy is
distinct from reliance on a grant of DACA to a particular person.
Individual DACA grants are discretionary and may be terminated at
any time but communities, employers, educational institutions, and
State and local governments have come to rely on the existence of
the policy itself and its potential availability to those
individuals who qualify.
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This proposed rule responds to President Biden's memorandum of
January 20, 2021, ``Preserving and Fortifying Deferred Action for
Childhood Arrivals (DACA),'' \28\ in which President Biden stated:
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\28\ 86 FR 7053 (hereinafter Biden Memorandum).
DACA reflects a judgment that these immigrants should not be a
priority for removal based on humanitarian concerns and other
considerations, and that work authorization will enable them to
support themselves and their families, and to contribute to our
economy, while they remain.\29\
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\29\ Id.
This proposed rule embraces the consistent judgment that has been
maintained by the Department--and by three presidential administrations
since the policy first was announced--that DACA recipients should not
be a priority for removal.\30\ It is informed by the Department's
experience with the policy over the past 9 years and the ongoing
litigation concerning the policy's continued viability. It is
particularly meant to preserve legitimate reliance interests in the
continued implementation of the nearly decade-long policy under which
deferred action requests will be considered, while emphasizing that
individual grants of deferred action are, at bottom, an act of
enforcement discretion to which recipients do not have a substantive
right.
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\30\ See id.; Sept. 5, 2017 Statement from President Donald J.
Trump, <a href="https://trumpwhitehouse.archives.gov/briefings-statements/statement-president-donald-j-trump-7">https://trumpwhitehouse.archives.gov/briefings-statements/statement-president-donald-j-trump-7</a> (``I have advised [DHS] that
DACA recipients are not enforcement priorities unless they are
criminals, are involved in criminal activity, or are members of a
gang.''); Napolitano Memorandum.
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The proposed rule recognizes that enforcement resources are
limited, that sensible priorities must necessarily be set, and that it
is not generally the best use of those limited resources to remove
productive young people to countries where they may not have lived
since early childhood and whose languages they may not even speak. It
recognizes that, as a general matter, DACA recipients, who came to this
country many years ago as children, lacked the intent to violate the
law, have not been convicted of any serious crimes, and remain valued
members of our communities. It reflects the conclusion that, while they
are in the United States, they should have access to a process that,
operating on a case-by-case basis, may allow them to work to support
themselves and their families, and to contribute to our economy in
multiple ways. This proposed rule also accounts for the momentous
decisions DACA recipients have made in ordering their lives in reliance
on and as a result of this policy, and it seeks to continue the
benefits that have accrued to DACA recipients, their families, their
communities, and to the Department itself that have been made possible
by the policy. DHS emphasizes that the DACA policy as proposed in this
rule is not a permanent solution for the affected population and does
not provide lawful status or a path to citizenship for noncitizens who
came to the United States many years ago as children. Legislative
efforts to find such a solution remain critical. On July 16, 2021, the
U.S. District Court for the Southern District of Texas vacated the 2012
DACA policy, finding, among other things, that it was contrary to the
Immigration and Nationality Act of 1952 (INA).\31\ DHS is carefully and
respectfully considering the analysis in that decision and its
conclusions about DACA's substantive legality and invites comment on
how, if correct, those conclusions should affect this rulemaking.
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\31\ Texas v. United States, No. 1:18-cv-00068, 2021 WL 3025857
(S.D. Tex. July 16, 2021) (Texas II July 16, 2021 memorandum and
order).
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B. Summary of Major Provisions of the Regulatory Action
This proposed rule would preserve and fortify DHS's DACA policy for
the issuance of deferred action to certain young people who came to the
United States many years ago as children, who have no current lawful
immigration status, and who are generally low enforcement priorities.
The proposed rule would include the following provisions of the DACA
policy from the Napolitano Memorandum and longstanding USCIS practice:
<bullet> Deferred Action. The proposed rule would provide a
definition of deferred action as a temporary forbearance from removal
that does not confer any right or entitlement to remain in or re-enter
the United States, and that does not prevent DHS from initiating any
criminal or other enforcement action against the DACA recipient at any
time.
<bullet> Threshold Criteria. The proposed rule would include the
following longstanding threshold criteria: That the requestor must have
(1) come to the United States under the age of 16; (2) continuously
resided in the United States from June 15, 2007, to the time of filing
of the request; (3) been physically present in the United States on
both June 15, 2012, and at the time of filing of the DACA request; (4)
not been in a lawful immigration status on June 15, 2012, as well as at
the time of request; (5) graduated or obtained a certificate of
completion from high school, obtained a GED certificate, currently be
enrolled 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, a misdemeanor described in the rule, or three or more other
misdemeanors not occurring on the same date and not arising out of the
same act, omission, or scheme of misconduct, or otherwise pose a threat
to national security or public safety; and (7) been born on or after
June 16, 1981, and be at least 15 years of age at the time of filing,
unless the requestor is in removal proceedings, or has a final order of
removal or a voluntary departure order. The proposed rule also would
state that deferred action under DACA may be granted only if USCIS
determines in its sole discretion that the requestor meets the
threshold criteria and otherwise merits a favorable exercise of
discretion.
<bullet> Procedures for Request, Terminations, and Restrictions on
Information Use. The proposed rule would set forth procedures for
denial of a request for DACA or termination of a grant of DACA, the
circumstances that would result in the issuance of a notice to appear
(NTA) or referral to U.S. Immigration and Customs Enforcement (ICE)
(RTI), and the restrictions on use of information contained in a DACA
request for the purpose of initiating immigration enforcement
proceedings.
In addition to proposing the retention of longstanding DACA policy
and procedure, the proposed rule includes the following changes:
<bullet> Filing Requirements. The proposed rule would modify the
existing filing process and fees for DACA by making the request for
employment authorization on Form I-765, Application for Employment
Authorization, optional and charging a fee of $85 for Form I-821D,
Consideration of Deferred Action for Childhood Arrivals. DHS would
maintain the current total cost to DACA requestors who also file Form
I-765 of
[[Page 53740]]
$495 ($85 for Form I-821D plus $410 for Form I-765).
<bullet> Employment Authorization. The proposed rule would create a
DACA-specific regulatory provision regarding eligibility for employment
authorization for DACA deferred action recipients in a new paragraph
designated at 8 CFR 274a.12(c)(33). The new paragraph would not
constitute any substantive change in current policy; it merely would
create a DACA-specific provision in addition to the existing provision
dealing with deferred action recipients more broadly. Like that
provision, this one would continue to specify that the noncitizen \32\
must have been granted deferred action and must establish economic need
to be eligible for employment authorization.
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\32\ For purposes of this discussion, USCIS uses the term
``noncitizen'' to be synonymous with the term ``alien'' as it is
used in the INA.
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<bullet> Automatic Termination of Employment Authorization. The
proposed rule would automatically terminate employment authorization
granted under 8 CFR 274.12(c)(33) upon termination of a grant of DACA.
<bullet> ``Lawful Presence.'' Additionally, the proposed rule
reiterates USCIS' codification in 8 CFR 1.3(a)(4)(vi) of agency policy,
implemented long before DACA, that a noncitizen who has been granted
deferred action is considered ``lawfully present''--a specialized term
of art that does not in any way confer authorization to remain in the
United States--for the discrete purpose of authorizing the receipt of
certain Social Security benefits consistent with 8 U.S.C. 1611(b)(2).
The proposed rule also would reiterate longstanding policy that a
noncitizen who has been granted deferred action does not accrue
``unlawful presence'' for purposes of INA sec. 212(a)(9) (imposing
certain admissibility limitations for noncitizens who departed after
having accrued certain periods of unlawful presence in the United
States).
C. Costs and Benefits
The proposed rule would result in new costs, benefits, and
transfers. To provide a full understanding of the impacts of DACA, DHS
considers the potential impacts of this proposed rule relative to two
baselines. The first baseline, the No Action Baseline, represents a
state of the world under the current DACA policy; that is, the policy
initiated by the guidance in the Napolitano Memorandum in 2012. For
reasons explained in Section V.A.4.a.(1) below, this baseline does not
directly account for the July 16, 2021 district court decision. The
second baseline, the Pre-Guidance Baseline, represents a state of the
world where the DACA policy does not exist, a world as it existed
before the guidance in the Napolitano Memorandum. DHS emphasizes that
the Pre-Guidance Baseline gives clarity about the impact of the DACA
policy as such, and that it is, therefore, the more useful baseline for
understanding the costs and benefits of that policy. Relative to that
baseline, the monetized benefits, including above all income earnings,
greatly exceed the monetized costs. DHS also notes that the Pre-
Guidance Baseline analysis also can be used to better understand the
state of the world under the July 16, 2021 district court decision,
should the stay of that decision ultimately be lifted.
Table 1 provides a detailed summary of the proposed provisions and
their potential impacts relative to the No Action Baseline. Table 2
provides a detailed summary of the proposed provisions and their
potential impacts relative to the Pre-Guidance Baseline.
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BILLING CODE 9111-97-C
III. Background, Authority, and Purpose
Section 102 of the Homeland Security Act of 2002 \33\ and section
103 of the INA \34\ generally charge the Secretary with the
administration and enforcement of the immigration and naturalization
laws of the United States.\35\ The INA further authorizes the Secretary
to ``establish such regulations; prescribe such forms of bond, reports,
entries, and other papers; issue such instructions; and perform such
other acts as he deems necessary for carrying out his authority under
the provisions of'' the INA.\36\ In the Homeland Security Act of 2002,
Congress also provided that the Secretary ``shall be responsible for .
. . [e]stablishing national immigration enforcement policies and
priorities.'' \37\ The Homeland Security Act also provides that the
Secretary, in carrying out their authorities, must ``ensure that the
overall economic security of the United States is not diminished by
efforts, activities, and programs aimed at securing the homeland.''
\38\
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\33\ Public Law 107-296, sec. 102(a)(3), 116 Stat. 2135, 2143
(codified at 6 U.S.C. 112(a)(3)).
\34\ Public Law 82-414, 66 Stat. 163 (as amended).
\35\ INA sec. 103(a)(1), 8 U.S.C. 1103(a)(1). The INA also vests
certain authorities in the President, Attorney General, and
Secretary of State, among others. See id.
\36\ INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3).
\37\ Public Law 107-296, sec. 402(5), 116 Stat. 2135, 2178
(codified at 6 U.S.C. 202(5)).
\38\ 6 U.S.C. 111(b)(1)(F).
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The Secretary proposes in this rule to establish specified
guidelines for considering requests for deferred action submitted by
certain individuals who came to the United States many years ago as
children. This proposed rule would help appropriately focus the
Department's limited immigration enforcement resources on threats to
national security, public safety, and border security where they are
most needed. In doing so, the proposed rule also would serve the
significant humanitarian and economic interests animating and
engendered by the DACA policy. In addition, the proposed rule would
preserve not only DACA recipients' serious reliance interests, but also
those of their families, schools, employers, faith groups, and
communities.\39\ Above all, DHS is committed to a rulemaking process
and outcome that is entirely consistent with the broad authorities and
enforcement discretion conferred upon the Secretary in the INA and the
Homeland Security Act.
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\39\ See DHS v. Regents of the Univ. of Cal., 140 S. Ct. 1891,
1914 (2020) (Regents) (``DACA recipients have `enrolled in degree
programs, embarked on careers, started businesses, purchased homes,
and even married and had children, all in reliance' on the DACA
program. The consequences of the rescission, respondents emphasize,
would `radiate outward' to DACA recipients' families, including
their 200,000 U.S.-citizen children, to the schools where DACA
recipients study and teach, and to the employers who have invested
time and money in training them. In addition, excluding DACA
recipients from the lawful labor force may, they tell us, result in
the loss of $215 billion in economic activity and an associated $60
billion in federal tax revenue over the next ten years. Meanwhile,
States and local governments could lose $1.25 billion in tax revenue
each year.'' (internal citations omitted)).
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As the head of the Department, and the official responsible for
``the administration and enforcement'' of the nation's immigration
laws, the Secretary is directed to set national immigration enforcement
policies and priorities.\40\ While other officials, such as the
Directors of ICE and USCIS and the Commissioner of CBP, may set
policies within their respective spheres, and individual immigration
officers are able to make case-by-case enforcement discretion decisions
in the course of their duties, the Secretary holds the ultimate
responsibility and authority for establishing the Department's
priorities and for setting the parameters for other officials' exercise
of discretion. Unlike officers in the field, the Secretary is uniquely
positioned to make informed judgments regarding the humanitarian,
public safety, border security, and other implications of national
immigration enforcement policies and priorities. The Secretary is
ultimately accountable for
[[Page 53746]]
appropriately using the resources available to the Department as a
whole and for taking a comprehensive view of the enforcement landscape.
A regulation codifying a national enforcement discretion policy for the
DACA population would reinforce the Department's focusing its resources
on those noncitizens who pose a threat to national security, public
safety, and border security.
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\40\ INA sec. 103(a)(1), 8 U.S.C. 1103(a)(1); see also 6 U.S.C.
202(5).
---------------------------------------------------------------------------
Of course, there are many tools available to the Secretary to
execute such policy choices. Historically, DHS has implemented deferred
action policies with respect to identified groups via general
statements of policy and rules of agency organization, procedure, or
practice. Such policies are not legally binding on any private parties
(and do not bind the agency from making changes), do not constitute
legislative rules, and are not codified in the Code of Federal
Regulations. In the case of DACA, DHS proposes to promulgate
regulations to reflect the Secretary's enforcement priorities and
implement the deferred action policy with respect to the DACA
population. DHS has decided to propose this rule in consideration of
the important reliance interests of DACA beneficiaries, their
employers, and their communities; in response to the President's
direction to take all actions appropriate to preserve and fortify DACA;
and in light of the various issues and concerns raised in ongoing
litigation challenging DACA.
DHS's decision to proceed by rulemaking, rather than the less
formal procedures typically associated with the creation of policy
guidance, represents a departure from previous practice in light of
current circumstances. DHS emphasizes that its approach here has
important benefits, such as providing a more formal opportunity for
public participation. DHS also recognizes that the use of less formal
procedures, and the absence of notice-and-comment rulemaking, has been
challenged in court, in some cases successfully. But the approach here
should not be interpreted as suggesting that DHS itself doubts the
legality of the 2012 DACA policy or any other past, present, or future
deferred action policy. It is consistent with section 553 of the APA,
and a longstanding principle, that an agency may use non-binding, non-
legislative guidance, lacking the force of law, ``to advise the public
prospectively of the manner in which the agency proposes to exercise a
discretionary power.'' \41\ DHS has consistently maintained, and
continues to maintain here, that it has such discretionary power with
respect to deferred action.\42\
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\41\ See Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979)
(quoting Attorney General's Manual on the Administrative Procedure
Act (1947)).
\42\ That DHS has determined voluntarily to use notice-and-
comment procedures does not reflect any legal determination by the
executive branch that it must do so or that it will be required to
do so in the future. See, e.g., Hoctor v. U.S. Dep't of Agric., 82
F.3d 165, 171-72 (7th Cir. 1996) (observing that courts should
``attach no weight to [an agency]'s inconsistency'' in deciding
whether to use notice-and-comment procedures for similar rules and
that ``there is nothing in the [APA] to forbid an agency to use the
notice and comment procedure in cases in which it is not required to
do so''); Indep. Living Res. v. Oregon Arena Corp., 982 F. Supp.
698, 744 n.62 (D. Or. 1997) (``There are many reasons why an agency
may voluntarily elect to utilize notice and comment rulemaking: The
proposed rule may constitute a material amendment to the old rule,
the agency may wish to avoid potential litigation over whether the
new rule is legislative or interpretive, or the agency may simply
wish to solicit public comment.''); cf. Perez v. Mort. Bankers
Ass'n, 575 U.S. 92, 101 (2015) (``Because an agency is not required
to use notice-and-comment procedures to issue an initial
interpretive rule, it is also not required to use those procedures
when it amends or repeals that interpretive rule.'').
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The proposed rule also would aid DHS's enforcement branches in
identifying classes of noncitizens whose removal Congress has signaled
should be prioritized \43\ and focus a greater portion of their limited
time, space, and funds on these higher risk situations that pose a
threat to public safety or national security. While a grant of deferred
action may have additional consequences under other provisions of law
and regulation, including State law, at its core it reflects a decision
made by the Executive to forgo removal against an individual for a
limited period while the individual remains a low priority. It reflects
a policy of forbearance. It is well within the Department's authority,
and consistent with historical practice, for DHS to create a nationwide
policy for efficiently allocating limited enforcement resources.\44\
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\43\ See, e.g., INA sec. 235(b)(1), 8 U.S.C. 1225(b)(1)
(establishing ``expedited removal'' for certain noncitizens arriving
in the United States); INA sec. 236(c), 8 U.S.C. 1226(c) (providing
mandatory detention for certain criminal noncitizens); INA sec.
236A, 8 U.S.C. 1226a (providing mandatory detention of suspected
terrorists); see also, e.g., Public Law 114-113, 129 Stat. 2241,
2497 (providing that ``the Secretary . . . shall prioritize the
identification and removal of aliens convicted of a crime by the
severity of that crime''); Public Law 113-76, 128 Stat. 5, 251
(same); Public Law 113-6, 127 Stat. 198, 347 (same).
\44\ See Regents of the Univ. of Cal. v. DHS, 908 F.3d 476, 487
(9th Cir. 2018) (deferred action ``arises . . . from the Executive's
inherent authority to allocate resources and prioritize cases''),
aff'd, 140 S. Ct. 1891 (2020).
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A. History of Discretionary Reprieves From Removal
Since at least 1956, DHS and the former INS have issued policies
under which groups of individuals without lawful status may receive a
discretionary, temporary, and nonguaranteed reprieve from removal, even
outside the context of immigration proceedings.\45\ These policies have
been implemented through a range of measures, including, but not
limited to, extended voluntary departure (EVD) and deferred enforced
departure (DED), indefinite voluntary departure, parole, and deferred
action.\46\ From at least the early 1980s, each such measure resulted
in not only the termination of immigration proceedings, but also the
availability of collateral ``benefits'' such as work authorization. A
brief history of some such policies follows.
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\45\ See generally Ben Harrington, An Overview of Discretionary
Reprieves from Removal: Deferred Action, DACA, TPS, and Others,
Congressional Research Service, No. R45158 (Apr. 10, 2018)
(hereinafter CRS Report on Discretionary Reprieves from Removal).
See also American Immigration Council, Executive Grants of Temporary
Immigration Relief, 1956-Present (Oct. 2, 2014), <a href="https://www.americanimmigrationcouncil.org/research/executive-grants-temporary-immigration-relief-1956-present">https://www.americanimmigrationcouncil.org/research/executive-grants-temporary-immigration-relief-1956-present</a> (identifying 39 examples
of temporary immigration relief); Sharon Stephan, Extended Voluntary
Departure and Other Grants of Blanket Relief from Deportation,
Congressional Research Service, No. 85-599 EPW (Feb. 23, 1985)
(hereinafter CRS Report on EVD).
\46\ See CRS Report on Discretionary Reprieves from Removal
(cataloguing types of discretionary reprieves from removal,
including reprieves that are generally only available in conjunction
with the removal process, such as voluntary departure, stays of
removal, orders of supervision, and administrative closure). See
also generally Geoffrey Heeren, The Status of Nonstatus, 64 Am. U.
L. Rev. 1115 (2015).
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1. Extended Voluntary Departure and Deferred Enforced Departure
Beginning in the Eisenhower administration, a string of executive
actions authorized various classes of noncitizens to stay in the United
States and work under the rubric of EVD. From 1956 to 1972, the INS
offered EVD to certain noncitizen professionals and those with
exceptional ability in the sciences or arts who were otherwise subject
to deportation due to visa quotas applicable to natives of the Eastern
Hemisphere.\47\ Through this policy, although a noncitizen's lawful
status might have lapsed, ``[d]eportation, or even departure from the
United States, was . . . entirely avoided.'' \48\ And beginning in
1978, the INS offered EVD to certain former H-1 nurses whose ``lack of
lawful immigration status [was] due only to the nurse's having changed
employer without authority, or to his/her having failed the licensure
examination.'' \49\ From at least 1960
[[Page 53747]]
until 1990, executive agencies granted EVD to nationals of at least 14
countries.\50\ EVD was invoked repeatedly to allow discretionary
reprieves from removal for groups of individuals without lawful status.
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\47\ See United States ex rel. Parco v. Morris, 426 F. Supp.
976, 979-80 (E.D. Pa. 1977).
\48\ Id. at 980.
\49\ See, e.g., 43 FR 2776 (Jan. 19, 1978) (announcing a period
of discretionary ``extended voluntary departure'' or ``deferred
departure'' for certain H-1 nurses who no longer had lawful
immigration status); 44 FR 53582 (Sept. 14, 1979) (extension of
same).
\50\ See Adam B. Cox and Cristina M. Rodr[iacute]guez, The
President and Immigration Law Redux, 125 Yale L.J. 104, 122-24
(2015) (discussing the origins and various applications of EVD); see
also CRS Report on EVD; Lynda J. Oswald, Note, Extended Voluntary
Departure: Limiting the Attorney General's Discretion in Immigration
Matters, 85 Mich. L. Rev. 152, 152 n.1 (1986) (cataloguing grants of
EVD based on nationality).
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The use of EVD abated following the passage of the Immigration Act
of 1990 (IMMACT 90), which expressly authorized the Attorney General
(whose authorities in this respect are now assigned to the Secretary),
following consultation with the Secretary of State, to designate a
foreign country for Temporary Protected Status (TPS) in certain
circumstances.\51\ But even after 1990, Presidents of both parties have
extended similar treatment to nationals of certain countries under the
rubric of DED.\52\
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\51\ See Public Law 101-649, sec. 302, 104 Stat. 4978, 5030-36
(codified as amended at 8 U.S.C. 1254a). In fact, in establishing
TPS in IMMACT 90, Congress understood that the Attorney General (now
Secretary) had continuing authority to establish such policies on
grounds other than the individuals' nationality, providing that TPS
would be the exclusive authority for the Attorney General to permit
otherwise removable aliens to remain temporarily in the United
States ``because of their particular nationality.'' INA sec. 244(g),
8 U.S.C. 1254a(g); see Statement by President George H.W. Bush upon
Signing S. 358, 26 Weekly Comp. Pres. Doc. 1946 (Dec. 3, 1990), 1990
U.S.C.C.A.N. 6801 (Nov. 29, 1990) (expressing concern with INA sec.
244(g) because it would impinge on the Executive's prosecutorial
discretion).
\52\ See, e.g., 57 FR 28700 (June 26, 1992) (President George
H.W. Bush directing DED for certain Salvadorans); 86 FR 6845 (Jan.
25, 2021) (President Trump directing DED for certain Venezuelans);
86 FR 43587 (Aug. 10, 2021) (President Biden directing DED for
certain Hong Kong residents).
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2. Indefinite ``Voluntary Departure'' Under the ``Family Fairness''
Policies
In 1987, the INS announced a policy known as ``family fairness'' to
allow for indefinite residence in the United States and work
authorization \53\ for spouses and children of certain noncitizens who
had been made eligible for legal immigration in the Immigration Reform
and Control Act of 1986 (IRCA).\54\ In IRCA, Congress made millions of
noncitizens eligible for temporary residency, lawful permanent
residency, and eventually naturalization,\55\ but it did not similarly
provide for such noncitizens' spouses and children who had arrived too
recently or were otherwise ineligible.\56\ Notwithstanding the
apparently intentional gap in eligibility,\57\ the INS provided for a
discretionary reprieve from removal for many such spouses and
children.\58\ Under the policy, the INS announced that it would
``indefinitely defer deportation'' for (1) ineligible spouses and
children who could show compelling or humanitarian factors; and (2)
ineligible unmarried minor children who could show that both parents
(or their only parent) had achieved lawful temporary resident
status.\59\ Those individuals also could obtain work authorization.\60\
Ultimately such spouses and children might be able to benefit from an
immediate relative petition filed on their behalf.
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\53\ The family fairness policies referred to this reprieve as
indefinite voluntary departure or voluntary departure.
\54\ See Alan C. Nelson, Commissioner, INS, Legalization and
Family Fairness--An Analysis (Oct. 21, 1987) (hereinafter 1987
Family Fairness Memorandum), reprinted in 64 No. 41 Interpreter
Releases 1191, App. I (Oct. 26, 1987); see also Memorandum to INS
Regional Commissioners from Gene McNary, Commissioner, INS, Re:
Family Fairness: Guidelines for Voluntary Departure under 8 CFR
242.5 for the Ineligible Spouses and Children of Legalized Aliens
(Feb. 2, 1990) (hereinafter 1990 Family Fairness Memorandum).
\55\ See 1987 Family Fairness Memorandum.
\56\ See S. Rep. No. 132, 99th Cong., 1st Sess., at 16 (1985)
(``It is the intent of the Committee that the families of legalized
aliens will obtain no special petitioning rights by virtue of the
legalization.'').
\57\ See Paul W. Schmidt, Acting General Counsel, INS, Legal
Considerations On The Treatment Of Family Members Who Are Not
Eligible For Legalization (May 29, 1987) (``[IRCA] does not cover
spouses and children of legalized aliens. . . . The legislative
history on this issue is crystal clear.''). Two weeks prior to the
announcement of the family fairness policy, Senator John Chafee
proposed a legislative path to legalization for the spouses and
children excluded from IRCA; however, the proposal was rejected. See
Record Vote No. 311, S. Amend. 894 to S. 1394, 100th Cong. (1987),
<a href="https://www.congress.gov/amendment/100th-congress/senate-amendment/894/actions">https://www.congress.gov/amendment/100th-congress/senate-amendment/894/actions</a>. A narrower effort to block funding for deportations of
such individuals was introduced soon after the 1987 Family Fairness
Memorandum but also did not become law. See H.J. Res. 395, 100th
Cong. Sec. 110 (as introduced Oct. 29, 1987); Act of Dec. 22, 1987,
Public Law 100-202, 101 Stat. 1329; see also 133 Cong. Rec. 12,038-
43 (1987) (statement of Rep. Roybal).
\58\ See 1987 Family Fairness Memorandum.
\59\ See id.
\60\ See Recent Developments, 64 No. 41 Interpreter Releases
1191, App. II, at 1206 (Oct. 26, 1987).
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The INS expanded the family fairness policy in 1990, ``to assure
uniformity in the granting of voluntary departure and work
authorization for the ineligible spouses and children of legalized
aliens,'' and ``to respond to the needs'' of legalized noncitizens and
their family members ``in a consistent and humanitarian manner.'' \61\
As expanded, the policy provided indefinite voluntary departure for any
ineligible spouse or minor child of a legalizing noncitizen who showed
that they (1) had been residing in the country by the date of IRCA's
1986 enactment; (2) were otherwise inadmissible; (3) had not been
convicted of a felony or three misdemeanors; and (4) had not assisted
in persecution.
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\61\ See 1990 Family Fairness Memorandum. See also Record Vote
No. 107, S. Amend. 244 to S. 358, 101st Cong. (1989), <a href="https://www.congress.gov/amendment/101st-congress/senate-amendment/244/actions">https://www.congress.gov/amendment/101st-congress/senate-amendment/244/actions</a>; IRCA Amendments of 1989, H.R. 3374, 101st Cong. (1989),
<a href="https://www.congress.gov/bill/101st-congress/house-bill/3374/all-actions">https://www.congress.gov/bill/101st-congress/house-bill/3374/all-actions</a> (reflecting subcommittee hearings held as last action on the
bill).
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Estimates of the potentially eligible population varied, but many
were very large.\62\ The INS Commissioner testified that 1.5 million
people were estimated to be eligible.\63\ Congress ultimately responded
by ratifying the family fairness program and by authorizing an even
broader group to obtain lawful status beginning 1 year thereafter.\64\
Congress stated that this 1-year delay ``shall not be construed as
reflecting a Congressional belief that the existing family fairness
program should be modified in any way before such date.'' \65\
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\62\ See, e.g., Recent Developments, 67 No. 8 Interpreter
Releases 201, 206 (Feb. 26, 1990); see also, e.g., 55 FR 6058 (Feb.
21, 1990) (anticipating requests from ``approximately one million''
people); J.A. 646 (internal INS memorandum estimating ``greater than
one million'' people ``will file''); J.A. 642 (``potentially
millions''); 67 No. 8 Interpreter Releases 206 (``no more than
250,000''); Tim Schreiner, ``INS Reverses Policy That Split Alien
Families,'' S.F. Chron., Feb. 3, 1990, at A15 (``more than 100,000
people'' estimated to file); Paul Anderson, ``New Policy on Illegal
Immigrants,'' Phila. Inquirer, Feb. 3, 1990, at A10 (it ``may run to
a million'').
\63\ Immigration Act of 1989: Hearings Before the Subcomm. on
Immigration, Refugees, and International Law of the House Comm. on
the Judiciary, 101st Cong., 2d Sess. Pt. 2, at 49, 56 (1990).
\64\ See IMMACT 90, Public Law 101-649, sec. 301(g), 104 Stat.
4978, 5030 (1990).
\65\ Id.
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3. Deferred Action
Beginning as early as 1959, INS Operations Instructions (OI)
referred to ``nonpriority'' cases--a category that later became known
as ``deferred action.'' \66\ In 1959, such instructions identified top
priorities for investigative case assignments and provided that, ``[i]n
every case involving appealing humanitarian factors, appropriate
measures must be taken to insure that action taken by [INS] will not
subject the law, its administration, or the Government of the United
States to public ridicule. Form G-312 shall be used to report each such
nonpriority
[[Page 53748]]
case.'' \67\ In 1972, the INS OI provided that
---------------------------------------------------------------------------
\66\ See AADC, 525 U.S. at 484.
\67\ INS OI 103.1(a)(1) (Jan. 15, 1959).
[i]n every case where the district director determines that adverse
action would be unconscionable because of the existence of appealing
humanitarian factors, he shall recommend consideration for
nonpriority. . . . If the recommendation is approved the alien shall
be notified that no action will be taken by [INS] to disturb his
immigration status, or that his departure from the United States has
been deferred indefinitely, whichever is appropriate.\68\
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\68\ INS OI 103.1(a)(1)(ii) (Apr. 5, 1972).
A 1975 version of the same policy called for interim or biennial
reviews of each case in deferred action status, and further provided,
---------------------------------------------------------------------------
inter alia, that
[w]hen determining whether a case should be recommended for deferred
action category, consideration should include the following: (1)
advanced or tender age; (2) many years presence in the United
States; (3) physical or mental condition requiring care or treatment
in the United States; (4) family situation in the United States--
effect of expulsion; (5) criminal, immoral or subversive activities
or affiliations--recent conduct.\69\
---------------------------------------------------------------------------
\69\ INS OI 103.1(a)(1)(ii) (Dec. 31, 1975).
---------------------------------------------------------------------------
In short, from at least 1959 until the late 1990s,
deferred-action decisions were governed by internal INS guidelines
which considered, inter alia, such factors as the likelihood of
ultimately removing the alien, the presence of sympathetic factors
that could adversely affect future cases or generate bad publicity
for the INS, and whether the alien had violated a provision that had
been given high enforcement priority.\70\
---------------------------------------------------------------------------
\70\ See AADC, 525 U.S. at 484 n.8 (citing 16 C. Gordon, S.
Mailman, and S. Yale-Loehr, Immigration Law and Procedure Sec.
242.1 (1998)).
Although such internal guidelines were moved to the INS's Interim
Enforcement Procedures in June 1997, the following year the Supreme
Court noted that ``there is no indication that the INS has ceased
making this sort of determination on a case-by-case basis.'' \71\ On
the contrary, by the time of the enactment of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA),\72\ ``the INS
had been engaging in a regular practice (which had come to be known as
`deferred action') of exercising [enforcement] discretion for
humanitarian reasons or simply for its own convenience.'' \73\
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\71\ Id. The INS began rescinding OI on an ongoing basis as it
moved to a Field Manual model for policies and procedures for
officers. See INS Field Manual Project to Eventually Replace
Operations Instructions; 77 No. 3 Interpreter Releases 93 (Jan. 14,
2000). The OI on deferred action were rescinded when the procedures
were moved to the Interim Enforcement Procedures in June 1997,
though the procedures remained substantively the same. See Interim
Enforcement Procedures: Standard Operating Procedures for
Enforcement Officers: Arrest, Detention, Processing and Removal
(June 5, 1997) (accessed via USCIS historical archive).
\72\ Public Law 104-208, 110 Stat. 3009.
\73\ See AADC, 525 U.S. at 483-84.
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4. More Recent Deferred Action Policies
In recent years, the INS and DHS have established a number of
specific policies for consideration of deferred action requests by
members of certain groups. For instance, in 1997, the INS established a
deferred action policy for self-petitioners under the Violence Against
Women Act of 1994 (VAWA).\74\ The INS policy required immigration
officers who approved a VAWA self-petition to assess, ``on a case-by-
case basis, whether to place the alien in deferred action'' while the
noncitizen waited for a visa to become available.\75\ The INS noted
that, ``[b]y their nature, VAWA cases generally possess factors that
warrant consideration for deferred action.'' \76\ Under this policy,
from 1997 to 2000, no approved VAWA self-petitioner was removed from
the country.\77\ In the Victims of Trafficking and Violence Protection
Act of 2000 (VTVPA), Congress expanded the availability of this type of
deferred action, providing that children who could no longer self-
petition under VAWA because they were over the age of 21 would
nonetheless be ``eligible for deferred action and work authorization.''
\78\
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\74\ Public Law 103-322, tit. IV, 108 Stat. 1796.
\75\ See Memorandum to INS Regional Directors, et al., from Paul
W. Virtue, Acting Executive Associate Commissioner, INS, Re:
Supplemental Guidance on Battered Alien Self-Petitioning Process and
Related Issues at 3 (May 6, 1997).
\76\ Id.
\77\ See Battered Women Immigrant Protection Act: Hearings on
H.R. 3083 Before the Subcomm. on Immigration and Claims of the House
Comm. on the Judiciary, 106th Cong., at 43 (July 20, 2000).
\78\ See Public Law 106-386, sec. 1503(d), 114 Stat. 1464, 1521-
22.
---------------------------------------------------------------------------
In 2001, the INS instituted a similar deferred action policy for
applicants for nonimmigrant status made available under the VTVPA's new
nonimmigrant classifications for certain victims of human trafficking
and their family members (T visas) and certain victims of other crimes
and their family members (U visas).\79\ The INS issued a memorandum
directing immigration officers to locate ``possible victims in the
above categories,'' and to use ``[e]xisting authority and mechanisms
such as parole, deferred action, and stays of removal'' to prevent
those victims' removal ``until they have had the opportunity to avail
themselves of the provisions of the VTVPA.'' \80\ The INS later
instructed officers to consider deferred action for ``all [T visa]
applicants whose applications have been determined to be bona fide,''
\81\ as well as for all U visa applicants ``determined to have
submitted prima facie evidence of [their] eligibility.'' \82\ In 2002
and 2007, INS and DHS promulgated regulations implementing similar
policies.\83\
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\79\ See 8 U.S.C. 1101(a)(15)(T)(i) and (U)(i).
\80\ See Memorandum for Michael A. Pearson, INS Executive
Associate Commissioner, from Michael D. Cronin, Acting Executive
Associate Commissioner, INS, Re: Victims of Trafficking and Violence
Protection Act of 2000 (VTVPA) Policy Memorandum #2--``T'' and ``U''
Nonimmigrant Visas at 2 (Aug. 30, 2001).
\81\ Memorandum for Johnny N. Williams, INS Executive Associate
Commissioner, from Stuart Anderson, INS Executive Associate
Commissioner, Re: Deferred Action for Aliens with Bona Fide
Applications for T Nonimmigrant Status at 1 (May 8, 2002)
(hereinafter Williams Memorandum).
\82\ See Memorandum for the Director, Vermont Service Center,
INS, from USCIS Associate Director of Operations William R. Yates,
Re: Centralization of Interim Relief for U Nonimmigrant Status
Applicants (Oct. 8, 2003).
\83\ See 67 FR 4784 (Jan. 31, 2002) (providing for deferred
action for certain T visa applicants) (codified as amended at 8 CFR
214.11(j)); 72 FR 53014 (Sept. 17, 2007) (same for certain U visa
applicants) (codified as amended at 8 CFR 214.14(d)).
---------------------------------------------------------------------------
These policies, as well, were later ratified by Congress. In 2008,
when Congress authorized DHS to grant an administrative stay of removal
to a T or U visa applicant whose application sets forth a prima facie
case for approval, Congress ratified the existing deferred action
policies by clarifying that the denial of a request for an
administrative stay of removal under this new authority would ``not
preclude the alien from applying for a stay of removal, deferred
action, or a continuance or abeyance of removal proceedings under any
other provision of the immigration laws of the United States.'' \84\
And Congress also required DHS to submit a report to Congress covering,
inter alia, ``[i]nformation on the time in which it takes to adjudicate
victim-based immigration applications, including the issuance of visas,
work authorization and deferred action in a timely manner consistent
with the safe and competent processing of such applications, and steps
taken to improve in this area.'' \85\
---------------------------------------------------------------------------
\84\ See William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008, Public Law 110-457, sec. 204, 122 Stat.
5044, 5060 (codified as amended at 8 U.S.C. 1227(d)).
\85\ See id. at sec. 238(b)(7), 122 Stat. at 5085.
---------------------------------------------------------------------------
In 2005, following Hurricane Katrina, DHS issued another deferred
action policy applicable to foreign students who lost their lawful
status as F-1 nonimmigrant students by virtue of failing to pursue a
``full course of study'' following the disaster.\86\ Eligible F-1
[[Page 53749]]
students were allowed to request deferred action individually by
letter, which was required to include a written affidavit or unsworn
declaration confirming that the applicant met eligibility requirements.
---------------------------------------------------------------------------
\86\ USCIS, Interim Relief for Certain Foreign Academic Students
Adversely Affected by Hurricane Katrina: Frequently Asked Questions
(FAQ) at 1 (Nov. 25, 2005) (quoting 8 CFR 214.2(f)(6)).
---------------------------------------------------------------------------
In 2009, DHS implemented a deferred action policy for (1) surviving
spouses of U.S. citizens whose U.S. citizen spouse died before the
second anniversary of the marriage and who are unmarried and residing
in the United States; and (2) their qualifying children who are
residing in the United States.\87\ USCIS explained that ``no avenue of
immigration relief exists for the surviving spouse of a deceased U.S.
citizen if the surviving spouse and the U.S. citizen were married less
than 2 years at the time of the citizen's death'' and USCIS had not yet
adjudicated an immigrant petition on the spouse's behalf.\88\ Congress
subsequently eliminated the requirement that a noncitizen be married to
a U.S. citizen ``for at least 2 years at the time of the citizen's
death'' to retain their eligibility for lawful immigration status.\89\
USCIS later withdrew its guidance and treated all pending applications
for deferred action under this policy as widow(er)s' petitions.\90\
---------------------------------------------------------------------------
\87\ Memorandum to USCIS Field Leadership from Donald Neufeld,
Acting Associate Director, USCIS Office of Domestic Operations, Re:
Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and
Their Children at 4 (June 15, 2009).
\88\ Id. at 1.
\89\ See Department of Homeland Security Appropriations Act,
2010, Public Law 111-83, sec. 568(c), 123 Stat. 2142, 2186-87.
\90\ See Memorandum to USCIS Executive Leadership from Donald
Neufeld, Acting Associate Director, USCIS Office of Domestic
Operations, Re: Additional Guidance Regarding Surviving Spouses of
Deceased U.S. Citizens and Their Children (REVISED) at 3, 10 (Dec.
2, 2009).
---------------------------------------------------------------------------
In sum, for more than 60 years, executive agencies have issued
policies under which deserving groups of individuals without lawful
status may receive a discretionary, temporary, and nonguaranteed
reprieve from removal. Many of these policies, including all the
deferred action policies, resulted in collateral ``benefits,'' such as
eligibility to apply for work authorization. Many of these policies,
including those involving the use of deferred action, also were
subsequently ratified by Congress. The policy in this proposed rule is
another such act of enforcement discretion and is similarly within the
Executive's authority to implement.\91\
---------------------------------------------------------------------------
\91\ See Section II.A above for a description of DACA's
creation.
---------------------------------------------------------------------------
B. Litigation History
When DACA was first implemented in 2012, 10 ICE officers and the
State of Mississippi challenged both the Napolitano Memorandum and
then-ICE Director John Morton's previously issued memorandum on
prosecutorial discretion, ``Exercising Prosecutorial Discretion
Consistent with the Civil Immigration Enforcement Priorities of the
Agency for the Apprehension, Detention, and Removal of Aliens'' (Morton
Memorandum).\92\ The plaintiffs in those cases were found to lack
standing.\93\
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\92\ See Crane v. Napolitano, 920 F. Supp. 2d 724, (N.D. Tex.
2013).
\93\ See Crane v. Johnson, 783 F.3d 244, 255 (5th Cir. 2015).
---------------------------------------------------------------------------
In 2014, DHS sought to implement the policy Deferred Action for
Parents of Americans and Lawful Permanent Residents (DAPA) and to
expand DACA to a larger population by removing the age cap for filing,
providing grants of deferred action for a longer period of time, and
making certain other adjustments (Expanded DACA).\94\ The State of
Texas and 25 other States brought an action for injunctive relief to
prevent implementation of DAPA and Expanded DACA, alleging that they
violated the APA, the Take Care Clause of the Constitution, and the
INA.\95\ On February 16, 2015, the U.S. District Court for the Southern
District of Texas entered a nationwide preliminary injunction barring
implementation of the policies in the 2014 DAPA Memorandum, which
included both DAPA and Expanded DACA. On November 9, 2015, the Fifth
Circuit affirmed the preliminary injunction, finding that the plaintiff
States were substantially likely to establish that (1) DAPA and
Expanded DACA required notice-and-comment rulemaking; and (2) DAPA and
Expanded DACA violated the INA.\96\ On June 23, 2016, an equally
divided Supreme Court affirmed, leaving the nationwide injunction in
place.\97\ In the summer of 2017, Texas and the other plaintiff States
voluntarily dismissed Texas I.
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\94\ Memorandum from Jeh Johnson, Secretary, DHS, to Le[oacute]n
Rodriguez, Director, USCIS, et al., Exercising Prosecutorial
Discretion with Respect to Individuals Who Came to the United States
as Children and with Respect to Certain Individuals Who are the
Parents of U.S. Citizens or Permanent Residents (Nov. 20, 2014)
(hereinafter 2014 DAPA Memorandum). The policy memorandum was
rescinded on June 15, 2017. Memorandum from John Kelly, Secretary,
DHS, to Kevin McAleenan, Acting Commissioner, CBP, et. al.,
Rescission of November 20, 2014 Memorandum Providing for Deferred
Action for Parents of Americans and Lawful Permanent Residents
(DAPA) (June 15, 2017).
\95\ See Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex.
2015) (Texas I).
\96\ Texas v. United States, 809 F.3d 134 (5th Cir. 2015) (Texas
I). The Fifth Circuit included the directives of Expanded DACA as
part of DAPA for purposes of its decision. See id. at 147 n.11.
\97\ United States v. Texas, 136 S. Ct. 2271 (2016) (per
curiam).
---------------------------------------------------------------------------
On September 5, 2017, then-Acting Secretary Elaine Duke issued a
memorandum rescinding and beginning a wind-down of the 2012 DACA
policy, citing the Supreme Court and Fifth Circuit decisions in Texas I
and a letter from then-Attorney General Jefferson Sessions recommending
rescission and an orderly wind-down of the 2012 DACA policy as it was
likely to receive a similar decision in ``imminent litigation.'' \98\
In response to the Duke Memorandum, the Regents of the University of
California, several States, a county, city, union, and individual DACA
recipients brought suit in the U.S. District Court for the Northern
District of California challenging the rescission as arbitrary and
capricious under the APA, claiming that the rescission of DACA required
notice and comment, violated the Regulatory Flexibility Act, and denied
plaintiffs equal protection and due process.\99\ Other groups of
plaintiffs filed similar challenges, or amended existing lawsuits, in
the U.S. District Courts for the Eastern District of New York,\100\ the
District of Columbia,\101\ the Southern District of Florida,\102\ and
the District of Maryland.\103\
---------------------------------------------------------------------------
\98\ Memorandum on Rescission of Deferred Action for Childhood
Arrivals (DACA) from Elaine Duke, Acting Secretary, DHS (Sept. 5,
2017), <a href="https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca">https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca</a> (hereinafter Duke Memorandum); see also Letter from Attorney
General Sessions to Acting Secretary Duke on the Rescission of DACA
(Sept. 4, 2017), <a href="https://www.dhs.gov/sites/default/files/publications/17_0904_DOJ_AG-letter-DACA.pdf">https://www.dhs.gov/sites/default/files/publications/17_0904_DOJ_AG-letter-DACA.pdf</a>.
\99\ Regents of the Univ. of Cal. v. DHS, No. 17-cv-5211 (N.D.
Cal. 2017) (Regents v. DHS).
\100\ See Batalla Vidal v. Nielsen, No. 16-cv-4756 (E.D.N.Y.).
Mr. Batalla Vidal's original complaint challenged DHS's revocation
of the 3-year EAD issued under Expanded DACA and the Government's
application of the Texas I preliminary injunction to New York
residents such as himself. Compl., Vidal v. Baran, No. 16-cv-4756
(E.D.N.Y.) (Aug. 25, 2016).
\101\ See NAACP v. Trump, No. 17-cv-1907 (D.D.C.).
\102\ See Diaz v. DHS, No. 17-cv-24555 (S.D. Fla.).
\103\ See Casa de Maryland v. DHS, No. 17-cv-2942 (D. Md.).
---------------------------------------------------------------------------
In two separate orders in January 2018, in Regents v. DHS, the U.S.
District Court for the Northern District of California denied the
Government's motion to dismiss, and, finding plaintiffs had a
likelihood of success in proving the rescission was arbitrary and
capricious, entered a preliminary nationwide injunction requiring DHS
to maintain the DACA policy largely as it
[[Page 53750]]
was in effect prior to rescission.\104\ The injunction did not require
the Government to accept requests from individuals who had never
received DACA before, nor to provide advance parole to DACA recipients.
In February 2018, in Batalla Vidal v. Nielsen, the U.S. District Court
for the Eastern District of New York also entered a nationwide
preliminary injunction on the basis that DHS's rescission of the DACA
policy was likely arbitrary and capricious.\105\
---------------------------------------------------------------------------
\104\ The Northern District of California previously
consolidated the following cases: California v. DHS, No. 17-cv-5235
(N.D. Cal.); Garcia v. United States, No. 17-cv-5380 (N.D. Cal.);
City of San Jose v. Trump, No. 17-cv-5329 (N.D. Cal.); Regents v.
DHS; and County of Santa Clara v. Trump, No. 17-cv-5813 (N.D. Cal.).
\105\ See Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401
(E.D.N.Y. 2018); see also Batalla Vidal v. Trump, No. 18-485 (2d
Cir.) (consolidating appeals from New York v. Trump, No. 17-cv-5228
(E.D.N.Y.) and Batalla Vidal v. Baran, No. 16-4756 (E.D.N.Y.)).
---------------------------------------------------------------------------
In April 2018, in NAACP v. Trump, the U.S. District Court for the
District of Columbia granted plaintiffs partial summary judgment on one
of their APA claims, finding the Government failed to explain the
rescission adequately. The court vacated the Duke Memorandum, but it
stayed its order for 90 days so that DHS could provide additional
explanation of its action.\106\ Then-Secretary Kirstjen Nielsen issued
a second memorandum (Nielsen Memorandum) further explaining DHS's
decision to rescind DACA.\107\ Upon consideration of the Nielsen
Memorandum, the NAACP v. Trump court declined to reconsider its order
vacating the Duke Memorandum, again finding the rescission arbitrary
and capricious under the APA.\108\
---------------------------------------------------------------------------
\106\ NAACP v. Trump, 298 F. Supp. 3d 209, 249 (D.D.C. 2018).
\107\ Memorandum from Kirstjen M. Nielsen, Secretary, DHS (June
22, 2018).
\108\ NAACP v. Trump, 315 F. Supp. 3d 457, 474 (D.D.C. 2018).
---------------------------------------------------------------------------
The Government appealed the orders to the U.S. Courts of Appeals
for the Ninth, Second, and D.C. Circuits. While awaiting those courts'
decisions, the Government petitioned the Supreme Court for a writ of
certiorari before judgment in each case,\109\ asking the Court to grant
similar petitions and consolidate the rescission cases.\110\ Before the
Supreme Court acted on the Government's petitions, the Ninth Circuit
affirmed the preliminary injunction in Regents, and the Supreme Court
granted certiorari in that case and certiorari before judgment in the
Second Circuit and D.C. Circuit cases. Over the course of the
litigation, DHS continued to adjudicate DACA requests from previous
DACA holders as required by the nationwide injunctions.
---------------------------------------------------------------------------
\109\ The Ninth Circuit later affirmed the district court's
preliminary injunction, 908 F.3d 476 (9th Cir. 2018), and the
Government converted its petition to a petition for a writ of
certiorari. DHS v. Regents of the Univ. of Cal., No. 18-587 (Supreme
Court) (petition for writ of certiorari before judgment filed Nov.
5, 2018; request to convert to petition for writ of certiorari filed
Nov. 19, 2018).
\110\ McAleenan v. Vidal, No. 18-589 (Supreme Court) (petition
for writ of certiorari before judgment filed Nov. 5, 2018); Batalla
Vidal v. Trump, No. 18-485 (2d Cir.) (consolidating appeals from New
York v. Trump, 17-cv-5228 (E.D.N.Y.) and Batalla Vidal v. Baran, No.
16-04756 (E.D.N.Y.)) (appeal filed Feb. 20, 2018); Trump v. NAACP,
No. 18-588 (Supreme Court) (petition for writ of certiorari before
judgment filed Nov. 5, 2018); Trustees of Princeton Univ. v. United
States, No. 18-5245 (D.C. Cir.) (appeal filed Aug. 13, 2018)
(Trustees of Princeton Univ. v. United States, No. 17-cv-2325
(D.D.C.) consolidated with NAACP v. Trump, No. 17-cv-1907 (D.D.C.)).
Although the district court granted the Government's motion for
summary judgment in part in Casa de Maryland, the Fourth Circuit
reversed, vacating the Duke Memorandum, though it stayed its order,
and the Supreme Court denied cert. DHS v. Casa De Maryland, 18-1469
(petition for writ of certiorari); Casa de Maryland v. DHS, 18-1521
(4th Cir. May 17, 2019) (appeal and cross-appeal filed May 8, 2018)
(Casa de Maryland v. DHS, No. 17-cv-2942 (D. Md.)).
---------------------------------------------------------------------------
The Supreme Court heard the consolidated rescission cases to
determine the issues of (1) whether the rescission was reviewable; (2)
whether it was arbitrary and capricious under the APA; and (3) whether
it violated the equal protection principles of the Fifth Amendment's
Due Process Clause.\111\ On June 18, 2020, the Court issued its
decision and found the policy's rescission reviewable under the
APA.\112\ The Court found that the decision to rescind DACA was
arbitrary and capricious under the APA because then-Acting Secretary
Duke had not adequately considered alternatives to rescission, nor had
she considered the reliance interests of DACA recipients. The Court
held that plaintiffs failed to state a cognizable equal protection
claim. And the Court declined to consider the Nielsen Memorandum.
Ultimately, the Court remanded the matter to DHS ``to consider the
problem anew.'' \113\ In a letter to then-Acting Secretary Chad Wolf,
then-Attorney General William Barr withdrew the September 4, 2017
Sessions letter, in order to ``facilitate that consideration.'' \114\
---------------------------------------------------------------------------
\111\ Regents, 140 S. Ct. 1891 (2020).
\112\ Id. at 1907, 1910.
\113\ Id. at 1916.
\114\ Attorney General William P. Barr's letter to Acting
Secretary Chad F. Wolf on DACA (June 30, 2020), <a href="https://www.dhs.gov/sites/default/files/publications/20_0630_doj_aj-barr-letter-as-wolf-daca.pdf">https://www.dhs.gov/sites/default/files/publications/20_0630_doj_aj-barr-letter-as-wolf-daca.pdf</a>.
---------------------------------------------------------------------------
Subsequently, then-Acting Secretary Chad Wolf issued a memorandum
limiting grants of DACA to those individuals who had previously held
DACA and reducing the grant from 2- to 1-year increments, while DHS
considered the future of the policy.\115\ The Wolf Memorandum also
required rejection of all pending and future advance parole
applications from DACA recipients and a refund of the associated fees,
absent ``exceptional circumstances.'' \116\ The plaintiffs in Batalla
Vidal v. Nielsen and New York v. Trump amended their complaints to
challenge the Wolf Memorandum.\117\ The U.S. District Court for the
Eastern District of New York vacated the Wolf Memorandum after finding
that Mr. Wolf had not been lawfully serving as the Acting Secretary
under the Homeland Security Act at the time of the memorandum's
issuance.\118\ The court ordered DHS to post public notice on DHS and
USCIS websites that it was accepting initial DACA requests and
applications for advance parole documents under the terms in place
prior to the September 5, 2017 rescission, as well as to notify and
provide a remedy to those applicants affected by processing under the
now-vacated Wolf Memorandum.\119\ USCIS then returned to operating DACA
in accordance with the Napolitano Memorandum, as a result of the
Batalla Vidal court's order.\120\
---------------------------------------------------------------------------
\115\ See Reconsideration of the June 15, 2012 Memorandum
Entitled ``Exercising Prosecutorial Discretion with Respect to
Individuals Who Came to the United States as Children,'' Memorandum
from Chad F. Wolf, Acting Secretary, to heads of immigration
components of DHS, dated July 28, 2020, at p. 7 (hereinafter Wolf
Memorandum).
\116\ Id. at p. 8.
\117\ Plaintiffs in the previously consolidated cases in Regents
v. DHS likewise filed amended complaints in the Northern District of
California, challenging the Wolf Memorandum and the subsequent
implementing guidance (Joseph Edlow, Deputy Director of Policy,
USCIS, to Associate Directors and Program Office Chiefs,
Implementing Acting Secretary Chad Wolf's July 28, 2020 Memorandum,
``Reconsideration of the June 15, 2012 Memorandum `Exercising
Prosecutorial Discretion with Respect to Individuals Who Came to the
United States as Children' '' (Aug. 21, 2020)) on the basis that the
memoranda were ultra vires and violated the APA, and also
challenging then-Acting Secretary Wolf's appointment. See, e.g.,
Pls.' First Am. Compl. For Declaratory and Injunctive Relief,
Regents v. DHS, No. 17-cv-5211, 2020 WL 8270391 (N.D. Cal. Nov. 2,
2020). The parties stipulated to stay proceedings pending DHS's
actions pursuant to the Biden Memorandum.
\118\ Batalla Vidal v. Wolf, 501 F. Supp. 3d 117, 129-33
(E.D.N.Y. 2020).
\119\ See Batalla Vidal v. Wolf, No. 16-cv-4756, 2020 WL 7121849
(E.D.N.Y. Dec. 4, 2020).
\120\ DHS expects that the proposed rule would supersede both
the Napolitano Memorandum and, to the extent necessary, the vacated
Wolf Memorandum.
---------------------------------------------------------------------------
Meanwhile, in May 2018 and prior to the Supreme Court's decision in
Regents, Texas and nine other States filed suit in the U.S. District
Court for
[[Page 53751]]
the Southern District of Texas, challenging the legality of the
Napolitano Memorandum \121\ (which, despite the rescission, remained in
place due to numerous court orders \122\). As the States had waited 6
years to file suit, the court declined to enter a preliminary
injunction against DACA ``due to their delay.'' \123\ The court
explained that the plaintiff States could not show irreparable harm
from continuation of the policy during the litigation.\124\ But the
court found that the States had a likelihood of success on the merits
on their substantive and procedural APA claims.\125\ After discovery,
the court stayed the case awaiting the then-forthcoming decision in DHS
v. Regents.
---------------------------------------------------------------------------
\121\ Texas v. United States, 328 F. Supp. 3d 662 (S.D. Tex.
2018) (Texas II denial of motion for preliminary injunction).
\122\ See, e.g., NAACP v. Trump, 315 F. Supp. 3d 457, 474
(D.D.C. 2018).
\123\ See Texas II denial of motion for preliminary injunction
at 740.
\124\ Id.
\125\ Id. at 736.
---------------------------------------------------------------------------
Following the Supreme Court's decision in Regents, and after
additional discovery, the parties in Texas II filed cross-motions for
summary judgment. On July 16, 2021, the court in Texas II issued its
memorandum and order on the motions for summary judgment, holding that
the Napolitano Memorandum is contrary to the APA's rulemaking
requirements and the INA, and vacating the Napolitano Memorandum.\126\
The court remanded the Napolitano Memorandum to DHS for further
consideration. The court further issued a permanent injunction
prohibiting DHS's continued administration and reimplementation of DACA
without compliance with the APA, but temporarily stayed the vacatur and
permanent injunction as to most individuals granted DACA on or before
July 16, 2021, including with respect to renewal requests. The Texas II
court also held that while DHS may continue to accept both DACA initial
and renewal filings, DHS is prohibited from granting initial DACA
requests and accompanying requests for employment authorization.
---------------------------------------------------------------------------
\126\ Texas II July 16, 2021 memorandum and order.
---------------------------------------------------------------------------
Currently, termination of an individual's grant of deferred action
under DACA must adhere to the requirements of the nationwide
preliminary injunction issued by the U.S. District Court for the
Central District of California in Inland Empire-Immigrant Youth
Collective v. Nielsen.\127\ The Inland Empire court certified a limited
class of DACA recipients whose DACA grants had been or would be
terminated without notice under particular circumstances, and it
required USCIS to reinstate their deferred action under DACA and
provide advance notice and an opportunity to respond prior to
terminating a class member's grant of DACA. In accordance with the
preliminary injunction and modified class definition and implementation
procedures, USCIS is required to issue a notice of intent to terminate
(NOIT) if it decides to terminate an individual's DACA grant, unless
the individual (1) has a criminal conviction that is disqualifying for
DACA; (2) has a charge for a crime that falls within the egregious
public safety (EPS) grounds referenced in the USCIS 2011 NTA policy
memorandum; \128\ (3) has a pending charge for certain terrorism and
security crimes described in 8 U.S.C. 1182(a)(3)(B)(iii) and (iv) or 8
U.S.C. 1227(a)(4)(A)(i); (4) departed the United States without advance
parole; (5) was physically removed from the United States pursuant to
an order of removal, voluntary departure order, or voluntary return
agreement; or (6) maintains a nonimmigrant or immigrant status. As the
Inland Empire class does not include these categories of DACA
recipients, a NOIT is not required to terminate DACA. DHS is
preliminarily enjoined from terminating a grant of DACA based solely on
the issuance of an NTA that charges the individual as overstaying an
authorized period of admission or being present without inspection and
admission. DHS appealed the preliminary injunction to the U.S. Court of
Appeals for the Ninth Circuit, which heard oral arguments on the appeal
on June 13, 2019. The Ninth Circuit placed the case in abeyance on
April 7, 2021, pending the present rulemaking.\129\
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\127\ Order Granting Preliminary Injunction and Class
Certification, Inland Empire-Immigrant Youth Collective v. Nielsen,
17-cv-2048, 2018 WL 1061408 (C.D. Cal. Feb. 26, 2018), modified by
Modified Class Definition and Implementation Procedures--Corrected,
Inland Empire-Immigrant Youth Collective v. Nielsen, 17-cv-2048
(C.D. Cal. Mar. 20, 2018).
\128\ For an individual with an EPS charge for a crime of
violence, as set forth in section IV(A)(1)(d) of the USCIS 2011 NTA
policy memorandum, the minimum sentence for that charge must be at
least 1 year of imprisonment before the individual will be deemed
excluded from the class definition in Inland Empire. See id.,
Modified Class Definition and Implementation Procedures--Corrected,
at pp. 2-3.
\129\ Order Holding Appeal in Abeyance, Inland Empire-Immigrant
Youth Collective v. Mayorkas, 18-55564 (9th Cir. Apr. 7, 2021).
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C. Forbearance From Enforcement Action
In every area of law enforcement--both civil and criminal--
executive agencies exercise enforcement discretion.\130\ When, as is
the norm, legislatures provide law enforcement agencies with only
enough resources to arrest, detain, or prosecute a fraction of those
who are suspected of violating the law, these agencies must establish
priorities. DHS and its predecessor agencies have long exercised
enforcement discretion, prioritizing national security, border
security, and public safety mandates over civil infractions that do not
represent a similar threat to the United States and its citizens.\131\
Given DHS's limited resources to pursue immigration enforcement and the
approximately 11 million noncitizens estimated to reside in the United
States without legal status,\132\ the use of discretion and
prioritization is a necessary element of fulfilling the DHS mission.
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\130\ See Heckler v. Chaney, 470 U.S. 821, 831 (1985).
\131\ While the priorities have shifted between administrations,
DHS and its components have issued enforcement priority and
prosecutorial discretion policy memoranda since at least 1976,
including in 2017 and 2021. See, e.g., Sam Bernsen, General Counsel,
INS, Legal Opinion Regarding [Immigration and Naturalization]
Service Exercise of Prosecutorial Discretion (July 15, 1976); John
Kelly, Secretary, DHS, Enforcement of the Immigration Laws to Serve
the National Interest (Feb. 20, 2017); Memorandum from Acting
Secretary David Pekoske to Senior Official Performing the Duties of
the CBP Commissioner, et al., Review of and Interim Revision to
Civil Immigration Enforcement and Removal Policies and Priorities
(Jan. 20, 2021) (hereinafter Pekoske Memorandum); Acting ICE
Director Tae D. Johnson, Interim Guidance: Civil Immigration
Enforcement and Removal Priorities (Feb. 18, 2021). On September 15,
2021, the U.S. Court of Appeals for the Fifth Circuit partially
stayed a preliminary injunction issued by the U.S. District Court
for the Southern District of Texas with respect to the latter two
policies. See State of Texas v. United States, No. 21-40618 (5th
Cir. Sept. 15, 2021).
\132\ See DHS, Office of Immigration Statistics (OIS), Estimates
of the Unauthorized Immigrant Population Residing in the United
States: January 2015-January 2018 (Jan. 2021), <a href="https://www.dhs.gov/sites/default/files/publications/immigration-statistics/Pop_Estimate/UnauthImmigrant/unauthorized_immigrant_population_estimates_2015_-_2018.pdf">https://www.dhs.gov/sites/default/files/publications/immigration-statistics/Pop_Estimate/UnauthImmigrant/unauthorized_immigrant_population_estimates_2015_-_2018.pdf</a>
(hereinafter OIS Report) (``DHS estimates that 11.4 million
unauthorized immigrants were living in the United States on January
1, 2018, roughly unchanged from 11.4 million on January 1, 2015'');
Randy Capps, et al., Unauthorized Immigrants in the United States:
Stable Numbers, Changing Origins, Migration Policy Institute (2020),
<a href="https://www.migrationpolicy.org/sites/default/files/publications/mpi-unauthorized-immigrants-stablenumbers-changingorigins_final.pdf">https://www.migrationpolicy.org/sites/default/files/publications/mpi-unauthorized-immigrants-stablenumbers-changingorigins_final.pdf</a>
(hereinafter Capps (2020)) (``As of 2018 . . . there were 11 million
unauthorized immigrants in the country, down slightly from 12.3
million in 2007.'').
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In Fiscal Year (FY) 2016-FY 2020, DHS resources appropriated by
Congress allowed ICE to conduct an
[[Page 53752]]
average of 235,120 removals of noncitizens per fiscal year, a small
proportion of the roughly 11 million undocumented noncitizens present
in the United States.\133\ Because of this mismatch between available
resources and the number of potential enforcement targets, DHS must
prioritize those that pose the greatest risk to public safety, national
security, and border security. For instance, in FY 2020, 92 percent of
the noncitizens that ICE removed after arrest by ICE Enforcement and
Removal Operations (as opposed to those arrested by CBP at or near the
border) had criminal convictions or pending criminal charges.\134\ By
contrast, USCIS data released in 2019 on arrests of DACA recipients
reflect that just 10 percent of DACA recipients had ever been so much
as arrested or apprehended for a criminal or immigration-related civil
offense. Of those arrests, the most common offenses were non-DUI-
related driving offenses and immigration-related civil or criminal
offenses.\135\ This suggests that even in the absence of the DACA
policy, the vast majority of DACA recipients would not be enforcement
targets and likely would remain in the country without becoming the
subject of enforcement action.
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\133\ ICE, Fiscal Year 2020 Enforcement and Removal Operations
Report 4 (2020); ICE, Fiscal Year 2019 Enforcement and Removal
Operations Report 19 (2019); ICE, Fiscal Year 2018 Enforcement and
Removal Operations Report 10 (2018); ICE, Fiscal Year 2017
Enforcement and Removal Operations Report 12 (2017); ICE, Fiscal
Year 2016 Enforcement and Removal Operations Report 2 (2016).
\134\ See ICE Annual Report: Fiscal Year 2020, <a href="https://www.ice.gov/doclib/news/library/reports/annual-report/iceReportFY2020.pdf">https://www.ice.gov/doclib/news/library/reports/annual-report/iceReportFY2020.pdf</a>. ICE's interior enforcement operations are most
likely to encounter the DACA-eligible population because DACA
recipients must have been continuously physically present in the
United States since June 15, 2012, and, therefore, generally are not
encountered by CBP's border security actions.
\135\ See USCIS, DACA Requestors with an IDENT Response (Nov.
2019), <a href="https://www.uscis.gov/sites/default/files/document/data/DACA_Requestors_IDENT_Nov._2019.pdf">https://www.uscis.gov/sites/default/files/document/data/DACA_Requestors_IDENT_Nov._2019.pdf</a>.
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ICE is currently further focusing resources on the identification
of those individuals with serious criminal convictions and those
individuals who pose a threat to national security, border security,
and public safety.\136\ DHS's focus on high-priority cases generally,
as well as the DACA policy in particular, provides additional
reassurance to people who present low or no risk to the United States,
their families, and their communities. (This, in turn, has larger
societal benefits, as discussed in Section V.A.4.b.(6) and elsewhere in
this proposed rule.)
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\136\ See Acting ICE Director Tae D. Johnson, Interim Guidance:
Civil Immigration Enforcement and Removal Priorities (Feb. 18,
2021). As noted above, on September 15, 2021, the U.S. Court of
Appeals for the Fifth Circuit partially stayed a preliminary
injunction issued by the U.S. District Court for the Southern
District of Texas with respect to this policy. See State of Texas v.
United States, No. 21-40618 (5th Cir. Sept. 15, 2021).
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Adopting the proposed regulatory provisions would fortify DHS's
prioritized approach to immigration and border enforcement by allowing
DHS to continue to realize the efficiency benefits of the DACA policy.
USCIS' determination that an individual meets the DACA guidelines and
merits a favorable exercise of discretion assists law enforcement
activities in several areas by streamlining the review required when
officers encounter a DACA recipient. For example, when a CBP law
enforcement officer encounters a DACA recipient in the course of their
activities, they can see that USCIS confirmed that the noncitizen did
not recently cross the border and had no significant criminal history
at the time of the most recent DACA adjudication. Rather than
conducting a full review of the DACA recipient's immigration and
criminal history, in some circumstances, such as at the primary
inspection booth at a checkpoint, the officer may be able to make a
determination without necessitating further investigation (such as
secondary inspection)--an effort that could involve multiple officers,
with time costs ranging from minutes to hours.\137\ Additionally, while
officers must exercise their judgment based on the facts of each
individual case, the prior vetting of DACA recipients provides a
baseline that can streamline an enforcement officer's review of whether
a DACA recipient is otherwise an enforcement priority.
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\137\ In the U.S. Border Patrol (USBP) context, subject-matter
experts estimate that potential time savings could range from 30
minutes to 2 hours, depending on the circumstances of the encounter
and available staff and resources. Time savings would accrue to the
agent in the field as well as radio operators who work to confirm
identity. Specific data on this point are not available because USBP
does not separately collect data on this type of encounter.
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Similarly, when ICE encounters a DACA recipient in the course of
operations, ICE may review that person's history to ascertain if a
disqualifying conviction has been rendered against them since the
granting or renewal of DACA and proceed with an appropriate law
enforcement resolution in each case. As appropriate, a law enforcement
action, such as an arrest or immigration detainer being issued, may be
avoided if someone is a DACA recipient or eligible individual and has
no disqualifying convictions subsequent to the granting or renewal of
DACA and continues to merit a favorable exercise of prosecutorial
discretion.
In either scenario, DACA helps save time and resources, which then
could be spent on priority matters. At the same time, the DACA
recipient could avoid time in DHS custody, resulting in lower costs for
the DACA recipients and greater resource availability for DHS.
Likewise, ICE relies on the fact that a noncitizen has received
DACA in determining whether to place the noncitizen into removal
proceedings or, if the noncitizen is already in removal proceedings, in
determining whether to agree to continue, administratively close, or
dismiss the removal proceedings without prejudice.\138\ Depending on
the surrounding circumstances, such decisions could allow priority
cases to move through the overloaded immigration courts more quickly,
reduce resource burdens on ICE attorneys and the immigration courts,
provide more immediate respite to those who present low or no risk to
the country, or avoid costs associated with detaining and ultimately
removing a noncitizen.
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\138\ DHS cannot quantify the frequency with which ICE makes
such decisions, because ICE does not track enforcement discretion
decisions made based on DACA. Source: Enforcement and Removal
Operations; Office of the Principal Legal Advisor. In addition, such
decisions also can be affected by other policies (e.g., overall
enforcement priorities), such that in some cases, the decision to
forbear from enforcement action could be attributed to either DACA
or those other policies. But even when DHS is operating under
enforcement priorities that generally would produce the same
decision to forbear from enforcement action, ICE benefits from being
able to rely on the fact that USCIS already has vetted the
noncitizen via the DACA framework.
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As was the case when the DACA policy was first established in 2012,
DHS recognizes that it is unable now, or in the foreseeable future, to
take enforcement action against every noncitizen who resides in the
United States without legal status. Given this reality, it is necessary
for DHS to focus its resources and efforts on higher priority cases,
such as those individuals who present a threat to national or border
security. DHS policy long has reflected a determination that strong
humanitarian and practical considerations make these noncitizens, who
entered the United States as children and were not aware of, or in
control of, the manner or means of their entry, excellent candidates
for designation as low enforcement priorities. Enforcement actions
against this population are not aligned with a prioritization of border
or national security or public safety, or with DHS's commitment to
values-based enforcement policies.
[[Page 53753]]
Therefore, in accordance with relevant statutory provisions, DHS's
duty to enforce the immigration laws, and a long history of court
decisions upholding acts of prosecutorial discretion, DHS is proposing
this rule to continue and fortify its policy of exercising its
enforcement discretion to defer removal as to a particular, identified
class of noncitizens, so as to allow limited appropriated resources to
be applied to higher priority cases.\139\
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\139\ There are roughly 636,410 active DACA recipients and an
estimated total of 1.3 million individuals who could meet the
criteria set out in this proposed rule. Migration Policy Institute,
DACA Recipients & Eligible Population by State, <a href="https://www.migrationpolicy.org/programs/data-hub/deferred-action-childhood-arrivals-daca-profiles">https://www.migrationpolicy.org/programs/data-hub/deferred-action-childhood-arrivals-daca-profiles</a>. Even if all such individuals are granted
deferred action, that number represents only a small portion of the
estimated 11 million undocumented noncitizens present in the United
States and the available appropriated resources would remain grossly
inadequate to the task of prosecuting and removing the estimated
remaining 9.7 million undocumented individuals. This means that the
proposed rule will not prevent DHS from continuing to enforce the
immigration laws to the full extent that the resources Congress has
given it will permit; to the contrary, as discussed below, these
policies will facilitate still more effective use of the
Department's finite resources.
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1. The Secretary Is Authorized by Statute To Establish This Deferred
Action Policy
When Congress created DHS in 2002, it gave the Secretary authority
over most immigration matters and placed both ICE and CBP, the two
agencies responsible for immigration enforcement, under the Secretary's
direction.\140\ Section 103(a)(1) of the INA states that ``the
[Secretary] shall be charged with the administration and enforcement of
this Act and all other laws relating to the immigration and
naturalization of aliens.'' \141\ This sweeping grant includes
authority to issue enforcement discretion policies such as the one
proposed here.\142\ Congress also explicitly charged that ``the
Secretary shall be responsible for . . . [e]stablishing national
immigration enforcement policies and priorities,'' recognizing that the
Secretary must provide guidance on the proper exercise of the
Department's immigration enforcement authorities and on the allocation
of scarce resources.\143\
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\140\ See Homeland Security Act of 2002, Public Law 107-296, 116
Stat. 2136.
\141\ See 8 U.S.C. 1103(a)(1).
\142\ See Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957, 967
(9th Cir. 2017) (``[T]he INA explicitly authorizes the [Secretary]
to administer and enforce all laws relating to immigration and
naturalization. INA 103(a)(1), 8 U.S.C. 1103(a)(1). As part of this
authority, it is well settled that the Secretary can exercise
deferred action, a form of prosecutorial discretion . . . .'').
\143\ 6 U.S.C. 202(5).
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The review of historical practice above shows that deferred action
has played an important role in immigration enforcement for more than
60 years. Congress has affirmatively encouraged its use in various
settings. In INA sec. 204(a)(1)(D)(i)(II) and (IV), 8 U.S.C.
1154(a)(1)(D)(i)(II) and (IV), for example, Congress called attention
to deferred action as a remedy for certain domestic violence victims
and their children, by expressly providing that children who no longer
could self-petition under VAWA because they were over the age of 21
nonetheless would be ``eligible for deferred action and work
authorization.'' Similarly, in INA sec. 237(d)(2), 8 U.S.C. 1227(d)(2),
Congress clarified that a denial of a request for a temporary stay of
removal does not preclude deferred action for pending T and U
nonimmigrant applicants. And through IMMACT 90, Congress provided post-
hoc ratification of the use of indefinite voluntary departure in the
family fairness policy, stating that a delay in the effective date
``shall not be construed as reflecting a Congressional belief that the
existing family fairness program should be modified in any way before
such date.'' \144\ Provisions like these reflect Congress'
recognition--acting after the executive branch already has implemented
such a policy--that identifying classes of individuals who may be
eligible for deferred action, as an act of enforcement discretion,\145\
is both lawful and appropriate.\146\ Moreover, numerous regulations
refer to deferred action, some which have been in force for nearly 40
years, and Congress has allowed them to remain in force.\147\
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\144\ See IMMACT 90 sec. 301(g). As noted above, supra note 57,
the 1987 Family Fairness Memorandum was promulgated against a
backdrop of a failed legislative effort to provide a pathway to
legalization for IRCA-excluded spouses and children. The 1990 Family
Fairness Memorandum came amidst rejection of protection from
deportation in a House bill mirroring a Senate provision. See supra
note 61. As such, while Congress later ratified INS's administrative
practice, there was little to no apparent prospect for legislative
action prompting the family fairness policies at the time they were
promulgated in 1987 and 1990. But see Texas I, 809 F.3d at 185
(``Although the `Family Fairness' program did grant voluntary
departure to family members of legalized aliens while they `waited
for a visa preference number to become available for family
members,' that program was interstitial to a statutory legalization
scheme. DAPA is far from interstitial: Congress has repeatedly
declined to enact the Development, Relief, and Education for Alien
Minors Act (`DREAM Act'), features of which closely resemble DACA
and DAPA.'') (footnotes omitted); Texas II July 16, 2021 memorandum
and order at 66 (citing Texas I, 809 F.3d at 185) (``Family Fairness
was `interstitial to a statutory legalization scheme,' because its
purpose was to delay prosecution until Congress could enact
legislation providing the same benefits, which it did when it passed
[IMMACT 90].''). To whatever extent the 1990 Family Fairness
Memorandum can be described as ``interstitial'' due to earlier
passage of the Senate provision, DACA now occupies a similar
interstitial space--the American Dream and Promise Act of 2021
passed the House in March 2021, and the bill is currently under
consideration in the Senate. See H.R. 6, 117th Cong., American Dream
and Promise Act of 2021 (as passed by House, Mar. 18, 2021), <a href="https://www.congress.gov/bill/117th-congress/house-bill/6">https://www.congress.gov/bill/117th-congress/house-bill/6</a> (last visited
Sept. 16, 2021). The Department maintains, however, that the DACA
policy fits within the longstanding administrative practice of
deferred action and is authorized by statute regardless of whether
it is ``interstitial'' to a bill that is under active consideration
by Congress.
\145\ In the Texas II district court's July 16, 2021 memorandum
and order, the court distinguished between ``prosecutorial
discretion'' and ``adjudicative discretion,'' citing a past
statement in congressional testimony by Secretary Napolitano and a
memorandum from an INS General Counsel. DHS respectfully disagrees
with the court's interpretation of those statements--which do not
draw the distinction made by the district court--and also disagrees
with the court's legal conclusions on this point. It is true, of
course, that under the proposed rule, DHS does not simply forbear
from initiating proceedings; it also creates a process by which
applicants must seek forbearance through an adjudicative proceeding.
But that process is designed to answer one question: is forbearance
appropriate? Whenever an agency decides to exercise forbearance, it
must engage in some kind of process. The process in the proposed
rule is more formal and structured than many exercises of
prosecutorial discretion, but that is deliberate and serves
important goals; it ensures appropriate, consistent, and efficient
consideration of the equities deemed most relevant by the Secretary.
\146\ For other statutory references to deferred action, see,
e.g., REAL ID Act of 2005, Public Law 109-13, div. B, sec.
202(c)(2)(B)(viii), 119 Stat. 231, 313 (49 U.S.C. 30301 note)
(including deferred action recipients among the classes of
individuals with ``lawful status'' eligible for REAL ID-compliant
driver's licenses or identification cards); National Defense
Authorization Act for Fiscal Year 2004, Public Law 108-136, sec.
1703(c)(1)(A) and (2), 117 Stat. 1693, 1694-95 (2003) (providing
that the spouse, parent, or child of a U.S. citizen who died as a
result of honorable service in combat and who was granted posthumous
citizenship may self-petition for permanent residence and ``shall be
eligible for deferred action, advance parole, and work
authorization'').
\147\ See, e.g., 8 CFR 109.1(b)(7) (1982); 8 CFR 274a.12(c)(14)
(2014); 8 CFR 1.3(a)(4)(vi) (including noncitizens granted deferred
action among categories of those deemed ``lawfully present in the
United States'' for purposes of eligibility for benefits under title
II of Social Security Act); 8 CFR 214.11(m)(2) (deferred action for
trafficking victims who are provisionally approved for T
nonimmigrant status and on waiting list for available visa number);
8 CFR 214.14(d)(2) and (3) (same for U nonimmigrant status); 8 CFR
245.24(a)(3) (``U Interim Relief means deferred action and work
authorization benefits provided by USCIS or [INS] to applicants for
U nonimmigrant status deemed prima facie eligible for U nonimmigrant
status prior to publication of the U nonimmigrant status
regulations.''); 8 CFR 245a.2(b)(5) (including among noncitizens
eligible for adjustment to temporary resident status those who were
granted deferred action before 1982); 28 CFR 1100.35(b) (encouraging
the granting of deferred action and other forms of ``continued
presence'' for victims of severe forms of trafficking in persons who
are potential witnesses to that trafficking); 45 CFR 152.2
(noncitizens ``currently in deferred action status'' --except those
``with deferred action under [DHS's] deferred action for childhood
arrivals process, as described in the [Napolitano Memorandum]''--are
deemed ``lawfully present'' for purposes of the Pre-Existing
Condition Insurance Plan Program).
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[[Page 53754]]
Finally, the fact that Congress has repeatedly considered but
failed to enact legislative proposals to give legal status to a
population that substantially overlaps with the population eligible for
DACA does not call into question the Secretary's statutory authority to
establish this deferred action policy. As the Supreme Court often has
made clear, Congress can legislate only by following the constitutional
procedure for enactment of law.\148\ The non-actions of a subsequent
Congress, including its failure to do something significantly different
from an agency action, are not themselves legislation, and they are ``a
hazardous basis for inferring the intent of an earlier one,''
particularly with respect to determining whether the agency action is
authorized by statutes that an earlier Congress enacted.\149\ When
Congress does not act, it might be for a wide variety of reasons,
including competing priorities and the sheer press of business.\150\ In
any case, the DREAM Act \151\ is a substantially different policy from
DACA. The DREAM Act proposed to grant individuals lawful status, first
conditional and then permanent, which DHS cannot do and is not
proposing here. By declining to enact the DREAM Act, then, Congress has
not rejected or otherwise spoken to the Secretary's authority to
establish the DACA policy. It bears repeating that, though well aware
of DHS's longstanding administrative practice, including the Napolitano
Memorandum, Congress has not taken any action to override or prohibit
this use of deferred action.\152\
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\148\ See, e.g., INS v. Chadha, 462 U.S. 919, 951 (1983).
\149\ Mackey v. Lanier Collection Agency & Serv., Inc, 486 U.S.
825, 840 (1988) (quoting United States v. Price, 361 U.S. 304, 313
(1960)); see also, e.g., Cal. Div. of Labor Stds. Enf. v. Dillingham
Constr., N.A., 519 U.S. 316, 331 n.8 (1997).
\150\ See, e.g., Central Bank of Denver, N.A. v. First
Interstate Bank of Denver, N.A., 511 U.S. 164, 187 (1994).
\151\ The DREAM Act was first introduced in 2001 (see DREAM Act,
S. 1291, 107th Cong., 1st Sess. (2001)) and subsequently has been
reintroduced several times.
\152\ Indeed, Congress has taken up, but never passed, bills to
defund DACA processing by DHS. See, e.g., H.R. 5160, 113th Cong.
(2014).
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2. The Courts Have Long Recognized the Executive's Authority To
Establish Enforcement Priorities and Grant Deferred Action
It long has been recognized that executive agencies are entitled to
exercise their discretion in setting enforcement priorities when they
have limited resources. The Supreme Court explicitly recognized that
authority in Heckler v. Chaney, when the Food and Drug Administration
declined to proceed against an allegedly unlawful use of a particular
drug for lethal injections.\153\ The decision whether to enforce was,
the Court held, ``committed to agency discretion by law'' within the
meaning of the APA.\154\ The Court said: ``This Court has recognized on
several occasions over many years that an agency's decision not to
prosecute or enforce, whether through civil or criminal process, is a
decision generally committed to an agency's absolute discretion.''
\155\ The Court added that
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\153\ 470 U.S. 821 (1985) (Chaney).
\154\ 5 U.S.C. 701(a)(2).
\155\ Chaney, 470 U.S. at 831.
an agency decision not to enforce often involves a complicated
balancing of a number of factors which are peculiarly within its
expertise. Thus, the agency must not only assess whether a violation
has occurred, but whether agency resources are best spent on this
violation or another, whether the agency is likely to succeed if it
acts, whether the particular enforcement action requested best fits
the agency's overall priorities, and, indeed, whether the agency has
enough resources to undertake the action at all.\156\
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\156\ Id.
Regarding immigration enforcement, in Arizona v. United States, the
Supreme Court relied on the Federal Government's broad immigration
enforcement discretion to declare several provisions of an Arizona
immigration enforcement statute unconstitutional.\157\ The Court
described the scope of that enforcement discretion in sweeping terms:
``A principal 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.'' \158\ Over a decade earlier, the Court emphasized that even
after choosing to initiate enforcement action, immigration officials
may ``abandon the endeavor'' of immigration enforcement ``at each
stage'' of the process.\159\ Several Federal courts of appeals have
made similar statements, recognizing that the Executive has extremely
broad discretionary authority when deciding how to allocate enforcement
resources, including when to forbear removal on humanitarian
grounds.\160\
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\157\ 132 S. Ct. 2492 (2012).
\158\ Id. at 2499, citing Brief for Former Commissioners of the
United States Immigration and Naturalization Service as Amici Curiae
8-13.
\159\ AADC, 525 U.S. at 483-84.
\160\ See AADC, 525 U.S. at 483-84 (``[A]t the time IIRIRA was
enacted the INS had been engaging in a regular practice (which had
come to be known as `deferred action') of exercising that discretion
for humanitarian reasons or simply for its own convenience.'');
Regents of the Univ. of Cal. v. DHS, 908 F.3d 476, 487 (9th Cir.
2018) (``Deferred action refers to an exercise of administrative
discretion by the [immigration agency] under which [it] takes no
action to proceed against an apparently deportable alien based on a
prescribed set of factors generally related to humanitarian
grounds.'' (internal quotation marks omitted)); Arpaio v. Obama, 797
F.3d 11, 16 (D.C. Cir. 2015) (``Whether to initiate removal
proceedings and whether to grant relief from deportation are among
the discretionary decisions the immigration laws assign to the
executive.''); Crane v. Johnson, 783 F.3d 244, 247 (5th Cir. 2015)
(``Under the INA, the [Secretary] is `charged with the
administration and enforcement of the INA and all other laws
relating to the immigration and naturalization of aliens. . . .'
Although the [Secretary] is charged with enforcement of the INA, `a
principal feature of the removal system is the broad discretion
exercised by immigration officials.' In fact, the Supreme Court has
recognized that the concerns justifying criminal prosecutorial
discretion are `greatly magnified in the deportation context.' ''
(internal brackets and citations omitted)).
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Indeed, for more than 20 years the Supreme Court specifically has
recognized deferred action--that is, the decision to temporarily
forbear from pursuing the removal of a noncitizen--as a core feature
and ``regular practice'' of the Executive's discretionary
authority.\161\ The Court confirmed this understanding in the context
of the 2012 DACA policy, stating that ``[t]he defining feature of
deferred action is the decision to defer removal (and to notify the
affected alien of that decision).'' \162\ One Federal court aptly
described deferred action this way:
---------------------------------------------------------------------------
\161\ See AADC, 525 U.S. at 483-84.
\162\ Regents, 140 S. Ct. at 1911.
[T]he executive branch has long used an enforcement tool known
as ``deferred action'' to implement enforcement policies and
priorities, as authorized by statute. Deferred action is simply a
decision by an enforcement agency not to seek enforcement of a given
statutory or regulatory violation for a limited period of time. In
the context of the immigration laws, deferred action represents a
decision by DHS not to seek the removal of an alien for a set period
of time. In this sense, eligibility for deferred action represents
an acknowledgment that those qualifying individuals are the lowest
priority for enforcement.\163\
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\163\ Arpaio v. Obama, 27 F. Supp. 3d 185, 192-93 (D.D.C. 2014),
aff'd, 797 F.3d 11 (D.C. Cir. 2015).
The Court in Arizona recognized the Federal Government's
appropriate focus on just the type of criteria for forbearance policies
---------------------------------------------------------------------------
found in the 2012 DACA policy and in this proposed rule:
Discretion in the enforcement of immigration law embraces
immediate human concerns. Unauthorized workers trying to support
their families, for example, likely pose less danger than alien
smugglers or aliens who commit a serious crime. The equities of an
individual case may turn on many factors, including . . . long ties
to the community, or a record of distinguished
[[Page 53755]]
military service. . . . Returning an alien to his own country may be
deemed inappropriate even where he . . . fails to meet the criteria
for admission.\164\
---------------------------------------------------------------------------
\164\ Arizona, 132 S. Ct. at 2499. See also Casa de Maryland v.
DHS, 924 F.3d 684, 691 (4th Cir. 2019) (``Because of the `practical
fact,' however, that the government can't possibly remove all such
noncitizens, the Secretary has discretion to prioritize the removal
of some and to deprioritize the removal of others.'').
The Supreme Court's 8-1 decision in AADC, cited above, is
noteworthy. Emphasizing the breadth of the Executive power to decide
whether to grant deferred action, the Court observed that ``[a]t each
stage the Executive has discretion to abandon [the removal process],
and at the time IIRIRA was enacted the INS had been engaging in a
regular practice (which had come to be known as `deferred action') of
exercising that discretion for humanitarian reasons or simply for its
own convenience.'' \165\
---------------------------------------------------------------------------
\165\ AADC, 525 U.S. at 483-84.
---------------------------------------------------------------------------
The lower courts have described this specific form of enforcement
discretion in equally broad terms. In Regents of the Univ. of Cal. v.
DHS, the U.S. Court of Appeals for the Ninth Circuit stated that
``[d]eferred action is a decision by Executive Branch officials not to
pursue deportation proceedings against an individual or class of
individuals otherwise eligible for removal from this country.'' \166\
It likewise found that ``it is well settled that the Secretary can
exercise deferred action, a form of prosecutorial discretion whereby
[DHS] declines to pursue the removal of a person unlawfully present in
the United States.'' \167\ The Fifth and Eleventh Circuits also have
acknowledged deferred action as an appropriate exercise of enforcement
discretion.\168\ Indeed, the courts' acceptance of this type of policy
announcing enforcement discretion long predates DACA, including several
cases that refer to deferred action by name (or in some cases by its
earlier name, ``non-priority status'') as a nonreviewable exercise of
immigration enforcement discretion.\169\
---------------------------------------------------------------------------
\166\ 908 F.3d at 487.
\167\ Ariz. Dream Act Coal. v. Brewer, 818 F.3d 901 (9th Cir.
2016).
\168\ Pasquini v. Morris, 700 F.2d 658, 662 (11th Cir. 1983)
(granting or withholding deferred action ``is firmly within the
discretion of the INS'' and, therefore, can be granted or withheld
``as [the relevant official] sees fit, in accord with the abuse of
discretion rule when any of the [then] five determining conditions
is present''); Soon Bok Yoon v. INS, 538 F.2d 1211, 1213 (5th Cir.
1976) (``The decision to grant or withhold non-priority status [the
former name for deferred action] therefore lies within the
particular discretion of the INS, and we decline to hold that the
agency has no power to create and employ such a category for its own
administrative convenience without standardizing the category and
allowing applications for inclusion in it.'').
\169\ See, e.g., AADC, 525 U.S. at 483-84; Botezatu v. INS, 195
F.3d 311, 314 (7th Cir. 1999); Mada-Luna v. Fitzpatrick, 813 F.2d
1006, 1008 (9th Cir. 1987); Pasquini v. Morris, 700 F.2d 658, 661
(11th Cir. 1983); David v. INS, 548 F.2d 219, 223 (8th Cir. 1977);
Soon Bok Yoon v. INS, 538 F.2d 1211, 1213 (5th Cir. 1976).
---------------------------------------------------------------------------
Of course, as explained above, the DAPA and Expanded DACA policies
were subjected to court challenges and ultimately were not implemented,
and the Napolitano Memorandum recently was vacated by a district court.
But to the extent that courts have found substantive flaws in those
policies, they have not found that DHS may not forbear from removing
certain noncitizens, or identifying policy considerations and criteria
relevant to such forbearance, because forbearance from removal is so
strongly rooted in long-recognized executive enforcement discretion
authorities.\170\ In focusing on those individuals who came to the
country many years ago as children, have grown up here, have gone to
school here, in some cases have served honorably in the Armed Forces,
and do not pose a threat to public safety, national security, or border
security, the DACA policy appropriately affords deferred action to some
of the lowest priority removable noncitizens in the immigration system.
---------------------------------------------------------------------------
\170\ See Texas I at 655-56. Texas v. United States, 787 F.3d
733 (5th Cir. 2015), aff'd by equally divided Court, 136 S. Ct. 2271
(2016); see also Texas II July 16, 2021 memorandum and order at 74.
---------------------------------------------------------------------------
3. This Deferred Action Policy Conforms to Legal Limitations on the
Executive's Enforcement Discretion
DHS recognizes that the Executive's enforcement discretion is not
unlimited. Respect for Article I of the Constitution, the bedrock
principles of separation of powers, and the rule of law compels careful
consideration of the legal limits on all executive action, including
enforcement discretion. After careful consideration, DHS proposes a
rule that fully respects those limits.\171\
---------------------------------------------------------------------------
\171\ Other cogent discussions of the legal constraints on
enforcement discretion in immigration reach analogous conclusions.
See Written Testimony of Stephen H. Legomsky, Washington University
School of Law, in Unconstitutionality of Obama's Executive Actions
on Immigration: Hearing Before the House Comm. on the Judiciary,
114th Cong., at 74-76 (2015), <a href="https://www.govinfo.gov/content/pkg/CHRG-114hhrg93526/pdf/CHRG-114hhrg93526.pdf">https://www.govinfo.gov/content/pkg/CHRG-114hhrg93526/pdf/CHRG-114hhrg93526.pdf</a>.
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One limit, as the Supreme Court has observed, is that an agency may
not ``disregard legislative direction in the statutory scheme that the
agency administers. Congress may limit an agency's exercise of
enforcement power if it wishes, either by setting substantive
priorities, or by otherwise circumscribing an agency's power to
discriminate among issues or cases it will pursue.'' \172\
---------------------------------------------------------------------------
\172\ Chaney, 470 U.S. at 833.
---------------------------------------------------------------------------
The proposed rule does not ``disregard'' legislative direction; it
affirmatively effectuates it. As the Court pointed out in Chaney,
Congress can limit executive discretion by ``setting substantive
priorities.'' With respect to immigration enforcement, Congress in fact
has directed the Secretary to prioritize three missions: National
security, public safety through the removal of serious criminal
offenders (by level of severity of the crime), and border
security.\173\ Those are precisely the central priorities that the
proposed rule expressly incorporates. Nor does any statutory provision
attempt to ``limit [DHS's] exercise of enforcement power'' by
``otherwise circumscribing [DHS's] power to discriminate among issues
or cases it will pursue.''
---------------------------------------------------------------------------
\173\ A mandate to prioritize the removal of criminal offenders,
taking into account the severity of the crime, has been included in
every annual DHS appropriations act since 2009. See, e.g.,
Consolidated Appropriations Act, 2014, Public Law 113-76, div. F,
tit. II, 128 Stat. 5, 251; Consolidated Security, Disaster
Assistance, and Continuing Appropriations Act, 2009, Public Law 110-
329, div. D, tit. II, 122 Stat. 3574, 3659 (2008); see also INA
secs. 235(b)(1) and (c) and 236(c)(1)(D), 8 U.S.C. 1225(b)(1) and
(c) and 1226(c)(1)(D) (prioritizing national security and border
security).
---------------------------------------------------------------------------
Further, as noted earlier, INA sec. 103(a), 8 U.S.C. 1103(a),
confers broad powers on the Secretary in connection with ``the
administration and enforcement'' of the immigration laws, and section
402(5) of the Homeland Security Act, 6 U.S.C. 202(5), charges the
Secretary with the more specific duty of ``establishing national
immigration enforcement policies and priorities.'' In discharging that
responsibility to establish immigration enforcement policies and
priorities, the Secretary exercises their ``control, direction, and
supervision'' over DHS employees, INA sec. 103(a)(2), 8 U.S.C.
1103(a)(2), and may ``establish such regulations; prescribe such forms
of bond, reports, entries, and other papers; issue such instructions;
and perform such other acts as he deems necessary for carrying out his
authority,'' INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3). The proposed rule
is thus consistent with another important congressional policy--the
decision to entrust the optimal allocation of finite immigration
enforcement resources to the Secretary's broad discretion.
As discussed above, the enforcement priorities that animate the
proposed rule include national security, public safety through the
removal of serious criminal
[[Page 53756]]
offenders based on the severity of the particular crimes, and border
security. At the same time, when resources do not permit universal
enforcement, prioritizing some goals requires deprioritizing others.
The proposed rule deprioritizes the removal of those individuals who
came to the United States many years ago as children; have lived in the
United States peacefully and productively for substantial periods; and
have been or are likely to be productive contributors to American
society, via education, employment, and national service.
The use of deferred action as the particular vehicle for exercising
this enforcement discretion is equally rational. This proposed deferred
action policy would (1) encourage undocumented noncitizens to come
forward, identify and present themselves to the Department, provide
their addresses and other personal information, and supply fingerprints
that will permit background checks; (2) enable USCIS--using funds
raised by fees, provided in part by the deferred action requestors
themselves--periodically to identify and investigate a large class of
undocumented noncitizens who do not pose a threat to national security,
border security, or public safety, thus permitting the DHS immigration
enforcement agencies to focus their resources on the remaining higher
priority individuals; (3) make communities safer by further enabling
undocumented noncitizens who are crime victims or witnesses to report
crimes to the police without fear of being arrested, detained, and
removed; (4) significantly increase tax revenues as the wages and tax
filing rates of deferred action recipients rise; and (5) protect the
reliance interests of current DACA recipients--as well as their family
members, employers, and educational institutions, among others--who
have built lives and structured programs based on the existence of a
national enforcement discretion program for this low-priority
population.\174\
---------------------------------------------------------------------------
\174\ See Regents, 140 S. Ct. at 1914 (``DACA recipients have
`enrolled in degree programs, embarked on careers, started
businesses, purchased homes, and even married and had children, all
in reliance' on the DACA program. The consequences of the
rescission, respondents emphasize, would `radiate outward' to DACA
recipients' families, including their 200,000 U.S.-citizen children,
to the schools where DACA recipients study and teach, and to the
employers who have invested time and money in training them. In
addition, excluding DACA recipients from the lawful labor force may,
they tell us, result in the loss of $215 billion in economic
activity and an associated $60 billion in federal tax revenue over
the next ten years. Meanwhile, States and local governments could
lose $1.25 billion in tax revenue each year.'' (internal citations
omitted)).
---------------------------------------------------------------------------
A second limit, to quote the Supreme Court's Chaney decision once
more, is that an agency's enforcement policy cannot amount to an
``abdication of its statutory responsibilities.'' \175\ The proposed
rule comes nowhere close to an abdication, given the enormous resources
that the Department would continue to dedicate toward immigration
enforcement during implementation of the proposed rule, and the basic
practical reality that Congress has not appropriated sufficient
resources for DHS to pursue all immigration enforcement that is
available.\176\ Indeed, the proposed rule would not prevent DHS from
continuing to use all the resources Congress has appropriated for
immigration enforcement. There can thus be no suggestion of abdication;
DHS will continue to enforce the immigration laws as fully as its
appropriated resources allow.
---------------------------------------------------------------------------
\175\ Chaney, 470 U.S. at 833 n.4.
\176\ The ``abdication'' standard was tested in Texas v. United
States, 106 F.3d 661 (5th Cir. 1997). The State of Texas sued the
Federal Government, alleging that the Government had failed to
control undocumented immigration and that the State had incurred
economic costs as a result. A unanimous panel of the U.S. Court of
Appeals for the Fifth Circuit dismissed the claim. The court held:
``We reject out-of-hand the State's contention that the federal
defendants' alleged systemic failure to control immigration is so
extreme as to constitute a reviewable abdication of duty.'' 106 F.3d
at 667. The claim failed because ``[t]he State does not contend that
federal defendants are doing nothing to enforce the immigration laws
or that they have consciously decided to abdicate their enforcement
responsibilities. Real or perceived inadequate enforcement of
immigration laws does not constitute a reviewable abdication of
duty.'' Id.; see also id. (``The State candidly concedes . . . that
[INA sec. 103] places no substantive limits on the Attorney General
and commits enforcement of the INA to her discretion.'').
---------------------------------------------------------------------------
In view of these two limits, the Department does not believe that
it could grant deferred action to every noncitizen in the United States
who lacks lawful status, whether all at once or ``in smaller numbers,
group-by-group.'' \177\ But the proposed rule, limited in nature and
scope, would stop far short of such drastic action. And after careful
consideration, the Department believes it does possess the authority to
adopt the deferred action policy reflected in the proposed rule.\178\
---------------------------------------------------------------------------
\177\ Texas II July 16, 2021 memorandum and order at 64.
\178\ The district court in Texas II also concluded that ``DACA
is an unreasonable interpretation of the law because it usurps the
power of Congress to dictate a national scheme of immigration laws
and is contrary to the INA.'' The Department respectfully disagrees
and reiterates that its authority to create and implement DACA is
vested in the Secretary's broad authority under the INA and the
Homeland Security Act of 2002 to administer the immigration laws of
the United States and establish national immigration enforcement
policies and priorities, as explained above.
Relying on a Supreme Court case, Arizona v. United States, 567
U.S. 387, 406 (2012), the Texas II court concluded that the
Department's interpretation of its authority is unreasonable because
``Congress intended to completely preempt further regulation in the
area of immigration,'' including regulation by the Department with
respect to employment authorization of noncitizens. In the
Department's view, the Texas II court's reliance on Arizona was
misplaced. There, the Court held that an Arizona statute that made
it a criminal offense for a noncitizen without work authorization to
seek or engage in employment was preempted by Federal law because
``it would interfere with the careful balance struck by Congress
with respect to unauthorized employment of aliens.'' The DACA policy
gives rise to no such interference. DACA is not a State statute that
impinges or usurps Congress' plenary power over the ``field'' of
immigration. Rather, DACA is a policy created by a department of the
executive branch of government that, under Federal law, is vested
with the authority to act on immigration matters.
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D. Employment Authorization
Since the inception of DACA in 2012, DACA recipients--like all
other deferred action recipients--have been eligible for employment
authorization under 8 CFR 274a.12(c)(14), a decades-old regulation that
allows noncitizens who are provided deferred action from immigration
enforcement the opportunity to apply for such authorization and receive
an EAD if they establish an economic necessity for employment.\179\
``Economic necessity'' is based on the Federal Poverty Guidelines at 45
CFR 1060.2, and existing regulations at 8 CFR 274a.12(e) define the
criteria necessary to establish the noncitizen's economic need to work.
This proposed rule would not change the eligibility of DACA recipients
to apply for work authorization or alter the existing general rule for
establishing economic necessity. This rule proposes to codify DACA-
related employment authorization in a new paragraph designated 8 CFR
274a.12(c)(33).\180\ As with 8 CFR 274a.12(c)(14), the new paragraph
(c)(33) would continue to specify that the noncitizen must have been
granted deferred action and must establish economic need to be eligible
for employment authorization.
---------------------------------------------------------------------------
\179\ As discussed below, such discretionary employment
authorization for individuals provided deferred action has been
codified in similar regulations since publication of the predecessor
regulation at 8 CFR 109.1(b)(6) in 1981. See Employment
Authorization to Aliens in the United States, 46 FR 25079 (May 5,
1981).
\180\ Although currently issued under 8 CFR 274a.12(c)(14), a
DACA-related EAD does not have the ``C-14'' code on its face, but
rather ``C-33'' to assist DHS in distinguishing DACA recipients'
EADs for operational and statistical tracking purposes.
---------------------------------------------------------------------------
This rule also proposes a relatively modest change to existing DACA
practice, which requires all DACA requestors to submit the Form I-765,
[[Page 53757]]
Application for Employment Authorization, and the Form I-765WS,
Employment Authorization Worksheet. DHS proposes instead to make it
optional for each DACA requestor to apply for employment authorization
and an EAD. DHS proposes as well to modify the Form I-821D,
Consideration of Deferred Action for Childhood Arrivals, to contain a
place for the requestor to indicate whether they also are filing the
Form I-765 and the Form I-765WS concurrently. A DACA requestor may also
wait until after receiving a DACA approval notice before applying for
employment authorization. A DACA requestor or recipient who chooses to
request employment authorization must file Form I-765 and Form I-765WS
and pay all associated fees.\181\ This rule does not propose any
changes to the existing general rule for establishing economic
necessity, which will continue to be determined on a case-by-case basis
pursuant to 8 CFR 274a.12(e). This rule further proposes that the
termination of a noncitizen's DACA, in accordance with 8 CFR
274a.14(a), would result in the automatic termination of any DACA-
related employment authorization and employment authorization
documentation obtained by the noncitizen.
---------------------------------------------------------------------------
\181\ See discussion of fees at Section IV.A below.
---------------------------------------------------------------------------
Since at least the 1970s, the INS and later DHS have made
employment authorization available for noncitizens without lawful
immigration status who nevertheless are provided deferred action or
certain other forms of prosecutorial discretion.\182\ Although there
was no general Federal prohibition on employing noncitizens without
work authorization until the enactment of IRCA in 1986,\183\ working
without authorization nevertheless could cause certain categories of
nonimmigrants to violate their status. INS thus had a long practice of
notating the I-94 of a nonimmigrant provided such authorization,\184\
and it continued the practice for certain categories of noncitizens
without nonimmigrant status.\185\ In 1972, Congress made work
authorization a prerequisite for certain noncitizens to obtain a Social
Security number.\186\ Congress ratified the INS's position that it had
discretion under the INA to authorize noncitizens to work in enacting
the Farm Labor Contractor Registration Act Amendments of 1974
(FLCRAA).\187\ The FLCRAA made it unlawful for farm labor contractors
to employ knowingly any ``alien not lawfully admitted for permanent
residence or who has not been authorized by the Attorney General to
accept employment.'' \188\
---------------------------------------------------------------------------
\182\ See generally Sam Bernsen, Employment Rights of Aliens
Under the Immigration Laws, In Defense of the Alien, Vol. 2 (1979),
at pp. 21, 32-33 (collecting former INS OI on employment
authorization), reprinted at <a href="https://www.jstor.org/stable/23142996">https://www.jstor.org/stable/23142996</a>.
For example, the former INS's OI in 1969 allowed for discretionary
employment authorization to be issued to individuals who were
provided voluntary departure, which permitted certain deportable
noncitizens to remain in the United States until an agreed-upon date
at which point they had to leave at their own expense but without
the INS needing to obtain an order of removal. See INS OI 242.10(b)
(Jan. 29, 1969).
\183\ Public Law 99-603, 100 Stat. 3359.
\184\ See, e.g., INS OI 214.2(j) (Nov. 16, 1962) and 214.2(f)
(Aug. 15, 1958). See generally Sam Bernsen, Lawful Work for
Nonimmigrants, 48 No. 21 Interpreter Releases, 168 (June 21, 1971)
(noting that nonimmigrants were not subject to numerical limitations
but were subject to work restrictions).
\185\ See supra note 182.
\186\ See Social Security Amendments of 1972, Public Law 92-603,
sec. 137, 86 Stat. 1329, 1364-65 (codified as amended at 42 U.S.C.
405(c)(2)(B)(i)(I) (1979)); see also Sam Bernsen, Leave to Labor, 52
No. 35 Interpreter Releases 291, 294 (Sept. 2, 1975).
\187\ Public Law 93-518, sec. 11(a)(3), 88 Stat. 1652, 1655.
\188\ 7 U.S.C. 1045(f) (Supp. IV 1974); see 7 U.S.C. 2044(b)
(1970 and Supp. IV 1974) (contractor's license could be revoked on
same basis).
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In 1975, INS's General Counsel explained that INS authorized
certain noncitizens to work in cases ``when we do not intend or are
unable to enforce the alien's departure . . . .'' \189\ The broad
authority in section 103(a) of the INA, 8 U.S.C. 1103(a), charging the
``Attorney General'' and, ever since 2003, the Secretary, with ``the
administration and enforcement of this chapter and all other laws
relating to the immigration and naturalization of aliens'' consistently
has been interpreted to allow for the granting of such discretionary
employment authorization to noncitizens.\190\
---------------------------------------------------------------------------
\189\ Sam Bernsen, Leave to Labor; 52 No. 35 Interpreter
Releases 291, 294-95 (Sept. 2, 1975).
\190\ See Proposed Rules for Employment Authorization for
Certain Aliens, 44 FR 43480 (July 25, 1979) (first regulation
collecting employment authorization policies). These provisions
grant the Secretary broad discretion to determine the most effective
way to administer the laws. See Narenji v. Civiletti, 617 F.2d 745,
747 (D.C. Cir. 1979) (observing that the INA ``need not specifically
authorize each and every action taken by the Attorney General [(now
Secretary)], so long as his action is reasonably related to the
duties imposed upon him'').
---------------------------------------------------------------------------
By the late 1970s, INS work authorizations commonly were issued. In
1979, the INS published a proposed rule that for the first time sought
to codify its existing employment authorization practices.\191\ In the
preamble, the INS stated that ``[t]he Attorney General's authority to
grant employment authorization stems from section 103(a) of the
Immigration and [Nationality] Act[,] which authorizes him to establish
regulations, issue instructions, and perform any actions necessary for
the implementation and administration of the Act.'' \192\ The INS also
noted additional recognition by Congress of this authority in the
enactment of an amendment that barred from adjustment of status to
permanent residence any noncitizen (with certain exceptions) who after
January 1, 1977, engages in unauthorized employment prior to filing an
application for adjustment of status.\193\ The preamble further noted
that employment authorization could be obtained by noncitizens who were
prima facie entitled to an immigration benefit such as adjustment of
status, suspension of deportation, or asylum, as well as
---------------------------------------------------------------------------
\191\ 44 FR 43480 (July 25, 1979).
\192\ Id. (further noting that the Attorney General had
delegated the authority to the Commissioner of the INS).
\193\ Id. (citing Pub. L. 94-571, sec. 6, 90 Stat. 2703, 2705-06
(1976), which amended INA sec. 245(c) regarding adjustment of status
to permanent resident--the INS mistakenly cited the law as ``Pub. L.
95-571'').
[a]n alien who, as an exercise of [INS's] prosecutorial
discretion, has been allowed to remain in the United States for an
indefinite or extended period of time . . . . The proposed
regulation states that the application for employment authorization
may be granted if the alien establishes that he is financially
unable to maintain himself during the applicable period.\194\
---------------------------------------------------------------------------
\194\ Id.
When the final rule was published in 1981 as new part 109 to title
8 of the Code of Federal Regulations,\195\ it not only enabled various
classes of noncitizens authorized by specific statutes to work, but
also permitted discretionary work authorization for certain other
noncitizens without lawful status, such as those who (1) had pending
applications for asylum, adjustment of status, or suspension of
deportation; (2) had been granted voluntary departure; or (3) had been
recommended for deferred action.\196\ The new 8 CFR 109.1(b)(6)
published in 1981 specifically listed the following as a class of
noncitizens who could apply for work authorization to the INS district
director for the district in which the noncitizen resided:
---------------------------------------------------------------------------
\195\ In 1980, the INS had issued a second proposed rule for
notice and comment after modifying the initial rule based on public
comments. See Employment Authorization, 45 FR 19563 (March 26, 1980)
(preamble continued to note that INA sec. 103(a) provides legal
authority for issuance of employment authorization).
\196\ See Employment Authorization to Aliens in the United
States, 46 FR 25079 (May 5, 1981).
Any alien in whose case the district director recommends
consideration of deferred action, an act of administrative
convenience to the government which gives some cases lower priority:
Provided, the alien
[[Page 53758]]
establishes to the satisfaction of the district director that he/she
is financially unable to maintain himself/herself and family without
employment.\197\
---------------------------------------------------------------------------
\197\ Id. at 25081.
In November 1981, the INS moved the employment authorization provision
for individuals granted deferred action to 8 CFR 109.1(b)(7) when it
further expanded the categories of noncitizens who could be granted
employment authorization to include paroled noncitizens and deportable
noncitizens granted voluntary departure, either prior to or at the
conclusion of immigration proceedings.\198\
---------------------------------------------------------------------------
\198\ See Employment Authorization; Revision to Classes of
Aliens Eligible, 46 FR 55920 (Nov. 13, 1981).
---------------------------------------------------------------------------
When Congress passed IRCA in 1986,\199\ making it unlawful for the
first time for employers knowingly to hire ``an unauthorized alien''
for employment, Congress was well aware of the INS's longstanding
practice of granting employment authorization to noncitizens, including
the regulations permitting the agency to provide employment
authorization to certain categories of noncitizens who had no lawful
immigration status.\200\ During the extensive legislative deliberations
leading to IRCA, the INS also was considering a petition for rulemaking
from the Federation for American Immigration Reform (FAIR) that
directly challenged the 1981 employment authorization regulations as
ultra vires, particularly INS's authority to provide such authorization
to noncitizens who had not been specifically authorized by statute to
work, which the INS had published for public comment.\201\ FAIR's
petition sought to have the INS rescind 8 CFR 109.1(b) through a new
rulemaking.
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\199\ Public Law 99-603, 100 Stat. 3359.
\200\ See 8 U.S.C. 1324a(a)(1).
\201\ See Employment Authorization, 51 FR 39385, 39386-39387
(Oct. 28, 1986).
---------------------------------------------------------------------------
Before the agency acted on FAIR's petition, Congress intervened and
ratified the INS's interpretation of its legal authority to provide
employment authorization by providing in IRCA that:
the term ``unauthorized alien'' means, with respect to the
employment of an alien at a particular time, that the alien is not
at that time either (A) an alien lawfully admitted for permanent
residence, or (B) authorized to be so employed by [the INA] or by
the Attorney General.\202\
---------------------------------------------------------------------------
\202\ See IRCA sec. 101(a)(1), 100 Stat. 3359, 3368 (codified at
INA sec. 274a(h)(3), 8 U.S.C. 1324a(h)(3)).
At the very same time that Congress made it unlawful for an employer
knowingly to hire a person who is unauthorized to work, Congress
recognized that a person could be authorized to work by the Attorney
General.
After publishing proposed regulations to implement IRCA and
soliciting extensive public comment, including extending the comment
period on the still-pending FAIR petition, the INS ultimately denied
that petition.\203\ In its denial, the INS noted both its broad
authority in section 103(a) of the INA, 8 U.S.C. 1103(a), to administer
the immigration laws and the new definition of ``unauthorized alien''
in section 274A(h)(3) of the INA, 8 U.S.C. 1324a(h)(3), by explaining
that
---------------------------------------------------------------------------
\203\ See Employment Authorization; Classes of Aliens Eligible,
51 FR 45338 (Dec. 18, 1986); Control of Employment of Aliens, 52 FR
8762 (Mar. 19, 1987); and Employment Authorization; Classes of
Aliens Eligible, 52 FR 46092 (Dec. 4, 1987) (denial of FAIR
petition).
the only logical way to interpret this phrase is that Congress,
being fully aware of the Attorney General's authority to promulgate
regulations, and approving of the manner in which he has exercised
that authority in this matter, defined ``unauthorized alien'' in
such fashion as to exclude aliens who have been authorized
employment by the Attorney General through the regulatory process,
in addition to those who are authorized employment by statute.\204\
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\204\ See Employment Authorization; Classes of Aliens Eligible,
52 FR at 46093 (Dec. 4, 1987).
This contemporaneous interpretation--which has remained undisturbed by
Congress for nearly 35 years--is entitled to considerable weight.
The final IRCA regulations incorporated the statutory definition of
``unauthorized alien'' from section 274a(h)(3) of the INA, 8 U.S.C.
1324a(h)(3), for employment purposes at 8 CFR 274a.1. The rules also
redesignated the employment authorization regulations in part 109, with
amendments, as part 274a, subpart B, in title 8 of the Code of Federal
Regulations, with work authorization made available for noncitizens
with deferred action who establish an economic necessity in 8 CFR
274a.12(c)(14).\205\ In 8 CFR 274a.12(d) (1987), the rules further
described the basic criteria and procedures to establish ``economic
necessity'' as based on the Federal Poverty Guidelines. The new rules
also included employment authorization for noncitizens who were members
of a nationality group granted EVD, a form of prosecutorial discretion
described in greater detail above.\206\
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\205\ See 52 FR 16216 (May 1, 1987).
\206\ See 8 CFR 274a.12(a)(11) (1987). See also general
discussion above of EVD and its successor, DED. After the term EVD
became obsolete, the employment authorization provision was amended
to cover noncitizens provided DED pursuant to a directive from the
President to the Secretary and under the conditions established by
the Secretary in accord with the presidential directive. See current
8 CFR 274a.12(a)(11).
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In the years following the enactment of IRCA and promulgation of
the employment authorization regulations, the provisions relating to
employment authorization for noncitizens with deferred action have
remained substantively the same. As noted above, under subsequent
administrations since the 1987 promulgation of 8 CFR 274a.12(c)(14),
the INS and then DHS have continued to provide deferred action to
individuals who are members of specific groups and to grant them
eligibility for employment authorization on a case-by-case basis.\207\
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\207\ See, e.g., Memorandum for Regional Directors, et al., INS,
from Paul W. Virtue, Acting Executive Associate Commissioner, INS,
Re: Supplemental Guidance on Battered Alien Self-Petitioning Process
and Related Issues (May 6, 1997) (directing individualized
determinations of deferred action for pending self-petitioners under
VAWA); USCIS Announces Interim Relief for Foreign Students Adversely
Impacted by Hurricane Katrina, press release, dated Nov. 25, 2005;
Memorandum from Donald Neufeld, Acting Associate Director, USCIS
Office of Domestic Operations, Guidance Regarding Surviving Spouses
of Deceased U.S. Citizens and Their Children (Sept. 4, 2009)
(directing deferred action and employment authorization for widows
and widowers whose immigrant petitions had not been decided before
their spouses died); Napolitano Memorandum (establishing DACA and
directing that determinations be made as to whether eligible
individuals qualify for work authorization during their period of
deferred action).
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After IRCA, Congress made certain limited amendments to the
employment-related provisions in the INA,\208\ but Congress never has
modified INA sec. 274a(h)(3), 8 U.S.C. 1324a(h)(3), the provision that
recognizes that the Attorney General (now the Secretary) may authorize
noncitizens to be lawfully employed.\209\ Congress also periodically
has limited the classes of noncitizens who may receive employment
authorization,\210\
[[Page 53759]]
but it never has altered the policy in existence since at least the
1970s (and codified in regulations since 1981) that noncitizens granted
deferred action may apply for and obtain discretionary employment
authorization. In fact, as noted above, Congress has enacted statutes
that recognized and adopted existing USCIS deferred action practices
for certain noncitizens, such as pending T and U nonimmigrant
applicants and petitioners, without altering 8 CFR 274a.12(c)(14),
which provided for their ability to apply for employment
authorization.\211\
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\208\ See, e.g., IMMACT 90, Public Law 101-649, tit. V, subtit.
C, 104 Stat. 4978 (1990) (codified as amended at various sections of
8 U.S.C. 1324a and 1324b--additional provisions related to employer
sanctions and anti-discrimination in employment of noncitizens);
IIRIRA, Public Law 104-208, div. C, tit. IV, 110 Stat. 3009, 3009-
655-3009-670 (codified as amended at various sections of 8 U.S.C.
1324a and 1324b--adding provisions for pilot programs on identity
and employment eligibility verification, amendments regarding
employer sanctions, and amendments regarding unfair immigration-
related employment practices).
\209\ Section 274A(h)(3)(B) of the INA, 8 U.S.C. 1324a(h)(3)(B),
recognizes that employment may be authorized by statute or by the
Secretary. See, e.g., Ariz. Dream Act Coal. v. Brewer, 757 F.3d
1053, 1062 (9th Cir. 2014) (``Congress has given the Executive
Branch broad discretion to determine when noncitizens may work in
the United States.''); Perales v. Casillas, 903 F.2d 1043, 1050 (5th
Cir. 1990) (noting the broad, discretionary employment authorization
authority in INA sec. 274A(h)(3) and the implementing EAD
regulations).
\210\ See, e.g., 8 U.S.C. 1158(d)(2) (asylum applicants not
otherwise eligible for employment authorization shall not be
eligible for employment authorization prior to 180 days after filing
asylum application if regulations authorize such employment); 8
U.S.C. 1226(a)(3) (detained noncitizen may not be provided work
authorization, even if released, unless the noncitizen is lawfully
admitted for permanent residence or otherwise would--without regard
to removal proceedings--be provided such authorization); 8 U.S.C.
1231(a)(7) (limiting circumstances in which noncitizens ordered
removed may be eligible to receive employment authorization).
Indeed, those provisions restricting employment authorization
reasonably can be construed as reflecting Congress' general
understanding that the Attorney General, now the Secretary,
otherwise has statutory authority to provide employment
authorization to noncitizens, including those who do not have a
lawful immigration status, except where expressly proscribed in the
INA.
\211\ See, e.g., INA sec. 237(d)(2), 8 U.S.C. 1227(d)(2) (law
enacted in 2008 following INS policy of using deferred action and
other measures to forbear removing individuals who demonstrate
eligibility for T or U nonimmigrant status).
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The Department has carefully considered, but respectfully disagrees
with, the Texas II court's decision finding that it is unlawful to
provide employment authorization to persons who receive deferred action
under DACA.\212\ The Texas II court found that DACA recipients are not
in the categories of noncitizens whom Congress specifically has
authorized to be employed, nor in the categories of noncitizens for
whom Congress has allowed DHS to provide discretionary employment
authorization.\213\ The Department believes that the court's conclusion
is inconsistent with the long history of Congress' recognition of the
former INS's and DHS's practice of providing discretionary employment
authorization to individuals granted deferred action both before and
after IRCA, as described earlier in this section, and the best
interpretation of the Secretary's broad authorities under INA sec.
103(a)(3), 8 U.S.C. 1103(a)(3), and INA sec. 274A(h)(3), 8 U.S.C.
1324a(h)(3), which indicates that with respect to employment, an
``unauthorized alien'' may be eligible and authorized to work either by
the INA or ``by the Attorney General,'' now the Secretary. Nothing in
INA sec. 274A(h)(3), 8 U.S.C. 1324a(h)(3), indicates that there must be
some underlying statute that separately provides the Secretary with
discretion to authorize employment for a given category of noncitizens
before the Secretary may exercise the discretion that is provided
directly to the Secretary through INA sec. 274A(h)(3), 8 U.S.C.
1324a(h)(3).\214\ In addition to individuals granted deferred action,
DHS notes that DHS, and the Department of Justice (DOJ) before it, long
has authorized employment for many categories of noncitizens for whom
no additional statute expressly provides for employment
authorization.\215\ Although these categories of noncitizens whom the
Attorney General and later the Secretary have authorized for employment
eligibility have been placed into regulations at various times, many of
them were in the 1981 codification of the former INS employment
authorization rules, while others were added later.\216\ The regulatory
employment authorization categories have continued to exist to this
day. Were DHS to adopt the interpretation of the Texas II court, many
of these other employment authorization categories that also rely on
the Secretary's broad authorities under INA secs. 103(a)(3) and
274a(h)(3) might be called into question. DHS respectfully declines to
adopt such a restrictive interpretation. In noting that DACA also
applies to individuals in removal proceedings, the Texas II court
interpreted INA sec. 236(a)(3), 8 U.S.C. 1226(a)(3), as making ``aliens
not lawfully admitted for permanent residency with pending removal
proceedings . . . ineligible for work authorization.'' \217\ But the
last clause of INA sec. 236(a)(3), 8 U.S.C. 1226(a)(3), recognizes such
an individual may have employment authorization even if they have not
been afforded lawful permanent resident status:
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\212\ See Texas II July 16, 2021 memorandum and order at 76-77
(granting summary judgment to plaintiff States and enjoining
administration and implementation of DACA, but staying injunction
with respect to DACA renewal requestors). See also Section III.B
above.
\213\ Texas II July 16, 2021 memorandum and order at 54-55.
\214\ The Texas II court relied heavily on the opinion of the
U.S. Fifth Circuit Court of Appeals decision in Texas I, which was
based in part on that court's views that INA sec. 274A(h)(3), 8
U.S.C. 1324a(h)(3), would not support DAPA and its attendant
employment authorization. See Texas. v. United States, 809 F.3d 134,
179-86 (5th Cir. 2015), aff'd by equally divided court, United
States v. Texas, 136 S. Ct. 2271 (2016) (Texas I). The Department
has considered the Fifth Circuit's opinion, and for the reasons
stated in this section, the Department respectfully disagrees with
this single appellate court. In particular, the Fifth Circuit's view
that INA sec. 274A(h)(3) was a miscellaneous definitional provision
(i.e., a provision that could not plausibly grant DHS the authority
to grant work authorization) is contradicted by the statutory
context recited above. That definition was added as part of the IRCA
reforms (i.e., reforms to make it unlawful to knowingly employ
unauthorized aliens). In that context, the definition of
``unauthorized alien'' is an essential feature on which Congress
acted with intentionality.
\215\ See, e.g., 8 CFR 274a.12(a)(11) (noncitizens provided DED
pursuant to a presidential directive); 8 CFR 274a.12(c)(9) (certain
pending applicants for adjustment of status); 8 CFR 274a.12(c)(1)
(foreign national spouses or unmarried dependent children of foreign
government officials present on A-1, A-2, G-1, G-3, or G-4 visas); 8
CFR 274a.12(c)(3)(i)(B) (nonimmigrant students present on an F-1
visa seeking Optional Practical Training); 8 CFR 274a.12(c)(10)
(noncitizens provided suspension of deportation/Cancellation of
Removal (including NACARA)); 8 CFR 274a.12(c)(11) (noncitizens
paroled in the public interest); 8 CFR 274a.12(c)(16) (foreign
nationals who have filed ``application[s] for creation of record''
of lawful admission for permanent residence); 8 CFR 274a.12(c)(21)
(S nonimmigrants who assist law enforcement in prosecuting certain
crimes); and 8 CFR 274a.12(c)(26) (certain H-4 nonimmigrant spouses
of H-1B nonimmigrants). This is a nonexhaustive list only.
\216\ See 46 FR 15079 (May 5, 1981) (final rule codifying
categories of employment-authorized noncitizens in former 8 CFR part
109, later moved, as amended, to 8 CFR 274a.12).
\217\ Texas II July 16, 2021 memorandum and order at 55
(emphasis in original).
[The Secretary] . . . may not provide the alien with work
authorization (including an ``employment authorized'' endorsement or
other appropriate work permit), unless the alien is lawfully
admitted for permanent residence or otherwise would (without regard
to removal proceedings) be provided such authorization. (Emphasis
---------------------------------------------------------------------------
added)
The Department interprets the last clause of INA sec. 236(a)(3), 8
U.S.C. 1226(a)(3), to represent a further recognition by Congress that
noncitizens who are not permanent residents also can be authorized to
work by other means, and that there must necessarily be categories of
noncitizens other than lawful permanent residents who can obtain work
authorization under these circumstances. Moreover, the Texas II court's
reading would render superfluous provisions of the INA that explicitly
bar employment authorization for certain categories of noncitizens in
the United States without lawful status.\218\ Read as a whole, the INA
most naturally would permit work authorization for those individuals
covered either by statute specifically or as authorized by the
Secretary pursuant to INA sec. 103(a)(3), 8 U.S.C.
[[Page 53760]]
1103(a)(3), and INA sec. 274A(h)(3), 8 U.S.C 1324a(h)(3).
---------------------------------------------------------------------------
\218\ See, e.g., 8 U.S.C. 1226(a)(3) (barring employment
authorization for noncitizens released on bond or recognizance
during removal proceedings); 8 U.S.C. 1231(a)(7) (barring employment
authorization for noncitizens released on orders of supervision
after final order of removal).
---------------------------------------------------------------------------
To be clear, however, under the proposed rule DACA recipients would
not ``have the `right''' to employment authorization.\219\ While DACA
recipients are eligible to request employment authorization, they never
have been in the category of individuals who are automatically
authorized to work ``incident to status,'' such as asylees, TPS
beneficiaries, and other groups identified in 8 CFR 274a.12(a) whose
employment authorization is a component of their immigration status.
DACA recipients have no lawful immigration status and have always been
within the categories of noncitizens who apply for a discretionary
grant of employment authorization under 8 CFR 274a.12(c). The Texas II
court also was influenced by the fact that DACA requestors thus far
have been required to apply for employment authorization when they seek
DACA.\220\ However, the Department is proposing to change that practice
in this rule by no longer making it compulsory for a DACA requestor to
apply for employment authorization. Under the proposed rule, an
application for employment authorization would be optional. A DACA
recipient would need to apply for and be granted employment
authorization in order to work lawfully.
---------------------------------------------------------------------------
\219\ Texas II July 16, 2021 memorandum and order at 38.
\220\ See id. at 55-56.
---------------------------------------------------------------------------
Although DHS believes that the INA directly authorizes the
Secretary to provide employment authorization to persons who receive
deferred action under DACA, to the extent there is any ambiguity,
humanitarian concerns, reliance interests, economic concerns, and other
relevant policy concerns strongly weigh in favor of DHS continuing to
make discretionary employment authorization available for individual
DACA recipients who establish economic necessity. Existing DACA
recipients have relied on deferred action and employment authorization
for years, and planned their lives--and, in many cases, their families'
lives--around them. Without work authorization, many DACA recipients
would have no lawful way to support themselves and their families and
contribute fully to society and the economy. At the same time, to make
DACA recipients ineligible for work authorization would squander the
important economic and social contributions that many DACA recipients
are making as a result of their authorization to work (including by
working in frontline jobs during the ongoing coronavirus
emergency).\221\ In addition, it would increase the likelihood that
they no longer would be able to support their families, including U.S.
citizen children, or perhaps that they might perceive no alternative
but to work without authorization. This proposed rule therefore seeks
to serve an assortment of important public policy goals by providing
discretionary employment authorization to DACA recipients who
demonstrate an economic necessity to work, and by allowing employers to
lawfully hire DACA recipients. The ability to work lawfully provides
numerous benefits to DACA recipients, their families, and their
communities, and contributes to the collection of income tax and other
payroll taxes at the Federal, State, and local levels, where applicable
under law.\222\
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\221\ Svajlenka (2020).
\222\ See Cong. Budget Office, ``Budgetary Effects of
Immigration-Related Provisions of the House-Passed Version of H.R.
240, An Act Making Appropriations for the Department of Homeland
Security'' (Jan. 29, 2015) (estimating that blocking deferral of
removal for certain noncitizens would cost the Federal Government
$7.5 billion from 2015 to 2025), <a href="https://www.cbo.gov/publication/49920">https://www.cbo.gov/publication/49920</a>; Wong (2020).
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E. Lawful Presence
Various Federal statutes draw distinctions between noncitizens who
are ``lawfully present'' in the United States and those who are not.
The INA does not contain a general definition of ``lawfully present''
or related statutory terms for purposes of Federal immigration
law.\223\ The statutory provisions that use ``lawfully present'' and
related terms (e.g., ``unlawfully present'') likewise leave those terms
undefined, and they do not expressly address whether and in what sense
individuals subject to a period of deferred action are to be considered
``lawfully present'' or ``unlawfully present'' in the United States
during that period for purposes of various statutes.
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\223\ See 8 U.S.C. 1101.
---------------------------------------------------------------------------
Eligibility for certain Federal benefits depends in part on whether
a noncitizen is ``lawfully present'' in the United States. The Personal
Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA)
\224\ generally provides that noncitizens who are not ``qualified
aliens'' are not eligible for ``federal public benefits.'' \225\
However, PRWORA includes an exception to this ineligibility rule for
retirement and disability benefits under title II of the Social
Security Act for ``an alien who is lawfully present in the United
States as determined by the Attorney General'' (now the
Secretary).\226\ The Balanced Budget Act of 1997 \227\ amended PRWORA
to add similar exceptions for Medicare and railroad retirement and
disability benefits.\228\
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\224\ Public Law 104-193, 110 Stat. 2105.
\225\ 8 U.S.C. 1611(a).
\226\ 8 U.S.C. 1611(b)(2); see also 8 U.S.C. 1641(b) (defining
``qualified alien'').
\227\ Public Law 105-33, 111 Stat. 251.
\228\ 8 U.S.C. 1611(b)(3) and (4).
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PRWORA also limits the provision of ``state and local public
benefits'' to noncitizens who are ``qualified'' noncitizens,
nonimmigrants, or parolees, but it provides that States may
affirmatively enact legislation making noncitizens ``who [are] not
lawfully present in the United States'' eligible for such
benefits.\229\ Moreover, IIRIRA limits the availability of residency-
based State post-secondary education benefits for individuals who are
``not lawfully present.'' \230\
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\229\ 8 U.S.C. 1621(d).
\230\ 8 U.S.C. 1623(a).
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In addition to making persons who are ``lawfully present''
potentially eligible for certain Federal public benefits for which they
otherwise would be disqualified, and restricting eligibility for
certain benefits under State law of persons who are ``not lawfully
present,'' Congress has incorporated a formulation of the term ``lawful
presence'' into the rules governing admissibility.\231\ IIRIRA provides
that a noncitizen who departs the United States after having been
``unlawfully present'' for specified periods is not eligible for
admission for 3 or 10 years after the date of departure, depending on
the duration of unlawful presence.\232\ IIRIRA further provides that,
with certain exceptions, an individual who has been ``unlawfully
present'' for more than 1 year and who enters or attempts to re-enter
the United States without being admitted is inadmissible.\233\
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\231\ See generally 8 U.S.C. 1182.
\232\ 8 U.S.C. 1182(a)(9)(B)(i).
\233\ 8 U.S.C. 1182(a)(9)(C).
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``For purposes of'' the 3-year and 10-year inadmissibility bars,
IIRIRA provides that an individual is ``deemed to be unlawfully
present'' if they are ``present in the United States after the
expiration of the period of stay authorized by the Attorney General''
or are ``present in the United States without being admitted or
paroled.'' \234\ But apart from that provision, which is limited by its
terms to that paragraph of the statute, Congress has not attempted to
prescribe the circumstances in which persons are or should be deemed to
be ``lawfully present'' or ``unlawfully
[[Page 53761]]
present.'' \235\ Instead, Congress has left the definition of those
terms under Federal laws to the executive branch. In some instances, it
has done so explicitly, such as with respect to Social Security,
Medicare, and railroad retirement benefits.\236\ In others, it has done
so implicitly, such as with respect to restrictions on State and local
public benefits and residency-based State post-secondary education
benefits, by using the terms without defining them or addressing their
applicability to particular circumstances.\237\
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\234\ 8 U.S.C. 1182(a)(9)(B)(ii).
\235\ On this question DHS disagrees with the court in Texas II,
which cited a number of statutory provisions in finding that ``the
INA specifies several particular groups of aliens for whom lawful
presence is available.'' Texas II July 16, 2021 memorandum and order
at 53. However, these provisions confer lawful status, an entirely
separate concept to lawful presence, and one that DHS agrees it does
not have the authority to grant in this proposed rule.
\236\ See, e.g., 8 U.S.C. 1611(b)(2) through (4) (``lawfully
present in the United States as determined by the Attorney
General''); 42 U.S.C. 402(y) (same).
\237\ See, e.g., 8 U.S.C. 1621(d) and 1623(a).
---------------------------------------------------------------------------
The executive branch has not previously promulgated an overarching
and unified definition of ``lawfully present'' and related terms for
the various Federal laws that use those terms. On several occasions,
however, the executive branch has addressed whether persons who are
subject to a period of deferred action should be deemed to be
``lawfully present'' or ``unlawfully present'' not generally or in the
abstract, but for the specific purposes of certain of those provisions.
These phrases are terms of art, with specialized meanings for those
purposes, as explained in more detail below.
Shortly after Congress enacted PRWORA in 1996, and prior to the
enactment of IIRIRA and the Balanced Budget Act of 1997, the Attorney
General exercised her express authority under 8 U.S.C. 1611(b)(2) to
define ``lawfully present'' for purposes of eligibility for Social
Security benefits. The Attorney General issued an interim regulation
that defines the term to include, inter alia, ``[a]liens currently in
deferred action status.'' \238\ Following the Attorney General's
administrative interpretation of the term ``lawfully present'' to
include deferred action recipients for purposes of Social Security
eligibility, Congress added the provisions in 8 U.S.C. 1611(b)(3) and
(4) that permit the Attorney General to exercise the same authority
with respect to eligibility for Medicare and railroad retirement
benefits.
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\238\ 61 FR 47039 (Sept. 6, 1996) (codified as transferred at 8
CFR 1.3(a)(4)(vi)); see also 76 FR 53778 (Aug. 29, 2011)
(transferring the rule from 8 CFR 103.12 to 8 CFR 1.3).
---------------------------------------------------------------------------
Subsequent administrative interpretations have taken a similar
approach. The Government has interpreted ``lawfully present'' to
include persons with a period of deferred action for purposes of other
Federal programs.\239\ In addition, the Government has interpreted the
deeming provision in 8 U.S.C. 1182(a)(9)(B)(ii) to mean that persons
should not be deemed ``unlawfully present'' during ``period[s] of stay
authorized by the Attorney General,'' including periods of deferred
action.\240\
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\239\ See, e.g., 42 CFR 417.422(h) (eligibility for Medicare
health maintenance organizations and competitive medical plans).
\240\ See Memorandum to Field Leadership from Donald Neufeld,
Acting Associate Director, USCIS Office of Domestic Operations,
Consolidation of Guidance Concerning Unlawful Presence for Purposes
of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act at 42
(May 6, 2009); Williams Memorandum; USCIS Adjudicator's Field Manual
ch. 40.9.2(b)(3)(J).
---------------------------------------------------------------------------
Although the Federal Government has not adopted a comprehensive
definition of ``lawfully present'' and related statutory terms, and
although the implementation of those terms will depend on the specific
statutory context in which they are used, the positions discussed above
reflect certain more general views about the meaning of ``lawfully
present.''
As a general matter, DHS understands the phrase ``lawfully
present'' as a term of art--not in a broad sense, or to suggest that
presence is in all respects ``lawful,'' but to encompass situations in
which the executive branch tolerates an individual being present in the
United States at a certain, limited time or for a particular, well-
defined period. The term is reasonably understood to include someone
who is (under the law as enacted by Congress) subject to removal, and
whose immigration status affords no protection from removal (again,
under the law as enacted by Congress), but whose temporary presence in
the United States the Government has chosen to tolerate, including for
reasons of resource allocation, administrability, humanitarian concern,
agency convenience, and other factors.\241\ In the case of persons with
deferred action, because DHS has made a non-binding decision to forbear
from taking enforcement action against them (for a limited period),
those individuals' presence has been tolerated by the officials
executing the immigration laws.
---------------------------------------------------------------------------
\241\ See AADC, 525 U.S. at 483-84.
---------------------------------------------------------------------------
``Lawful presence'' is a ``distinct concept'' from the much broader
concept of ``lawful status,'' which refers to an immigration status
granted pursuant to a provision of the INA, such as lawful permanent
residence, a nonimmigrant student status, or asylum.\242\ Lawful status
can be conferred only pursuant to statute because it provides a legally
enforceable right to remain in the United States. Lawful presence, as
understood and implemented by DHS, confers no such right. As noted by
the court in Texas II, Congress has defined who is and is not entitled
to lawful immigration status in the detailed provisions of the INA. DHS
agrees that it is bound by those provisions and, except to the extent
the INA itself includes a discretionary element in certain
adjudications, does not have the ability to confer or deny lawful
status beyond the terms laid out by Congress.\243\ By contrast,
according persons a period of deferred action and regarding them as
``lawfully present'' confers no substantive defense to removal or
independent pathway to citizenship, and deferred action may be revoked
at any time.
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\242\ Chaudhry v. Holder, 705 F.3d 289, 292 (7th Cir. 2013); see
also 8 CFR 245.1(d)(1) (defining ``lawful immigration status'' as
any one of several types of immigration status granted pursuant to
the INA). See also Texas II July 16, 2021 memorandum and order at
53.
\243\ As noted above, however, the REAL ID Act of 2005 provides
that deferred action serves as acceptable evidence of ``lawful
status'' for purposes of eligibility for a REAL ID-compliant
driver's license or identification card. See 49 U.S.C. 30301 note.
In the regulations implementing the REAL ID Act, DHS clarified its
view that this definition does not affect other definitions or
requirements that may be contained in the INA or other laws. See 6
CFR 37.3.
---------------------------------------------------------------------------
After careful consideration and with respect, DHS believes that the
Texas II court erred in conflating the two concepts of ``lawful
presence'' and ``lawful status.'' As the U.S. Court of Appeals for the
Fifth Circuit put it, ``lawful status'' implies a ``right [to be in the
United States] protected by law'' while lawful presence ``describes an
exercise of discretion by a public official.'' \244\ The statutory
concept of lawful presence covers those individuals who may not have
lawful status but whose presence the Federal Government has elected to
tolerate. It is merely a recognition of the fact that DHS has decided
to tolerate the presence of a noncitizen in the United States
temporarily, under humanitarian or other particular circumstances, and
that the individual is known to immigration officials and will not be
removed for the time being.
---------------------------------------------------------------------------
\244\ See Dhuka v. Holder, 716 F.3d 149, 156 (5th Cir. 2013).
---------------------------------------------------------------------------
The Napolitano Memorandum does not address lawful presence and does
[[Page 53762]]
not itself prescribe how DACA recipients are to be treated in the
various arenas in which ``lawful presence'' is germane. However, DHS
has treated persons who receive a period of deferred action under DACA
like other deferred action recipients for these purposes. Thus, for
example, DACA recipients are included in the Department's definition of
``lawfully present'' at 8 CFR 1.3(a)(4)(vi) for purposes of eligibility
for Social Security benefits under 8 U.S.C. 1611(b)(2), and DHS has not
regarded their time in deferred action as ``unlawful presence'' for
purposes of inadmissibility determinations.\245\
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\245\ See Consideration of Deferred Action for Childhood
Arrivals: Frequently Asked Questions, Questions 1 and 5, <a href="https://www.uscis.gov/humanitarian/consideration-of-deferred-action-for-childhood-arrivals-daca/frequently-asked-questions">https://www.uscis.gov/humanitarian/consideration-of-deferred-action-for-childhood-arrivals-daca/frequently-asked-questions</a> (hereinafter DACA
FAQs).
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As noted above, the executive branch has not previously proposed a
singular definition of ``lawfully present'' that applies across the
board to all statutes that include that and related terms. DHS
recognizes that the statutory terms ``lawfully present'' and
``unlawfully present,'' and the distinction between ``lawful presence''
and ``lawful status,'' have caused significant confusion in debate
about and litigation over the legality of the 2012 DACA policy and
related DAPA policy. Questions have been raised about whether it is
approp
[…truncated; see source link]Indexed from Federal Register on September 28, 2021.
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