An Overview of Discretionary Reprieves from Removal: Deferred Action, DACA, TPS, and Others

Summary

Since at least the 1970s, immigration authorities in the United States have sometimes exercised their discretion to grant temporary reprieves from removal to non-U.S. nationals (aliens) present in the United States in violation of the Immigration and Nationality Act (INA). Well-known types of reprieves include deferred action, Deferred Action for Childhood Arrivals (DACA), and Temporary Protected Status (TPS). The authority to grant some types of discretionary reprieves from removal, including TPS, comes directly from the INA. The authority to grant other types of reprieves generally arises from the Department of Homeland Security’s (DHS’s) enforcement discretion—that is, its discretion to determine the best manner for enforcing the immigration laws, including by prioritizing some removal cases over others.

The primary benefit that a reprieve offers to an unlawfully present alien is an assurance that he or she does not face imminent removal. Reprieves also generally confer other benefits, including eligibility for employment authorization and nonaccrual of unlawful presence for purposes of the three- and ten-year bars on admission to the United States under the INA. Reprieves do not confer “lawful immigration status,” in the narrow sense that reprieve recipients typically remain removable under the INA’s grounds of inadmissibility or deportability (although they may have defenses to removal, including a statutory defense in the case of TPS) and in the more general sense that recipients do not enjoy most of the statutorily fixed protections that come with lawful permanent resident (LPR), refugee, asylee, and nonimmigrant status. The availability and duration of reprieves often turn upon executive policies, and accordingly reprieves do not offer steadfast protection from removal or reliable access to other benefits.

Categories of reprieves premised upon executive enforcement discretion include the following:

Deferred Action. The generic term that DHS uses for a decision not to remove an inadmissible or deportable alien pursuant to its enforcement discretion.

DACA. A large-scale, programmatic type of deferred action available since 2012 for a subset of aliens who arrived in the United States as children.

Deferred Enforced Departure (DED). A reprieve premised on the President’s exercise of foreign policy powers to protect nationals of countries experiencing war or instability.

Extended Voluntary Departure (EVD). An earlier version of DED little used since 1990.

Reprieves granted pursuant to statutory authority include the following:

TPS Relief. A form of temporary protection from removal for aliens from countries that DHS designates as unsafe for return because of armed conflict, natural disaster, or other extraordinary conditions.

Parole. A statutory power that authorizes DHS to grant entry (but not admission) to inadmissible aliens on a case-by-case basis.

Immigration authorities may grant other reprieves in connection with removal proceedings:

Administrative Closure. A decision to discontinue temporarily a removal proceeding.

Voluntary Departure. A brief reprieve that allows an alien to depart the United States at his own expense in lieu of removal proceedings or enforcement of a removal order.

Stay of Removal, Order of Supervision. Mechanisms often used together that allow DHS or an immigration judge to postpone enforcement of a removal order.