Legal Memo in Support of Deferred Action for the group of 11 undocumented Americans, each representing "1 of 11 Million"
August 20, 2014
As described in the attached cover letter, these 11 undocumented Americans have come forward to ask for consideration for deferred action. Deferred action is one form of prosecutorial discretion, which the Department of Homeland Security (DHS) can exercise right now on a case-by-case basis. Moreover, the President has the legal authority to create a program through which immigrants can come forward affirmatively to apply for a temporary status and a reprieve from deportation. Such a program would help bring order, fairness, and uniformity to an immigration system that has caused undue suffering and family separation. More than 1,100 individuals are deported each day, resulting in the devastation of communities. The legal authority for the administration to grant deferred action in the cases of the 11 undocumented Americans, and for the broader immigrant community, is set forth as follows:
The U.S. Constitution, immigration statutes, regulations, and legal precedent provide the President with broad legal authority to provide temporary status to undocumented Americans, without granting legal permanent resident status or U.S. citizenship, which can only be done through legislative reform.
As Chief Executive, the President has not only the duty to enforce laws but also the authority to decide how to do so. Prosecutorial discretion refers to the authority of a law enforcement agent or agency to decide how to use its resources to enforce the laws. The decision to give a warning rather than to issue a traffic ticket is an example of prosecutorial discretion. Every law enforcement agency, including U.S. Citizenship & Immigration Services (USCIS) and Immigration & Customs Enforcement (ICE), has the power to decide whom to investigate, arrest, detain, charge, and prosecute given its limited resources.
Prosecutorial discretion may be exercised towards an individual or a class of people. For example, in 2009 USCIS adopted guidance allowing surviving spouses and children of deceased U.S. citizens to apply for deferred action. In 2012, the agency created the Deferred Action for Childhood Arrivals (DACA) program, where it exercised its discretion in granting deferred action for a period of two years to individuals who entered the U.S. before the age of 16 and met other requirements.
Courts have repeatedly recognized the agency's inherent discretion to enforce its laws. The Supreme Court emphasized the federal government's "broad discretion," which includes "immediate human concerns." The agency has also provided guidance regarding its authority to exercise prosecutorial discretion. Favorable factors considered in exercising prosecutorial discretion in a case include length of stay in country, ties to community, educational achievement, and others as outlined by former ICE Director John Morton in a June 2011 memorandum.
Prosecutorial discretion can take many forms. Deferred action is one type of such discretion that reflects a decision to defer the removal of individuals. Legal authority for deferred action comes from Congress's grant of authority to DHS to administer and enforce immigration laws. Regulations describe deferred action as "an act of administrative convenience to the government which gives some cases lower priority" (for enforcement action). Federal courts have acknowledged executive power to grant deferred action since the 1970s, at least.
Parole is another type of discretion that is grounded in well-founded legal authority. The law states that the Attorney General "may . . . in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case–by–case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States," and also requires parole of certain family members of battered immigrants.
Prosecutorial discretion actions have been part of the immigration system for at least 35 years. Many presidents, of both parties, have exercised their executive authority and granted temporary status to individuals. In 1980, President Carter exercised parole authority to allow Cubans to enter the U.S.; about 123,000 Mariel Cubans were paroled into the U.S. by 1981. In 2010, the Obama administration began a policy of granting parole to the spouses, parents, and children of military members.
Multiple Republican presidents have explicitly used executive action to address immigration issues. For example, President Reagan used executive action in 1987 to ease immigration standards for 200,000 Nicaraguan exiles in the United States. In 1990, President George H.W. Bush granted relief to certain Chinese students who were in the U.S. through an executive order. President George W. Bush granted Temporary Protected Status (TPS) to as many as 150,000 Salvadorans after a series of devastating earthquakes in 2001. The next year, he signed an executive order that expedited naturalization for green card holders who enlisted in the military.
Create a Broad Program Allowing Immigrants to Come Forward
Based on the legal authority described above, the Obama administration should create a broad program that will allow as many people as possible to apply for protection from deportation and temporary status that provides work authorization for those individuals who have an economic necessity. This program should be administered by USCIS, which should review each application on a case-by-case basis. After a review of each individual application, USCIS should determine whether to grant detained and non-detained individuals deferred action, advance parole, and employment authorization for a renewable period of four years to every person who has ties to the U.S. This will allow those, including the 11 undocumented Americans in this group, who have family, employment, community, business, and other ties to the U.S. to remain here without the threat of deportation if they can show that they meet any of the following criteria:
- 18 months of continuous presence in the U.S.;
- A family member (including spouse, parents, sons or daughters, grandparents, aunts, uncles, and cousins) in the U.S. who has immigration status, including U.S. citizens and lawful permanent residents, as well as individuals with TPS, withholding of removal, or DACA; and
- Currently working or have worked in the past 90 days or currently in school.
Modify DACA Requirements
The Obama administration should also modify the DACA requirements as outlined below:
- Expand the DACA program to all young immigrants who entered the U.S. as children by raising the age at time of entry to 18, regardless of how old – or young – they are today.
- Move the DACA continuous residence cut off date to the last 5 years. When announced on June 15, 2012, the DACA guidelines required continuous residence for 5 years. The guidelines should be updated to allow young immigrants who currently have 5 years of continuous residence in the U.S. and who otherwise qualify for DACA to apply.
- Stop denying DACA to people based on legal concepts such as "significant" misdemeanors, which have no basis in criminal or immigration law.
- Automatically grant advance parole to DACA recipients so that they can travel outside of the U.S. and not be barred from reentering.
Fees and Fee Waivers
In order for this program to be successful, it must be affordable enough to allow all immigrants to come forward and apply. Undocumented immigrants often work in low-wage industries, which means that it may take weeks, or months, to scrape together sufficient funds for any immigration application. More than 27 percent of undocumented families have annual incomes of less than $20,000. The creation of a broad deferred action program must address these realities. Specifically, we urge the Obama administration to:
- Establish affordable application fees with exemptions and fee waivers sufficient to address the need; and
- Allow households to submit "family applications." This will streamline the adjudication of applications with largely similar facts and documents, reduce administrative costs, and make the application process more affordable for families. Nearly half of immigrant households are couples with children.
President Obama's authority to act, both for the 11 undocumented Americans and for the many millions of people their cases represent, is clear. So is the benefit of such action to our economy, communities, and families. We urge the administration to look at each of the deferred action requests of the enclosed 11 undocumented Americans and grant each of them deferred action for a renewable period of four years. President Obama should follow in the footsteps of President Reagan, President Carter, and President Bush and use his authority to shift immigration resources so that they meet our needs. Failure to do so would only perpetuate the pain caused by an immigration system that all sides acknowledge is in desperate need of repair.
This memo was written by National Immigration Law Center, Bill Hing, and Mony Ruiz-Velasco who are the attorney legal advisors for the 1 of 11 Million campaign.