President Donald J. Trump,
The White House,
Washington, DC. Dear President Trump: As immigration law teachers and
scholars, we write to express our position that the executive
branch has legal authority to implement Deferred Action for
Childhood Arrivals (DACA 2012). This letter provides legal
analysis about DACA 2012. In our view, there is no question
that DACA 2012 is a lawful exercise of prosecutorial
discretion. Our conclusions are based on years of experience
in the field and a close study of the U.S. Constitution,
administrative law, immigration statutes, federal regulations
and case law. As the administration determines the future of
DACA 2012, understanding its legal foundation and history is
critical. DACA 2012 was announced by the President, and implemented
in a memorandum by the Secretary of Homeland Security, on
June 15, 2012. It enables qualifying individuals to request a
temporary reprieve from removal known as ``deferred action.''
Deferred action is one form of prosecutorial discretion in
immigration law and has been used for decades by the
Department of Homeland Security (DHS) (and formerly the
Immigration and Naturalization Service (INS)) and over
several administrations. Whether a requesting individual receives deferred action
under DACA 2012 is at the discretion of DHS. Qualifying
individuals may request DACA 2012 if they came to the United
States before the age of sixteen; are currently in school or
have graduated; have continuously resided in the United
States since June 15, 2007; have not been convicted of a
felony, ``significant misdemeanor,'' or three or more non-
significant misdemeanors; do not otherwise pose a threat to
public safety or national security; and otherwise warrant
protection as a matter of discretion. Individuals who are
granted DACA 2012 receive a two-year period in deferred
action and also gain eligibility to apply for employment
authorization. The legal authority for DACA 2012 originates from the U.S. Constitution. Article II, Section Three (the Take Care
Clause) states in part that the President ``shall take Care
that the Laws be faithfully executed.'' Inherent in the
function of the ``Take Care Clause'' is the ability of the
President to target some immigration cases for removal and to
use prosecutorial discretion favorably in others. As
described by the U.S. Supreme
Court: ``[W]e recognize that an agency's refusal to institute
proceedings shares to some extent the characteristics of the
decision of a prosecutor in the Executive Branch not to
indict--a decision which has long been regarded as the
special province of the Executive Branch, inasmuch as it is
the Executive who is charged by the Constitution to `take
Care that the Laws be faithfully executed.' ''
As early as 1976, former INS General Counsel Sam Bernsen
executed a legal opinion that identified the Take Care Clause
as the primary source for prosecutorial discretion in
immigration matters. He wrote: ``The ultimate source for the
exercise of prosecutorial discretion in the Federal
Government is the power of the President. Under Article II,
Section 1 of the Constitution, the executive power is vested
in the President. Article II, Section 3, states that the
President `shall take care that the laws be faithfully
executed.' ''
The U.S. Supreme Court has also recognized the role of
prosecutorial discretion in the immigration system. In
Arizona v United States, the Court noted that ``[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 . . .''
Congress created the Immigration and Nationality Act (the
Act or INA) in 1952 and it remains the primary statutory
authority for immigration law today. Importantly, Congress
has delegated most discretionary immigration functions to
DHS. Section 103 of the Act provides that ``[t]he Secretary
of Homeland Security shall be charged with the administration
and enforcement of this Act and all other laws relating to
the immigration and naturalization of aliens . . .''
Congress has repeatedly acknowledged that the Executive has
power to grant ``deferred action'' for certain categories of
people such as victims of crimes and human trafficking. Additionally, previous administrations have announced
deferred action programs to protect qualifying individuals. For example, under the George W. Bush administration, U.S. Citizenship and Immigration Services (part of DHS) announced
a deferred action program for students affected by Hurricane
Katrina and later developed a program for the widows of U.S.
citizens. Moreover, Congress also recognized legal authority
for immigration prosecutorial discretion in INA Sec. 242(g),
which bars judicial review of three specific prosecutorial
discretion decisions by the agency: to commence removal
proceedings, to adjudicate cases, and to execute removal
orders. Another important legal source for deferred action is Title
8 of the Code of Federal Regulations. Section 274a.12(c)(14)
dates to 1981 and is the product of notice and comment
rulemaking.
Keywords matched
immigration DACA naturalization Immigration Naturalization