There are also agency guidance documents related to
deferred action issued by DHS (and formerly INS) over the
last four-plus decades. The 1976 legal opinion by former INS
General Counsel Sam Bernsen cites to the Take Care Clause of
the U.S. Constitution, as well as statutory and case law from
as early as 1825 to affirm the exercise of prosecutorial
discretion in immigration. It was around this time when INS
published its first guidance on deferred action in the form
of an ``Operations Instruction.'' This ``Operations
Instruction'' stated ``(ii) Deferred action. In 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
deferred action category.'' Since 1975, deferred action has
been identified in several subsequent guidance documents. Guidance documents are common in administrative law and are a
recognized form of agency action under the Administrative
Procedure Act. At tension with the aforementioned body of law is a letter
sent by ten state Attorneys General to the administration
requesting that DACA 2012 be rescinded. This letter refers to
DACA 2012 as ``unlawful'' and does so without citing to the
foundational legal authorities behind deferred action. Furthermore, the letter conflates deferred action, ``lawful
presence'' and work authorization in ways that are legally
unsound and unclear. Finally, the letter itself shoehorns
arguments into Texas v. United States, a lawsuit that never
included the core of DACA 2012, and instead involved policies
that are at this point in time moot. Moreover, a previous
lawsuit challenging DACA 2012 failed on jurisdictional
grounds and would inevitably inform any future challenge. While the scope of this letter is to describe the legal
foundation for DACA 2012, it is important to highlight the
history and inevitability of prosecutorial discretion in
immigration enforcement. Prosecutorial discretion exists
because the government has limited resources and lacks the
ability to enforce the law against the entire undocumented
population. Recognizing this resource limitation, Congress
has charged the Secretary of DHS with ``establishing national
immigration enforcement policies and priorities.''
Prosecutorial discretion and policies like DACA 2012 also
have a humanitarian dimension, and such factors have long
driven deferred action decisions. Finally, DACA 2012 has been
an unqualified policy success, allowing over three-quarters
of a million recipients to continue their education, receive
professional licensing, find employment, and pay taxes into
Social Security and other tax coffers. This letter outlines the legal foundation for DACA 2012 and
confirms that maintaining such a policy falls squarely within
the Executive's discretion. The legal authority for the
Executive Branch to operate DACA 2012 is crystal clear. As
such, choices about its future would constitute a policy and
political decision, not a legal one. As the administration
decides how best to address DACA 2012, we hope that the legal
foundation and history for this policy is addressed wisely
and that decisions on the future of DACA 2012 are made
humanely.
* All institutional affiliations are for identification
purposes only and do not signify institutional endorsement of
this letter. Thank you for your attention. Shoba Sivaprasad Wadhia Esq.*, Samuel Weiss Faculty
Scholar & Clinical Professor of Law, Director, Center
for Immigrants' Rights Clinic, Penn State Law; Jill E. Family, Commonwealth Professor of Law and Government,
Widener University Commonwealth Law School; Michael A. Olivas, William B.
Keywords matched
immigration undocumented Immigrants DACA