MEMORANDUM: LEGAL AUTHORITY TO EXPAND DEFERRED ACTION

To:

Interested Parties

From: Center for American Progress

Date: Nov. 12, 2014

Overview
A wide body of unambiguous federal case law makes clear that the Executive Branch has
broad prosecutorial discretion over the enforcement of federal law. Prosecutorial discretion, of
course, is the decision by a prosecutor to enforce, or not enforce, the law against an individual
in a specific instance. That exercise of discretion is rooted in the Presidents constitutional
authority to take Care that the Laws be faithfully executed,1 and is the inevitable by-product
of enforcement in a universe of limited resources.
The courts have repeatedly affirmed that this broad discretionary authority extends to
the agency context, when a federal agency like the Department of Homeland Security is the
decision-maker, rather than a criminal prosecutor.2 And more specifically, federal courts have
explicitly concluded that it extends to immigration matters.3 In the immigration context today,
where there is a profound mismatch between enforcement resources and enforcement targets,
Executive Branch discretion in deciding how to allocate those resources is unavoidable.
Judicial review of enforcement decisions based on prosecutorial discretion is disfavored
because, among other things, the Government's enforcement priorities, and the case's
relationship to the Government's overall enforcement plan are not readily susceptible to the
kind of analysis the courts are competent to undertake.4 And in the agency context, because
1

U.S. Const. Art. II, 3; United States v. Armstrong, 517 U.S. 456, 447 (1996); Heckler v. Chaney,
470 U.S. 821, 832 (1985).
2
See Heckler, 470 U.S. at 832.
3
See Arizona v. United States, 132 S. Ct. 2492, 2499 (2012) (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 . . .).
4
Wayte v. United States, 470 U.S. 598, 607 (1985).

the decision to initiate administrative actions shares to some extent the characteristics of the
decision of a prosecutor in the executive branch [,+ courts are similarly hesitant to review
agency decisions not to enforce.5
Over the years there have been numerous written agency policies guiding the exercise
of discretion in immigration enforcement, the most recent of which was the June 2011 memo
from John Morton, the former Director of Immigration and Customs Enforcement (ICE).6 These
memos identify what types of individuals and what types of conduct should be prioritized for
enforcement and conversely who and what should be low priorities. The current articulated
prosecutorial discretion standard for ICE and for Citizenship and Immigration Services (USCIS)
is principally one of pursuing those cases that meet the agencys priorities for federal
immigration enforcement generally.7
Although prosecutorial discretion often occurs in the normal course of enforcement, the
government can also establish policies that allow individuals to come forward and request an
exercise of discretion in their case. And in the immigration arena, the government has
exercised its discretion through a variety of administrative mechanisms, including deferred
action.
Deferred action is a discretionary determination, recognized in statute and regulation,
to defer removal of an individual as an act of prosecutorial discretion.8 Decisions are made on a
case-by-case basis following an individualized review of the applicants request. For decades,
federal officials in both Republican and Democratic administrations have utilized deferred
action in individual cases and implemented policies that made it available to particular classes
of people.
In short, prosecutorial discretion is so deeply ingrained in our constitutional architecture
that it amounts to an unexceptional exercise of executive power. Yet despite the wide latitude
afforded the executive branch, it is also true that the discretion is not unbounded and can be
5

Heckler, 470 U.S. at 832.

Immigration and Customs Enforcement Memorandum, Exercising Prosecutorial Discretion
Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension,
Detention, and Removal of Aliens (June 17, 2011).
7
Id.
8
See INA Section 237(d)(2); 8 C.F.R. Section 274a.12(c)(14)
6

reinforced or constrained (to some degree) by Congress.9 Several constitutional and statutory
constraints establish outer limits on the administrations authority to expand deferred action.
This brief provides additional background on deferred action and analyzes the
constitutional and statutory constraints on an expansion of deferred action. It concludes that,
as long as the Administration operates within those constraints, there are no legal obstacles to
an expansion of deferred action.
Background
Immigration officers are entrusted with the power to make individualized enforcement
decisions based on the availability of resources, agency enforcement priorities, and
humanitarian concerns. A wide variety of individualized enforcement decisions are subject to
prosecutorial discretion, including initiating removal cases, granting deferred action, granting
parole, staying a final order of removal, executing a removal order, and deciding to issue or
cancel a notice of detainer.10
The Executive Branch has long used prosecutorial discretion in enforcing immigration
law. As a 1959 textbook on immigration reform explained, Congress traditionally has
entrusted the enforcement of its deportation policies to executive officers and this
arrangement has been approved by the courts.11 This practice has been constant through both
Republican and Democratic administrations. During the George W. Bush Administration, for
example, the Principal Legal Advisor for ICE explained the Administration policy that some cases
cry for an exercise of prosecutorial discretion.12
Deferred action is also a long-standing practice. The Executive Branch has used it for
decades to ensure the efficient and effective administration of the Immigration and Nationality
Acts (INA) detention and deportation provisions. In fact, every President since Eisenhower has

9
10
11
12

See Heckler, 470 U.S. at 832-33

Immigration and Customs Enforcement Memorandum at 2-3.
Charles Gordon & Harry N. Rosenfeld, Immigration Law & Procedure 406 (1959).
Immigration and Customers Enforcement Memorandum, Prosecutorial Discretion, (Oct. 24,

2005).

utilized deferred action or similar administrative mechanisms to exercise discretion in removal

decisions.13
For example, in 1977, the Attorney General temporarily suspended the deportation of
the Silva letterholders, who were foreign nationals from the Western Hemisphere living in the
United States without legal authorization. Their deportation was suspended during the
pendency of a class action filed on their behalf, which sought to reclaim 145,000 visa slots that
were incorrectly counted against the quota for their countries.14
Another example of the large scale use of deferred action came in 1990, when President
George H.W. Bushs Immigration Commissioner expanded a blanket deferral of removal for all
spouses and children of the individuals legalized under the 1986 Immigration Reform and
Control Act.15 That program protected some 1.5 million individuals from removal, an estimated
40% of the undocumented population at the time.
Moreover, federal regulations and policies have long authorized deferred action.
Following the actions taken on behalf of Silva letter holders, the Immigration and Naturalization
Service (INS) in 1978 promulgated a broad statement regarding the availability of deferred
action, which it revised in 1981. That policy allowed INS district directors to recommend
consideration of deferred action in appropriate cases.16 The 1981 Instruction explained that:
The deferred action category recognizes that the Service has limited enforcement resources
and that every attempt should be made administratively to utilize these resources in a manner
which will achieve the greatest impact under the immigration laws. The executive branch has
also issued a number of regulations providing for deferred action.17

13

See Executive Grants of Temporary Immigration Relief, 1956-Present, American Immigration

Council, (Oct. 14, 2014), available at http://www.immigrationpolicy.org/just-facts/executive-grantstemporary-immigration-relief-1956-present.
14
See CRS Memorandum, Analysis of June 15, 2012 DHS Memorandum, Exercising Prosecutorial
Discretion with Respect to Individuals Who Came to the United States as Children (July 13, 2012) (July
2012 CRS Memorandum).
15
Id.
16
See MadaLuna v. Fitzpatrick, 813 F.2d 1006, 1008 n.1 (9th Cir. 1987).
17
See, e.g., 8 C.F.R. 214.14(d) (allowing for deferred action in the U-visa context); 8 C.F.R.
214.11 (allowing deferred action to T visa applicants); 70 Fed. Reg. 70992-70996 (Nov. 25, 2005)
(providing deferred action to foreign students impacted by Hurricane Katrina).

In September 2012, USCIS implemented the Deferred Action for Childhood Arrivals
(DACA) program. DACA does not confer substantive rights, immigration status, or pathways
to citizenship on those that meet the programs eligibility criteria.18 Instead, eligible individuals
are granted the opportunity to request a determination of whether they should be granted
deferred action consistent with DHSs existing prosecutorial discretion policy.
For successful applicants, USCIS defers removal proceedings for two years, subject to
renewal. Under existing regulations, such individuals may apply for employment authorization.
As of June 2014, USCIS had accepted 685,544 requests for deferred action under the program.
It had approved 580,946 requests and rejected 23,883 requests, with the rest pending action.19
Constitutional Constraints
Notwithstanding the executive branchs broad discretionary authority to expand
deferred action, the Constitution does impose constraints on the Executive Branchs decision
not to enforce the removal provisions of the immigration laws in certain circumstances. First,
the Constitution imposes a duty on the President to take Care that the Laws be faithfully
executed, and thus prevents the Executive Branch from refusing to enforce a law simply
because the President disagrees with the law. Second, the president may not selectively
enforce the immigration laws based on constitutionally suspect criteriasuch as race, gender,
or religion. Third, the president may not usurp Congresss role in legislating. As discussed
below, however, none of these limitations presents an obstacle to a deferred action program
modeled on the DACA program instituted in June 2012.
Take Care Clause
18

Childhood arrivals must make a request to USCIS for deferred action. In order to make a request
an applicant must have: (1) been younger than age 31 as of June 15, 2012; (2) come to the United States
before age 16; (3) continuously resided in the United State for five consecutive years; (4) entered the
United States without inspection before June 15, 2012 (or have had lawful immigration status expire as
of that date); (5) graduated from high school, currently be 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 or
serious misdemeanor; and (7) been physically present in the United States on June 15, 2012.
19
USCIS, Number of I-821D, Consideration of Deferred Action for Childhood Arrivals by Fiscal
Year, Quarter, Intake, Biometrics and Case Status: 2012-2014,available at
http://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20
Forms%20Data/All%20Form%20Types/DACA/DACA_fy2014_qtr3.pdf

The first constitutional constraint on the Executive Branchs authority to expand the use
of deferred action is the Take Care Clause of the Constitution, which provides that the President
shall take care that the Laws be faithfully executed.20 While one could conceive of an
Executive Branch enforcement policy that might violate the Take Care Clauseif, for example,
the President simply refused to enforce an immigration law at all because he substantively
disagreed with itno such objection can be raised against either DACA or any similarly
constructed future deferred action program, for at least three reasons.
First, the Obama Administration is actively enforcing and implementing U.S. immigration
laws, including the provisions for removal of persons present without authorization and
(especially) criminal aliens. Just last year, ICE removed more than 400,000 individuals, 99% of
which met one or more of the agencys civil immigration enforcement priorities.21 ICEs choice
to develop intelligent priorities for the use of its enforcement resourcesto weigh national
security, public safety, border security, and humanitarian concernsdoes not violate the Take
Care Clause. To the contrary, with limited budgetary resources, ICE is compelled to prioritize
cases to administer the immigration laws effectively and efficiently.
Second, the use of prosecutorial discretion in immigration enforcement is not a new
development that undercuts existing law, but rather has long been a central element of the
immigration system.22 Deferred action itself has been used in individual removal cases (e.g.,
John Lennon) and been made available to specific classes of foreign nationals (e.g., foreign
students impacted by Hurricane Katrina, individuals applying for relief under the Violence
Against Women Act, and widows and widowers of U.S. citizens).
20

U.S. Const. Art. II, 3.

Marc R. Rosenblum & Kristen McCabe, Deportation and Discretion: Reviewing the Record and
the Option to Change (Migration Policy Institute, October 2014), available at
http://www.migrationpolicy.org/research/deportation-and-discretion-reviewing-record-and-optionschange
22
See supra at 2-3 (describing the constancy of prosecutorial discretion over several decades and
through administrations of either political party). Just last year ICE issued a prosecutorial discretionbased enforcement directive urging restraint in enforcement actions against alien parents, legal
guardians, and primary caretakers of minors who are U.S. citizens or lawful permanent residents.
U.S.C.I.S. Directive No. 11064.1, Facilitating Parental Interests in the Course of Civil Immigration
Enforcement Activities (August 23, 2013). The Parental Interests Directive does not yet apply to the
parents of children present in the United States with no permanent legal status (e.g., DACA-eligible
minors).
21

Third, we are not aware of any court decision invalidating a discretionary enforcement
policy as a violation of the Take Care Clause. Although that does not preclude a novel
enforcement of that constitutional provision, it makes such a challenge unlikely to succeed,
particularly in light of the two factors discussed above.
Selective Enforcement
The second constitutional constraint on deferred action is that the government cannot
selectively enforce laws on bases prohibited by the Constitution. An expanded deferred action
policy that utilized constitutionally suspect criteria, such as race, would raise serious
constitutional questions. But neither DACA nor the potentially broader use of deferred action
modeled on DACA rests on any such suspect criteria, making this constraint theoretical. (It
bears noting that it appears unlikely that any person or entity would even have the standing to
raise such a challenge. Only an impacted member of an otherwise protected class would be
injured by selective prosecution, and foreign nationals generally cannot assert selective
prosecution as a defense to removal.23)
Separation of Powers
Any expansion of deferred action may also have to contend with two separation of
powers arguments that have been raised by critics of DACA. Those critics have charged that
DACA is unlawful either as a program implemented in direct contravention of Congressional will
or as action taken without an adequate delegation of authority by Congress. Neither argument
is persuasive in the context of DACA or with respect to a broader deferred action program
modeled on DACA.
First, critics have charged that DACA is unlawful because it represents an attempt to
afford an immigration benefit to the same population of aliens to whom Congress has failed to
extend relief. That unenacted legislation, the DREAM Act, would confer conditional permanent
resident status for certain immigrant students and would also allow them to apply for
permanent legal status as long as they attend college or serve in the U.S. Armed Forces. This
critique is not persuasive for at least two reasons. First, although a substantially similar group
23

See Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 488 (1999) (As a general
matter . . . an alien unlawfully in this country has no constitutional right to assert selective enforcement
as a defense against his deportation.).

of people would benefit under both programs, DACAunlike the DREAM Actconfers no
substantive rights, immigration status, or pathway to citizenship. Because the DREAM Act
would modify immigrants substantive rights under federal immigration law, legislation would
be required. DACA (and a broader form of deferred action) does not have that effect, but
rather constitutes a channeling of Executive Branch discretion within the constraints of existing
law. The mere fact that the Executive Branch might take a step that is within its broad
enforcement authority but which Congress has not specifically authorized, does not render that
action contrary to congressional intent.
Second, critics also charge that Congress did not provide the Executive Branch with
intelligible principles to establish and implement the DACA program. This argument under
the non-delegation doctrine claims that 103(a)(3) of the INA is far too broad a grant of
statutory authority to meet the intelligible principles standard required for the Executive
Branch to execute its lawmaking authority.24 But the non-delegation doctrine has never been
used to invalidate an exercise of executive enforcement discretion. That is because the doctrine
acts as a limit on Congresss power to vest authority in the Executive Branch, not on the
Executive Branchs authority itself. Congress always legislates against a background that
includes the fundamental principle that the Executive Branch has enforcement discretion.
Moreover, since the mid-1930s, virtually every delegation of lawmaking authority by
Congress to the Executive has been upheld*,+ and it is highly unlikely that a court would apply
this moribund doctrine to an immigration program when Congress has repeatedly delegated
power to the Executive Branch in this arena.25 This issue poses no meaningful challenge to the
expanded use of deferred action.
Statutory Constraints
Federal statutes also impose some specific constraints on the manner in which deferred
action may be expanded, who may benefit from the expansion, and the overall scale of the
expansion. First, the Impoundment Control Act prohibits the taking of any . . . executive action
or inaction which effectively precludes the obligation or expenditure of budget authority,
except in specific circumstances that may not apply in this context. Second, appropriations
riders require DHS to conduct a background check before granting an immigration benefit,
24
25

See, e.g., Whitman v. Am. Trucking Assn., Inc., 531 U.S. 457 (2001).
Id. at 282.

including deferred action, to any individual. Third, the Immigration and Nationality Act also
contains language explicitly regulating the granting of immigration benefits, such as adjustment
of status, so a deferred action program could not grant such benefits. And fourth, the
Administrative Procedure Act (APA) generally prohibits the creation of a new substantive rule
without engaging in notice-and-comment rulemaking. As with the constitutional constraints
described above, none of these limitations will prevent the expansion of a deferred action
program modeled on DACA.26
Impoundment Control Act
The Impoundment Control Act regulates the Presidents authority to impound, i.e. not
spend, funds that Congress has appropriated. There are two categories of impoundment that

26

Other objections that have been raised to DACA and the expansion of any such programs are
clearly meritless and warrant only brief discussion. For example, DACA has been challenged as in
conflict with 1225(b)(1)(A) of the Immigration and Nationality Act, which states: If an immigration
officer determines that an alien . . . who is arriving in the United States or . . . is inadmissible . . . the
officer shall order the alien removed from the United States without further hearing or review . . . . 8
U.S.C. 1225(b)(1)(A) (emphasis added). In Crane v. Napolitano, No. 3:12-cv-03247, 2013 WL 1744422
(N.D. Tex. 2013), the court held that this provision prohibited immigration officials from granting
deferred action to arriving and inadmissible aliens, due to the mandatory shall in the statute. The case
was subsequently dismissed for lack of jurisdiction and has not been addressed by other courts. Indeed,
commentators have roundly criticized the Crane holding and its interpretation of shall in the INA
context. See, e.g., Jeffrey A. Love & Arpit K. Garg, Presidential Inaction and the Separation of Powers,
112 Mich. L. Rev. 1195, 1200 (2014) (arguing that critics of DACA have not presented a cogent legal
argument and citing the Crane decision as representing a minority view); Lauren Gilbert, Obama's Ruby
Slippers: Enforcement Discretion in the Absence of Immigration Reform, 116 W. Va. L. Rev. 255, 256
(2013) (discussing the Crane decision but concluding that DACA falls squarely within the Presidents
powers); see also David A. Martin, A Defense of Immigration-Enforcement Discretion: The Legal and
Policy Flaws in Kris Kobach's Latest Crusade, 122 Yale L.J. Online 167 (2012) (concluding the use of
shall in the INS affords the Executive Branch broad discretion over immigration enforcement
decisions). Further, Cranes treatment of the word shall is inconsistent with many other federal
decisions. See, e.g., Delgado v. Holder, 648 F.3d 1095 (9th Cir. 2011) (en banc) (holding that the
Attorney General has discretion to hold that a non-aggravated felony constitutes a particularly serious
crime for purposes of withholding of removal despite the statutes use of shall); Matter of E-R-M &LR-M, 25 I. & N. Dec. 520 (2011) (holding that the shall in 1225(b)(2)(B) is permissive rather than
mandatory).

the President may not undertake without Congressional approval: deferral and rescission.27
The Act defines deferral to include any . . . executive action or inaction which effectively
precludes the obligation or expenditure of budget authority. 28 This provision prevents the
President from refusing to expend resources appropriated by Congress on the grounds that he
disagrees with the policy choice underlying the appropriation.29
A decision by the Executive Branch to refuse to enforce provisions of the immigration
laws could violate the Impoundment Control Act if it had the effect of precluding the
expenditure of funds that Congress had appropriated for immigration enforcement. For
example, for fiscal year 2014, Congress appropriated $5,229,461,000 for salaries and expenses
for ICE, not less than $2,785,096,000 [of which] is for detention and removal operations and
not less than $1,600,000,000 [of which] shall be available to identify aliens convicted of a
crime who may be deportable, and to remove them from the United States once they are
judged deportable.30 If an expanded deferred action policy prevented ICE from expending
those resources, it could constitute an unlawful deferral.
Nonetheless, the Impoundment Control Act presents no obstacle to the expanded use
of deferred action, for several reasons:
First, and most significantly, even with a broadened deferred-action program in place, it
is virtually certain that the Executive will expend all of the funds that Congress appropriates for
any particular fiscal year for detention and removal. The number of persons who can be
removed in any particular year, given resource constraints, is but a fraction of the number of
removable persons present within the United States. Moreover, a deferred-action program
would allow the Executive to focus its detention and removal priorities on those persons
presenting particularly significant threats to national security.

27

See 2 U.S.C. 683 (setting forth procedure for rescission of budget authority); id. 684 (setting
forth procedure for deferral of budget authority).
28
Id. 682.
29
See City of New Haven, Conn. v. United States, 809 F.2d 900, 909 (D.C. Cir. 1987) (holding that
Section 1013 of the Impoundment Control Act, 2 U.S.C. 684, remov [ed] any colorable statutory basis
for unchecked policy deferrals by the President of appropriations (emphasis in original)).
30
Department of Homeland Security Appropriations Act, 2014, P.L. 113-76, 128 Stat. 247, 251
(2014).

10

Second, the appropriations at issue are lump-sum appropriations, which agencies have
discretion to allocate among specific programs, projects, or items within the scope of the
appropriation.31 Consequently, DHS has substantial discretion over how it spends the
appropriated funds, so long as it stays within the very broad parameters of the statutory
language. (Of course, Congress could include more specific language in future appropriations
bills.)
Third, an expanded deferred action policy would have at most a contingent, uncertain
impact on future enforcement spending. As an initial matter, the issuance of an expanded
policy might, due to implementation delays, have little to no impact on DHSs ability to spend
presently-appropriated funds. Any impact on future expenditures would (A) only affect funds
not yet appropriated; (B) result from case-by-case decisionmaking, with each individual case
having no material effect; and (C) be highly contingent on funding and enforcement decisions
made by future Congresses and agency officials. In these circumstances, it is unclear whether a
deferred-action policy would constitute an executive action which effectively precludes the
obligation or expenditure of budget authority governed by the Impoundment Control Act.
Fourth, as discussed above, the use of prosecutorial discretion is grounded in the
Presidents constitutional authority and well-established in the immigration context.32 Courts
will hesitate to read the Impoundment Control Act, in conjunction with appropriations
legislation, to effectively override that discretion by requiring the Executive Branch to spend
fixed sums carrying out enforcement actions that it would have otherwise declined to pursue.
Appropriations Restrictions

31

See Lincoln v. Vigil, 508 U.S. 182, 192 (1993) (*T+he very point of a lump sum appropriation is to
give an agency the capacity to adapt to changing circumstances and meet its statutory responsibilities in
what it sees as the most effective or desirable way. . . . [A] fundamental principle of appropriations law
is that where Congress merely appropriates lump-sum amounts without statutorily restricting what can
be done with those funds, a clear inference arises that it does not intend to impose legally binding
restrictions . . . .); UAW v. Donovan, 746 F.2d 855, 860-861 (D.C. Cir. 1984) (Scalia, J.) (A lump-sum
appropriation leaves it to the recipient agency (as a matter of law, at least) to distribute the funds
among some or all of the permissible objects as it sees fit.)
32
See, e.g., Arizona v. United States, 132 S. Ct. 2492, 2499 (2012) (A principal feature of the
removal system is the broad discretion exercised by immigration officials.)

11

A rider on the Department of Homeland Security Appropriations Act of 2014 imposes a

concrete procedural limitation on any expanded deferred action policy. That provision requires
that a background check be performed on an alien before any immigration benefit is
granted.33 Because deferred action qualifies as an immigration benefit, any expanded deferred
action policy must incorporate background checks in the same manner that DACA already does.
An appropriations rider also provides that DHS shall maintain a level of not less than
34,000 detention beds.34 At present, DHS correctly interprets this language as a detention
capacity requirement rather than a detention utilization requirement. See [Testimony of
Secretary Johnson before House Appropriations Committee in March 2014]. As a result, this
mandate would not conflict with any expanded use of deferred action.
Immigration and Nationality Act
The Immigration and Nationality Act (INA) does not contain any express limits on
deferred action relief. Nevertheless, the INA does contain detailed rules for granting benefits
that are more permanent and substantial than deferred action. For example, the INAs
adjustment of status provision sets forth specific categories of persons who may apply for
adjustment of status.35 The comprehensive nature of that list implies that Congress did not
authorize the Executive Branch to create new categories of people who may receive a status
adjustment. Consequently, any expanded deferred action program should not attempt to
authorize recipients to adjust their status directly or obtain other benefits in a manner that
contravenes existing law.
Administrative Procedure Act
The Administrative Procedure Act (APA) places procedural requirements on federal
agencies. Section 553 of the Act requires agencies to afford notice of a proposed rulemaking
and an opportunity for public comment prior to a rules promulgation, amendment,
33

See 113 HR 3457, at 269 (SEC. 524. None of the funds made available in this Act may be used
by United States Citizenship and Immigration Services to grant an immigration benefit unless the results
of background checks required by law to be completed prior to the granting of the benefit have been
received by United States Citizenship and Immigration Services, and the results do not preclude the
granting of the benefit.).
34

Department of Homeland Security, Consolidated Appropriations Act, 2014, P. L. 113-76, P. 128 Stat. 251.

35

See 8 U.S.C. 1154.

12

modification, or repeal. This process, including the litigation that often follows, is frequently
used by opponents of a policy to challenge or delay a rule. However, interpretative rules,
general statements of policy, [and] rules of agency organization, practice or procedure are
exempted from the notice and comment requirement.36 The Manual defines general
statements of policy as statements issued by an agency to advise the public prospectively of
the manner in which the agency proposes to exercise a discretionary power.37
In the most directly pertinent case on point, a federal court of appeals held that the
1978 and 1981 Immigration and Naturalization Service (INS) Operating Instructions relating to
deferred action were general statements of INS policy, not subject to the requirements of
notice-and-comment rulemaking.38 In reaching its decision, the court addressed when an
agency directive is considered a substantive rule, for which notice and comment procedures
are required, or a general statement of policy, for which they are not.39
Under the APA, a general statement of policy preserves [the officials+ flexibility and
their opportunity to make individualized determination*s+.40 To be such a general statement
of policy, the directive (1) must operate only prospectively, (2) must not establish a binding
norm, and (3) must leave INS officials free to consider the individual facts in the various cases
that arise.41

36

5 U.S.C. 553(b)(3)(A). In determining the scope of this exception, the Supreme Court has
deferred to the definition of the term general statements of policy in the 1947 Attorney Generals
Manual on the Administrative Procedure Act (the Manual). See Vermont Yankee Nuclear Power Corp. v.
Natural Resources Defense Council, 435 U.S. 519, 546 (1978).
37
MadaLuna v. Fitzpatrick, 813 F.2d 1006, 101213 (9th Cir. 1987) (citing the Manual, at 30. n. 3
(1947) (emphasis removed)).
38
See 813 F.2d at 1012.
39
40

Id. at 1013.
Id. (quotation marks omitted).

41

Id. at 1014 (quotation marks omitted). Other circuits use similar analyses. See S.E.C. v. Markowski,
277 F. Appx 903, 905 (11th Cir. 2008) (This court generally differentiates on the basis that general policy
statements leave agencies free to exercise discretion whereas rules establish binding norms.); Ctr. for Auto
Safety v. Natl Highway Traffic Safety Admin., 452 F.3d 798, 807 (D.C. Cir. 2006) (noting the difficulty in
distinguishing between general statements of policy and agency rules, and looking to whether the statement
reflect[s] final agency action or constitute*s+ binding rules.); Am. Hosp. Assn v. Bowen, 834 F.2d 1037, 1045
(D.C. Cir. 1987) (Agency actions or statements falling within the three exemptions are not determinative of issues

13

A key factor considered by most courts is whether the policy provides sufficient
discretion to the agency. For example, the Eleventh Circuit held that a new policy requiring
detention for Haitian immigrants without any discernible guidelines for discretionary parolea
departure from prior policydid not qualify as a general statement of policy because such a
broad rule of detention with undefined exceptions is susceptible to rigid enforcement with no
opportunity to avoid the rule's harsh results. 42 In contrast, the Fourth Circuit allowed the
revocation of an interim rule without notice and comment where the rule was in fact a general
statement of policy because authorities retained the discretion to deny relief to aliens who
established eligibility under the interim rule.43
DACAand any broadening of deferred action modeled on DACAplainly qualifies as a
general statement of policy under the APA. The directive is intended to apply only
prospectively to those who seek relief and it does not create a hard and fast rule that amounts
to a binding normnot everyone who meets the criteria to request deferred action under
DACA will receive it. Rather, those who meet certain criteria are invited to request relief and
then USCIS is free to consider the individual facts in the various cases that arise in
determining whether or not to grant deferred action. The DACA policy does not alter the
agencys discretion to give or decline such relief. Instead, it merely articulates the fact that
such discretionary relief is potentially available to those with certain characteristics that suggest
they are a low enforcement priority, and then invites that specific class of individuals to request
deferred action.
or rights addressed. They express the agencys intended course of action, its tentative view of the meaning of a
particular statutory term, or internal house-keeping measures organizing agency activities. They do not, however,
foreclose alternate courses of action or conclusively affect rights of private parties. (internal quotation marks
omitted)); Burroughs Wellcome Co. v. Schweiker, 649 F.2d 221, 224 (4th Cir. 1981) (stating that the policy at issue
was a general statement of policy because it operated only prospectively and did not establish a binding norm,
but rather *t+he agency retain[ed] discretion to require clinical investigations in appropriate cases and to approve
or disapprove individual NDAs on a case-by-case basis.).
42

Jean v. Nelson, 711 F.2d 1455, 1482 (11th Cir. 1983).

43

Chen Zhou Chai v. Carroll, 48 F.3d. 1331 (4th Cir. 1995). Note that courts have not required that every
aspect of a policy incorporate discretion. In Haitian Centers Council, Inc. v. McNary, a memorandum
instructing INS officers to conduct a second round of interviews of certain asylum applicants that were
identical in form and substance to the first round was deemed to be a general statement of policy
becauseeven though the requirement to conduct the second set of interviews was mandatorythe
policy itself did not change the criteria [asylum seekers] must meet in order to receive asylum. Id., 807
F. Supp. 928 (E.D.N.Y. 1992).

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Any expansion of deferred action to other low priority individuals that shares these
characteristics with DACA will be exempt from notice and comment rulemaking.

For additional information, please contact:

Marshall Fitz: mfitz@americanprogress.org // 202-741-6378
Pat Collier: pcollier@americanprogress.org // 202-741-6382

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