Immigration News Blog

Thursday, December 04, 2014

Congressional Research Service (CRS) Executive Discretion as to Immigration: Legal Overview

Congressional Research Service (CRS)

Executive Discretion as to Immigration: Legal Overview
Kate M. Manuel,  Legislative Attorney
Michael John Garcia,  Legislative Attorney
November 10, 2014
[full-text, 27 pages]

President Obama announced in June 2014 that he would seek “to fix as much of our immigration
system as I can on my own” through administrative action. Although the Obama Administration
has not yet announced the specific immigration actions it intends to take, the President has stated
that they will occur before the end of the year. It seems likely that such actions will prompt heated
legal debate concerning the scope of the Executive’s discretionary authority over immigration
matters, including with respect to the enforcement of immigration-related sanctions and the
granting of immigration benefits or privileges. Such debate may be similar to that which followed
the 2012 launch of the executive initiative commonly known as Deferred Action for Childhood
Arrivals (DACA), under which certain unlawfully present aliens who were brought to the United
States as children may be granted “deferred action” (a type of relief from removal) and work
authorization. While some have argued that DACA constitutes an abdication of the Executive’s
duty to enforce the laws and runs afoul of specific requirements found in the Immigration and
Nationality Act (INA), others have argued that the initiative is a lawful exercise of the
discretionary authority conferred on the Executive by the Constitution and federal statute.

Executive discretion over immigration matters is informed (and, in some instances,
circumscribed) by statutory delegations of authority and constitutional considerations. In some
cases, a particular immigration policy or initiative might be premised on multiple sources of
discretionary authority. These sources include the following:

Express delegations of discretionary authority by statute. In some instances, the
INA grants the Executive broad discretion to provide certain forms of relief or
benefits (e.g., work authorization or temporary protected status) to foreign
nationals. In other instances, the INA permits immigration authorities to waive the
application of requirements which would otherwise render an alien ineligible for
particular immigration benefits. The INA also gives the Executive broad “parole”
authority, under which immigration officials may sometimes permit aliens to
physically enter or remain in the country without such entry or presence
constituting “admission” for immigration purposes. Any exercises of such
statutory authority must be consistent with the terms of the delegation (although
the executive branch might have some discretion in interpreting the statute, as
discussed below).

Prosecutorial or enforcement discretion deriving from the Executive’s
independent constitutional authority. The Executive is generally recognized as
possessing some degree of independent authority in assessing whether to
prosecute apparent violations of federal law. However, specific statutory mandates
could be seen as limiting the Executive’s discretion to take particular actions (e.g.,
by requiring that certain aliens be detained pending removal proceedings). The
express adoption of a policy that constitutes an abdication of a statutory duty
could also be found to be impermissible, but it might be difficult for a court to
assess the degree of nonenforcement that would entail an “abdication.”

Discretion in interpreting and applying immigration law. The Supreme Court
has found that some deference may be owed to agency regulations (or
adjudications) which construe statutes that are “silent or ambiguous” as to specific
issues. The executive branch may also be afforded deference in less formal
interpretations of statutes and in interpreting its own regulations. However,
agency interpretations must conform to the “unambiguously expressed intent of


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