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[IWS] CRS: EXECUTIVE DISCRETION AS TO IMMIGRATION: LEGAL OVERVIEW [10 November 2014]

IWS Documented News Service

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Institute for Workplace Studies-----------------Professor Samuel B. Bacharach

School of Industrial & Labor Relations-------- Director, Institute for Workplace Studies

Cornell University

16 East 34th Street, 4th floor--------------------Stuart Basefsky

New York, NY 10016 -------------------------------Director, IWS News Bureau

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Congressional Research Service (CRS)

 

Executive Discretion as to Immigration: Legal Overview

Kate M. Manuel,  Legislative Attorney

Michael John Garcia,  Legislative Attorney

November 10, 2014

http://fas.org/sgp/crs/homesec/R43782.pdf

[full-text, 27 pages]

 

Summary

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

Congress.”

 

Contents

Express Delegations of Discretionary Authority ............................................................................. 4

Statutory Authorization to Grant Benefits or Relief .................................................................. 4

Temporary Protected Status ................................................................................................. 4

Work Authorization ............................................................................................................. 6

Statutory Waivers of Restrictions on Benefits or Relief ............................................................ 7

Waivers of Grounds of Inadmissibility................................................................................ 8

Parole ................................................................................................................................. 11

Potential Constraints ................................................................................................................ 13

Discretion in Enforcement ............................................................................................................. 14

Determining Whether to Issue an NTA ................................................................................... 15

Deferred Action ....................................................................................................................... 16

Potential Constraints ................................................................................................................ 17

Discretion in Interpreting and Applying Statutes ........................................................................... 20

Not Counting Derivatives ........................................................................................................ 21

Eligibility of Aliens with TPS for Adjustment of Status ......................................................... 22

Potential Constraints ................................................................................................................ 22

Contacts

Author Contact Information........................................................................................................... 24

 

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This information is provided to subscribers, friends, faculty, students and alumni of the School of Industrial & Labor Relations (ILR). It is a service of the Institute for Workplace Studies (IWS) in New York City. Stuart Basefsky is responsible for the selection of the contents which is intended to keep researchers, companies, workers, and governments aware of the latest information related to ILR disciplines as it becomes available for the purposes of research, understanding and debate. The content does not reflect the opinions or positions of Cornell University, the School of Industrial & Labor Relations, or that of Mr. Basefsky and should not be construed as such. The service is unique in that it provides the original source documentation, via links, behind the news and research of the day. Use of the information provided is unrestricted. However, it is requested that users acknowledge that the information was found via the IWS Documented News Service.

 

 

 

 

 

 

 

 

 




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