On November 19, 2014, the Department of Justice\u2019s Office of Legal Counsel issued an opinion entitled \u201cThe Department of Homeland Security\u2019s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others.\u201d The opinion justified two new initiatives by the Department of Homeland Security. The first initiative dealt with the prioritization of removal of certain categories of aliens unlawfully present in the United States. The second initiative established a deferred action program for the parents of children categorized as U.S. citizens or lawful permanent residents (LPRs).<\/p>\n
OLC\u2019s opinion is of great practical importance for both general and specific reasons. As a general matter, the framework it instituted for gauging whether a particular exercise of enforcement discretion is consistent with relevant constitutional principles is likely to have continuing importance in all areas where administrative agencies exercise discretion. As a specific matter, it seeks to place the Obama Administration\u2019s immigration initiatives on firm legal footing by justifying those broad programs as valid exercises of enforcement discretion.<\/p>\n
The opinion founders, however, on the complexities of immigration law, and thus its specific application of the opinion\u2019s framework to the Executive\u2019s initiatives is ultimately unconvincing.\u00a0The opinion overstates the degree to which the Immigration and Nationality Act (INA)\u00a0is concerned with family unification, misapprehends the extraordinarily narrow scope of relief provided to the parents of U.S. citizen and LPR children under existing law, and misstates the limited scope of prior congressional acquiescence to deferred action programs. These flaws undermine the opinion\u2019s key conclusion that DHS\u2019s deferred action programs are consistent with congressional policy, and thus also call into question the ultimate judgment that these initiatives are permissible exercises of enforcement discretion. . . .<\/p>\n