T he scope of the executive's discretion in implementing federal immigration law is a topic of perennial interest to Members and committees of Congress. Most recently, questions have been raised as to whether particular actions announced by the Obama Administration in November 2014 are within the executive's authority. However, similar questions were raised in the past about other executive actions including, but not limited to (1) suspending enforcement of certain provisions of the Immigration and Nationality Act (INA) in areas affected by natural disasters; (2) granting deferred enforced departure, extended voluntary departure, or other relief from removal to certain aliens who entered or remained in the United States in violation of the INA; and (3) "paroling," or permitting the entry of, certain aliens into the United States who were not admissible under current law. Express Delegations of Discretionary Authority

In several instances, the INA expressly grants immigration officials some degree of discretion over aliens' eligibility for particular immigration benefits or relief, including adjustment to legal immigration status or authorization to work in the United States. Aliens granted parole may also, under current regulations, be granted work authorization. (See "Discretion in Interpreting and Applying Statutes.") Discretion in Enforcement

The executive is generally recognized as possessing some degree of independent authority in assessing when, against whom, how, and even whether to prosecute apparent violations of federal law; an authority generally referred to as "prosecutorial discretion" or "enforcement discretion." Determining Whether to Issue an NTA

One example of the executive's prosecutorial or enforcement discretion as to immigration involves determinations as to whether to issue Notices to Appear (NTAs) or other charging documents initiating proceedings against individual aliens who are believed to be removable. Discretion in Interpreting and Applying Statutes

Another type of discretion that the executive branch may exercise as to immigration law involves the interpretation and application of statutes. Whether particular actions are within the executive's existing authority depends upon whether these actions can be seen to fall within one (or more) of the three broad types of discretion that the executive is generally seen to have as to immigration. Each of these three types of authority is subject to certain constraints. For example, exercises of statutory authority must be consistent with the terms of the delegation (although the executive branch could have some discretion in interpreting the statute). Similarly, the executive's exercise of prosecutorial or enforcement discretion could be limited by specific statutory mandates that the executive take particular actions (e.g., detaining certain aliens pending removal proceedings). The express adoption of a policy that constitutes an abdication of a statutory duty could also be found to be impermissible, although it might be difficult for a court to assess whether an alleged failure to enforce the law constitutes an "abdication." Likewise, agencies' interpretations and applications of statutes must conform to the "unambiguously expressed intent of Congress."
The scope of the executive's discretion in implementing federal immigration law is a topic of perennial interest to Members and committees of Congress. Most recently, questions have been raised as to whether particular actions announced by the Obama Administration in November 2014 are within the executive's authority. See generally CRS Legal Sidebar WSLG1442, The Obama Administration's November 20, 2014, Actions as to Immigration: Pending Legal Challenges One Year Later, by [author name scrubbed]. However, similar questions were raised in the past about other executive actions including, but not limited to (1) suspending enforcement of certain provisions of the Immigration and Nationality Act (INA) in areas affected by natural disasters; (2) granting deferred enforced departure, extended voluntary departure, or other relief from removal to certain aliens who entered or remained in the United States in violation of the INA; and (3) "paroling," or permitting the entry of, certain aliens into the United States who were not admissible under current law.
Whether particular executive actions are permissible generally depends upon whether they can be seen as falling within one (or more) of the three broad types of authority that the executive can be seen to have as to immigration. These include the following:
Express delegations of discretionary authority by statute. In some cases, the INA explicitly authorizes the executive to provide certain relief or benefits to foreign nationals (e.g., temporary protected status or work authorization). In other cases, the INA expressly permits immigration authorities to waive the application of requirements which would render an alien ineligible for particular immigration benefits. The INA also grants the executive broad authority to "parole" aliens into the United States. 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. Courts have recognized certain actions as within the prosecutorial or enforcement discretion of immigration authorities. These include deciding whether to issue a Notice to Appear beginning removal proceedings; deciding whether to detain aliens who are not subject to "mandatory detention" pending removal; and granting deferred action (at least in individual cases). Discretion in interpreting and applying immigration law. The Supreme Court has found that some deference may be owed to agency regulations (or adjudications) which implement or apply 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.
All of these forms of discretion are subject to certain constraints. For example, exercises of statutory authority must be consistent with the terms of the delegation (although the executive branch could have some discretion in interpreting the statute). Similarly, the executive's exercise of prosecutorial or enforcement discretion could be limited by specific statutory mandates that the executive take particular actions (e.g., detaining certain aliens pending removal proceedings). The express adoption of a policy that constitutes an "abdication" of a statutory duty could also be found to be impermissible, although it might be difficult for a court to assess whether an alleged failure to enforce the law represents an abdication. Likewise, agencies' interpretations and applications of statutes must conform to the "unambiguously expressed intent of Congress."