National Immigration Law Center
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Our mission is to defend & advance the rights & opportunities of low-income immigrants and their family members.

Administrative Relief & Prosecutorial Discretion


The President’s Broad Legal Authority to Act on Immigration

Does the president have the authority to grant “administrative relief” to undocumented Americans — i.e., to temporarily delay their deportation without granting them a permanent legal immigration status (such as a green card or citizenship)? This issue brief summarizes the constitutional, legal, and historical grounds for the president’s authority to grant administrative relief.

  • SEE ALSO: A President’s Power to Fix Our Immigration System
    President Obama has the legal authority under the Constitution and laws passed by Congress to decide how to prioritize immigration enforcement. In the past, Presidents Reagan, George H.W. Bush, Clinton, and George W. Bush used this authority. This issue brief uses less technical language and easy-to-understand examples to describe different actions the president can and should take now to make our broken immigration system work better.

NILC Administrative Relief Priorities

Because NILC’s mission is to defend and advance the rights and opportunities of low-income immigrants, we are prioritizing the administrative policy reforms described in this issue brief because they would have the most impact on our constituents.


How the Obama Administration Can Use Executive Authority to Stop Deportations

The U.S. Department of Homleand Security (DHS) has the capability to expand its prosecutorial discretion guidelines. There are several existing forms of prosecutorial discretion, including existing DHS administrative remedies, that can be expanded. This table also describes some forms of discretionary relief that are based on the immigration statute, such as temporary protected status (TPS). The table's main categories are "Form of relief," "Description," "Authority for relief," "Who is eligible?," "Is a work permit available?," and "Example."

See also: Administrative Relief Fast Facts (PDF) — the same general information in less detail.

See also: Letter to DHS Sec. Jeh Johnson and Atty. Gen. Eric Holder (PDF) providing recommendations regarding immediate actions the Obama administration can take to decrease deportations, increase the number of people with immigration status, and ensure that all immigrants’ labor and civil rights are protected.

What DHS Can Do Right Now

Much attention is focused on the possibility that federal immigration reform legislation being considered in Congress will resolve many of the problems created by our broken immigration system. In the meantime, however, the U.S. Department of Homeland Security (DHS) has many practical options for ensuring that its detention and deportation system does not separate families and force the removal of the members of our communities who, ultimately, should benefit from federal immigration reform legislation. DHS should do three things:

 Government Memos, Letters, FAQs

Letter from DHS secretary Janet Napolitano regarding
new prosecutorial discretion policy

"Together with [DOJ], we have initiated an interagency working group to execute a case-by-case review of all individuals currently in removal proceedings to ensure that they constitute our highest priorities. The working group will also initiate a case-by-case review to ensure that new cases placed in removal proceedings similarly meet such priorities. In addition, the working group will issue guidance on how to provide for appropriate discretionary consideration to be given to compelling cases involving a final order of removal." (Aug., 18, 2011)

Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens (PDF)

This memo was released in conjunction with an announcement from ICE (PDF) about "improvements" to the "Secure Communities" program. (John Morton, Director, U.S. Immigration and Customs Enforcement, June 17, 2011).

Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs (PDF)

This memo was released in conjunction with an announcement from ICE (PDF) about "improvements" to the "Secure Communities" program. (John Morton, Director, U.S. Immigration and Customs Enforcement, June 17, 2011)

Letter from members of Congress to DHS Sec. Napolitano expressing support for applying prosecutorial discretion to the cases of the “Southern 32” (PDF)

"We write to urge immediate protections for the Southern 32 and broad implementation of the civil, labor, and human rights provisions of DHS/ICE's prosecutorial discretion policy including deferred action for grassroots civil rights leaders and labor organizers who qualify for relief under this policy." (September 24, 2012)