• Deferred action status is what Homeland Security grants when it decides, in its own discretion, not to remove an illegal alien. Those who receive deferred action status usually also receive work authorization. There is no statutory basis for deferred action status, as it is merely referred to in the federal regulations (See, e.g. USCIS Ombudsman memo, Apr. 6, 2007 (citing 8 C.F.R. 274a.12(c)(14)). The decision to grant deferred action status is unreviewable by the courts.
• Deferred enforced departure (DED) is a similar concept to deferred action, except that it requires a Presidential directive. Recipients of DED are not subject to removal from the United States, typically for a designated period of time, and usually receive work authorization. Like deferred action, there is no statutory basis for granting deferred enforced departure; it is a power based on the President’s authority to conduct foreign relations. (See USCIS website; see also DHS press release, Sept. 12, 2007)
Even more remarkable, the memo clearly contemplates the pros and cons of such unprecedented administrative action. Among the listed pros for such an action, the memo states: “A bold administrative program would transform the political landscape by using administrative measures to sidestep the current state of Congressional gridlock and inertia.” (emphasis added) However, among the cons, the memo states, “A program that reaches the entire population targeted for legalization would represent use of deferred action far beyond its limited class-based uses in the past…Congress may react by amending the statute to bar or greatly trim back on deferred action authority, blocking its use….”
Finally, the memo notes that “if going forward with a larger registration program that reaches the entire potential legalization population is not possible,” DHS still has other options. “We could propose a more narrowly-tailored registration program for individuals eligible for relief under the DREAM Act, AgJOBS, or other specifically defined subcategories.”
The memo concludes with a stunningly direct political analysis. “Done right, a combination of benefit and enforcement-related administrative measures could provide the Administration with a clear-cut political win. If the Administration loses control of the message, however, an aggressive administrative proposal carries significant political risk.” Regarding the timing of when to launch such measures, the memo states: “We would need to give the legislative process enough time to play out to deflect against charges of usurping congressional authority….This is likely to mean that the right time for administrative action will be late summer or fall—when the midterm election is in full-swing.” Then the memo cautions that if the American public reacts poorly to “an administrative registration effort, Congress could be motivated to enact legislation tying the Administration’s hands….A heated fight could also poison the atmosphere for any future legislative reform effort.”
In its article, The American Spectator suggested that the memo could possibly be related to another leaked USCIS memo, which FAIR and other organizations reported on in August. (See FAIR Legislative Update, Aug. 2, 2010) The memo does cover similar topics to the previously leaked USCIS memo, such as granting parole in place and waiving the three and ten-year bars, in addition to unapologetically plotting to usurp Congressional authority by granting administrative amnesty to the entire illegal alien population. However, Administration officials have yet to comment on the American Spectator article, or the memo that lies at the heart of it.