Section 2: Deferred Action: An Affirmative Form of Relief A. Overview Deferred action (DA) is a form of administrative prosecutorial discretion. ICE and USCIS officials have the authority to use prosecutorial discretion under discrete circumstances in a particular case.113 DA is a determination to delay or defer action in the case, rather than to terminate action.114 Because it is administrative in nature, USCIS or ICE can grant deferred action at any stage of a case, including before an individual is in removal proceedings or after a final order of removal has been issued.115 DA grants are typically for specific periods of time and require a petition for renewal before the period expires. There is little published material on DA from immigration officials, there are no formal appeals, and there is often little transparency behind how the decision to grant or deny a request is made. DA could be a positive option for stateless clients. Stateless individuals often face significant hardships, both before and after immigration proceedings are initiated against them. This includes lack of work authorization, threat of detention, and in the case of those with removal orders, potentially onerous order of supervision (OSUP) requirements, including in-person visits and demonstration of contacts with embassies with which the individual has no ties, to attempt to secure admission for removal. These individuals face these hardships despite the fact that as stateless persons, their eventual removal from the United States is extremely unlikely, if not impossible. Thus, given the discretionary nature of DA, and the fact that it allows U.S. immigration authorities to prioritize their use of limited resources,116 stateless individuals can be strong candidates for DA. A DA grant could allow a stateless person who has not been placed into proceedings, lawful presence and eligibility to apply for an employment authorization document (EAD). Similarly, for a stateless person under a final removal order, DA would allow her not to be subject to burdensome conditions of an ICE OSUP, while still remaining eligible for employment authorization. In some instances, individuals with DA have been granted a multi-year EAD which is particularly helpful to stateless persons, who are often required to renew EADs annually. Furthermore, it allows an individual to be considered lawfully present—though it Available to both individuals and groups, DA is described by ICE as “the decision-making authority of ICE to allocate resources in the best possible manner to focus on high priority cases, potentially deferring action on cases with a lower priority.” ICE has identified two different forms of DA, where it is (i) based on sympathetic factors and low-enforcement priorities and (ii) based on the individual as a witness in an investigation or prosecution. This memo will only look at the first form. See U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (ICE), PROTECTING THE HOMELAND: TOOL KIT FOR PROSECUTORS (2011) [hereinafter ICE Tool Kit for Prosecutors] available at http://www.ice.gov/doclib/about/offices/osltc/pdf/tool-kit-forprosecutors.pdf. Similarly, USCIS defines deferred action as “a discretionary determination to defer a removal action of an individual as an act of prosecutorial discretion.” See CONSIDERATION OF DEFERRED ACTION FOR CHILDHOOD ARRIVALS FREQUENTLY ASKED QUESTIONS, USCIS, https://www.uscis.gov/humanitarian/consideration-deferred-action-childhoodarrivals-process/frequently-asked-questions (last updated Apr. 25, 2017). 114 KATE M. MANUEL & TODD GARVEY, CONG. RESEARCH SERV., R42924, PROSECUTORIAL DISCRETION IN IMMIGRATION ENFORCEMENT: LEGAL ISSUES 17 (Jan. 17, 2013). 115 JOHN P. TORRES, INTRODUCTION TO DETENTION AND REMOVAL OPERATIONS POLICY AND PROCEDURE MANUAL: CHAPTER 1, §§ 13, 20 (Mar. 27, 2006), available at https://www.ice.gov/doclib/foia/dro_policy_memos/09684drofieldpolicymanual.pdf [hereinafter ICE Detention and Removal Manual]. 116 See id. (noting that “the deferred action category recognizes that the Service has limited enforcement resources and that every attempt should be made administratively to utilize these resources in a manner which will achieve the greatest impact under the immigration laws.”). 113 24