The investigation and arrest having been directed by DeFilippis as a function of parole supervision and not as a sham or pretext for effecting F.B.I. purposes, McCrary’s postarrest interview with defendant was merely an incident of interagency co-operation, and of no effect upon the admissibility of contraband seized at the time of arrest. The United States Supreme Court considered an analogous situation in Abel v United States (supra, p 230), where an administrative deportation warrant of the Immigration and <mask> Service was found to be employed not "as an instrument of criminal law enforcement to circumvent the latter’s legal restrictions, [but] * * * as a bona fide preliminary step in a deportation proceeding.” Mr. Justice Frankfurter, writing for the majority, said (p 229): "Nor does it taint the administrative arrest that the F.B.I. solicited petitioner’s cooperation before it took place, stood by while it did, and searched the vacated room after the arrest. The F.B.I. was not barred from continuing its investigation in the hope that it might result in a prosecution for espionage because the I.N.S., in the discharge of its duties, had embarked upon an independent decision to initiate proceedings for deportation.”


We affirmed the denial of appellant's motion to vacate pursuant to section 1016.5. ( People v. Landaverde, supra , B276912.) We concluded that the record showed that appellant was properly advised of the immigration consequences of his plea under section 1016.5. ( People v. Landaverde, supra , B276912.) Specifically, the trial court had informed him: " 'If you are not a *292citizen, you are hereby advised that a conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of <mask> pursuant to the laws of the United States.' " ( Ibid . )


Now, prior to sentence, the defendant moves this court for an order, pursuant to section 241 (subd [b], par [2]) of the Immigration and Nationality Act (INA) (US Code, tit 8, § 1251, subd [b], par [4]) to preclude the Immigration and <mask> Service (INS) from using this conviction as a ground for deportation. The relevant part of section 1251 (subd [b], par [2]) of title 8 of the United States Code reads as follows: "if the court sentencing such alien for such crime shall make, at the time of first imposing judgment or passing sentence, or within thirty days thereafter, a recommendation to the Attorney General that such alien not be deported, due notice having been given prior to making such recommendation to representatives of the interested State, the Service, and prosecution authorities, who shall be granted an opportunity to make representations in the matter.” The order requested is a recomendantion against deportation (RAD). An RAD does not preclude the INS from deporting the alien on other grounds. It only precludes the INS from using a particular conviction as a ground of deportation, if an order of RAD was granted pursuant to section 1251 (subd [b], par [2]) of title 8 of the United States Code. The RAD must be ordered at the time the court first imposes sentence or within 30 days thereafter. In the case at bar, due notice has been served and counsel has served an affidavit in opposition on this court. If, after the INS has been notified and given an opportunity to be heard, the court is persuaded that the issuance of an RAD is warranted, then the RAD is binding on the INS (see Velez-Lozano v INS, 463d 1305; Haller v Esperdy, 397d 211).


The words ‘ ‘ Every applicant ’ ’ in the rules indicate that there are no exceptions. The phrases ‘ ‘ intending competitors” in the statute and ‘ ‘ applicant for competitive examination ’ ’ in the Rules show that the requirement must be met at the time of application rather than at the time of certification or appointment. The words “ is a citizen ’ ’ cannot be changed to mean ' ‘ will be a citizen ’ ’. The word ‘ ‘ must ’ ’ means that the requirement is mandatory, not discretionary, with the commission, and noncompliance with such requirement renders one’s certification and appointment null and void ab initio as a matter of law. No exception was made by Legislature or commission for aliens who served in the armed forces of the United States. No exception was granted to an applicant who believed that citizenship was automatically conferred on him on the day of his discharge from military service. No exception was allowed for the applicant who thought that the filing of his petition for <mask> and his subsequent swearing-in as a citizen would be formalities. No exception was given to an alien, who, on the advice of a military superior, registered at the Bureau of Immigration and Naturalization immediately after his discharge from the military service, in the expectation that he would receive his citizenship papers within 90 days — and who filed his application for the position now sought after less than a month had elapsed after his military discharge. Nor did the petitioner’s subsequent certification by the respondent commission for the position in question, at a time when in fact he was a citizen, cure the defect of noncitizenship which existed at the time of filing of the application for the position. The result reached may seem a harsh one for the petitioner, who may have innocently thought that he was a citizen, when in fact he was not. But to rule that a man’s ignorance as to his citizenship status could validate an otherwise invalid application, would be violative of the statute, would place a premium on ignorance and would be unjust to the truthful well-informed who refrained from filing an application because of the recognition of his ineligibility.


See Jaffal, 2020 WL 6074473, at *4. Morgan, 432 F.3d at 233. The court’s reliance on Perrin v. Perrin, 408 F.2d 107 (3d Cir. 1969) for the proposition that “[o]rdinarily, the recognition in the United States of [] a foreign decree will depend upon whether at least one of the spouses was domiciled in the foreign state when the decree of divorce was rendered,” id. at 109, was misplaced. Perrin was not a case in which we interpreted § 1432(a), and, in Perrin, we later held, “domicile is not intrinsically an indispensable prerequisite to jurisdiction.” Id. at 110. We recognized the divorce at issue in that case, even though neither spouse was domiciled in Mexico, where the divorce took place. See, e.g., Espichan, 945 F.3d at 799 (looking to Peruvian law). We note, too, that the laws of other foreign nations or states could also have authority over a marriage, if, for example, the married couple was issued a valid separation in a third location that was neither the marital country nor the state in which the parent was living at the time of <mask>. The bottom line is that if a plaintiff presents evidence of a valid separation under the laws of any jurisdiction having proper authority over the marriage, such


*842The respondents seek to justify their requirement of the <mask> affidavit because of the institution of permanent registration. The statute providing for permanent registration seems, however, to have been drawn in the light of the quoted provision in section 170 and with the purpose to continue the provision dispensing with the production of naturalization papers in the case of one who had already done so in a previous year.


ed the requirement that an alien be married to a U.S. citizen “for at least 2 years at the time of the citizen’s death” to retain his or her eligibility for lawful immigration status. Department of Homeland Security Appropriations Act, 2010, Pub. L. No. 111-83, § 568(c), 123 Stat. 2142, 2186 (2009). Concluding that this legislation rendered its surviving spouse guidance “obsolete,” USCIS withdrew its earlier guidance and treated all pending applications for <mask> as visa petitions. See Memorandum for Executive Leadership, USCIS, from Donald Neufeld, Acting Associate Director, USCIS, et al., Re: Additional Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and Their Children (REVISED) at 3, 10 (Dec. 2, 2009).


parents have no special prospect of obtaining visas, since Congress has not enabled them to self-petition—as it has for VAWA self-petitioners and individuals eligible for T or U visas—or enabled their undocumented children to petition for visas on their behalf. Nor would granting <mask> to parents of DACA recipients, at least in the absence of other factors, serve interests that are comparable to those that have prompted implementation of deferred action programs in the past. Family unity is, as we have discussed, a significant humanitarian concern that underlies many provisions of the INA. But a concern with furthering family unity alone would not justify the proposed program, because in the absence of any family member with lawful status in the United States, it would not explain why that concern should be satisfied by permitting family mem- bers to remain in the United States. The decision to grant deferred action to DACA parents thus seems to depend critically on the earlier decision to make deferred action available to their children. But we are aware of no precedent for using deferred action in this way, to respond to humanitari- an needs rooted in earlier exercises of deferred action. The logic underly- ing such an expansion does not have a clear stopping point: It would appear to argue in favor of extending relief not only to parents of DACA recipients, but also to the close relatives of any alien granted deferred action through DACA or any other program, those relatives’ close rela- tives, and perhaps the relatives (and relatives’ relatives) of any alien granted any form of discretionary relief from removal by the Executive. For these reasons, the proposed deferred action program for the parents of DACA recipients is meaningfully different from the proposed program for the parents of U.S. citizens and LPRs. It does not sound in Congress’s concern for maintaining the integrity of families of individuals legally entitled to live in the United States. And unlike prior deferred action programs in which Congress has acquiesced, it would treat the Execu- tive’s prior decision to extend deferred action to one population as justify- ing the extension of deferred action to additional populations. DHS, of course, remains free to consider whether to grant deferred action to indi- vidual parents of DACA recipients on an ad hoc basis. But in the absence of clearer indications that the proposed class-based deferred action pro- gram for DACA parents would be consistent with the congressional policies and priorities embodied in the immigration laws, we conclude that it would not be permissible.


that applicants placed on a waiting list for visas “shall maintain [their] current means to prevent removal (<mask>, parole, or stay of removal)”); id. § 214.14(d)(2) (promulgated by New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status, 72 Fed. Reg. 53,014, 53,039 (Sept. 17, 2007)) (“USCIS will grant de- ferred action or parole to U-1 petitioners and qualifying family members while the U-1 petitioners are on the waiting list” for visas). 3. Deferred Action for Foreign Students Affected by Hurricane Katrina. As a consequence of the devastation caused by Hurricane Katrina in 2005, several thousand foreign students became temporarily unable to satisfy the requirements for maintaining their lawful status as nonimmigrant students, which include “pursuit of a ‘full course of study.’” USCIS, Interim Relief for Certain Foreign Academic Students Adversely Affected by Hurricane Katrina: Frequently Asked Questions (FAQ) at 1 (Nov. 25, 2005) (quoting 8 C.F.R. § 214.2(f)(6)), http://www. uscis.gov/sites/default/files/USCIS/Humanitarian/Special%20Situations/ Previous%20Special%20Situations%20By%20Topic/faq-interim-student- relief-hurricane-katrina.pdf (last visited Nov. 19, 2014). DHS announced that it would grant deferred action to these students “based on the fact that [their] failure to maintain status is directly due to Hurricane Katri- na.” Id. at 7. To apply for deferred action under this program, students were required to send a letter substantiating their need for deferred ac- tion, along with an application for work authorization. Press Release, USCIS, USCIS Announces Interim Relief for Foreign Students Adversely Impacted by Hurricane Katrina at 1–2 (Nov. 25, 2005), http://www. uscis.gov/sites/default/files/files/pressrelease/F1Student_11_25_05_PR. pdf (last visited Nov. 19, 2014). USCIS explained that such requests for deferred action would be “decided on a case-by-case basis” and that it could not “provide any assurance that all such requests will be granted.” Id. at 1. 4. Deferred Action for Widows and Widowers of U.S. Citizens. In 2009, DHS implemented a deferred action program for certain widows and widowers of U.S. citizens. USCIS explained that “no avenue of immigration relief exists for the surviving spouse of a deceased U.S. citizen if the surviving spouse and the U.S. citizen were married less than 2 years at the time of the citizen’s death” and USCIS had not yet adjudi- cated a visa petition on the spouse’s behalf. Memorandum for Field Lead-


remain together with their children for the entire duration of the time until a visa is awarded. In particular, undocumented parents of adult citizens who are physically present in the country would be ineligible to adjust their status without first leaving the country if they had never been “inspected and admitted or paroled into the United States.” 8 U.S.C. § 1255(a) (permitting the Attorney General to adjust to permanent resident status certain aliens present in the United States if they become eligible for immigrant visas). They would thus need to leave the country to obtain a visa at a U.S. consulate abroad. See id. § 1201(a); Cuellar de Osorio, 134 S. Ct. at 2197–99. But once such parents left the country, they would in most instances become subject to the 3- or 10-year bar under 8 U.S.C. § 1182(a)(9)(B)(i) and therefore unable to obtain a visa unless they remained outside the country for the duration of the bar. DHS’s proposed program would neverthe- less enable other families to stay together without regard to the 3- or 10-year bar. And even as to those families with parents who would become subject to that bar, the proposed <mask> program would have the effect of reducing the amount of time the family had to spend apart, and could enable them to adjust the timing of their separation accord- ing to, for example, their children’s needs for care and support. 15 Several extended voluntary departure programs have been animated by a similar


citizens and LPRs, the proposed program for parents of DACA recipients would respond to severe resource constraints that dramatically limit DHS’s ability to remove aliens who are unlawfully present, and would be limited to individuals who would be unlikely to be removed under DHS’s proposed prioritization policy. And like the proposed program for LPRs and U.S. citizens, the proposed program for DACA parents would pre- serve a significant measure of case-by-case discretion not to award de- ferred action even if the general eligibility criteria are satisfied. But the proposed program for parents of DACA recipients is unlike the proposed program for parents of U.S. citizens and LPRs in two critical respects. First, although DHS justifies the proposed program in large part based on considerations of family unity, the parents of DACA recipients are differently situated from the parents of U.S. citizens and LPRs under the family-related provisions of the immigration law. Many provisions of the INA reflect Congress’s general concern with not separating individu- als who are legally entitled to live in the United States from their immedi- ate family members. See, e.g., 8 U.S.C. § 1151(b)(2)(A)(i) (permitting citizens to petition for parents, spouses, and children); id. § 1229b(b)(1) (allowing cancellation of removal for relatives of citizens and LPRs). But the immigration laws do not express comparable concern for uniting persons who lack lawful status (or prospective lawful status) in the United States with their families. DACA recipients unquestionably lack lawful status in the United States. See DACA Toolkit at 8 (“<mask> . . . does not provide you with a lawful status.”). Although they may presump- tively remain in the United States, at least for the duration of the grant of deferred action, that grant is both time-limited and contingent, revocable at any time in the agency’s discretion. Extending deferred action to the parents of DACA recipients would therefore expand family-based immi- gration relief in a manner that deviates in important respects from the immigration system Congress has enacted and the policies that system embodies. Second, as it has been described to us, the proposed deferred action program for the parents of DACA recipients would represent a significant departure from deferred action programs that Congress has implicitly approved in the past. Granting deferred action to the parents of DACA recipients would not operate as an interim measure for individuals to whom Congress has given a prospective entitlement to lawful status. Such


Much as is the case with those programs, inviting eligible aliens to identi- fy themselves through an application process may serve the agency’s law enforcement interests by encouraging lower-priority individuals to identi- fy themselves to the agency. In so doing, the process may enable the agency to better focus its scarce resources on higher enforcement priori- ties. Apart from the considerations just discussed, perhaps the clearest indi- cation that these features of <mask> programs are not per se im- permissible is the fact that Congress, aware of these features, has repeat- edly enacted legislation appearing to endorse such programs. As discussed above, Congress has not only directed that certain classes of aliens be made eligible for deferred action programs—and in at least one instance, in the case of VAWA beneficiaries, directed the expansion of an existing program—but also ranked evidence of approved deferred action status as evidence of “lawful status” for purposes of the REAL ID Act. These enactments strongly suggest that when DHS in the past has decided to grant deferred action to an individual or class of individuals, it has been acting in a manner consistent with congressional policy “‘rather than embarking on a frolic of its own.’” United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 139 (1985) (quoting Red Lion Broad. Co. v. FCC, 395 U.S. 367, 375 (1969)); cf. id. at 137–39 (concluding that Con- gress acquiesced in an agency’s assertion of regulatory authority by “refus[ing] . . . to overrule” the agency’s view after it was specifically “brought to Congress’[s] attention,” and further finding implicit congres- sional approval in legislation that appeared to acknowledge the regulatory authority in question); Dames & Moore v. Regan, 453 U.S. 654, 680 (1981) (finding that Congress “implicitly approved the practice of claim settlement by executive agreement” by enacting the International Claims Settlement Act of 1949, which “create[d] a procedure to implement” those very agreements).


Although the practice of granting <mask> “developed without express statutory authorization,” it has become a regular feature of the immigration removal system that has been acknowledged by both Con- gress and the Supreme Court. Am.-Arab Anti-Discrim. Comm., 525 U.S. at 484 (internal quotation marks omitted); see id. at 485 (noting that a congressional enactment limiting judicial review of decisions “to com- mence proceedings, adjudicate cases, or execute removal orders against any alien under [the INA]” in 8 U.S.C. § 1252(g) “seems clearly de- signed to give some measure of protection to ‘no deferred action’ deci- sions and similar discretionary determinations”); see also, e.g., 8 U.S.C. § 1154(a)(1)(D)(i)(II), (IV) (providing that certain individuals are “eligi- ble for deferred action”). Deferred action “does not confer any immigra- tion status”—i.e., it does not establish any enforceable legal right to remain in the United States—and it may be revoked by immigration authorities at their discretion. USCIS SOP at 3, 7. Assuming it is not revoked, however, it represents DHS’s decision not to seek the alien’s removal for a specified period of time. Under longstanding regulations and policy guidance promulgated pursuant to statutory authority in the INA, deferred action recipients may receive two additional benefits. First, relying on DHS’s statutory authority to authorize certain aliens to work in the United States, DHS regulations permit recipients of deferred action to apply for work author- ization if they can demonstrate an “economic necessity for employ- ment.” 8 C.F.R. § 274a.12(c)(14); see 8 U.S.C. § 1324a(h)(3) (defining an “unauthorized alien” not entitled to work in the United States as an alien who is neither an LPR nor “authorized to be . . . employed by [the INA] or by the Attorney General [now the Secretary of Homeland Secu- rity]”). Second, DHS has promulgated regulations and issued policy guidance providing that aliens who receive deferred action will tempo- rarily cease accruing “unlawful presence” for purposes of 8 U.S.C. § 1182(a)(9)(B)(i) and (a)(9)(C)(i)(I). 8 C.F.R. § 214.14(d)(3); 28 C.F.R. § 1100.35(b)(2); Memorandum for Field Leadership from Donald Neufeld, Acting Associate Director, Domestic Operations Directorate, USCIS, Re: Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)( i ) and 212(a)(9)(C)( i )( I ) of the Act at 42 (May 6, 2009) (“USCIS Consolidation of Guidance”) (noting that “[a]ccrual of unlawful presence stops on the date an alien is granted


11 Section 1324a(h)(3) was enacted in 1986 as part of IRCA. Before then, the INA con- tained no provisions comprehensively addressing the employment of aliens or expressly delegating the authority to regulate the employment of aliens to a responsible federal agency. INS assumed the authority to prescribe the classes of aliens authorized to work in the United States under its general responsibility to administer the immigration laws. In 1981, INS promulgated regulations codifying its existing procedures and criteria for granting employment authorization. See Employment Authorization to Aliens in the United States, 46 Fed. Reg. 25,079, 25,080–81 (May 5, 1981) (citing 8 U.S.C. § 1103(a)). Those regulations permitted certain categories of aliens who lacked lawful immigration status, including <mask> recipients, to apply for work authorization under certain circumstances. 8 C.F.R. § 109.1(b)(7) (1982). In IRCA, Congress introduced a “compre- hensive scheme prohibiting the employment of illegal aliens in the United States,” Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002), to be enforced primarily through criminal and civil penalties on employers who knowingly employ an “unauthorized alien.” As relevant here, Congress defined an “unauthorized alien” barred from employment in the United States as an alien who “is not . . . either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General.” 8 U.S.C. § 1324a(h)(3) (emphasis added). Shortly after IRCA was enacted, INS denied a petition to rescind its employment authorization regulation, rejecting an argument that “the phrase ‘authorized to be so employed by this Act or the Attorney General’ does not recognize the Attorney General’s authority to grant work authorization except to those aliens who have already been granted specific authori- zation by the Act.” Employment Authorization; Classes of Aliens Eligible, 52 Fed. Reg.


See USCIS SOP at 3. It is true that, as we have discussed, a grant of <mask> would confer eligibility to apply for and obtain work authorization, pursuant to the Secretary’s statutory authority to grant such authorization and the longstanding regulations promulgated there- under. See supra pp. 55, 65–66. But unlike the automatic employment eligibility that accompanies LPR status, see 8 U.S.C. § 1324a(h)(3), this authorization could be granted only on a showing of economic necessity, and would last only for the limited duration of the deferred action grant, see 8 C.F.R. § 274a.12(c)(14). The other salient features of the proposal are similarly consonant with congressional policy. The proposed program would focus on parents who are not enforcement priorities under the prioritization policy discussed above—a policy that, as explained earlier, comports with the removal priorities set by Congress. See supra pp. 50–51. The continuous residence requirement is likewise consistent with legislative judgments that extend- ed periods of continuous residence are indicative of strong family and community ties. See IRCA § 201(a), 100 Stat. at 3394 (codified as amended at 8 U.S.C. § 1255a(a)(2)) (granting lawful status to certain aliens unlawfully present in the United States since January 1, 1982); id. § 302(a) (codified as amended at 8 U.S.C. § 1160) (granting similar relief to certain agricultural workers); H.R. Rep. No. 99-682, pt. 1, at 49 (1986) (stating that aliens present in the United States for five years “have be- come a part of their communities[,] . . . have strong family ties here which include U.S. citizens and lawful residents[,] . . . have built social networks in this country[, and] . . . have contributed to the United States in myriad ways”); S. Rep. No. 99-132, at 16 (1985) (deporting aliens who “have become well settled in this country” would be a “wasteful use of the Immigration and Naturalization Service’s limited enforcement re- sources”); see also Arizona, 132 S. Ct. at 2499 (noting that “[t]he equities of an individual case” turn on factors “including whether the alien has . . . long ties to the community”). We also do not believe DHS’s proposed program amounts to an abdica- tion of its statutory responsibilities, or a legislative rule overriding the commands of the statute. As discussed earlier, DHS’s severe resource constraints mean that, unless circumstances change, it could not as a practical matter remove the vast majority of removable aliens present in the United States. The fact that the proposed program would defer the


deferred action”); see 8 U.S.C. § 1182(a)(9)(B)(ii) (providing that an alien is “unlawfully present” if, among other things, he “is present in the United States after the expiration of the period of stay authorized by the Attorney General”). 6 Immigration officials today continue to grant <mask> in indi- vidual cases for humanitarian and other purposes, a practice we will refer to as “ad hoc deferred action.” Recent USCIS guidance provides that personnel may recommend ad hoc deferred action if they “encounter cases during [their] normal course of business that they feel warrant deferred action.” USCIS SOP at 4. An alien may also apply for ad hoc deferred action by submitting a signed, written request to USCIS containing “[a]n explanation as to why he or she is seeking deferred action” along with supporting documentation, proof of identity, and other records. Id. at 3. For decades, INS and later DHS have also implemented broader pro- grams that make discretionary relief from removal available for particular classes of aliens. In many instances, these agencies have made such broad-based relief available through the use of parole, temporary protect- ed status, deferred enforced departure, or extended voluntary departure. For example, from 1956 to 1972, INS implemented an extended voluntary departure program for physically present aliens who were beneficiaries of approved visa petitions—known as “Third Preference” visa petitions— relating to a specific class of visas for Eastern Hemisphere natives. See United States ex rel. Parco v. Morris, 426 F. Supp. 976, 979–80 (E.D. Pa. 1977). Similarly, for several years beginning in 1978, INS granted ex- tended voluntary departure to nurses who were eligible for H-1 visas. Voluntary Departure for Out-of-Status Nonimmigrant H-1 Nurses, 43 Fed. Reg. 2776, 2776 (Jan. 19, 1978). In addition, in more than two dozen instances dating to 1956, INS and later DHS granted parole, temporary protected status, deferred enforced departure, or extended voluntary departure to large numbers of nationals of designated foreign states.


<mask>, however, differs in at least three respects from more familiar and widespread exercises of enforcement discretion. First, unlike (for example) the paradigmatic exercise of prosecutorial discretion in a criminal case, the conferral of deferred action does not represent a deci- sion not to prosecute an individual for past unlawful conduct; it instead represents a decision to openly tolerate an undocumented alien’s contin- ued presence in the United States for a fixed period (subject to revocation at the agency’s discretion). Second, unlike most exercises of enforcement discretion, deferred action carries with it benefits in addition to non- enforcement itself; specifically, the ability to seek employment authori- zation and suspension of unlawful presence for purposes of 8 U.S.C. § 1182(a)(9)(B)(i) and (a)(9)(C)(i)(I). Third, class-based deferred action programs, like those for VAWA recipients and victims of Hurricane Katrina, do not merely enable individual immigration officials to select deserving beneficiaries from among those aliens who have been identi- fied or apprehended for possible removal—as is the case with ad hoc deferred action—but rather set forth certain threshold eligibility criteria and then invite individuals who satisfy these criteria to apply for deferred action status. While these features of deferred action are somewhat unusual among exercises of enforcement discretion, the differences between deferred action and other exercises of enforcement discretion are less significant than they might initially appear. The first feature—the toleration of an alien’s continued unlawful presence—is an inevitable element of almost any exercise of discretion in immigration enforcement. Any decision not to remove an unlawfully present alien—even through an exercise of routine enforcement discretion—necessarily carries with it a tacit ac- knowledgment that the alien will continue to be present in the United States without legal status. Deferred action arguably goes beyond such tacit acknowledgment by expressly communicating to the alien that his or her unlawful presence will be tolerated for a prescribed period of time. This difference is not, in our view, insignificant. But neither does it fun- damentally transform deferred action into something other than an exer- cise of enforcement discretion: As we have previously noted, deferred action confers no lawful immigration status, provides no path to lawful permanent residence or citizenship, and is revocable at any time in the agency’s discretion.


10 Five years later, in the Violence Against Women and Department of Justice Reau- thorization Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960, Congress specified that, “[u]pon the approval of a petition as a VAWA self-petitioner, the alien . . . is eligible for work authorization.” Id. § 814(b) (codified at 8 U.S.C. § 1154(a)(1)(K)). One of the Act’s sponsors explained that while this provision was intended to “give[] DHS statutory authority to grant work authorization . . . without having to rely upon <mask> . . . [t]he current practice of granting deferred action to approved VAWA self-petitioners should continue.” 151 Cong. Rec. 29,334 (2005) (statement of Rep. Conyers).


ence under section 1182(a)(9)(B)(i) or (a)(9)(C)(i). And DHS regulations and policy guidance interpret a “period of stay authorized by the Attorney General” to include periods during which an alien has been granted de- ferred action. See 8 C.F.R. § 214.14(d)(3); 28 C.F.R. § 1100.35(b)(2); USCIS Consolidation of Guidance at 42. The final unusual feature of <mask> programs is particular to class-based programs. The breadth of such programs, in combination with the first two features of deferred action, may raise particular concerns about whether immigration officials have undertaken to substantively change the statutory removal system rather than simply adapting its appli- cation to individual circumstances. But the salient feature of class-based programs—the establishment of an affirmative application process with threshold eligibility criteria—does not in and of itself cross the line be- tween executing the law and rewriting it. Although every class-wide deferred action program that has been implemented to date has established certain threshold eligibility criteria, each program has also left room for case-by-case determinations, giving immigration officials discretion to deny applications even if the applicant fulfills all of the program criteria. See supra pp. 57–61. Like the establishment of enforcement priorities discussed in Part I, the establishment of threshold eligibility criteria can serve to avoid arbitrary enforcement decisions by individual officers, thereby furthering the goal of ensuring consistency across a large agency. The guarantee of individualized, case-by-case review helps avoid poten- tial concerns that, in establishing such eligibility criteria, the Executive is attempting to rewrite the law by defining new categories of aliens who are automatically entitled to particular immigration relief. See Crowley Car- ibbean Transp., 37 F.3d at 676–77; see also Chaney, 470 U.S. at 833 n.4. Furthermore, while permitting potentially eligible individuals to apply for an exercise of enforcement discretion is not especially common, many law enforcement agencies have developed programs that invite violators of the law to identify themselves to the authorities in exchange for leniency. 12


ership, USCIS, from Donald Neufeld, Acting Associate Director, USCIS, Re: Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and Their Children at 1 (Sept. 4, 2009). “In order to address humanitarian concerns arising from cases involving surviving spouses of U.S. citizens,” USCIS issued guidance permitting covered surviving spouses and “their qualifying children who are residing in the United States” to apply for <mask>. Id. at 2, 6. USCIS clarified that such relief would not be automatic, but rather would be unavailable in the presence of, for exam- ple, “serious adverse factors, such as national security concerns, signifi- cant immigration fraud, commission of other crimes, or public safety reasons.” Id. at 6. 7 5. Deferred Action for Childhood Arrivals. Announced by DHS in 2012, DACA makes deferred action available to “certain young people who were brought to this country as children” and therefore “[a]s a gen- eral matter . . . lacked the intent to violate the law.” Memorandum for David Aguilar, Acting Commissioner, CBP, et al., from Janet Napolitano, Secretary, DHS, Re: Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children at 1 (June 15, 2012) (“Napolitano Memorandum”). An alien is eligible for DACA if she was under the age of 31 when the program began; arrived in the United States before the age of 16; continuously resided in the United States for at least 5 years immediately preceding June 15, 2012; was physically present on June 15, 2012; satisfies certain educational or military service requirements; and neither has a serious criminal history nor “poses a threat to national security or public safety.” See id. DHS evaluates appli- cants’ eligibility for DACA on a case-by-case basis. See id. at 2; USCIS, Deferred Action for Childhood Arrivals (DACA) Toolkit: Resources for Community Partners at 11 (“DACA Toolkit”). Successful DACA appli-


Congress’s apparent endorsement of certain <mask> programs does not mean, of course, that a deferred action program can be lawfully extended to any group of aliens, no matter its characteristics or its scope, and no matter the circumstances in which the program is implemented. Because deferred action, like the prioritization policy discussed above, is an exercise of enforcement discretion rooted in the Secretary’s broad authority to enforce the immigration laws and the President’s duty to take care that the laws are faithfully executed, it is subject to the same four general principles previously discussed. See supra pp. 46–47. Thus, any expansion of deferred action to new classes of aliens must be carefully scrutinized to ensure that it reflects considerations within the agency’s expertise, and that it does not seek to effectively rewrite the laws to match the Executive’s policy preferences, but rather operates in a manner conso- nant with congressional policy expressed in the statute. See supra p. 46 (citing Youngstown, 343 U.S. at 637, and Nat’l Ass’n of Home Builders, 551 U.S. at 658). Immigration officials cannot abdicate their statutory responsibilities under the guise of exercising enforcement discretion. See supra pp. 46–47 (citing Chaney, 470 U.S. at 833 n.4). And any new deferred action program should leave room for individualized evaluation of whether a particular case warrants the expenditure of resources for enforcement. See supra p. 47 (citing Glickman, 96 F.3d at 1123, and Crowley Caribbean Transp., 37 F.3d at 676–77). Furthermore, because deferred action programs depart in certain re- spects from more familiar and widespread exercises of enforcement discretion, particularly careful examination is needed to ensure that any proposed expansion of deferred action complies with these general princi- ples, so that the proposed program does not, in effect, cross the line be- tween executing the law and rewriting it. In analyzing whether the pro- posed programs cross this line, we will draw substantial guidance from Congress’s history of legislation concerning deferred action. In the ab- sence of express statutory guidance, the nature of deferred action pro- grams Congress has implicitly approved by statute helps to shed light on Congress’s own understandings about the permissible uses of deferred action. Those understandings, in turn, help to inform our consideration of whether the proposed deferred action programs are “faithful[]” to the statutory scheme Congress has enacted. U.S. Const. art. II, § 3.


other programs Congress has implicitly endorsed, the program serves substantial and particularized humanitarian interests. Removing the par- ents of U.S. citizens and LPRs—that is, of children who have established permanent legal ties to the United States—would separate them from their nuclear families, potentially for many years, until they were able to secure visas through the path Congress has provided. During that time, both the parents and their U.S. citizen or LPR children would be deprived of both the economic support and the intangible benefits that families provide. We recognize that the proposed program would likely differ in size from these prior <mask> programs. Although DHS has indicated that there is no reliable way to know how many eligible aliens would actually apply for or would be likely to receive deferred action following individualized consideration under the proposed program, it has informed us that approximately 4 million individuals could be eligible to apply. See Shahoulian E-mail. We have thus considered whether the size of the program alone sets it at odds with congressional policy or the Executive’s duties under the Take Care Clause. In the absence of express statutory guidance, it is difficult to say exactly how the program’s potential size bears on its permissibility as an exercise of executive enforcement discre- tion. But because the size of DHS’s proposed program corresponds to the size of a population to which Congress has granted a prospective entitle- ment to lawful status without numerical restriction, it seems to us difficult to sustain an argument, based on numbers alone, that DHS’s proposal to grant a limited form of administrative relief as a temporary interim meas- ure exceeds its enforcement discretion under the INA. Furthermore, while the potential size of the program is large, it is nevertheless only a fraction of the approximately 11 million undocumented aliens who remain in the United States each year because DHS lacks the resources to remove them; and, as we have indicated, the program is limited to individuals who would be unlikely to be removed under DHS’s proposed prioritization policy. There is thus little practical danger that the program, simply by virtue of its size, will impede removals that would otherwise occur in its absence. And although we are aware of no prior exercises of deferred


The People appealed the trial court's order granting the petition for writ of habeas corpus. (See Pen. Code, § 15065 [authorizing the People to take an appeal from "a final order of a superior court made upon the return of a writ of habeas corpus discharging a defendant or otherwise granting all or any part of the relief sought"].)6 We affirmed the trial court's order granting Berg's petition for writ of habeas corpus. ( Berg I , supra , 247 Cal.App.4th 418, 202 Cal.Rptr.3d 786 *864.) The Supreme Court granted the People's petition for review and <mask> in the matter pending consideration of a related issue in In re Kirchner (2016) 244 Cal.App.4th 1398, 199 Cal.Rptr.3d 416, review granted May 18, 2016, S233508. (Berg I , supra , review granted July 27, 2016, S235277, briefing deferred pursuant to Cal. Rules of Court, rule 8.512(d)(2).) After issuing its opinion In re Kirchner (2017) 2 Cal.5th 1040, 216 Cal.Rptr.3d 876, 393 P.3d 364, the Supreme Court dismissed review in this case and remanded the matter to this court. (Berg I , supra , S235277, review dismissed July 26, 2017.)


action of the size contemplated here, INS’s 1990 Family Fairness policy, which Congress later implicitly approved, made a comparable fraction of undocumented aliens—approximately four in ten—potentially eligible for discretionary extended voluntary departure relief. Compare CRS Immi- gration Report at 22 (estimating the Family Fairness policy extended to 1.5 million undocumented aliens), with Office of Policy and Planning, INS, Estimates of the Unauthorized Immigrant Population Residing in the United States: 1990 to 2000 at 10 (2003) (estimating an undocumented alien population of 3.5 million in 1990); see supra notes 5, 15 (discussing extended voluntary departure and Congress’s implicit approval of the Family Fairness policy). This suggests that DHS’s proposed <mask> program is not, simply by virtue of its relative size, inconsistent with what Congress has previously considered a permissible exercise of enforcement discretion in the immigration context. In light of these considerations, we believe the proposed expansion of deferred action to the parents of U.S. citizens and LPRs is lawful. It reflects considerations—responding to resource constraints and to particu- larized humanitarian concerns arising in the immigration context—that fall within DHS’s expertise. It is consistent with congressional policy, since it focuses on a group—law-abiding parents of lawfully present children who have substantial ties to the community—that Congress itself has granted favorable treatment in the immigration process. The program provides for the exercise of case-by-case discretion, thereby avoiding creating a rule-like entitlement to immigration relief or abdicating DHS’s enforcement responsibilities for a particular class of aliens. And, like several deferred action programs Congress has approved in the past, the proposed program provides interim relief that would prevent particular- ized harm that could otherwise befall both the beneficiaries of the pro- gram and their families. We accordingly conclude that the proposed program would constitute a permissible exercise of DHS’s enforcement discretion under the INA.


The practice of granting <mask> dates back several decades. For many years after the INA was enacted, INS exercised prosecutorial discretion to grant “non-priority” status to removable aliens who pre- sented “appealing humanitarian factors.” Letter for Leon Wildes from E.A. Loughran, Associate Commissioner, INS at 2 (July 16, 1973) (defining a “non-priority case” as “one in which the Service in the exercise of discretion determines that adverse action would be uncon- scionable because of appealing humanitarian factors”); see INS Operat- ing Instructions § 103.1(a)(1)(ii) (1962). This form of administrative discretion was later termed “deferred action.” Am.-Arab Anti-Discrim. Comm., 525 U.S. at 484; see INS Operating Instructions § 103.1(a)(1)(ii) (1977) (instructing immigration officers to recommend deferred action whenever “adverse action would be unconscionable because of the exist- ence of appealing humanitarian factors”).


In immigration law, the term “deferred action” refers to an exercise of administrative discretion in which immigration officials temporarily defer the removal of an alien unlawfully present in the United States. Am.-Arab Anti-Discrim. Comm., 525 U.S. at 484 (citing 6 Charles Gordon et al., Immigration Law and Procedure § 72.03[2][h] (1998)); see USCIS, Standard Operating Procedures for Handling <mask> Requests at USCIS Field Offices at 3 (2012) (“USCIS SOP”); INS Operating Instructions § 103.1(a)(1)(ii) (1977). It is one of a number of forms of discretionary relief—in addition to such statutory and non-statutory measures as parole, temporary protected status, deferred enforced depar- ture, and extended voluntary departure—that immigration officials have used over the years to temporarily prevent the removal of undocumented aliens. 5


removal of a subset of these removable aliens—a subset that ranks near the bottom of the list of the agency’s removal priorities—thus does not, by itself, demonstrate that the program amounts to an abdication of DHS’s responsibilities. And the case-by-case discretion given to immigration officials under DHS’s proposed program alleviates potential concerns that DHS has abdicated its statutory enforcement responsibilities with respect to, or created a categorical, rule-like entitlement to immigration relief for, the particular class of aliens eligible for the program. An alien who meets all the criteria for <mask> under the program would receive de- ferred action only if he or she “present[ed] no other factors that, in the exercise of discretion,” would “make[] the grant of deferred action inap- propriate.” Johnson Deferred Action Memorandum at 4. The proposed policy does not specify what would count as such a factor; it thus leaves the relevant USCIS official with substantial discretion to determine whether a grant of deferred action is warranted. In other words, even if an alien is not a removal priority under the proposed policy discussed in Part I, has continuously resided in the United States since before Janu- ary 1, 2010, is physically present in the country, and is a parent of an LPR or a U.S. citizen, the USCIS official evaluating the alien’s deferred action application must still make a judgment, in the exercise of her discretion, about whether that alien presents any other factor that would make a grant of deferred action inappropriate. This feature of the proposed program ensures that it does not create a categorical entitlement to deferred action that could raise concerns that DHS is either impermissibly attempting to rewrite or categorically declining to enforce the law with respect to a particular group of undocumented aliens. Finally, the proposed deferred action program would resemble in mate- rial respects the kinds of deferred action programs Congress has implicitly approved in the past, which provides some indication that the proposal is consonant not only with interests reflected in immigration law as a gen- eral matter, but also with congressional understandings about the permis- sible uses of deferred action. As noted above, the program uses deferred action as an interim measure for a group of aliens to whom Congress has given a prospective entitlement to lawful immigration status. While Con- gress has provided a path to lawful status for the parents of U.S. citizens and LPRs, the process of obtaining that status “takes time.” Cuellar de Osorio, 134 S. Ct. at 2199. The proposed program would provide a mech-


legislation in 2000, INS officials testified before Congress about their <mask> program for VAWA self-petitioners, explaining that “[a]pproved [VAWA] self-petitioners are placed in deferred action sta- tus,” such that “[n]o battered alien who has filed a[n approved] self petition . . . has been deported.” H.R. 3083 Hearings at 43. Congress responded by not only acknowledging but also expanding the deferred action program in the 2000 VAWA reauthorization legislation, providing that children who could no longer self-petition under VAWA because they were over the age of 21 would nonetheless be “eligible for deferred action and work authorization.” VTVPA § 1503(d)(2), 114 Stat. at 1522 (codified at 8 U.S.C. § 1154(a)(1)(D)(i)(II), (IV)). 10 Congress demonstrated a similar awareness of INS’s (and later DHS’s) deferred action program for bona fide T and U visa applicants. As dis- cussed above, that program made deferred action available to nearly all individuals who could make a prima facie showing of eligibility for a T or U visa. In 2008 legislation, Congress authorized DHS to “grant . . . an administrative stay of a final order of removal” to any such individual. William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457, § 204, 122 Stat. 5044, 5060 (codified at 8 U.S.C. § 1227(d )(1)). Congress further clarified that “[t]he denial of a request for an administrative stay of removal under this subsection shall not preclude the alien from applying for . . . deferred action.” Id. It also directed DHS to compile a report detailing, among other things, how long DHS’s “specially trained [VAWA] Unit at the [USCIS] Vermont Service Center” took to adjudicate victim-based immigration applications for “deferred action,” along with “steps taken to improve in this area.” Id. § 238. Representative Berman, the bill’s sponsor, explained that the Vermont Service Center should “strive to issue work authorization and deferred action” to “[i]mmigrant victims of domestic violence, sexual


assault and other violence crimes . . . in most instances within 60 days of filing.” 154 Cong. Rec. 24,603 (2008). In addition, in other enactments, Congress has specified that certain classes of individuals should be made “eligible for <mask>.” These classes include certain immediate family members of LPRs who were killed on September 11, 2001, USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 423(b), 115 Stat. 272, 361, and certain immediate family mem- bers of certain U.S. citizens killed in combat, National Defense Authori- zation Act for Fiscal Year 2004, Pub. L. No. 108-136, § 1703(c)–(d), 117 Stat. 1392, 1694 (2003). In the same legislation, Congress made these individuals eligible to obtain lawful status as “family-sponsored immi- grant[s]” or “immediate relative[s]” of U.S. citizens. Pub. L. No. 107-56, § 423(b), 115 Stat. at 361; Pub. L. No. 108-136, § 1703(c)(1)(A), 117 Stat. at 1694. See generally Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191, 2197 (2014) (plurality opinion) (explaining which aliens typically qualify as family-sponsored immigrants or immediate relatives). Finally, Congress acknowledged the practice of granting deferred ac- tion in the REAL ID Act of 2005, Pub. L. No. 109-13, div. B, 119 Stat. 231, 302 (codified at 49 U.S.C. § 30301 note), which makes a state-issued driver’s license or identification card acceptable for federal purposes only if the state verifies, among other things, that the card’s recipient has “[e]vidence of [l]awful [s]tatus.” Congress specified that, for this purpose, acceptable evidence of lawful status includes proof of, among other things, citizenship, lawful permanent or temporary residence, or “ap- proved deferred action status.” Id. § 202(c)(2)(B)(viii).


8 Before DACA was announced, our Office was consulted about whether such a pro- gram would be legally permissible. As we orally advised, our preliminary view was that such a program would be permissible, provided that immigration officials retained discretion to evaluate each application on an individualized basis. We noted that immigra- tion officials typically consider factors such as having been brought to the United States as a child in exercising their discretion to grant <mask> in individual cases. We explained, however, that extending deferred action to individuals who satisfied these and other specified criteria on a class-wide basis would raise distinct questions not implicated by ad hoc grants of deferred action. We advised that it was critical that, like past policies that made deferred action available to certain classes of aliens, the DACA program require immigration officials to evaluate each application for deferred action on a case- by-case basis, rather than granting deferred action automatically to all applicants who satisfied the threshold eligibility criteria. We also noted that, although the proposed program was predicated on humanitarian concerns that appeared less particularized and acute than those underlying certain prior class-wide deferred action programs, the con- cerns animating DACA were nonetheless consistent with the types of concerns that have customarily guided the exercise of immigration enforcement discretion. 9 Congress has considered legislation that would limit the practice of granting deferred


anism for families to remain together, depending on their circumstances, for some or all of the intervening period. 14 Immigration officials have on several occasions deployed <mask> programs as interim measures for other classes of aliens with prospective entitlements to lawful immi- gration status, including VAWA self-petitioners, bona fide T and U visa applicants, certain immediate family members of certain U.S. citizens killed in combat, and certain immediate family members of aliens killed on September 11, 2001. As noted above, each of these programs has received Congress’s implicit approval—and, indeed, in the case of VAWA self-petitioners, a direction to expand the program beyond its original bounds. See supra pp. 61–63. 15 In addition, much like these and


Immigrant Protection Act: Hearings on H.R. 3083 Before the Subcomm. on Immigration & Claims of the H. Comm. on the Judiciary, 106th Cong. at 43 (July 20, 2000) (“H.R. 3083 Hearings”). 2. <mask> for T and U Visa Applicants. Several years later, INS instituted a similar deferred action program for applicants for nonimmigrant status or visas made available under the Victims of Traf- ficking and Violence Protection Act of 2000 (“VTVPA”), Pub. L. No. 106-386, 114 Stat. 1464. That Act created two new nonimmigrant classi- fications: a “T visa” available to victims of human trafficking and their family members, and a “U visa” for victims of certain other crimes and their family members. Id. §§ 107(e), 1513(b)(3) (codified at 8 U.S.C. § 1101(a)(15)(T)(i), (U)(i)). In 2001, INS issued a memorandum directing immigration officers to locate “possible victims in the above categories,” and to use “[e]xisting authority and mechanisms such as parole, deferred action, and stays of removal” to prevent those victims’ removal “until they have had the opportunity to avail themselves of the provisions of the VTVPA.” Memorandum for Michael A. Pearson, Executive Associate Commissioner, INS, from Michael D. Cronin, Acting Executive Associate Commissioner, INS, Re: Victims of Trafficking and Violence Protection Act of 2000 (VTVPA) Policy Memorandum #2—“T” and “U” Nonimmi- grant Visas at 2 (Aug. 30, 2001). In subsequent memoranda, INS instruct- ed officers to make “deferred action assessment[s]” for “all [T visa] applicants whose applications have been determined to be bona fide,” Memorandum for Johnny N. Williams, Executive Associate Commission- er, INS, from Stuart Anderson, Executive Associate Commissioner, INS, Re: Deferred Action for Aliens with Bona Fide Applications for T Non- immigrant Status at 1 (May 8, 2002), as well as for all U visa applicants “determined to have submitted prima facie evidence of [their] eligibility,” Memorandum for the Director, Vermont Service Center, INS, from Wil- liam R. Yates, USCIS, Re: Centralization of Interim Relief for U Nonim- migrant Status Applicants at 5 (Oct. 8, 2003). In 2002 and 2007, INS and DHS promulgated regulations embodying these policies. See 8 C.F.R. § 214.11(k)(1), (k)(4), (m)(2) (promulgated by New Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for “T” Nonimmigrant Status, 67 Fed. Reg. 4784, 4800–01 (Jan. 31, 2002)) (providing that any T visa applicant who presents “prima facie evidence” of his eligibility should have his removal “automatically stay[ed]” and


cants receive <mask> for a period of two years, subject to renewal. See DACA Toolkit at 11. DHS has stated that grants of deferred action under DACA may be terminated at any time, id. at 16, and “confer[] no substantive right, immigration status or pathway to citizenship,” Napoli- tano Memorandum at 3. 8 Congress has long been aware of the practice of granting deferred ac- tion, including in its categorical variety, and of its salient features; and it has never acted to disapprove or limit the practice. 9 On the contrary, it has enacted several pieces of legislation that have either assumed that deferred action would be available in certain circumstances, or expressly directed that deferred action be extended to certain categories of aliens. For example, as Congress was considering VAWA reauthorization


Upon applying for hospital privileges at the Peninsula General *793Hospital, the hospital nearest to petitioner’s office, he was informed, in writing, that “ [T]be Credentials Committee has <mask> on your application since you are not a member of a county medical society” and that “Eligibility for such membership is a requirement under our by-laws ”, Petitioner was further informed that “your application will again be processed * * * when you are granted membership


action, but it has never enacted such a measure. In 2011, a bill was introduced in both the House and the Senate that would have temporarily suspended DHS’s authority to grant <mask> except in narrow circumstances. See H.R. 2497, 112th Cong. (2011); S. 1380, 112th Cong. (2011). Neither chamber, however, voted on the bill. This year, the House passed a bill that purported to bar any funding for DACA or other class-wide deferred action programs, H.R. 5272, 113th Cong. (2014), but the Senate has not consid- ered the legislation. Because the Supreme Court has instructed that unenacted legislation is an unreliable indicator of legislative intent, see Red Lion Broad. Co. v. FCC, 395 U.S. 367, 381 n.11 (1969), we do not draw any inference regarding congressional policy from these unenacted bills.


We now turn to the specifics of DHS’s proposed <mask> pro- grams. DHS has proposed implementing a policy under which an alien could apply for, and would be eligible to receive, deferred action if he or she: (1) is not an enforcement priority under DHS policy; (2) has continu- ously resided in the United States since before January 1, 2010; (3) is physically present in the United States both when DHS announces its program and at the time of application for deferred action; (4) has a child who is a U.S. citizen or LPR; and (5) presents “no other factors that, in the exercise of discretion, make[] the grant of deferred action inappropri- ate.” Johnson Deferred Action Memorandum at 4. You have also asked about the permissibility of a similar program that would be open to par- ents of children who have received deferred action under the DACA program. We first address DHS’s proposal to implement a deferred action program for the parents of U.S. citizens and LPRs, and then turn to the permissibility of the program for parents of DACA recipients in the next subsection.


We turn next to the permissibility of DHS’s proposed <mask> programs for certain aliens who are parents of U.S. citizens, lawful per- manent residents (“LPRs”), or DACA recipients, and who are not removal priorities under the proposed policy discussed above. We begin by dis- cussing the history and current practice of deferred action. We then dis- cuss the legal authorities on which deferred action relies and identify legal principles against which the proposed use of deferred action can be evalu- ated. Finally, we turn to an analysis of the proposed deferred action pro- grams themselves, beginning with the program for parents of U.S. citizens and LPRs, and concluding with the program for parents of DACA recipi- ents.


States, it would be legally permissible for the Department to implement a policy prioritizing the removal of certain categories of aliens over others. DHS has explained that although there are approximately 11.3 million undocumented aliens in the country, it has the resources to remove fewer than 400,000 such aliens each year. DHS’s proposed policy would priori- tize the removal of aliens who present threats to national security, public safety, or border security. Under the proposed policy, DHS officials could remove an alien who did not fall into one of these categories provided that an Immigration and Customs Enforcement (“ICE”) Field Office Director determined that “removing such an alien would serve an important federal interest.” Draft Memorandum for Thomas S. Winkowski, Acting Director, ICE, et al., from Jeh Charles Johnson, Secretary of Homeland Security, Re: Policies for the Apprehension, Detention, and Removal of Undocu- mented Immigrants at 5 (Nov. 17, 2014) (“Johnson Prioritization Memo- randum”). Second, you have asked whether it would be permissible for DHS to extend <mask>, a form of temporary administrative relief from removal, to certain aliens who are the parents of children who are present in the United States. Specifically, DHS has proposed to implement a program under which an alien could apply for, and would be eligible to receive, deferred action if he or she is not a DHS removal priority under the policy described above; has continuously resided in the United States since before January 1, 2010; has a child who is either a U.S. citizen or a lawful permanent resident; is physically present in the United States both when DHS announces its program and at the time of application for deferred action; and presents “no other factors that, in the exercise of discretion, make[] the grant of deferred action inappropriate.” Draft Memorandum for Leon Rodriguez, Director, U.S. Citizenship and Immi- gration Services, et al., from Jeh Charles Johnson, Secretary of Homeland Security, Re: Exercising Prosecutorial Discretion with Respect to Indi- viduals Who Came to the United States as Children and Others at 4 (Nov. 17, 2014) (“Johnson Deferred Action Memorandum”). You have also asked whether DHS could implement a similar program for parents of individuals who have received deferred action under the Deferred Action for Childhood Arrivals (“DACA”) program. As has historically been true of deferred action, these proposed deferred action programs would not “legalize” any aliens who are unlawfully Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens


In support of the argument that its procedures comply already with section 3304, subdivision (b), the City requests that we take judicial notice of (1) provisions of the Los Angeles City Charter setting forth procedures that are purportedly comparable to the City's procedures, and (2) a written statement submitted by the Los Angeles Police Protective League in 1975 to the California Senate Judiciary Committee in support of legislation providing procedural protections for police officers. We <mask> on this request until resolution of the merits of the appeal, and now grant it in part and deny it in part.


present in the United States: <mask> does not confer any lawful immigration status, nor does it provide a path to obtaining permanent residence or citizenship. Grants of deferred action under the proposed programs would, rather, represent DHS’s decision not to seek an alien’s removal for a prescribed period of time. See generally Reno v. Am.-Arab Anti-Discrim. Comm., 525 U.S. 471, 483–84 (1999) (describing deferred action). Under decades-old regulations promulgated pursuant to authority delegated by Congress, see 8 U.S.C. §§ 1103(a)(3), 1324a(h)(3), aliens who are granted deferred action—like certain other categories of aliens who do not have lawful immigration status, such as asylum applicants— may apply for authorization to work in the United States in certain circumstances, 8 C.F.R. § 274a.12(c)(14) (providing that deferred action recipients may apply for work authorization if they can show an “eco- nomic necessity for employment”); see also id. § 109.1(b)(7) (1982). Under DHS policy guidance, a grant of deferred action also suspends an alien’s accrual of unlawful presence for purposes of 8 U.S.C. § 1182(a)(9)(B)(i) and (a)(9)(C)(i)(I), provisions that restrict the admis- sion of aliens who have departed the United States after having been unlawfully present for specified periods of time. A grant of deferred action under the proposed programs would remain in effect for three years, subject to renewal, and could be terminated at any time at DHS’s discretion. See Johnson Deferred Action Memorandum at 2, 5. For the reasons discussed below, we conclude that DHS’s proposed prioritization policy and its proposed deferred action program for parents of U.S. citizens and lawful permanent residents would be permissible exercises of DHS’s discretion to enforce the immigration laws. We further conclude that, as it has been described to us, the proposed deferred action program for parents of DACA recipients would not be a permissible exercise of enforcement discretion.


such parents have demonstrated significant ties to community and family in this country. See Shahoulian E-mail. With respect to DHS’s first justification, the need to efficiently allocate scarce enforcement resources is a quintessential basis for an agency’s exercise of enforcement discretion. See Chaney, 470 U.S. at 831. Because, as discussed earlier, Congress has appropriated only a small fraction of the funds needed for full enforcement, DHS can remove no more than a small fraction of the individuals who are removable under the immigra- tion laws. See supra p. 49. The agency must therefore make choices about which violations of the immigration laws it will prioritize and pursue. And as Chaney makes clear, such choices are entrusted largely to the Executive’s discretion. 470 U.S. at 831. The <mask> program DHS proposes would not, of course, be costless. Processing applications for deferred action and its renewal re- quires manpower and resources. See Arizona, 132 S. Ct. at 2521 (Scalia, J., concurring in part and dissenting in part). But DHS has informed us that the costs of administering the proposed program would be borne almost entirely by USCIS through the collection of application fees. See Sha- houlian E-mail; see also 8 U.S.C. § 1356(m); 8 C.F.R. § 103.7(b)(1)(i)(C), (b)(1)(i)(HH). DHS has indicated that the costs of administering the deferred action program would therefore not detract in any significant way from the resources available to ICE and CBP—the enforcement arms of DHS—which rely on money appropriated by Congress to fund their operations. See Shahoulian E-mail. DHS has explained that, if anything, the proposed deferred action program might increase ICE’s and CBP’s efficiency by in effect using USCIS’s fee-funded resources to enable those enforcement divisions to more easily identify non-priority aliens and focus their resources on pursuing aliens who are strong candidates for removal. See id. The proposed program, in short, might help DHS address its severe resource limitations, and at the very least likely would not exacerbate them. See id. DHS does not, however, attempt to justify the proposed program solely as a cost-saving measure, or suggest that its lack of resources alone is sufficient to justify creating a deferred action program for the proposed class. Rather, as noted above, DHS has explained that the program would also serve a particularized humanitarian interest in promoting family unity by enabling those parents of U.S. citizens and LPRs who are not other-


In early April 1996 the New York State Division of Parole was advised by Willis’ North Carolina parole officer of Willis’ November 9,1995 child abuse conviction and sentence to probation. The New York parole officer was also informed by her North Carolina counterpart of Willis’ pending misdemeanor larceny arrest and court date of April 8. At that time, the New York parole officer requested further information regarding the child abuse charges and <mask> with respect to a parole violation until the misdemeanor larceny charges were adjudicated.


Secretary to grant work authorization to particular classes of aliens, see, e.g., 8 U.S.C. § 1158(c)(1)(B) (aliens granted asylum), it places few lim- itations on the Secretary’s authority to grant work authorization to other classes of aliens. Further, and notably, additional provisions of the INA expressly contemplate that the Secretary may grant work authorization to aliens lacking lawful immigration status—even those who are in active removal proceedings or, in certain circumstances, those who have already received final orders of removal. See id. § 1226(a)(3) (permitting the Secretary to grant work authorization to an otherwise work-eligible alien who has been arrested and detained pending a decision whether to re- move the alien from the United States); id. § 1231(a)(7) (permitting the Secretary under certain narrow circumstances to grant work authorization to aliens who have received final orders of removal). Consistent with these provisions, the Secretary has long permitted certain additional classes of aliens who lack lawful immigration status to apply for work authorization, including <mask> recipients who can demonstrate an economic necessity for employment. See 8 C.F.R. § 274a.12(c)(14); see also id. § 274a.12(c)(8) (applicants for asylum), (c)(10) (applicants for cancellation of removal); supra note 11 (discussing 1981 regulations). The Secretary’s authority to suspend the accrual of unlawful presence of deferred action recipients is similarly grounded in the INA. The rele- vant statutory provision treats an alien as “unlawfully present” for pur- poses of 8 U.S.C. § 1182(a)(9)(B)(i) and (a)(9)(C)(i)(I) if he “is present in the United States after the expiration of the period of stay authorized by the Attorney General.” 8 U.S.C. § 1182(a)(9)(B)(ii). That language con- templates that the Attorney General (and now the Secretary) may author- ize an alien to stay in the United States without accruing unlawful pres-


The practice of granting <mask>, like the practice of setting en- forcement priorities, is an exercise of enforcement discretion rooted in DHS’s authority to enforce the immigration laws and the President’s duty to take care that the laws are faithfully executed. It is one of several mechanisms by which immigration officials, against a backdrop of limited enforcement resources, exercise their “broad discretion” to administer the removal system—and, more specifically, their discretion to determine whether “it makes sense to pursue removal” in particular circumstances. Arizona, 132 S. Ct. at 2499.


* Editor’s Note: This opinion has been withdrawn. The opinion’s principal subject, the <mask> for Parents of Americans and Lawful Permanent Residents (“DAPA”) policy, was preliminarily enjoined before it went into effect. See Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex.), aff ’d, 809 F.3d 134 (5th Cir. 2015), aff ’d by an equally divided Court, 136 S. Ct. 2271 (2016). Based on the reasoning in the Fifth Circuit’s decision, on September 4, 2017, Attorney General Sessions concluded that the related Deferred Action for Childhood Arrivals (“DACA”) policy, which is briefly discussed in footnote 8 of this opinion, was unlawful. See Letter for Elaine Duke, Acting Secretary of Homeland Security, from Jefferson B. Sessions III, Attorney General (Sept. 4, 2017). Although the Acting Secretary of Homeland Security announced the rescission of DACA on September 5, 2017, the Supreme Court vacated that decision and remanded for further proceedings. See Dep’t of Homeland Sec. v. Regents of Univ. of Cal., 140 S. Ct. 1891 (2020). In order to maximize the Acting Secretary’s discretion on remand, and without regard to the merits of the legal issues, Attorney General Barr withdrew Attorney General Sessions’ September 4, 2017 letter and, for the same reason, further directed this Office to withdraw this opinion. See Letter for Chad F. Wolf, Acting Secretary of Homeland Security, from William P. Barr, Attorney General (June 30, 2020).


See, e.g., CRS Immigration Report at 20–23; Cong. Research Serv., ED206779, Review of U.S. Refugee Resettlement Programs and Policies at 9, 12–14 (1980). And in 1990, INS implemented a “Family Fairness” program that authorized granting extended voluntary departure and work authorization to the estimated 1.5 million spouses and children of aliens who had been granted legal status under the Immigration Reform and Control Act of 1986 (“IRCA”), Pub. L. No. 99-603, 100 Stat. 3359. See Memorandum for Regional Commissioners, INS, from Gene McNary, Commissioner, INS, Re: Family Fairness: Guidelines for Voluntary Departure Under 8 CFR 242.5 for the Ineligible Spouses and Children of Legalized Aliens (Feb. 2, 1990) (“Family Fairness Memorandum”); see also CRS Immigration Report at 10. On at least five occasions since the late 1990s, INS and later DHS have also made discretionary relief available to certain classes of aliens through the use of <mask>: 1. Deferred Action for Battered Aliens Under the Violence Against Women Act. INS established a class-based deferred action program in 1997 for the benefit of self-petitioners under the Violence Against Women Act of 1994 (“VAWA”), Pub. L. No. 103-322, tit. IV, 108 Stat. 1796, 1902. VAWA authorized certain aliens who have been abused by U.S. citizen or LPR spouses or parents to self-petition for lawful immi- gration status, without having to rely on their abusive family members to petition on their behalf. Id. § 40701(a) (codified as amended at 8 U.S.C. § 1154(a)(1)(A)(iii)–(iv), (vii)). The INS program required immigration officers who approved a VAWA self-petition to assess, “on a case-by-case basis, whether to place the alien in deferred action status” while the alien waited for a visa to become available. Memorandum for Regional Directors et al., INS, from Paul W. Virtue, Acting Executive Associate Commissioner, INS, Re: Supplemental Guidance on Battered Alien Self-Petitioning Process and Related Issues at 3 (May 6, 1997). INS noted that “[b]y their nature, VAWA cases generally possess factors that warrant consideration for deferred action.” Id. But because “[i]n an unusual case, there may be factors present that would militate against deferred action,” the agency instructed officers that requests for deferred action should still “receive individual scrutiny.” Id. In 2000, INS report- ed to Congress that, because of this program, no approved VAWA self- petitioner had been removed from the country. See Battered Women


States, it would be legally permissible for the Department to implement a policy prioritizing the removal of certain categories of aliens over others. DHS has explained that although there are approximately 11.3 million undocumented aliens in the country, it has the resources to remove fewer than 400,000 such aliens each year. DHS’s proposed policy would priori- tize the removal of aliens who present threats to national security, public safety, or border security. Under the proposed policy, DHS officials could remove an alien who did not fall into one of these categories provided that an Immigration and Customs Enforcement (“ICE”) Field Office Director determined that “removing such an alien would serve an important federal interest.” Draft Memorandum for Thomas S. Winkowski, Acting Director, ICE, et al., from Jeh Charles Johnson, Secretary of Homeland Security, Re: Policies for the Apprehension, Detention, and Removal of Undocu- mented Immigrants at 5 (Nov. 17, 2014) (“Johnson Prioritization Memo- randum”). Second, you have asked whether it would be permissible for DHS to extend deferred action, a form of temporary administrative relief from removal, to certain aliens who are the parents of children who are present in the United States. Specifically, DHS has proposed to implement a program under which an alien could apply for, and would be eligible to receive, deferred action if he or she is not a DHS removal priority under the policy described above; has continuously resided in the United States since before January 1, 2010; has a child who is either a U.S. citizen or a lawful permanent resident; is physically present in the United States both when DHS announces its program and at the time of application for deferred action; and presents “no other factors that, in the exercise of discretion, make[] the grant of deferred action inappropriate.” Draft Memorandum for Leon Rodriguez, Director, U.S. Citizenship and Immi- gration Services, et al., from Jeh Charles Johnson, Secretary of Homeland Security, Re: Exercising Prosecutorial Discretion with Respect to Indi- viduals Who Came to the United States as Children and Others at 4 (Nov. 17, 2014) (“Johnson Deferred Action Memorandum”). You have also asked whether DHS could implement a similar program for parents of individuals who have received deferred action under the Deferred Action for <mask> (“DACA”) program. As has historically been true of deferred action, these proposed deferred action programs would not “legalize” any aliens who are unlawfully Prioritizing and Deferring Removal of Certain Unlawfully Present Aliens


ership, USCIS, from Donald Neufeld, Acting Associate Director, USCIS, Re: Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and Their Children at 1 (Sept. 4, 2009). “In order to address humanitarian concerns arising from cases involving surviving spouses of U.S. citizens,” USCIS issued guidance permitting covered surviving spouses and “their qualifying children who are residing in the United States” to apply for deferred action. Id. at 2, 6. USCIS clarified that such relief would not be automatic, but rather would be unavailable in the presence of, for exam- ple, “serious adverse factors, such as national security concerns, signifi- cant immigration fraud, commission of other crimes, or public safety reasons.” Id. at 6. 7 5. Deferred Action for <mask>. Announced by DHS in 2012, DACA makes deferred action available to “certain young people who were brought to this country as children” and therefore “[a]s a gen- eral matter . . . lacked the intent to violate the law.” Memorandum for David Aguilar, Acting Commissioner, CBP, et al., from Janet Napolitano, Secretary, DHS, Re: Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children at 1 (June 15, 2012) (“Napolitano Memorandum”). An alien is eligible for DACA if she was under the age of 31 when the program began; arrived in the United States before the age of 16; continuously resided in the United States for at least 5 years immediately preceding June 15, 2012; was physically present on June 15, 2012; satisfies certain educational or military service requirements; and neither has a serious criminal history nor “poses a threat to national security or public safety.” See id. DHS evaluates appli- cants’ eligibility for DACA on a case-by-case basis. See id. at 2; USCIS, Deferred Action for Childhood Arrivals (DACA) Toolkit: Resources for Community Partners at 11 (“DACA Toolkit”). Successful DACA appli-


* Editor’s Note: This opinion has been withdrawn. The opinion’s principal subject, the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) policy, was preliminarily enjoined before it went into effect. See Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex.), aff ’d, 809 F.3d 134 (5th Cir. 2015), aff ’d by an equally divided Court, 136 S. Ct. 2271 (2016). Based on the reasoning in the Fifth Circuit’s decision, on September 4, 2017, Attorney General Sessions concluded that the related Deferred Action for <mask> (“DACA”) policy, which is briefly discussed in footnote 8 of this opinion, was unlawful. See Letter for Elaine Duke, Acting Secretary of Homeland Security, from Jefferson B. Sessions III, Attorney General (Sept. 4, 2017). Although the Acting Secretary of Homeland Security announced the rescission of DACA on September 5, 2017, the Supreme Court vacated that decision and remanded for further proceedings. See Dep’t of Homeland Sec. v. Regents of Univ. of Cal., 140 S. Ct. 1891 (2020). In order to maximize the Acting Secretary’s discretion on remand, and without regard to the merits of the legal issues, Attorney General Barr withdrew Attorney General Sessions’ September 4, 2017 letter and, for the same reason, further directed this Office to withdraw this opinion. See Letter for Chad F. Wolf, Acting Secretary of Homeland Security, from William P. Barr, Attorney General (June 30, 2020).


applied in particular circumstances to frustrate the President’s ability to fulfill his essential responsibilities under Article II. Nevertheless, the sweeping assertions in the opinions above that the President’s Command- er in Chief authority categorically precludes Congress from enacting any legislation concerning the detention, interrogation, prosecution, and transfer of enemy combatants are not sustainable. Congress’s power to “define and punish . . . Offences against the Law of Nations,” U.S. Const. art. I, § 8, cl. 10, provides a basis for Congress to establish the federal crime of torture, in accordance with U.S. treaty obligations under the Convention Against Torture, and the War Crimes Act offenses, in accordance, for example, with the “grave breach” provi- sions of the <mask>. This grant of authority also provides a basis for Congress to establish a statutory framework, such as that set forth in the Military Commissions Act of 2006, for trying and punishing unlawful enemy combatants for violations of the law of war and other hostile acts in support of terrorism. Without suggesting that congressional enactment was necessary to authorize the establishment of military com- missions, the President’s support for enactment of the Military Commis- sions Act following the Supreme Court’s decision in Hamdan v. Rums- feld, 548 U.S. 557 (2006), confirms this view. The prior opinion of this Office suggesting that Congress has no role to play concerning the pro- secution of enemy combatants is incorrect. See Swift Justice Opinion at 17–19. Furthermore, the power “[t]o make Rules for the Government and Regulation of the land and naval Forces,” U.S. Const. art. I, § 8, cl. 14, gives Congress a basis to establish standards governing the U.S. mili- tary’s treatment of detained enemy combatants, including standards for, among other things, detention, interrogation, and transfer to foreign nations. This grant of authority would support, for example, the provi- sions of the Detainee Treatment Act of 2005 that address the treatment of alien detainees held in the custody of the Department of Defense. We disagree with the suggestion in the Detainee Transfer Opinion that this Clause does not permit Congress to establish standards of conduct for the military’s handling of detainees, but rather “is limited to the discipline of U.S. troops.” Id. at 5. The Captures Clause, which grants Congress power to “make Rules concerning Captures on Land and Water,” U.S. Const. art. I, § 8, cl. 11, also would appear to provide separate authority for Congress to legislate with respect to the treatment and disposition of enemy combatants cap-


Sections 3(a) and 3(b) of Executive Order 13491, 3 C.F.R. 199 (2009 comp.), set forth restrictions on the use of interrogation methods. In section 3(c) of that order, the President further directed that “unless the Attorney General with appropriate consultation provides further guidance, officers, employees, and other agents of the United States Government may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation . . . issued by the Department of Justice between September 11, 2001, and January 20, 2009.” We have previously noted that this direction encompasses, among other things, four opinions of the Office of Legal Counsel, which we withdrew on April 15, 2009. See Withdrawal of Four Opinions on CIA Interrogations, 33 Op. O.L.C. 191 (2009). We have now determined that it also encompasses another opinion of our Office. See Memorandum for John A. Rizzo, Acting Gen- eral Counsel, Central Intelligence Agency, from Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, Re: Application of the War Crimes Act, the Detainee Treatment Act, and Common Article 3 of the <mask> to Certain Techniques That May Be Used by the CIA in the Interrogation of High-Value al Qaeda Detainees (July 20, 2007). In connection with the consideration of this opinion for possible public release, the Office has now reviewed this additional opinion and has decided to withdraw it. It no longer represents the views of the Office of Legal Counsel.


The mortgage payments were being made pursuant to a testamentary trust of which the aforesaid petitioner was the income beneficiary. The trustees of the aforesaid trust could in their <mask> invade the principal for the *661support, maintenance and comfort of the petitioner. However, the trustees did not elect to invade the principal but preserved the corpus for the remaindermen.


As an advance against future amounts due, $110,000 was paid to the property owners with the proviso that in the event the sellers are not in default in any representations, warranties or covenants under the agreement the advance was not repayable. *1037The agreement also contained the following provision which is part of item Twelfth thereof: 1 ‘ Purchaser contemplates that preproduction work on a motion picture based on the Property should be commenced within one (1) year after the date hereof and that photography of such motion picture should be completed within five (5) years from the date hereof. It is expressly understood, however, that Purchaser shall have sole and complete control over the exercise of all rights acquired by Purchaser under this agreement, (including, without limitation, the production, distribution, advertising, exploitation, disposition and other dealings in and with motion pictures produced hereunder) and all matters and things in connection therewith shall be determined by or with the authority of Purchaser in its absolute and <mask>.”


*644Our conclusion is consistent with the well-settled principle that "prosecuting authorities, exercising executive functions, ordinarily have the <mask> to determine ... what charges to bring." ( People v. Birks (1998) 19 Cal.4th 108, 134, 77 Cal.Rptr.2d 848, 960 P.2d 1073.) "The district attorney's discretionary functions extend from the investigation and gathering of evidence relating to criminal offenses [citation], through the crucial decisions of whom to charge and what charges to bring, to the numerous choices the prosecutor makes at trial." ( People v. Eubanks (1996) 14 Cal.4th 580, 589, 59 Cal.Rptr.2d 200, 927 P.2d 310.) "The prosecution's authority in this regard is founded, among other things, on the principle of separation of powers, and generally is not subject to supervision by the judicial branch." ( *418Birks , at p. 134, 77 Cal.Rptr.2d 848, 960 P.2d 1073.)


Agarwal waived indictment and pleaded guilty to one count of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1), and two counts under the CFAA for intentionally accessing a protected computer without authorization and obtaining information valued at more than $5,000, in violation of 18 U.S.C. §§ 1030(a)(2) and 1030(c)(2)(B)(iii). The plea agreement stated that sentencing was “within the <mask> of the sentencing judge” and that the statutory maximum prison sentence was twelve years (five years for each CFAA violation, plus a mandatory two-


“The closest Sharp comes to pleading participation by State Street in a fraud against the Noteholders is the allegation that State Street consented to the transaction, and that under the State Street loan documents such consent was necessary in order for Sharp to close the transaction with the Noteholders. However, providing consent to another transaction by the borrower under a loan agreement, even with actual or constructive knowledge that the borrower is engaging in fraud, does not constitute participation in the fraud so as to transform the subsequent repayment of the loan into an intentional fraudulent conveyance. Where a loan agreement prohibits a borrower from incurring other indebtedness without the lender’s consent, this provision is for the benefit of the lender, and the lender’s decision whether or not to consent is governed by the lender’s assessment of its own best interests. If the loan agreement so provides, the lender may not unreasonably withhold its consent to a borrower’s request for permission to incur other indebtedness; however, under New York law, in the absence of such a provision, the lender may give or withhold its consent in its <mask>. Certainly there is no authority requiring a lender to consider the interests of third parties (such as, in this case, the Noteholders) in exercising its right to give or withhold consent under a loan agreement. Such a rule would effectively make the Noteholders third-party beneficiaries of the Loan Agreement between Sharp and State Street. There is no basis under New York law for such a result.” (In re Sharp, supra at 523-524 [citations omitted].) *273Discovery in this action has not revealed any conduct by the bank more serious than that alleged in the adversary proceeding. Moreover, liability for aiding and abetting requires a showing that the defendant had actual knowledge of the fraud alleged (see, In re Sharp, supra at 514; Laro, Inc. v Chase Manhattan Bank, 269 AD2d 188 [1st Dept 2000]). As the Bankruptcy Court concluded, State Street’s knowledge of Sharp’s misconduct was constructive. The record shows that the D&B reports confirmed the existence of some of Sharp’s customers and were inconclusive as to others. Furthermore, while the reports showed that some of the reported customers were in businesses other than selling watches at retail, they did not exclude the possibility that the companies did in fact also sell watches. State Street’s calls to the chain retailers confirmed that they sold Sharp’s merchandise. And although the First Security report indicated that the company “Akia” shared an address with one of the Spitz brothers, the bank could not rule out the possibility that it was a legitimate one-man operation. Thus, while the other inaccuracies in Sharp’s account information certainly gave the bank reason to be highly suspicious of its veracity, such suspicions cannot be equated with actual knowledge — particularly not actual knowledge that the Spitz brothers were diverting tens of millions of dollars of corporate funds.


On or about September 16, 2008, Pugliese visited Goldman in the emergency room at Jamaica Hospital, and was apprised, by Goldman, that in addition to the $461,526.48 of Fisher’s assets previously transferred to him, his own assets included a home in West Hempstead, New York, worth in excess of $400,000, as well as various bank and securities accounts; that he had two children; and that he wanted his sister to be cared for if he predeceased her. At or about that time, Pugliese returned to the firm’s office in Wantagh, and, after consulting with the respondent, drafted a will for Goldman (hereinafter the Goldman will). The primary beneficiary under the Goldman will was a supplemental needs trust (hereinafter the SNT) for the benefit of Fisher. The alternative beneficiaries under the Goldman will were the respondent and Pugliese, as well as Goldman’s accountant, Ed Slott. In the event Fisher predeceased Goldman, the respondent and Pugliese would each inherit one third of Goldman’s estate. The Goldman will also named the respondent and Pugliese as cotrustees of the SNT, to hold, administer, invest, and reinvest Goldman’s assets, and to use the SNT for Fisher’s benefit, and supplemental needs, as they, in their <mask>, deemed necessary and advisable, provided that any distributions from the SNT did not serve to supplant, impair, or diminish Fisher’s entitlement to Medicaid benefits. The remainder beneficiaries of the SNT were the respondent and Pugliese, as well as Slott. Under the terms of the SNT, as set forth in the Goldman will, the respondent and Pugliese would each inherit one third of the principal of the SNT. The Goldman will made no reference to Goldman’s children, whom Goldman had not seen in approximately 40 years and whom he wished to disinherit. When the firm drafted the Goldman will, the respondent and Pugliese knew or should have known that naming *35themselves as fiduciaries and beneficiaries of Goldman’s estate or the SNT would give rise to an appearance of impropriety and a presumption of undue influence.


If the probation officer determines that a wardship petition under section 602 should be filed, he or she must send the affidavit to the prosecuting attorney. ( § 653.5, subds. (b), (c).) If the minor is presumptively ineligible for informal probation, *9014 the probation officer must send the affidavit within 48 hours. ( § 653.5, subd. (c).) Otherwise, the probation officer must send the affidavit within 21 court days. (§ 653.7.) "The prosecuting attorney has the <mask> to file a petition under section 602." ( Cal. Rules of Court, rule 5.520(a) ; see also §§ 650, subd. (c), 653.5, subd. (c), 655, subd. (a).)


The Surrogate erred in concluding that the irrevocable trust was a testamentary substitute pursuant to EPTL 5-1.1 (b) (1) (E). The Surrogate held that, by retaining the right to substitute beneficiaries, decedent retained the right to dispose of the principal within the meaning of that statute. We disagree. By the terms of the trust agreement, the transfer of assets was irrevocable and only the trustees had the power, in their <mask>, to invade the principal. Although decedent retained the right to change the beneficiary designation, she irrevocably relinquished the right to appoint either herself or her estate as a beneficiary. That distinguishes this case from Matter of DeVita (141 AD2d 46), relied upon by the Surrogate.


"Uses contemplated for the project shall be visitor-oriented commercial and recreational uses. The following uses have been approved: "-Recreational "-Retail, including, but not limited to, novelty, sporting goods, sports equipment rental, apparel, art, liquor stores, health foods, takeout foods, liquor, bakeries, floral shops, book stores, card shops, and party supplies, provided that such uses shall accommodate the needs of park visitors and shall be operated in a manner to cater to such needs. "-Restaurants, full service and fast foods, including sale of alcoholic beverages, operated in a manner appropriate to serve the desires of park visitors. "-Food stores which include food items used by families on outings, as fresh fruits, delicatessen items, soft drinks, and alcoholic beverages. "-Drug stores which sell suntan lotions and other items normally used in beach activities. "-Travel agents, sports medicine, and other visitor-oriented services, operated in a manner appropriate to serve the desires of park visitors. "-Such other visitor-oriented commercial and recreational uses as many be approved by the City Manager. Any use not disapproved within ten (10) business days after receipt by City Manager shall be deemed approved so long as such use is a valid park use and in conformance with the approved Development Plan. *549"All uses shall be conducted in a manner so as to conform to all applicable laws." *357The 1987 Lease was for a term of 50 years, and it gave Belmont Park Associates the right of first refusal to enter into a new lease for the premises upon such terms and conditions as were determined appropriate in the <mask> of the City, contingent upon a finding by the City that it is desirable and in the public's best interest to continue the uses of the property as specified in the lease. The 1987 Lease further provided that in the event the parties are unable to agree upon terms and conditions for a new lease within a specified time period, the City could lease the premises to another party.


The balance of the estate was bequeathed outright to her grandnephew, James H. Romberg, who is also the remainderman of the trust for the life of Carrie Hirsch. In the seventh paragraph of the will the testatrix made an alternative disposition of the residue in the event that her grandnephew predeceased her. Since he has survived her, the alternative provisions are significant only in so far as they shed light upon the intention of the testatrix in the use of other language in the will. In the contingency stated, the residue of the estate (except for an outright cash legacy) was to be set up in separate trusts for the issue of James H. Romberg. The trustees were authorized and empowered to pay the income from each trust to the beneficiary thereof “ annually or at such other times as in the <mask> of my said Trustees shall seem advisable.” Under certain contingencies no income was to be paid the beneficiaries during their minority. In the event that James H. Romberg predeceased the testatrix, leaving no issue, the will provided: “ I hereby authorize and empower and direct my Executors and Trustees to distribute my residuary estate * * * to such charities as they in their uncontrolled discretion shall deem proper.”


"(2) I also authorize and direct my trustee in her <mask> to expend so much of the principal of the said trust fund as may be necessary for illness or other emergency effecting such child. Commitment to or residence in a state school, hospital, hostel or other facility * * * shall not be considered such illness or other emergency, and my trustee shall have no authority to invade principal for payment of living expenses or other routine costs for residence in such a facility.”