However, until Congress repeals the broad grant of discretion it rests with the Executive Branch. This has been so since this section was enacted in 2002 under President Bush as passed by a Republican controlled Congress. In fact even prior to this codification the INA was interpreted to give the Executive Branch broad discretion in this area.
In the past, the Department of Homeland Security and the INS have granted deferred action to different groups of noncitizens present in the United States. In 1977, the Attorney General granted stays of removal to 250,000 nationals of certain countries (known as "Silva Letterholders"). Silva v. Levi, No. 76-C4268 (N.D. Ill. 1977), modified on other grounds sub nom. Silva v. Bell, 605 F.2d 978 (7th Cir.1979). In 1990 under President Bush, the INS instituted the "Family Fairness" program that deferred the deportation of 1.5 million family members of noncitizens who were legalized through the Immigration Reform and Control Act. See Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359; Memorandum for Regional Commissioners, INS, from Gene McNary, Commissioner, INS, "Family Fairness: Guidelines for Voluntary Departure under 8 CFR 242.5 for the Ineligible Spouses and Children of Legalized Aliens" (Feb. 2, 1990). In 1992, President Bush directed the Attorney General to grant deferred enforced departure to 190,000 Salvadorans. See Immigration Act of 1990 § 303, Public Law 101-649 (Nov. 29, 1990);
https://www.gpo.gov/fdsys/pkg/FR-199...l/94-30088.htm. And nationals of Liberia were granted deferred enforced departure until September 30, 2016,
http://www.uscis.gov/humanitarian/te...rced-departure.
All of these acts are on the same legal footing. You can't bitch and moan that Obama acted illegally and without Congressional authority or imprimatur when he exercised the same discretion that prior Democratic and Republican Presidents did without being a hypocrite. You may not like this broad discretion and that is your right, but at least be intellectually honest about it - Obama did not need Congress for DACA or any other deferral policy just like prior presidents did not need it when they implemented their respective policies and arguing that he did is not being intellectually honest.
President Trump exercised his discretion in changing this policy, whether it was wise or not only time will tell.[/QUOTE