Prosecutorial Discretion in Immigration Enforcement: Legal Issues

This report begins by discussing the sources of federal power to regulate immigration and, particularly, the allocation of power between Congress and the President in this area. It next addresses the constitutional and other foundations for the doctrine of prosecutorial discretion, as well as the potential ways in which prosecutorial discretion may be exercised in the immigration context. It concludes by addressing potential constitutional, statutory, and administrative constraints upon the exercise of prosecutorial discretion. The report does not address other aspects of discretion in immigration law, such as the discretion exercised by immigration officers in granting benefits (e.g., asylum), or by immigration judges in non-enforcement contexts (e.g., cancellation of removal)

Back to administrative discretion

The closest possibility to the domain and subsequent control of a phenomenon, is to know. Administrative discretion is one of the unfinished items of administrative law, when they seem to run out the discussions, the issue reappears with new lights. For the dynamics of administrative activity is a source of constant re-evaluation in order to achieve an acting administration efficiently. In this paper we analyze core issues surrounding the discretion of the Administration, and are, in our view, essential to know the reason for the existence of an intitution as contentious and controversial.La posibilidad más cercana al dominio y posterior control de un fenómeno, es conocerlo. La discrecionalidad administrativa constituye uno de los temas inacabados del derecho administrativo; cuando parecen agotarse las discusiones, el tema reaparece con nuevas luces. Para la dinámica de la actividad administrativa constituye un motivo de constante reevaluación en aras de lograr una Administración actuante en forma eficiente. En el presente artículo se analizan aspectos medulares en torno a la potestad discrecional de la Administración Pública, y que son, a nuestro entender, esenciales para conocer el por qué de la existencia de una institución tan polémica y controvertida

Sharing Secrets: Examining Deferred Action and Transparency in Immigration Law

[Excerpt] “This Article is about deferred action and transparency in related immigration cases falling under the jurisdiction of the Department of Homeland Security (DHS). While scholars from other genres have written extensively on the topic of prosecutorial discretion, the subject is largely absent from immigration scholarship, with the exception of early research conducted by Leon Wildes in the late 1970s and early 2000s, and a law review article I published in 2010 outlining the origins of prosecutorial discretion in immigration law and related lessons that can be drawn from administrative law and criminal law. That article ends with specific recommendations for the agency, such as codifying deferred action into a regulation and recognizing it as a formal benefit as opposed to a matter of “administrative convenience,” and streamlining the array of existing memoranda of prosecutorial discretion floating within each DHS agency. An additional recommendation included increasing oversight of prosecutorial discretion to ensure that officers and agencies that fail to exercise prosecutorial discretion by targeting and enforcing the laws against low-priority individuals are held accountable. In this Article, and building upon recommendations published in The Role of Prosecutorial Discretion in Immigration Law, I describe the state of prosecutorial discretion and deferred action in particular by surveying the political climate, public reaction, and advocacy efforts in the last two years. I also chronicle my repeated Freedom of Information Act (FOIA) requests to DHS for information about deferred action, and the stumbling blocks I encountered during this 19-month journey. The Article will show that while deferred action is one of the very few discretionary remedies available for noncitizens with compelling equities, it currently operates as a secret program accessible only to elite lawyers and advocates. Moreover, the secrecy of the program has created the (mis)perception by some, that deferred action can be used as a tool to legalize the undocumented immigrant population or ignore congressional will. This Article explains why transparency about deferred action is important and makes related recommendations that include, but are not limited to, subjecting the program to rulemaking under the Administrative Procedures Act, issuing written decisions when deferred action is denied, posting information about the application process, and maintaining statistics about deferred action decisions. Without these remedies, noncitizens that possess similarly relevant equities will face unequal hardships.

Fiduciary Foundations of Administrative Law

An enduring challenge for administrative law is the tension between the ideal of democratic policymaking and the ubiquity of bureaucratic discretion. This Article seeks to reframe the problem of agency discretion by outlining an interpretivist model of administrative law based on the concept of fiduciary obligation in private legal relations such as agency, trust, and corporation. Administrative law, like private fiduciary law, increasingly relies upon a tripartite framework of entrustment, residual control, and fiduciary duty to demarcate a domain of bounded agency discretion. To minimize the risk that agencies will abuse their entrusted discretion through opportunism or carelessness, administrative law empowers the political branches to exert limited residual control over agencies and subjects agencies to nonderogable duties of care and loyalty. As an interpretivist theory, this fiduciary model helps to explain controversial features of administrative law such as the contemporary nondelegation doctrine, Chevron deference, and the limits of presidential control over agency action. By clarifying administrative law\u27s internal dynamics and implicit ambitions, the fiduciary model also provides a blueprint for reform in critical areas such as the standing doctrine and the due process restraints on agency discretion

The Value of Discretion

[Excerpt] In Shakespeare’s Henry IV, the lazy and lecherous Sir John Falstaff is attacked during battle, falls to the ground, and feigns his death. Falstaff attempts to justify his act of cowardice by explaining: “The better part of valor is discretion, in the which better part I have sav’d my life.” By exercising his “discretion” to fake his death, Falstaff rationalizes that he is free to live to fight another day. There is little to be lauded in Falstaff’s distorted worldview. Yet, employers may find something illuminating in Falstaff’s value of “discretion.” Employers can forego paying minimum wages and overtime compensation if their employees qualify under one of many exemptions provided for under the Fair Labor Standards Act (FLSA) or its state counterparts. The most commonly invoked of these exemptions — the administrative exemption — requires that employees exercise “discretion and independent judgment” in the performance of their primary job duties

A Hiatus in Soft-Power Administrative Law: The Case of Medicaid Eligibility Waivers

Administrative law is fundamentally a regime of soft power. Congress, the President, administrative agencies, civil servants, and the courts all operate within a broad consensus for rational, good-faith decisionmaking. Congress grants agencies discretion, and courts and civil servants defer to agencies’ political leadership based largely on the expectation that the latter are seeking to honor statutes’ purposes. That expectation of prudential restraint also allays concerns about delegations of legislative power. When the executive systematically disregards that expectation and seeks single-mindedly to maximize achievement of its policy objectives, deference’s justification breaks down. Across agencies, the Trump administration has disregarded the assumptions on which administrative law’s soft power consensus depends. Its waivers allowing states to deny Medicaid to otherwise eligible low-income people unable to find employment exemplifies this disregard. Exploiting a sweeping delegation of authority to test new ways to achieve Medicaid’s goal of providing health care coverage, this administration has instead sought to achieve very different goals, from legislation that Congress has rejected. The waiver applications themselves estimate substantial increases in the numbers of uninsured people. Ignoring the administration’s disregard of the longstanding administrative law consensus could deter future Congresses from valuable delegations of discretion. Permanently abandoning the deferential soft-power model would seriously undermine future governance. Instead, courts and civil servants should treat this period as a hiatus in consensus for good-faith decisionmaking. Courts should suspend deference and other aspects of soft-power jurisprudence. And civil servants should comply with political officials’ lawful directions but should remain steadfastly truthful in their words and actions

Collateral Damage: When Should the Determinations of Administrative Adjudications Have Collateral Estoppel Effect in Subsequent Adjudications?

Collateral estoppel is an equitable doctrine under which a court gives issue-preclusive effect to findings of fact or law made in previous proceedings. The U.S. Supreme Court has recently held that under certain circumstances, the determinations of administrative adjudications have collateral estoppel effect in federal court. The Court, however, did not address under which circumstances the determinations of administrative adjudications should have collateral estoppel effect in subsequent administrative adjudications. There has been little clear and consistent reasoning in lower federal courts about when collateral estoppel should apply in administrative adjudications, and administrative agencies vary widely in their application of collateral estoppel when conducting adjudications. This Note argues that neither the balancing test used to apply collateral estoppel in federal court nor the more formalistic per se rules proposed by some commentators are appropriate when applying collateral estoppel between administrative adjudications. Instead, courts should defer to agencies, granting them wide discretion to recognize or not recognize the collateral estoppel effect of prior administrative adjudications

Effective VAT Rates and Administrative Discretion in China

This paper highlights the difference between statutory and effective tax rates in the value added tax in China, and explores the role of administrative discretion in generating this difference. In China, unlike in Europe where the VAT originated, there can be significant differences between effective and statutory rates because of features of tax administration. The tax is collected at local level, but tax administrators have a centrally directed revenue plan to meet. They in turn have a range of elements of individual discretion in their tax collecting activities as they both administer the tax and meet their plan. We discuss what the elements of administrative discretion in China’s VAT are, and access a firm level data set from the National Bureau of Statistics to explore the implications of administrative discretion in oversight of the tax. In this dataset, VAT payable at firm level is reported and the data point to effective tax rates that can on average be close to double the statutory rate. These rates, however, vary by type of enterprise, by time, by region and other characteristics

La discrétion administrative et la mise en oeuvre d'une politique

This article deals with the relationships between the exercise of administrative discretion and the implementation of a policy. Chapter I defines administrative discretion as a power to make a choice in a particular case. This choice may be technical or political but in both instances relates to the implementation of a policy. The exercise of discretion is also situated within a system under the Rule of Law using H.L.A. Hart's concepts of primary and secondary rules. Chapter II deals with the exercise of discretion in relation to policy. First, if refers to K.C. Davis' model of confining, structuring and checking discretion. To confine discretion is to set the limits within which it should be exercised. To structure it is define the manner by which it is to be exercised notably in opening the decision-making process. To check discretion is to subject the decision to another authority. The next three sections of this chapter are concerned with legislative, regulatory and administrative policy. The first section studies legislative expressions of policy and their impact on the exercise of discretion. Secondly, the question of the choice between regulation and administrative discretion is analysed as is the control over that choice and the nature of regulation over it is decided to adopt it. Finally, the impact of an administrative discretion is seen when attacked by the citizen on the grounds that it fetters discretion, constitutes bias or when relied upon by the citizen. It is seen that in most cases, the administrator may structure his discretionary power in a manner respected by the courts