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.

Remarks on Executive Action and Immigration Reform

This essay places the President\u27s executive actions on immigration last November into a larger context by providing a brief history of prosecutorial discretion in immigration cases. This essay also describes how law students at Penn State Law School used the President\u27s announcement of executive actions as a platform for local change in the State College community

The Rise of Speed Deportation and the Role of Discretion

In 2013, the majority of people deported never saw a courtroom or immigration judge. Instead, they were quickly removed by the Department of Homeland Security via one of several procedures collectively referred to as “speed deportation.” The policy goals of speed deportation are economic; these processes save government resources from being spent on procedural safeguards such as a trial attorney, immigration judge, and a fundamentally fair hearing. Higher deportation numbers may also benefit the image the government seeks to portray to policymakers who support amplified immigration enforcement. However, the human consequences of speed deportation are significant and can result in the ejection of people who would otherwise qualify for relief before an immigration judge or otherwise present strong equities like family ties, long-term residence, and steady employment in the United States. Moreover, the risk that the government may wrongly classify a person as a candidate for speed deportation is more than a remote possibility. This Article examines deportations resulting from the expedited removal, administrative removal, and reinstatement of removal orders programs and the extent to which the government has discretion to give individuals who present compelling equities, including eligibility for relief, a more complete court proceeding before an immigration judge. This Article ends with recommendations the Department of Homeland Security can take to provide a "day in court" for such individuals

Opening Remarks

(Excerpt) Thank you. I am honored to be here. And there is no more fitting way to honor Michael than around the 40th anniversary of Plyler v. Doe. This case centered on Texas statute § 21.031, which on its face, permitted the local school districts to exclude noncitizen children who entered the United States without immigration status or to charge admission for the same. The questions before the Court were: (1) whether a noncitizen under the statute who is present in the state without legal status is a “person” and therefore in the jurisdiction of the state within the meaning of the Equal Protection Clause of the Fourteenth Amendment; and (2) if yes, whether the statute violates the Equal Protection Clause. The plaintiffs in this case were school-age children of Mexican origin residing in Smith County, Texas, who could not establish that they were legally admitted into the United States. In a 5-4 opinion, the Court held: “[a] Texas statute which withholds from local school districts any state funds for the education of children who were not ‘legally admitted’ into the United States, and which authorizes local school districts to deny enrollment to such children, violates the Equal Protection Clause of the Fourteenth Amendment. While the court did not go as far as to call education a “right” it did underscore that “education has a fundamental role in maintaining the fabric of our society.

Discretion and Disobedience in the Chinese Exclusion Era

It has long been understood that limited government resources are a key reason for why the Executive Branch uses prosecutorial discretion to refrain from arresting, detaining, or deporting a noncitizen or groups of noncitizens. A second theory driving prosecutorial discretion is humanitarian. Noncitizens with specific equities that include economic contributions to the United States, long term residence in the United States, service as a primary breadwinner or caregiver to an American family, or presence in the United States as a survivor of sexual assault are among the reasons the government have used to apply prosecutorial discretion to protect individuals or groups of people. A final reason prosecutorial discretion might persist is as a stop gap to anticipated future legislation. These rationales for prosecutorial discretion are well documented in domestic immigration history, but this article is the first to trace these rationales to the Chinese Exclusion era and reveal what may be the greatest untold story about prosecutorial discretion in immigration law.This article examines the use of prosecutorial discretion to protect Chinese nationals subject to deportation following a foundational nineteenth century Supreme Court immigration law case known as Fong Yue Ting. This article provides a historical precedent for the protection of a category of people as well as deeper history of prosecutorial discretion in immigration. This article also sharpens the policy argument to protect political activists through prosecutorial discretion and forces consideration for how modern immigration policy should respond to historical exclusions and racialized laws. Finally, this article provides a foundation for policymakers and government to consider a prosecutorial discretion policy for those engaged in civil disobedience; and to study how changes in how racial disparities in immigration enforcement and non-enforcement are measure

Demystifying Employment Authorization and Prosecutorial Discretion in Immigration Cases

On November 20, 2014, President Barack Obama announced a series of immigration programs aimed to reform the immigration system. Deferred Action for Parents of Americans or Lawful Permanent Residents (DAPA) and extended Deferred Action for Childhood Arrivals (DACA) represent two such programs announced by the President. Both programs extend deferred action (one form of prosecutorial discretion) to qualifying individuals. Deferred action has been part of the immigration system for more than 50 years, and has been named explicitly by Congress, federal courts, and the agencies responsible for administering immigration laws. Additionally, regulations list deferred action as one basis for work authorization. The President’s deferred action programs offered room for a healthy debate about immigration law and policy. The debate was intensified by a lawsuit brought by the state of Texas and 25 other states challenging the deferred action programs, and a subsequent judicial opinion enjoining these programs. Much of the tension has centered on the ability for a deferred action grantee to obtain ancillary benefits like employment authorization or lawful presence. This conflict has enabled great distortion about the limits and benefits of prosecutorial discretion in immigration law. In this Article, I seek to clarify the relationship between prosecutorial discretion and employment authorization and describe the historical precedent for allowing qualifying noncitizens to apply for work authorization based on a prosecutorial discretion grant. I also examine the policy questions that are raised by the current legal framework and policy for work authorization. My methodology for this Article is to review the primary and secondary sources of law for prosecutorial discretion and employment authorization; analyze a related data set of more than 200,000 work authorization applications processed by the United States Citizenship and Immigration Services retrieved through the Freedom of Information Act; and begin a policy discussion on the benefits of enabling prosecutorial discretion beneficiaries to be authorized to work in the United States. This Article is the first to analyze the law and policy of employment authorization and prosecutorial discretion and builds naturally from my body of work developed on the role of immigration prosecutorial discretion generally, and deferred action in particular

Decitizenizing Asian Pacific American Women

The Page Act of 1875 excluded Asian women immigrants from entering the United States, presuming they were prostitutes. This presumption was tragically replicated in the 2021 Atlanta Massacre of six Asian and Asian American women, reinforcing the same harmful prejudices. This Article seeks to illuminate how the Atlanta Massacre is symbolic of larger forms of discrimination, including the harms of decitizenship. These harms include limited access to full citizenship rights due to legal barriers, restricted cultural and political power, and a lack of belonging. The Article concludes that these harms result from the structure of past and present immigration laws and enforcement policies that, though initially targeting Asian women, now result in discrimination more broadly against Asian Pacific American (APA) women. The marginalization of this community, and the degrading stereotypes integrated within this marginalization, are designed to decitizenize. This Article illustrates how decitizenizing processes that are uniquely aimed at APA women can lead to the justification and excusal of legal and social discrimination

Decitizenizing Asian Pacific American Women

The Page Act of 1875 excluded Asian women immigrants from entering the United States, presuming they were prostitutes. This presumption was tragically replicated in the 2021 Atlanta Massacre of six Asian and Asian American women, reinforcing the same harmful prejudices. This Article seeks to illuminate how the Atlanta Massacre is symbolic of larger forms of discrimination, including the harms of decitizenship. These harms include limited access to full citizenship rights due to legal barriers, restricted cultural and political power, and a lack of belonging. The Article concludes that these harms result from the structure of past and present immigration laws and enforcement policies that, though initially targeting Asian women, now result in discrimination more broadly against Asian Pacific American (APA) women. The marginalization of this community, and the degrading stereotypes integrated within this marginalization, are designed to decitizenize. This Article illustrates how decitizenizing processes that are uniquely aimed at APA women can lead to the justification and excusal of legal and social discrimination

The Case Against Chevron Deference in Immigration Adjudication

The Duke Law Journal’s fifty-first annual administrative law symposium examines the future of Chevron deference—the command that a reviewing court defer to an agency’s reasonable interpretation of an ambiguous statute the agency administers. In the lead article, Professors Kristin Hickman and Aaron Nielson argue that the Supreme Court should narrow Chevron ’s domain to exclude interpretations made via administrative adjudication. Building on their framing, this Article presents an in-depth case study of immigration adjudication and argues that this case against Chevron has perhaps its greatest force when it comes to immigration. That is because much of Chevron ’s theory for congressional delegation and judicial deference—including agency expertise, deliberative process, and even political accountability—collapses in the immigration adjudication context. As for potential reform, Professors Hickman and Nielson understandably focus on the Supreme Court. This Article also explores that judicial option but argues that it is a mistake to focus just on courts when it comes to immigration law and policy. The political branches can and should act to narrow Chevron ’s domain. First, this proposal should be part of any comprehensive immigration reform legislation. Second, the Executive Branch can and should embrace this reform internally—by not seeking Chevron deference in immigration adjudication and by turning to rulemaking instead of adjudication to make major immigration policy. Shifting the immigration policymaking default from adjudication to rulemaking is more consistent with Chevron ’s theoretical foundations—to leverage agency expertise, to engage in a deliberative process, and to increase political accountability