Sharing Secrets: Examining Deferred Action and Transparancy in Immigration Law

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 that include both codifying deferred action into a regulation and recognizing it as a formal benefit as opposed to a matter of “administrative convenience,” streamlining the array of existing memoranda of prosecutorial discretion floating within each DHS agency, and 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. Background: The Department of Homeland Security is a cabinet-level agency with jurisdiction over many immigration functions. The Department has jurisdiction over immigration “services” such as asylum, citizenship, and green card applications; border-related enforcement actions such as border patrol and inspections; and interior enforcement activities, such as the detention and removal of noncitizens. The immigration court system is called the Executive Office for Immigration Review and rests within the Department of Justice. Removal proceedings are initiated by DHS and operate as adversarial hearings at which U.S. Immigration and Customs Enforcement attorneys represent the DHS. On the other hand, noncitizens are entitled to find their own lawyers at no expense to the government. Many noncitizens in removal proceedings are unrepresented because the proceeding itself is considered “civil” and without guaranteed safeguards like court-appointed counsel. At a removal proceeding, an Immigration Judge reviews allegations and charges with the noncitizen defendant, enters pleas, and if appropriate presides over applications for relief from removal such as asylum, adjustment of status, and cancellation of removal. The noncitizen bears the burden of proving that she is eligible for such relief. Decisions by the Immigration Judge may be appealed with the Board of Immigration Appeals. Not every noncitizen residing or entering the United States without legal authority is placed in removal proceedings. Some are removed expeditiously by the Department through other means, while others are considered for prosecutorial discretion. A favorable exercise of “prosecutorial discretion” identifies the Department of Homeland Security’s authority to not assert the full scope of the agency’s enforcement authority in each and every case. The Department’s motivations for exercising prosecutorial discretion are largely economic and humanitarian. According to the agency’s own statistics, ICE has the resources to remove less than 4% of the total undocumented population. Moreover, many individuals and groups who present redeeming qualities such as lengthy residence, employment or family ties in the U.S., and/or intellectual, military, or professional promise are living in the U.S. vulnerable to immigration enforcement and without a statutory vehicle for legal status. In the first two years of the Obama Administration, such humanitarian cases have swelled in the wake of congressional stalemates over even discrete immigration reforms. At one time prosecutorial discretion was called “nonpriority” and later “deferred action,” but today, prosecutorial discretion is associated with many different actions by the government. For example, a DHS officer can exercise favorable discretion by granting a temporary stay of removal, joining in a motion to terminate removal proceedings, granting an order of supervision, cancelling a Notice to Appear, or granting deferred action. Prosecutorial discretion can also be exercised during different points in the enforcement process, including, but not limited to, interrogation, arrest, charging, detention, trial, and removal

Beyond Deportation: Understanding Immigration Prosecutorial Discretion and \u3ci\u3eUnited States V. Texas\u3c/i\u3e

In this article, I place the Supreme Court case of United States v. Texas into a broader context by describing the history and legal authority for prosecutorial discretion in immigration law and highlighting the contents and recommendations in my book, Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases. Part I of this article offers a primer on the role of prosecutorial discretion in immigration law and also describes two related programs announced by President Obama on November 20, 2014 and the subject of litigation for nearly two years as of this writing. Part II provides a history and analysis of United States v. Texas, a lawsuit originally brought by the state of Texas and twenty-five other states and decided on June 23, 2016. This section offers highlights from the oral arguments held at the U.S. Supreme Court and my position on the winning arguments. Part III raises normative questions about the implementation, legitimacy, and continued enforcement of immigration law against “priorities” identified by the government. Part IV discusses my book Beyond Deportation, which includes a history about discretion, my efforts to obtain data about the individuals who receive discretion and recommendations moving forward

The Role of Prosecutorial Discretion in Immigration Law

The concept of prosecutorial discretion appears in the immigration statute, agency memoranda and court decisions about select immigration enforcement decisions. Prosecutorial discretion extends to decisions about which offenses or populations to target; whom to stop, interrogate, and arrest; whether to detain or release a noncitizen; whether to initiate removal proceedings; and whether to execute a removal order; among other decisions. Similar to the criminal context, prosecutorial discretion in the immigration context is an important tool for achieving cost-effective law enforcement and relief for individuals who present desirable qualities or humanitarian circumstances. Yet there is a dearth of literature on the role of prosecutorial discretion in immigration law. This article describes the theory, history, and current standard of prosecutorial discretion in immigration matters. Drawing on important and relevant lessons from the criminal and administrative law paradigms, this article shows why the existing model of prosecutorial discretion in immigration affairs is inadequate and in some instances misguided. Recognizing the striking impact of arbitrary immigration enforcement decisions on undocumented noncitizens and their families, this article advocates for a bolder standard on prosecutorial discretion and greater mechanisms for oversight and accountability when such standards are ignored. Moreover, this article recommends that the Department of Homeland Security recognize select acts of prosecutorial discretion as a substantive rule, where the actions operate as a de facto benefit to individuals who satisfy an identifiable set of criteria and favorable equities. This article is divided into five sections: 1) Legal Background and History, 2) Lessons from Criminal Law, 3) Lessons from Administrative Law, 4) Limitations of Prosecutorial Discretion, and 5) Recommendations. Some overlap was unavoidable

The President and Deportation: DACA, DAPA, and the Sources and Limits of Executive Authority - Response to Hiroshi Motomura

This Essay is a response to Washburn University School of Law\u27s Foulston Siefkin Lecture, 2015 titled The President and Deportation: DACA, DAPA, and the Sources and Limits of Executive Authority, delivered by Professor Hiroshi Motomura in March of 2015. Part II of this Essay provides a summary of Professor Motomura\u27s remarks from this author\u27s vantage point. Part III of this Essay analyzes and supports Professor Motomura\u27s conclusion that deferred action is different from prosecutorial discretion and elaborates on how deferred action goes one step further than prosecutorial discretion

The Aftermath of United States v. Texas

On June 23, 2016, the Supreme Court issued a 4-4 ruling in the immigration case of United States v. Texas, blocking two “deferred action” programs announced by President Obama on November 20, 2014: extended Deferred Action for Childhood Arrivals (DACA Plus) and Deferred Action for Parents of Americans and Legal Residents (DAPA). The 4-4 ruling by the justices creates a non-precedential non-decision, upholding an injunction placed by a panel of federal judges in the Fifth Circuit Court of Appeals. While the future of these programs remains uncertain in the long term, the immediate effects are pronounced, as millions of qualifying young people (“Dreamers”) and parents who would have been able to request deferred action programs are unable to do so in the foreseeable future. The outcome of the ruling highlights the need for greater information about existing prosecutorial discretion tools, including a longstanding deferred action program on which DACA and DAPA are based.This essay examines 185 deferred action cases processed by the United States Citizenship Immigration Services (USCIS), a unit within Department Homeland Security (DHS or Department). While previous scholarship examines deferred action historically and in depth, this is the first piece to review cases under the Department’s current enforcement policy. The author’s goal is to provide advocates and policymakers with accurate information about the deferred action program outside of DACA (and what would have been DACA Plus and DAPA) and to facilitate a dialogue about the possibilities of advancing a robust deferred action policy for Dreamers, parents and others who present humanitarian equities. A second goal of this essay is to (re)address the continued transparency challenges faced by the deferred action program and recommendations for moving forward. Beyond the scope of this essay is an analysis of whether certain noncitizens may be currently eligible for relief outside of deferred action or a discussion on those who should qualify for immigration status under unrealized but critical legislative reforms

Response, the Obama Administration, In Defense of DACA, Deferred Action, and the DREAM Act

This essay responds to “The Obama Administration, the DREAM Act and the Take Care Clause” by Robert J. Delahunty and John C. Yoo. Though I credit Yoo and Delahunty for considering the relationship between the DACA program and the President’s duties under the “Take Care” clause, they miss the mark in at least three ways: 1) Contrary to ignoring immigration enforcement, the Obama Administration has executed the immigration laws faithfully and forcefully; 2) Far from being a new policy that undercuts statutory law, prosecutorial discretion actions like DACA have been pursued by other presidents, and part of the immigration system for at least 35 years; 3) Despite the unsurprising fact that some people who could qualify for the congressionally-created DREAM Act possess the kinds of equities that make them attractive for a prosecutorial discretion program like DACA, it is simply inaccurate to equate the limbo status offered with a grant under DACA to the secure status that attaches to those eligible under the congressional solution known as the DREAM Act. These three points are analyzed in greater detail in this essay. While the DACA program “feels” like something more or greater in scope than previous acts of prosecutorial discretion, the authority being exercised by the agency is no greater or different. It is dangerous to argue that the potential size of the class that stands to benefit from DACA or the greater transparency somehow makes the DACA program legally unsound or different. Conceivably, a future Administration could place a cap on the number of applications that can be approved under DACA but this is a policy question, not a constitutional one

The Role of Prosecutorial Discretion in Immigration Law

The concept of prosecutorial discretion appears in the immigration statute, agency memoranda and court decisions about select immigration enforcement decisions. Prosecutorial discretion extends to decisions about which offenses or populations to target; whom to stop, interrogate, and arrest; whether to detain or release a noncitizen; whether to initiate removal proceedings; and whether to execute a removal order; among other decisions. Similar to the criminal context, prosecutorial discretion in the immigration context is an important tool for achieving cost-effective law enforcement and relief for individuals who present desirable qualities or humanitarian circumstances. Yet there is a dearth of literature on the role of prosecutorial discretion in immigration law. This article describes the theory, history, and current standard of prosecutorial discretion in immigration matters. Drawing on important and relevant lessons from the criminal and administrative law paradigms, this article shows why the existing model of prosecutorial discretion in immigration affairs is inadequate and in some instances misguided. Recognizing the striking impact of arbitrary immigration enforcement decisions on undocumented noncitizens and their families, this article advocates for a bolder standard on prosecutorial discretion and greater mechanisms for oversight and accountability when such standards are ignored. Moreover, this article recommends that the Department of Homeland Security recognize select acts of prosecutorial discretion as a substantive rule, where the actions operate as a de facto benefit to individuals who satisfy an identifiable set of criteria and favorable equities. This article is divided into five sections: 1) Legal Background and History, 2) Lessons from Criminal Law, 3) Lessons from Administrative Law, 4) Limitations of Prosecutorial Discretion, and 5) Recommendations. Some overlap was unavoidable

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

Is Immigration Law National Security Law?

The debate around how to keep America safe and welcome newcomers is prominent. In the last year, cities and countries around the world, including Baghdad, Dhaka, Istanbul, Paris, Beirut, Mali and inside the United States - have been vulnerable to terrorist attacks and human tragedy. Meanwhile, the world faces the largest refugee crises since the Second World War. This article is based on remarks delivered at Emory Law Journal’s annual Thrower Symposium on February 11, 2016. It explores how national security concerns have shaped recent immigration policy in the Executive Branch, Congress and the states and the moral, legal and practical implications of these proposals. Finally, this article examines the parallels between these proposals and immigration policies enacted after September 11, 2001