A principal feature of the removal system is the broad discretion exercised by immigration officials. . . . Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. . . . Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service.1
This chapter introduces the reader to the complexity of the immigration design and the extent to which prosecutorial discretion operates within this design. Likewise, it underscores the significant role of DHS in exercising prosecutorial discretion and the fact that all three major agencies, USCIS, CBP, and ICE, have the authority to use this discretion. Finally, this chapter provides the reader with an understanding of the largely humanitarian and economic reasons why prosecutorial discretion exists.
Prosecutorial discretion has been a main ingredient of the immigration system since its creation. As described in greater detail in chapter 3, many of the principles of immigration prosecutorial discretion are similar to the criminal context, where “prosecutorial discretion” is more well known and widely used. A favorable exercise of prosecutorial discretion in immigration law identifies the agency’s authority to refrain from asserting the full scope of the agency’s enforcement authority in a particular case.2 Historically, this discretion has been applied to both individuals and groups.3
The theory behind immigration prosecutorial discretion is seemingly simple and twofold. The first part of the theory is economic. Specifically, the number of noncitizens who are technically “deportable” under the immigration laws is much larger than the number that the immigration agency can successfully handle with its available resources. Estimates suggest the immigration agency has the resources to remove about four hundred thousand people, or less than 4 percent of the deportable population living in the United States each year.4 Because the government has limited resources, permitting the agency and its officers to refrain from asserting their maximum enforcement authority against particular populations or individuals is cost-saving and arguably allows the agency to focus its work on the “truly” dangerous.5
The second part of the theory of prosecutorial discretion is humanitarian. Some individuals who are in technical violation of the law may nonetheless have redeeming qualities such as a loving marriage, continued valuable employment, U.S. citizen children, faithfulness to prayer, or good moral character. Other candidates for prosecutorial discretion may be the victims of a natural disaster or domestic violence or witnesses in a labor or civil rights dispute and for these reasons should be protected from removal. Allowing such persons to live free from apprehension, detention, or removal is partially a reward for their good deeds or a means of alleviating their hardships and, in part, a judgment by society that some people are morally deserving and more likely to contribute to society in the future. This compassion-based formula is complicated when a person has committed a transgression that feels “criminal” or is labeled as such.
A closely tied and possible third part to the theory is somewhat more political and describes the creation of prosecutorial discretion policy when statutory attempts to fix broken immigration laws stall or fail. While it is important to understand the relationship between legislative reforms and a prosecutorial discretion policy, the relationship should not be overstated. As a general matter, prosecutorial discretion is not typically “caused” by congressional inaction, although immigration advocates become more public and demanding of an administration to provide a temporary solution using prosecutorial discretion in the wake of such inaction.
The September 11, 2001, attacks launched a national discussion on border security and immigration law. A wide variety of stakeholders, among them congressional members, leaders in the White House and executive branch, individuals who favor restrictions on immigration, and public policy think tanks, linked the 9/11 attacks to failures in the U.S. immigration system, pointing to border vulnerabilities and deficiencies in the Department of State and Immigration and Naturalization Service (INS). What followed was a quick but passionate debate in Congress about overhauling INS, then a component of the Department of Justice (DOJ), and moving many of its units into a new cabinet-level agency.6
With the passage of the Homeland Security Act of 2002, INS was abolished by statute and a new “Department of Homeland Security” took charge of immigration services, enforcement, and related policymaking (including visa policies).7 The “services” unit known as U.S. Citizenship and Immigration Services (USCIS) is responsible for processing affirmative applications and petitions such as lawful permanent residence (“green card”), asylum, and citizenship applications.8 USCIS houses a citizenship office, legislative affairs office, and asylum and refugee affairs office, among other units.9
The immigration “enforcement” unit comprises two divisions: Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE).10 CBP is responsible for border enforcement and in this capacity apprehends, detains, and inspects goods and people at and between ports of entry.11 ICE is charged with interior enforcement and in this role investigates, arrests, detains, and removes noncitizens.12 Attorneys within ICE also represent the U.S. government in removal proceedings before the Executive Office for Immigration Review, a unit within DOJ.13 Throughout this book I refer to DHS, INS, or both as “the agency” or “the immigration agency.” If I refer to an agency outside of these two units, such as the DOJ, I identify it by name.
Following the post-9/11 reorganization, the immigration court system was retained within DOJ under a unit called the Executive Office for Immigration Review (EOIR), while the function of issuing visas remained at the State Department.14 The Homeland Security Act resulted in additional jurisdictional and substantive changes with regard to the care and custody of unaccompanied minor children, oversight of individual and systemic abuses or misconduct by DHS officers and contractors, and related matters.15 For example, noncitizens in immigration custody who feel they are being verbally or physically abused by an official working at the immigration facility may file a complaint with the DHS Office for Civil Rights and Civil Liberties.
Despite the transfer and merger of core immigration units into DHS, and absence of a particular individual to oversee the arguably competing missions and cultures of the new immigration units, the principle of prosecutorial discretion survived the move.16 When Congress amended the Immigration and Nationality Act (INA) to reflect the transfer of core immigration functions to a new DHS, it crafted a broad statute to recognize the executive functions of the secretary of homeland security to administer the immigration laws, which as a legal matter has been viewed as including the use of prosecutorial discretion. Section 103(a) of the INA, as amended by the Homeland Security Act, reads:
The Secretary of Homeland Security shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens, except insofar as this chapter or such laws relate to the powers, functions, and duties conferred upon the President, Attorney General, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers: Provided, however, That determination and ruling by the Attorney General with respect to all questions of law shall be controlling.17
This summary of the revised government immigration structure is terse but provides an important foundation for understanding the current locations and individuals who possess the great power of prosecutorial discretion. Specifically, CBP, ICE, and USCIS all have jurisdiction to exercise prosecutorial discretion.18 Each of these units employ thousands of professionals, some of whom are lawyers and many of whom are “frontline” officers who handle routine functions like inspections at the airport (CBP), detention at a local jail (ICE), and adjudication of an asylum application (USCIS). These officers may exercise prosecutorial discretion in a variety of ways. For example, a USCIS officer may exercise prosecutorial discretion positively by deciding not to issue a Notice to Appear or NTA against a person whom she has also deemed ineligible for a family-based benefit. An ICE officer may exercise favorable prosecutorial discretion by granting a temporary stay of removal, joining in a motion to terminate removal proceedings, granting an order of supervision, or canceling an NTA.19 A CBP officer may exercise prosecutorial discretion encouragingly by granting “parole” or “entry” to a person who does not have valid travel documents to be “admitted” into the United States. In fact, there are at least twenty-five different forms of prosecutorial discretion.
Prosecutorial discretion may also be exercised during different points in the enforcement process, including, but not limited to, at the point of interrogation, arrest, charging, detention, trial, and removal.20 In other words, prosecutorial discretion could be exercised positively well before a person is even in the situation of facing an immigration judge or DHS officer for removal. Arguably, prosecutorial discretion is applied to the vast majority of America’s undocumented population in this way, meaning that DHS does not attempt to arrest, detain, and “try” every undocumented noncitizen before deciding whether or not to exercise prosecutorial discretion favorably. Such an attempt would be inefficient because it would be costly to the administration and also undermine one of the central theories of immigration prosecutorial discretion. Imagine the case of an undocumented parent who is living in a small American town, working “under the table,” and supporting two U.S. citizen children at home and has resided in this town for more than seven years. In this situation, DHS may decide not to arrest or detain this parent as a matter of prosecutorial discretion and instead focus on an undocumented person living in the same town who is operating a “cover” real estate business that is actually being used to traffic young girls for sexual favors. In less clear cases where DHS encounters a noncitizen whom it can technically arrest, it may exercise prosecutorial discretion favorably with a warning such as “I am not going to write this up now, but if your husband does not file papers for you by next month, I am going to send you in front of the judge.” The authority to exercise prosecutorial discretion is not limited to “prosecution” in the immigration realm, but can affect a person even after immigration charges have been filed against him or her or when an individual has been fully “prosecuted” and ordered removed from the United States.
To understand the various types of prosecutorial discretion in the immigration system, one must understand the process of deportation. Many noncitizens charged with violating U.S. immigration laws are served with an NTA.21 Once the NTA is filed by DHS with the immigration court within EOIR, jurisdiction is transferred from DHS to EOIR and removal (deportation) proceedings are commenced.22 Immigration judges preside over removal proceedings and received 310,455 removal proceedings in fiscal year 2012.23 As with criminal law, the decision about whether or not to bring charges against a person is a pivotal discretionary point in the process as it determines if the person will face “trial” (called “removal proceedings”). In removal proceedings, most cases revolve not around whether the noncitizen is removable as charged, but rather around whether he or she is eligible for one of the various forms of relief from removal, such as asylum, cancellation of removal, or adjustment of status.24 Most of these statutory reprieves include a discretionary component and, as a practical matter, enable the immigration judge to deny relief even when a noncitizen meets all of the statutory criteria for such relief.25 At the removal hearing, an immigration judge will normally sustain or dismiss charges made by ICE against the noncitizen and, if appropriate, determine if a noncitizen is eligible for formal relief from removal.26
Once removal proceedings have begun, an immigration judge may also adjudicate certain procedural requests such as motions to administratively close, postpone, dismiss, or reopen a removal proceeding.27 DHS’s decision to commence removal proceedings by filing an NTA with the immigration court represents the defining moment during which prosecutorial discretion can be exercised to save the government the resources of an administrative hearing and possible appeals, and also recognizes the equities and humanitarian situations faced by noncitizens who are ineligible for formal immigration relief.28 In some cases, placing a person in removal proceedings is an act of favorable prosecutorial discretion, especially when the person qualifies for relief that can be granted only by an immigration judge. In these cases, the foundation for such discretion turns less on saving government resources and more on recognizing individual equities that enable the person to seek formal relief.
Noncitizens generally have a right to pursue judicial review following a final order of removal unless one of the statutory exceptions applies. Under the immigration statute, noncitizens are barred from seeking review in immigration cases involving most crimes, many discretionary decisions, and most expedited removal orders.29 Legal scholars and judges have long examined the role of judicial review in immigration matters, and also criticized the impacts of the “plenary power” doctrine,30 and statutory deletions of judicial review for certain immigration cases.31
The power of DHS to exercise prosecutorial discretion is distinct from the authority of DOJ, which following 9/11 was narrowed considerably but, interestingly, placed the immigration court structure, EOIR, on independent footing for the first time in years. Before DHS was created, EOIR and INS were separate entities within the same agency, DOJ. While the optics of the immigration court’s independence might look more like a “win” for judges seeking to exercise formal discretion robustly in appropriate cases before them, the reality is that Congress stripped much of this formal discretion in the 1990s. These statutory changes are detailed in chapter 2, but for the moment it should be noted how this paradigm of less discretionary authority at EOIR and a new DHS to house immigration services and enforcement has caused prosecutorial discretion to take the lead in discretionary powers.32