2

The Early Years

The Deportation Case of John Lennon and Evolution of Immigration Prosecutorial Discretion

If, in our two hundred years of independence, we have in some measure realized our ideals, it is in large part because we have always found a place for those committed to the spirit of liberty and willing to help implement it. Lennon’s four-year battle to remain in our country is testimony to his faith in this American dream.1

While prosecutorial discretion has long existed in the immigration context, it operated for decades in secrecy and away from the public. Indeed, few people today are aware of the debt that immigration prosecutorial discretion owes to an unlikely hero—the member of the Beatles known as John Lennon. Lennon’s case brought the issue of immigration prosecutorial discretion into the public eye for the first time. This chapter details the immigration case of John Lennon and the efforts undertaken by his attorney, Leon Wildes, to encourage the immigration agency to publish its policies about prosecutorial discretion. This chapter also chronicles the prosecutorial discretion guidance published by the agency between 1975 and 2007, following the Lennon case as the immigration agency began to acknowledge its use more publicly.

Thanks to Lennon, his wife Yoko Ono, and Wildes, the use of prosecutorial discretion in immigration cases went “public.”2 Lennon and Ono retained immigration lawyer Wildes to represent them in their immigration case. Wildes was then a young attorney in New York who had discovered a talent for handling “impossible” cases after successfully winning several cases involving visa denials by consular officers after lawyers referred them to him.3 His first encounter with John Lennon was preceded by a phone call from a law school classmate who represented the Beatles as a lawyer for Apple Records.4 Wildes did not know who the Beatles were, let alone John Lennon “ ‘The night I met the Lennons to discuss their legal situation, I went home and told my wife that I had met with Jack Lemmon and Yoko Moto.’ His wife instantly—and exuberantly—corrected him.”5

Lennon and Ono had entered the United States in 1971 as tourists so they could locate Kyoko, Ono’s daughter from a previous relationship.6 While Ono had been awarded custody over Kyoko by a family court, the situation was complicated by the fact that the child’s father had kidnapped Kyoko and could not be found.7 After the Lennons’ visas expired, Immigration and Naturalization Service (INS) district director of New York Sol Marks sent them a letter warning of deportation proceedings if they did not leave the United States.8 Wildes was tasked with extending their stay in the United States. In light of Wildes’s longtime relationship with Marks and the compelling reasons behind Lennon and Ono’s desire to remain in the country temporarily, Wildes would ordinarily have secured a series of temporary extensions for the couple until Kyoko was found; such extensions were commonly granted at the time. However, the politics of John Lennon’s case made multiple extensions of his immigration status a monumental challenge.9 The political landscape was volatile: Lennon was an opponent of the Vietnam War and attracted young people to his cause, eighteen-year-olds were allowed to vote in the U.S. election for the first time in history, and Richard Nixon faced a difficult reelection campaign and saw Lennon as a source of trouble.10 This political situation played a dramatic role in Lennon’s immigration case, and led Wildes to argue that INS was deporting Lennon for political reasons. Wildes later discovered through correspondence from Senator Strom Thurmond, Sol Marks, and the Senate Internal Security Committee just how well orchestrated was the campaign to deport Lennon.11

As a legal strategy, Wildes first pursued visa petitions based on “exceptional ability” in the arts and sciences for Ono and Lennon.12 Wildes reflects upon preparing these petitions: “We decided to file two outstanding-artist petitions. We started contacting people for reference letters. By simply mentioning my clients’ names, I could get through to nearly everyone. Yoko said she would be happy to get letters from Andy Warhol, Clive Barnes, Jasper Johns, Stanley Kubrick, Elia Kazan, Claes Oldenburg, Leonard Bernstein, and Virgil Thomson. If you’re a collector of signatures, you would have valued my files at a million dollars!”13 After Wildes filed the artist petitions with INS, John Lennon and Yoko Ono were placed in deportation (now removal) proceedings. INS did not adjudicate the visa petitions, and yet Wildes knew that he could not pursue permanent residency or “green cards” in deportation proceedings until INS had first made a decision on the visa petitions.14 Wildes was able to delay the deportation proceedings pending the decision by INS on the artist petitions, both of which were eventually granted. The next stage of the immigration case was for the immigration judge to preside over Ono and Lennon’s green card applications in deportation proceedings. One legal wrinkle in Lennon’s case was a British drug conviction for possession of cannabis resin. Lennon believed the drugs had been “planted” by a man who wanted to prove that all musicians were out to trouble the youth of England,15 but the facts behind Lennon’s crime were irrelevant so long as his conviction made him excludable under U.S. immigration law. At the time of Lennon’s case, the immigration statute made possession of marijuana or any narcotic a ground for exclusion and therefore a bar to obtaining a green card.16 Wildes succeeded in securing a national expert to testify at the immigration proceeding that cannabis resin was neither marijuana nor a narcotic (and therefore not a ground for exclusion under the immigration statute), but the immigration judge was unconvinced.17

For the first and only time in his thirty-eight-year career with INS in New York, Sol Marks held a press conference to announce his decision in the case of Lennon and Ono.18 At the press conference, Marks announced that Ono would receive a green card and that Lennon would be denied his green card and deported based on his drug conviction.19 When Wildes asked about Marks’s ability to exercise prosecutorial discretion by not instituting proceedings against Lennon or by placing his case in “nonpriority” or “deferred action” status,20 Marks stated publicly that INS lacked any such authority.21 Wildes shared with me that Marks issued the same statement publicly on many occasions, and reversed his position only at the time he was formally deposed under oath.

Wildes appealed the decision on Lennon’s deportation order to the Board of Immigration Appeals and lost, and thereafter filed another appeal in the federal court of appeals for the Second Circuit.22 On October 7, 1975, the court found that Lennon’s drug conviction did not render him “excludable” under the immigration statute, and vacated the denial of his green card and his deportation order on these grounds.

As part of his legal strategy, Wildes conducted groundbreaking research on the “nonpriority” program, and eventually filed an application for “nonpriority status” for Lennon. Wildes learned that INS had for many years been granting “nonpriority” status to prevent the deportation of noncitizens with sympathetic cases, but INS had never publicized the practice. INS was forced to provide data on the program. Wildes relied on the data provided by INS and also information in Lennon’s file to craft a compelling argument for Lennon’s nonpriority status.23 He also received a letter from the former INS associate commissioner, E. A. Loughran, in which Loughran defines a nonpriority case as “one in which the Service in the exercise of discretion determines that adverse action would be unconscionable because of humanitarian factors.”24 Wildes prepared an affidavit for Lennon’s nonpriority case detailing the medical hardships Yoko Ono (now a green card holder) would suffer if Lennon were deported; he describes this today as one of the “nicest pieces of work I did in the Lennon case.”25 Lennon was eventually granted nonpriority status in September 1975, but this status later became unnecessary after he secured a green card.26

Thanks to Wildes’s work on the Lennon case, INS migrated information about the nonpriority program from the INS “Blue Sheets,” which indicated policy that was closed to the public, to the “White Sheets,” signifying the newly public nature and the existence of the program.27 The published guidance was contained in a policy document called “Operations Instructions” and stated: “In every case where the district director determines that adverse action would be unconscionable because of the existence of appealing humanitarian factors, he shall recommend consideration for nonpriority.”28 The Operations Instruction also listed factors that should be considered in determining whether a case should be designated for nonpriority status: “When determining whether a case should be recommended for nonpriority category, consideration should include the following: (1) advanced or tender age; (2) many years’ presence in the United States; (3) physical or mental condition requiring care or treatment in the United States; (4) family situation in the United States effect of expulsion; (5) criminal, immoral or subversive activities or affiliations- recent conduct.”29

Just one year after the INS publicly revealed its Operations Instruction on nonpriority status or what is known today as deferred action, INS General Counsel Sam Bernsen published a legal opinion about the use of prosecutorial discretion in immigration cases.30 In this opinion, Bernsen identified decisions dating back to 1909 in which the agency had exercised prosecutorial discretion.31 The Bernsen opinion runs eight pages and is strikingly assertive in describing the broad authority of the immigration agency to exercise prosecutorial discretion, the preference for such discretion to be instituted before removal proceedings begin, and the intolerance for situations where individuals are selectively prosecuted for political or discriminatory reasons.32

On the heels of the Lennon case, federal courts were faced with the query about whether deferred action operated as a sort of immigration benefit or if it functioned purely as a management tool for the agency. How this question is answered determines whether individuals must be given adequate notice about the existence of deferred action, the opportunity to challenge a decision on deferred action if they believe they were denied it as an abuse of discretion, and other related safeguards. As discussed in chapter 4, deferred action is distinguishable from the various other tools the agency uses to exercise prosecutorial discretion.

The federal courts’ reaction to this issue following the Lennon case deserves some discussion. In Lennon, the Second Circuit held that the nonpriority category was an “informal administrative stay of deportation.”33 In a second case, called Soon Bok Yoon v. INS, the Fifth Circuit also concluded that nonpriority status was not a right.34 Soon Bok was a native and citizen of Korea who entered the United States as a visitor and was later placed in deportation proceedings, at which she alleged the immigration judge should have informed her about every discretionary form of relief available including nonpriority status. The court disagreed and held “nonpriority status is in the nature of a voluntary stay of the agency’s mandate pendente lite, issued in large part for the convenience of the INS. . . . The decision to grant or withhold nonpriority status therefore lies within the particular discretion of the INS, and we decline to hold that the agency has no power to create and employ such a category for its own administrative convenience without standardizing the category and allowing applications for inclusion in it.”35

Fig. 2.1. Former Beatle John Lennon, middle, with his attorney Leon Wildes, left, and wife Yoko Ono, right, in New York. Photo by Bob Gruen, courtesy of Leon Wildes.

But other courts disagreed. Diverging from the position held by the courts in Lennon and Son Book Yoon, the Eighth Circuit recognized the Operations Instructions differently. Vergel v. INS involved a native and citizen of the Philippines who entered the United States as a visitor with a four-year-old girl, Maria, who was born with cerebral palsy.36 Vergel had nursed and cared for Maria for nearly four years, until the little girl was strong enough to enter the United States. Vergel continued to care for Maria inside the country long after her visa expired, and Vergel was eventually placed into deportation proceedings and ordered deported. Notably, the Eighth Circuit continued Vergel’s case after advising the agency to consider her for deferred action: “It appears that deportation will cause severe hardship not only to Ms. Vergel but also to the invalid child involved. Thus, there is a substantial basis upon which the District Director could place petitioner in a ‘deferred action category’ allowing her to remain in this country on humanitarian grounds.”37 The Eighth Circuit issued a similar decision in another case involving David, a man from the Philippines who lawfully entered the United States as the spouse of a temporary worker, and was pursued by INS after it discovered that David had unlawfully worked at a convalescent home for eight days at a wage of $2.90 per hour.38 David was placed into deportation proceedings and granted voluntary departure; following his administrative proceedings, he filed a petition for review in federal court.39 While the David court found no reason to reverse the decision of the INS or BIA on legal grounds, it did question the agency’s wisdom in deporting a man like David, who was married to a registered nurse, educated, and a person who had in good faith applied for (but was denied) labor certification.40 The court reflected upon David’s equities: “While waiting for the anticipated certification because of [David’s] financial situation and the critical need for such help in the area, he rendered assistance, granted, without the certificate, for a period of eight days. . . . It should be obvious that deportation will cause severe hardship on petitioner and his wife. . . . [W]e think there is presented here a substantial basis upon which a district director could place petitioner in a ‘deferred action category’ allowing him to remain in this country on humanitarian grounds.”41 In both Vergel and David, the Eighth Circuit identified humanitarian factors as a foundation upon which INS could grant the petitioners deferred action status.42 The Eighth Circuit’s conclusion is significant to the extent that it contains an implication that applying for nonpriority or deferred action status is a “right.”43

In 1979 and on the heels of Vergel and David, the Ninth Circuit in Nicholas v. INS held that the Operations Instruction on deferred action operated like a substantive rule.44 The case itself involved George Bernard Nicholas, a native and citizen of the Bahamas who married a U.S. citizen and was the father of two children, also U.S. citizens.45 Among other challenges, Nicholas alleged that the INS district director’s verbal denial of his request for nonpriority status “represented such a departure from established patterns as to constitute a reversible abuse of discretion.”46 The court concluded that the Operations Instruction on deferred action constituted a substantive benefit, noting, “Delay in deportation is expressly the remedy provided by the Instruction. It is the precise advantage to be gained by seeking non-priority status. Clearly, the Instruction, in this way, confers a substantive benefit upon the alien, rather than setting up an administrative convenience.”47 Turning to the language of the Operations Instruction, the court in Nicholas focused on the “shall” and concluded: “(1) The sole basis for granting relief is the presence of humanitarian factors; (2) The Instruction is directive in nature; and (3) The effect of such relief upon a deportation order is to defer it indefinitely. . . . It is obvious that this procedure exists out of consideration for the convenience of the petitioner, and not that of the INS. In this aspect, it far more closely resembles a substantive provision for relief than an internal procedural guideline.”48

INS was conscious about the courtroom battle over what to call the Operations Instructions and why it mattered. In the agency’s view, resolution came when it reworded the prelude of the Operations Instruction to read, “A Service Director may, in his or her discretion recommend, deferral of (removal) action, an act of administrative choice to give some cases lower priority and in no way an entitlement in appropriate cases.”49 By recasting the Operations Instruction as a measure of pure administrative convenience, the agency sought to minimize potential litigations and may have even avoided a Supreme Court decision to resolve the circuit conflict.50 Had the Operations Instruction stayed on the books with the word “shall” and given the fact that at least one court found that the Instruction operated as a sort of immigration benefit, it is possible that the Supreme Court would have attempted to decide the question so that every federal circuit court could treat judicial challenges similarly.

In 1996, the Operations Instructions were moved into a new publication titled “Standard Operating Procedures.”51 The Operations Instructions were eventually rescinded in 1997 through a memorandum issued by former INS Acting Executive Associate Commissioner Paul Virtue.52 Titled “Cancellation of Operations Instructions,” the memo identified a series of Operations Instructions that were rescinded as a consequence of the 1996 immigration laws.53 Virtue recalls that, in canceling the Operations Instructions, there was no intention by the agency to eliminate deferred action relief.54 Rather, the purpose of canceling the rule was “housekeeping”—there was an internal effort to take the Operations Instructions and place them into policy manuals such as the Standard Operating Procedures manual.55

After the Operations Instruction on deferred action was removed, the factors outlined in the Instruction for “deferred action” continued to be utilized by agency officials. As described in one leading treatise on immigration law and procedure, “[w]hile the deferred action program is still an internal administrative arrangement, with no provision for an application or participation by the alien, it is appropriate for the alien or the alien’s counsel to call to the attention of the district director the circumstances of a particular case, with appropriate documentation, and to request that consideration be given to placing it in deferred action status.”56 The treatise’s inclusion of the description and process for applying deferred action further underscores the agency’s recognition of deferred action even after the Operations Instructions were formally rescinded.

The 1996 Immigration Laws and Prosecutorial Discretion

Legislative amendments to the Immigration and Nationality Act in 1996 heightened the need for renewed guidance on prosecutorial discretion.57 For example, the 1996 immigration laws mandated detention for “arriving aliens,” including asylum seekers, and removed the authority for immigration judges to decide if arriving aliens should be released on bond.58 The laws also expanded the categories of people who could be mandatorily detained without a bond hearing,59 and expanded the list of activities that could be classified as an “aggravated felonies.” This new definition was to be applied retroactively.60 In addition, the 1996 immigration laws meaningfully limited individual review in a federal court by enforcing statutory bars to review on certain noncitizens with criminal histories or with discretionary denials, among others.61

Imagine the scenario of Mark, a lawful permanent resident who is now an adult who graduated from a U.S. high school and college, married a U.S. citizen, and works full-time in a professional job to support his family. For Mark, a bar fight fifteen years ago resulting in an assault conviction can result in mandatory detention and deportation without any consideration by an immigration judge for the equities in his case. The 1996 laws left many people like Mark without any chance to apply for relief or a second chance from a judge. The literature criticizing the 1996 immigration laws, and its consequences, is plentiful.62 The harshness of the 1996 laws caused increased pressure to grant prosecutorial discretion.

With the backdrop of the 1996 laws came a flurry of debate and correspondence among members of Congress, the attorney general, and INS about the role of prosecutorial discretion in immigration law. In a letter dated November 4, 1999, twenty-eight members of Congress urged the agency to issue guidelines on prosecutorial discretion in recognition of the impact of the 1996 immigration laws in sympathetic cases:

[C]ases of apparent extreme hardship have caused concern. Some cases may involve removal proceedings against legal permanent residents who came to the United States when they were very young, and many years ago committed a single crime at the lower end of the “aggravated felony” spectrum but have been law-abiding ever since, obtained and held jobs and remained self-sufficient, and started families in the United States. Although they did not become United States citizens, immediate family members are citizens. There has been widespread agreement that some deportations were unfair and resulted in unjustifiable hardship. If the facts substantiate the presentations that have been made to us, we must ask why the INS pursued removal in such cases when so many other more serious cases existed.63

This letter was cosigned by both Republican and Democratic members of the House, including a few architects of the 1996 laws.64

In a response to the congressional letter, Assistant Attorney General Robert Raben wrote to Massachusetts Congressman Barney Frank, advising him about INS’s long-standing use of prosecutorial discretion in immigration law, and describing pending INS guidance about the situations in which prosecutorial discretion should be exercised.65 Raben’s letter underscored the inadequacy of prosecutorial tool as a magic wand for solving all of the problems in the congressional letter outlined above: “Guidelines on prosecutorial discretion—no matter how comprehensive or how carefully implemented—remain an inadequate substitute for the more thorough evidentiary processes previously available under the INA, wherein the experienced immigration judge could review evidence and elicit testimony. . . . I urge you to reject the notion that prosecutorial discretion, even wisely exercised, can provide an adequate substitute for sound administrative adjudication.”66

Amid these events came a written memorandum from Owen (“Bo”) Cooper, the INS general counsel, to former INS Commissioner Doris Meissner.67 The purpose of the Cooper memo was to enable INS to study the use of prosecutorial discretion and provide a legal foundation for any guidance on prosecutorial discretion produced by INS in the future.68 The memo itself reads like a short lesson plan, describing the principle, purpose, and limitations of prosecutorial discretion, and also identifying criminal law jurisprudence as a leading source.69 The Cooper memo explains that while immigration officers are not “prosecutors” in the literal sense, they nevertheless enjoy broad prosecutorial authority over enforcement decisions.70

On November 7, 2000, her last day as INS commissioner, Doris Meissner issued what became the gold standard for the next decade on the role of prosecutorial discretion in immigration law.71 The Meissner prosecutorial discretion memo has been repeatedly cited by attorneys and government agencies alike, and in many ways superseded the legendary Operations Instruction on deferred action. The Meissner Memo is more expansive than the Operations Instruction to the extent that it identifies a range of possible actions (one of which is deferred action) to which prosecutorial discretion may apply.72

The Meissner Memo details the cost-related arguments behind prosecutorial discretion. “Like all law enforcement agencies, the INS has finite resources, and it is not possible to investigate and prosecute all immigration violations . . . the Service must make decisions about how best to expend its resources. Managers should plan and design operations to maximize the likelihood that serious offenders will be identified.”73 The Meissner Memo recognizes the humanitarian theory behind prosecutorial discretion by listing a number of largely compassionate factors that may be considered by an immigration officer in deciding whether to exercise prosecutorial discretion.74 While the list at first appears long and unachievable, the memo suggests that an individual need not show every factor to qualify and clarifies that an officer’s decision must be based on a “totality of the circumstances, not on any one factor considered in isolation.”75 The nonexhaustive list of factors identified by Meissner includes (1) immigration status, (2) length of residence in the United States, (3) criminal history, (4) humanitarian concerns, (5) immigration history, (6) likelihood of ultimately removing the alien, (7) likelihood of achieving enforcement goal by other means, (8) whether the alien is eligible or is likely to become eligible for other relief, (9) effect of action on future admissibility, (10) current or past cooperation with law enforcement authorities, (11) honorable U.S. military service, (12) community attention, and (13) resources available to the INS.76 Notably, the Meissner Memo instructs that discretionary judgments must be made astutely and consistently. Specifically, Meissner notes, “Service officers are not only authorized by law but expected to exercise discretion in a judicious manner at all stages of the enforcement process—from planning investigations to enforcing final orders—subject to their chains of command and to the particular responsibilities and authority applicable to their specific position.”77 This language suggests that, while the act of discretion is an option, exercising such discretion in a fair and evenhanded manner is an obligation. This is similar to the obligatory language of the former Operations Instruction on deferred action.78

The foregoing summary explains how the 1996 laws affected individual lives and hampered the ability for immigration judges to exercise discretion as part of their adjudicatory function. It further shows how Congress and the public placed pressure on the administration to exercise prosecutorial discretion in the wake of these laws. Another part of this story relates to the politics that lay between congressional reaction to the 1996 laws and disappointment about how the administration was handling the harsh consequences of these laws. This hostility is well encapsulated in the transcript of an immigration symposium held in the fall of 2000 at which scholars, impacted families, Barney Frank, and Bo Cooper were all featured.79 At the time of the symposium, INS was working on its prosecutorial discretion memo and Representative Frank had introduced legislation to mitigate some human consequences of the 1996 immigration laws. With regard to the congressional criticism INS received about prosecutorial discretion, Cooper recounted how “many in Congress began to say, ‘Well, it’s not that the laws are too harsh, it’s just that the INS is not making careful decisions about how to enforce them.’ In many respects that seems to me to be an inadequate argument.”80 He went on to outline what he anticipated to be then forthcoming guidance by INS. Meanwhile, Congressman Frank was not shy in calling the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) “a lousy law” and blaming the lack of movement to ameliorate the 1996 laws on a lack of political will, and critiquing INS for not taking a stronger position on prosecutorial discretion after the laws were immediately passed. Congressman Frank remarked, “INS was terrified and they did go scoop up some people whom no rational person would have scooped up, because they were afraid of Congress yelling at them. Next the horror stories came out.”81 Congressman Frank also pointed out the hypocrisy displayed by select members of Congress who led the efforts to pass IIRAIRA, urged INS to not use any discretion immediately after the bill was passed, and then turned around to criticize INS for failing to exercise discretion when the horror stories grew.82

The narrative surrounding the 1996 law is revealing because it illustrates the conflict between congressional acts that eliminate discretion and the desire of the executive branch to use prosecutorial discretion to cure some of the most heart-wrenching cases. Looking back, some scholars view the 1996 laws not as an elimination of discretion altogether but as a transfer of administrative discretion from the immigration judges to lower agency officials.83 As noted by immigration scholars Adam Cox and Cristina Rodríguez: “[I]t is important to see that the Executive still has de facto delegated authority to grant relief from removal on a case-by-case basis. The Executive simply exercises this authority through its prosecutorial discretion, rather than by evaluating eligibility pursuant to a statutory framework at the end of removal proceedings. In fact, because these decisions are no longer guided by the INA’s statutory framework for discretionary relief, the changes may actually have increased the Executive’s authority.”84 Cox and Rodríguez conclude that the scope of DHS’s prosecutorial discretion may have increased as a consequence of the 1996 immigration laws. If their conclusion is accurate, exercising prosecutorial discretion in a manner that incorporates the various humanitarian-related factors once utilized in the formal adjudicatory context is even more important than before.

Guidance on Prosecutorial Discretion Following the Demise of INS and Creation of DHS

Prosecutorial discretion policy remained strong following the demise of INS and creation of DHS. Notably, Congress confirmed in INA § 103(a) the authority of the DHS secretary to “perform such other acts as he deems necessary for carrying out his authority under the provisions of this chapter.”85 Likewise, guidance documents by USCIS, CBP, and ICE affirmed the concept of prosecutorial discretion, and in some cases referenced or explicitly reaffirmed the Meissner Memo. For example, in January 2003, former USCIS Executive Associate Commissioner Johnny N. Williams issued a memo to regional directors and service center directors discussing their authority to refrain from bringing charges against noncitizens who are both a beneficiary of immigration benefits and potentially in violation of immigration laws as a consequence of their unlawful presence.86 The Williams memo reminds officers that they may refrain from charging such noncitizens and calculate humanitarian and other factors when making such a determination.87 The Williams memo also instructs officers to review the Meissner Memo.88 And in September 2003, former USCIS Associate Director for Operations William Yates issued a memo to regional directors and service center directors discussing their authority to issue charging documents to noncitizens, and reminding directors that every decision must be made in accordance with the Meissner Memo.89

In October 2005, former ICE Principal Legal Advisor William J. Howard issued a memo to all OPLA (Office of the Principal Legal Advisor) chief counsel highlighting the limited resources of ICE and stating that “the universe of opportunities to exercise prosecutorial discretion is large.”90 The Howard Memo lists scenarios for which an officer’s “favorable” exercise of discretion would be appropriate, and discourages the issuance of charging papers to noncitizens with viable family petitions or green card applications and those with sympathetic factors, such as citizen children with serious medical conditions.91 The Howard Memo also offers possible scenarios for deferring enforcement even after charging papers have been filed.92 Overall, the Howard Memo preserves many of the same principles found earlier in guidance on prosecutorial discretion and concludes, “Prosecutorial discretion is a very significant tool . . . to deal with the difficult, complex and contradictory provisions of the immigration laws and cases involving human suffering and hardship.”93

Prosecutorial discretion guidance continued to flow from the immigration agency. In December 2006 former DRO (Detention Removal Office) Director John P. Torres published a memorandum instructing select ICE senior leaders about the exercise of prosecutorial discretion when making detention or custody decisions about noncitizens with severe medical conditions. This guidance outlines the following examples of medical conditions that should “trigger or flag” a need for prosecutorial discretion: advanced chronic conditions with complications, advanced immunological diseases, pending/recent organ transplants, end-stage/terminal illness, and extreme mental illness, among other examples.94

In November 2007, former ICE Assistant Secretary Julie Myers issued guidance to all field office directors and special agents in charge, advising them to release apprehended nursing mothers absent national security or public safety or other investigative interests.95 This guidance was issued following a heart-gripping story involving a twenty-six-year-old nursing mother from Honduras who was arrested by the immigration agency and separated from her U.S.-born baby for several days while in detention.96 In the memo, Myers reminds officers that “[t]he process for making discretionary decisions is outlined in the [Meissner Memo]. . . . Field agents and officers are not only authorized by law to exercise discretion within the authority of the agency but are expected to do so in a judicious manner at all stages of the enforcement process.”97 The agency continued to publish guidance on prosecutorial discretion during the Obama administration, the bulk of which is analyzed in chapter 5.

Categorical Grants of Prosecutorial Discretion

Historically, prosecutorial discretion has been exercised not only on an individualized basis but also categorically.98 One of the most widely used categorical forms of prosecutorial discretion is “Extended Voluntary Departure,” which allows classes of people to stay in the United States after a humanitarian crisis, such as a civil war or political upheaval in a home country. Extended Voluntary Departure (EVD) has been granted to nationals from at least fifteen countries.99 EVD was first utilized in 1960, when INS granted it to certain Cubans,100 and it was subsequently used to protect nationals from Chile, Cambodia, Vietnam, Ethiopia, Uganda, and other countries.101 Today, the program is called “Deferred Enforcement Departure” (DED) and is managed by the secretary of homeland security. According to the Congressional Research Service:

The discretionary procedures of DED and EVD continue to be used to provide relief the Administration feels is appropriate, and the executive branch’s position is that all blanket relief decisions require a balance of judgment regarding foreign policy, humanitarian, and immigration concerns. Unlike [Temporary Protected Status], aliens who benefit from EVD or DED do not necessarily register for the status with USCIS, but they trigger the protection when they are identified for deportation. If, however, they wish to be employed in the United States, they must apply for a work authorization from USCIS.102

Immigration “parole” is another discretionary form of relief that has been applied to special groups. Parole has been part of the immigration system for decades and was later codified in the Immigration Nationality Act beginning in 1952.103 When one is “paroled” into the United States, one is permitted into the United States but is treated as if one is “at the border” for immigration purposes.104 Parole is currently defined in the INA as follows:

The Attorney General may . . . in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.105

Although parole has a statutory basis, the agency’s decision to grant parole to groups of people and also to individuals for humanitarian reasons is viewed as prosecutorial discretion. One notable and early example of such parole took place in 1956, when President Dwight D. Eisenhower invoked the parole power to permit thousands of Hungarian “Freedom Fighters” to enter the United States.106 President John F. Kennedy also exercised prosecutorial discretion through parole to allow thousands of Cubans and Hong Kong Chinese to enter the country.107 The need for parole during this time was elevated by the fact that the INA set a relatively small quota for these nationals from these countries (e.g., there were far more Chinese nationals in need of refuge than the maximum number allotted by statute) and the absence of a statutory vehicle for admitting refugees. In fact, both President Eisenhower and President Kennedy pushed Congress to enact refugee-related legislation during their tenures, but in the wake of congressional inaction and the immediate needs faced by the populations targeted for parole, they continued to exercise prosecutorial discretion. As expressed by President Eisenhower at a press conference in January 1957, “The Attorney General will continue to parole Hungarian refugees into the United States until such time as the Congress acts. This action, in my opinion, is clearly in the national interest. It will prevent a stoppage of the flow of these refugees and will permit the United States to continue, along with the other free nations of the world, to do its full share in providing a haven for these victims of oppression.”108

Indeed, the United States has a long history of using parole to protect refugees. In 1980, Congress passed the Refugee Act, creating for the first time a statutory framework for refugees. Specifically, the Refugee Act created an “asylum” process by which persons in the United States could apply for protection and an overseas “refugee” process by which persons outside the United States could apply for similar protection.109 The Refugee Act has been codified in the INA and defines a refugee as someone who has suffered persecution or has a well-founded fear of persecution because of political opinion, nationality, group membership, race, or religion.110 Even after the Refugee Act was enacted by Congress, parole has continued to operate as a powerful tool for permitting individuals and groups to enter and remain in the United States in a tenuous status.111 As described by immigration scholar and former INS General Counsel David Martin, “[P]arole has also been used in hundreds of thousands of cases each year to allow arriving aliens at the port of entry to establish physical presence in the United States, without detention and without the initiation of immigration-court proceedings, even though these persons appear to be inadmissible. Humanitarian parole, granted so that an inadmissible person may receive urgent medical care, for instance, or may be united with a dying relative, furnishes one important example.”112

“Parole in Place” (PIP) is another form of parole that allows people who have not been formally admitted into the United States to become eligible to apply for a green card or “adjust status” while in the United States. While PIP is a remedy that is adjudicated individually on a case-by-case basis, the DHS has used it to protect certain classes, such as family members of U.S. military personnel. The benefits of PIP can be appreciated only with the understanding that typically people who have not been formally admitted or paroled into the United States are ineligible to obtain visas or adjust status (receive a green card) in the United States and instead must travel to a consulate overseas to receive their visa.113 The negative consequence that comes from such travel under the current paradigm is striking because a departure from the United States triggers inadmissibility bars that run from three years to forever. As described by military and immigration expert Margaret Stock, “PIP attempts to avoid the separation of military families by allowing some family members—in meritorious cases only—to adjust their status inside the United States and thereby avoid a lengthy separation that might harm the military member’s morale, readiness, or ability to complete his or her service.”114 On November 15, 2013, USCIS issued policy to clarify the use of PIP for immediate family members of U.S. military members. The memorandum states in part, “The fact that the individual is a spouse, child or parent of an Active Duty member of the U.S. Armed Forces, an individual in the Selected Reserve of the Ready Reserve or an individual who previously served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve, however, ordinarily weighs heavily in favor of parole in place. Absent a criminal conviction or other serious adverse factors, parole in place would generally be an appropriate exercise of discretion for such an individual.”115 In reality, PIP is a form of prosecutorial discretion.

“Deferred action” serves as a final illustration of how the agency has used different forms of prosecutorial discretion to protect classes of people. In 2005, the USCIS announced deferred action for select foreign academic students affected by Hurricane Katrina.116 In 2009, USCIS announced deferred action for the widows of U.S. citizens for two years.117 In an official press release, DHS Secretary Napolitano is quoted as saying: “Granting deferred action to the widows and widowers of U.S. citizens who otherwise would have been denied the right to remain in the United States allows these individuals and their children an opportunity to stay in the country that has become their home while their legal status is resolved.”118 Deferred action has also been used to protect victims of domestic abuse, sexual assault, and other crimes.119 The Violence Against Women Act (VAWA) was enacted by Congress in 1994 and amended three times to include statutory remedies for abused spouses, parents, and children; victims of crimes and domestic abuse; and victims of human trafficking.120

The historical use of prosecutorial discretion as a tool for protecting victims and others is detailed in chapter 4. The examples identified in this chapter are not exhaustive but demonstrate how the immigration agency has long used prosecutorial discretion and the authority under the INA to protect classes of people temporarily. They also illustrate how prosecutorial discretion has been used to shelter classes of people, many of whom were later protected by legislation.