Barack Obama’s presidency has been unique in that his administration has been very public about its use of prosecutorial discretion and has received much media attention and controversy. This chapter looks at the role of prosecutorial discretion in immigration matters during Obama’s presidency. It reenacts the arguments from lawyers, policy pundits, select members of Congress and ICE’s own union toward new prosecutorial discretion policies issued during the Obama administration. During this period, DHS issued no fewer than a dozen policy documents about the role of prosecutorial discretion in immigration law. This chapter summarizes some of the most salient of these documents and also analyzes the events that led to the administration’s support and the public’s divide around this topic. Finally, it examines the relationship between the failure of legislative reforms and the impulse for prosecutorial discretion to compensate for that failure.
President Obama took office in 2008 and early on made public announcements about the importance of reforming immigration holistically through “comprehensive immigration reform,” a legislative scheme that in past years has included a statutory update to the family- and employment-based immigration system, a legal pathway for noncitizens to enter the United States in the future on the basis of work or a family relationship, and a registration program enabling individuals and other special populations such as high school students and migrant workers currently in the United States without authorization to come before the government and apply for legal status.1 Even before President Obama was sworn in, he led a transition team that included a swath of immigration experts focused on creating immigration “blueprints” about his priorities as a president. In some ways, previous and unsuccessful cycles of “comprehensive” immigration reform during the preceding years provided President Obama with a rich narrative from which to build a platform for reform, but the support in Congress for such reform was insufficient.2 Early on, Congress did appear poised to move forward on the Development, Relief, and Education for Alien Minors (DREAM) Act, a bill that would have provided legal status to eligible young residents who had been in the United States for an extended period, had finished high school, and had planned to enter college or serve in the military. The DREAM Act would have enabled young people who completed higher education or service in the military to achieve permanent residence in the United States after several years in “conditional” resident status.3 The DREAM Act has been introduced in Congress on many occasions and in the past enjoyed strong support from both political parties. The Obama administration was sufficiently encouraged about the political posture of the DREAM Act that it issued a fact sheet before DREAM Act votes took place in Congress and reportedly made encouraging calls to influential members of political branches in the days prior to the vote.4 Although the House successfully passed the DREAM Act in December 2010, the bill failed a Senate cloture by only five votes.5 Senator Lindsay Graham (R-SC) remarked, “We’re not going to pass the DREAM Act or any other legalization until we secure our borders. It will never be done stand-alone. It has to be part of comprehensive immigration reform.”6
The 2010 failure of the DREAM Act was a blow to the administration and also to thousands of Dreamers who would have benefited from the bill. Coexisting with the loss on the DREAM Act were regular reports that the administration (through ICE) was deporting noncitizens at record levels.7 According to ICE’s own statistics, more than a million and a half people were removed from the United States between 2008 and 2012.8 During this period, immigration policy was sometimes identified as “enforcement on steroids”; the administration was viewed as deporting noncitizens regardless of their equities, rather than implementing a robust prosecutorial discretion policy that placed compelling cases on the back burner. The lack of hope that immigration reform would move forward and anxiety about the record number of deportations during the first term of the Obama administration were well described by Roberto Suro in his segment for “Lost in Detention”: “The possibilities of comprehensive reform have dropped so drastically. I mean, no one thinks that it’s likely to come anywhere close to getting enacted with the current configuration in Washington, so talking about it becomes kind of a meaningless exercise. In the meantime, however, [Obama] has continued the trajectory of aggressive enforcement.”9
Even while the prospects of the DREAM Act were ripe, the Obama administration gave some thought to how the agency could exercise its prosecutorial discretion to protect humanitarian cases from removal. In August 2010, staff members of USCIS circulated an internal draft memorandum outlining potential ways in which the agency could reprieve individuals and certain classes of persons who are ineligible for legal immigration status but who nonetheless exhibit compelling qualities or equities.10 The internal memo stated in part, “In the absence of comprehensive immigration reform, USCIS can extend benefits and/or protections to many individuals and groups by issuing new guidance and regulations, exercising discretion with regard to parole-in-place, deferred action and the issuance of Notices to Appear (NTA), and adopting significant process improvements.”11 In discussing deferred action, that memorandum acknowledged that it could be used as a tool to protect certain individuals or groups from the threat of removal.12 With foresight that may have contributed to the agency’s thinking about the future DACA program, the memo stated: “USCIS can increase the use of deferred action. Deferred action is an exercise of prosecutorial discretion not to pursue removal from the U.S. of a particular individual for a specific period of time. . . . Were USCIS to increase significantly the use of deferred action, the agency would either require a separate appropriation or independent funding stream. Alternatively, USCIS could design and seek expedited approval of a dedicated deferred action form and require a filing fee.”13 The leaked USCIS memo was met with criticism from advocates for immigration restrictions, conservative media pages, and select members of Congress. For example, the Center for Immigration Studies, a restrictionist organization, noted: “Since the administration apparently cannot pull off a congressional vote on a national legalization program, and since it apparently (and appropriately) does not want to rig up a ‘you all come’ near-total administrative amnesty, USCIS feels it must consider a third alternative, a multi-part series of bureaucratic adjustments that will legalize a significant portion of the currently illegal population.”14 The reaction from the National Review Online can be summed up by the title of the article, “The Amnesty Memo,” which read in part, “According to an internal U.S. Citizenship and Immigration Services memo going the rounds of Capitol Hill and obtained by National Review, the agency is considering ways in which it could enact ‘meaningful immigration reform absent legislative action’—that is, without the consent of the American people through a vote in Congress.”15 On the heels of the draft USCIS memo, some members of Congress also criticized the department for its modest exercise of prosecutorial discretion. Notably, in a congressional hearing dated March 9, 2011, Senator Charles Grassley (R-IA) interrogated DHS Secretary Janet Napolitano regarding the internal USCIS memo and the use of prosecutorial discretion.16 The senator identified the document as an “internal amnesty memo” and was troubled by any thinking around administrative relief on a categorical basis. Secretary Napolitano acknowledged the memo but argued that “people in the Department come up with ideas and that is not a bad thing for people to be thinking.”17 The secretary further confirmed that the agency would not be giving deferred action to large groups of people and that such relief could be made only on a case-by-case basis. She also compared DHS’s removal of 395,000 noncitizens in fiscal year 2010 and the fewer than 900 deferred action cases granted during the same period.18 While the response by Secretary Napolitano may have pleased Senator Grassley, her response troubled immigration advocates and attorneys who supported a more expansive use of prosecutorial discretion. For example, the American Immigration Lawyers Association, a seminal private immigration bar, wrote to the secretary: “We are concerned that in your testimony on March 9 before the Senate Judiciary Committee regarding prosecutorial discretion, you highlighted that the number of cases where discretion was favorably exercised was very small, suggesting that your department is discouraging and limiting its exercise.”19 Similarly, the proreform group America’s Voice issued a press statement quoting Frank Sharry, the group’s executive director: “It’s a sad day when the Obama Administration uses deportation statistics from the Bush years as a measure of success. It’s also a sad day when policymakers in Washington, like Senator Grassley, try to bully government officials into being tough for tough’s sake. DHS needs to exercise more discretion in its deportation practices, not less.”20 Likewise, several members of Congress, attorneys, and public advocates took positions supporting the executive branch’s exercise of prosecutorial discretion. For example, on April 13, 2011, twenty-two U.S. senators sent a letter to President Obama urging him to grant deferred action to qualifying DREAM Act students who were not a law enforcement priority to DHS.21 The letter states: “We would support a grant of deferred action to all young people who meet the rigorous requirements necessary to be eligible . . . under the DREAM Act. . . . We strongly believe that DREAM Act students should not be removed from the United States, because they have great potential to contribute to our country and children should not be punished for their parents’ mistakes.”22 The senators were critical of the department’s lack of process for applying for deferred action and the fact that many DREAM Act students were unaware of this form of relief.23 On the heels of this letter, Senator Charles Schumer, a Democrat from New York and chair of the Judiciary Committee, remarked in another letter to DHS:
According to a March 2, 2011 memorandum of John Morton, Director of Immigration and Customs Enforcement, ICE only has the funding to remove 400,000 individuals per year. Given that this entire number can be filled by criminal aliens and others posing security threats, it makes eminent sense to focus ICE’s enforcement efforts on these criminals and security threats, rather than non-criminal populations. On a daily basis, my office receives requests for assistance in many compelling immigration cases. These cases often involve non-criminal immigrants such as: (1) high-school valedictorians and honor students who did not enter the country through their own volition and yet are being deported solely for the illegal conduct of their parents; (2) bi-national same-sex married couples who are being discriminated against based on their sexual orientation who would otherwise be able to remain in the United States if they were in an opposite-sex marriage; (3) agricultural workers who perform back-breaking labor and are providing for their families; and (4) immigrant parents with U.S. citizen children, whose deportation will only lead to increased costs to the states in foster care and government benefits.24
Beyond the halls of Congress, bar associations, journalists, and advocacy groups highlighted the role of prosecutorial discretion. The American Bar Association testified before the Senate Judiciary Committee on May 17, 2011:
Prioritization, including the prudent use of prosecutorial discretion, is an essential function of any adjudication system. Unfortunately, it has not been widely utilized in the immigration context. There are numerous circumstances in which a respondent is not likely to be removed regardless of the outcome of the legal case. The most obvious cases are those where the respondent is terminally ill or is the parent or spouse of someone who is critically ill, but there are other examples where it is clear from the circumstances at the beginning of the process that the interests in removing the respondent will almost certainly be outweighed on humanitarian or other grounds.25
Similarly, the Migration Policy Institute (MPI) highlighted the importance of prosecutorial discretion in a 2011 report describing actions the executive branch could take in the absence of legislative reform.26 Specifically, the MPI report recommended that the government develop a uniform set of enforcement priorities and, in cases of lesser priority, exercise prosecutorial discretion in the form of deferred action with work authorization.27 Also, the ten-thousand-member organization NAFSA: Association of International Educators highlighted the importance of prosecutorial discretion in a May 2011 press release: “We urge President Obama to exercise his executive authority and act now to direct the Department of Homeland Security to implement such a deferred-action policy. This is a matter of humanitarian necessity, and it would represent the kind of national leadership that is needed to move the one-sided, enforcement-first debate about immigration that has so far poisoned prospects for what is ultimately needed—comprehensive reform—in a more fruitful direction.”28 Lawyers and advocates also created practical tools for noncitizens potentially eligible for deferred action. The American Immigration Lawyers Association created practice advisories and advocacy materials on the role of prosecutorial discretion in immigration law.29 The law firms of Duane Morris, LLP and Maggio Kattar P.C. partnered with the immigration clinic at Penn State Law to publish a tool kit addressing private bills and deferred action to help thousands of advocates, Dreamers, and lawyers understand and approach these forms of relief armed with good information and legal strategies.30 Finally, Asian Law Caucus, Educators for Fair Consideration, DreamActivist.org, and National Immigrant Youth Alliance published a resource manual titled Education Not Deportation: A Guide for Undocumented Youth in Removal Proceedings to assist undocumented students in removal proceedings.31 These materials are not exhaustive but are revealing about the faith and investment advocates and attorneys in the immigrant rights movement placed in the remedy of prosecutorial discretion.
Cumulatively, the outpouring of support by members of Congress and stakeholders for prosecutorial discretion, the swelling number of humanitarian cases falling through the cracks, the record number of deportations, a continuing congressional stalemate, and a wave of Dreamers going public about their demands sparked a new emphasis on prosecutorial discretion policy from DHS. The paragraphs that follow summarize the copious guidance documents issued by DHS beginning in 2010 on the subject of prosecutorial discretion.
One memo was issued by ICE in June 2010 and focused primarily on the enforcement priorities of the DHS. Titled “Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens,” the Priorities Memo outlined three priorities. As discussed in chapter 1, prosecutorial discretion functions largely as a management tool for the agency to prioritize its resources effectively and also as a humanitarian one to protect cases involving compelling equities from removal. The economic basis of the Priorities Memo was established in the following prelude: “In light of the large number of administrative violations the agency is charged with addressing and the limited enforcement resources the agency has available, ICE must prioritize the use of its enforcement personnel, detention space, and removal resources to ensure that the removals the agency does conduct promote the agency’s highest enforcement priorities, namely national security, public safety, and border security.”32 The Priorities Memo also included a striking statement that ICE had resources to remove only about four hundred thousand annually, less than 4 percent of the total unauthorized population.33 The three priorities identified in this memo were individuals who (1) pose a public safety risk or danger to society, defined in part by a history of terrorist or criminal activity; (2) recently entered the United States through means other than a valid port of entry or border checkpoint; and (3) have been identified by ICE as remaining in the United States with an outstanding order of removal “or otherwise obstruct immigration controls.”34 By identifying categories of people as priorities, ICE leadership was explaining that enforcement resources would be channeled to the highest priorities. Priority 1 includes “[a]liens who pose a danger to national security or a risk to public safety” and, according to the Priorities Memo, shall be ICE’s “highest immigration enforcement priority” and also covers the following classes:
• Engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security
• Convicted of crimes, with a particular emphasis on violent criminals, felons, and repeat offenders
• Not younger than sixteen years of age who participated in organized criminal gangs
• Subject to outstanding criminal warrants
• Otherwise pose a serious risk to public safety35
The Priorities Memo identified priority 2 as “[r]ecent illegal entrants” and noted, “In order to maintain control at the border and at ports of entry, and to avoid a return to the prior practice commonly and historically referred to as ‘catch and release,’ the removal of aliens who have recently violated immigration controls at the border, at ports of entry, or through the knowing abuse of the visa and visa waiver programs shall be a priority.” Finally, priority 3 was identified as “[a]liens who are fugitives or otherwise obstruct immigration controls” and was described by ICE as follows: “In order to ensure the integrity of the removal and immigration adjudication processes, the removal of aliens who are subject to a final order of removal and abscond, fail to depart, or intentionally obstruct immigration controls, shall be a priority.”36
While a detailed description of these priorities is beyond this chapter, it is worth noting that ICE’s priorities themselves are broadly defined enough to reach individuals with a less serious criminal history, with no criminal history at all, or in some cases without actual knowledge that they are in violation of immigration law. The Priorities Memo included a note about the humanitarian side of prosecutorial discretion by referencing the previous guidance documents like the Meissner Memo and noting that “particular care should be given when dealing with lawful permanent residents, juveniles, and the immediate family members of U.S. citizens.”37 Interestingly, the Priorities Memo was reissued in March 2011 with a new paragraph clarifying that the document creates no right or benefit under law.38 But the Priorities Memo and those that followed failed to explain how a case constituting an enforcement priority would fare if the individual also fell within a class that warrants “particular care and concern.”
In June 2011, ICE issued a document that focused more specifically on the humanitarian reasons for prosecutorial discretion. Titled “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens”39 and nicknamed “Morton Memo” or “Morton Memo I,” the document named nineteen factors ICE should consider in deciding whether prosecutorial discretion was warranted:
• The agency’s civil immigration enforcement priorities
• The person’s length of presence in the United States, with particular consideration given to presence while in lawful status
• The circumstances of the person’s arrival in the United States and the manner of his or her entry, particularly if the alien came to the United States as a young child
• The person’s pursuit of education in the United States, with particular consideration given to those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution of higher education in the United States
• Whether the person, or the person’s immediate relative, has served in the U.S. military, reserves, or national guard, with particular consideration given to those who served in combat
• The person’s criminal history, including arrests, prior convictions, or outstanding arrest warrants
• The person’s immigration history, including any prior removal, outstanding order of removal, prior denial of status, or evidence of fraud
• Whether the person poses a national security or public safety concern
• The person’s ties and contributions to the community, including family relationships
• The person’s ties to the home country and condition in the country
• The person’s age, with particular consideration given to minors and the elderly
• Whether the person has a U.S. citizen or permanent resident spouse, child, or parent
• Whether the person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative
• Whether the person or the person’s spouse is pregnant or nursing
• Whether the person or the person’s spouse suffers from severe mental or physical illness
• Whether the person’s nationality renders removal unlikely
• Whether the person is likely to be granted legal status or other relief from removal, including as a relative of a U.S. citizen or permanent resident
• Whether the person is likely to be granted temporary or permanent status or other relief from removal, including as an asylum seeker, or a victim of domestic violence, human trafficking, or other crime
• Whether the person is currently cooperating or has cooperated with federal, state, or local law enforcement authorities, such as ICE, the U.S. attorneys or Department of Justice, the Department of Labor, or National Labor Relations Board, among others40
The Morton Memo also identified classes of citizens who warrant “particular care” when making prosecutorial decisions.41 These groups were said to include these:
• Veterans and members of the U.S. Armed Forces
• Longtime lawful permanent residents
• Minors and elderly individuals
• Individuals present in the United States since childhood
• Pregnant or nursing women
• Victims of domestic violence, trafficking, or other serious crimes
• Individuals who suffer from a serious mental or physical disability
• Individuals with serious health conditions42
As in the prior memoranda issued by INS and DHS, the Morton Memo listed equities that the agency had long relied upon in determining whether prosecutorial discretion should be exercised favorably. Leon Wildes and I felt so much synergy among the old guidance, the Morton Memo, and our own research that we blogged about it.43 As Wildes and I reflected:
Our research of cases over several years also indicates that the favorable factors articulated in the 1975 Operations Instruction continue to be significant indicators for a favorable grant of prosecutorial discretion. . . . Building on the factors published as a result of the Lennon case, the Morton Memo lists several circumstances that should trigger a favorable exercise of prosecutorial discretion, noting that “particular care and consideration” should be given to long-time green card holders; minors and elderly individuals; those present in the U.S. since childhood; persons suffering a serious medical condition; and victims of domestic violence, trafficking, or other serious crimes; among others. . . . Like with previous memoranda, the Morton Memo highlights the relationship between prosecutorial discretion and ICE’s limited monies to remove the entire unauthorized population, and further concludes that any exercise of prosecutorial discretion is tenuous at best and does not result in a right or benefit to the noncitizen.44
The Morton Memo also listed the adverse factors that should be given “particular care and consideration:”
• Individuals who pose a clear risk to national security
• Serious felons, repeat offenders, or individuals with a lengthy criminal record of any kind
• Known gang members or other individuals who pose a clear danger to public safety
• Individuals with an egregious record of immigration violations, including those with a record of illegal re-entry and those who have engaged in immigration fraud45
The Morton Memo represents the most comprehensive guidance on prosecutorial discretion by the agency in more than a decade and is a welcome addition to the binder of policy documents created by DHS.46 One unresolved issue in the Morton Memo, however, is exactly how the agency should treat a person who both falls within one of ICE’s “civil enforcement priorities” and at the same time brings equities that warrant a positive exercise of discretion. Back in 1976, Leon Wildes could comfortably conclude from his research of 1,843 cases that humanitarian equities drove deferred action grants, even in situations where the individual had a potentially serious criminal history. The same conclusion cannot be drawn from the language of the Morton Memo. DHS must engage the complexity when faced with an individual who both reflects a “civil enforcement priority” and yet possesses a strong equity or a group of compelling factors.
Restrictionists were quick to identify the Morton Memo as “amnesty.”47 The publication of the Morton Memo spurred a new wave of congressional criticism against the agency’s use of prosecutorial discretion and deferred action in particular. On June 23, 2011, Congressman Lamar Smith (who ironically was the same man to take the lead in writing to Attorney General Reno in 1999 in support of prosecutorial discretion, the substance of which was showcased in chapter 2) announced his plans to introduce the HALT (Hinder the Administration’s Legalization Temptation) Act and issued a related “Dear Colleague” letter.48 The HALT Act was introduced in July 2011 in both the House of Representatives and the Senate and, among other provisions, was designed to prevent DHS from granting deferred action as a matter of prosecutorial discretion and “suspend” the handful of discretionary remedies available under the immigration laws for compelling cases.49 The politics behind the HALT Act are plentiful and are illustrated in part by the fact that the bill was set to expire on January 21, 2013, at the end of President Obama’s first term.50 The HALT Act was the centerpiece of the congressional hearing,51 featuring the president of ICE’s Enforcement and Removal Operations union, Chris Crane.52 The fanfare around a bill to “freeze” DHS authority to exercise discretion and opposition by ICE’s own union to the Morton Memo and other agency acts of prosecutorial discretion speak volumes to the controversy that surrounded the Obama administration’s prosecutorial discretion policies. Seventy-five Democratic members of the House of Representatives sent a letter to President Obama critical of Republican efforts to freeze executive branch authority by introducing legislation like the HALT Act.53 At the HALT hearing, Representative Zoe Lofgren (D-CA) expressed her disbelief that Congress would waste so much time on a bill like the HALT Act and pointed to the unintended human consequences if the legislation were enacted.54 Meanwhile, Representative John Conyers (D-MI) characterized the HALT Act as “not an attack on the Presidency but an attack on the President himself.”55
In a series of related events, Senator John Cornyn (R-TX) accused DHS of having a secret policy to dismiss high-priority immigration cases as a matter of prosecutorial discretion after his staff reviewed a series of internal memoranda and emails retrieved by the Houston Chronicle.56 The internal documents were obtained through an FOIA request and included guidance from the Houston Office of Chief Counsel to his attorneys to file motions to “dismiss” in cases that fell outside of ICE’s three stated priorities.57 The Houston Chronicle characterized the policy as a scandal or “secretive review process [that] resulted in the dismissal of hundreds of cases in Houston, most of them involving illegal immigrants who had lived in the United States for years without committing serious crimes.”58 The Houston policy was eventually rescinded under pressure from ICE Headquarters and critics.
On July 5, 2011, House Judiciary Committee Chairman Lamar Smith (R-TX) and Homeland Security Subcommittee Chairman Robert Aderholt (R-AL) sent a letter to Secretary Janet Napolitano chronicling the release of various draft and official agency memoranda on prosecutorial discretion and expressing concerns that these memos were being used to “circumvent Congress and use executive branch authority to allow illegal immigrants to remain in the U.S.”59 On July 13, 2011, and citing the Morton Memo, Orrin Hatch (R-UT), former chairman of the Senate Judiciary Committee, joined Senator Jeff Sessions (R-AL) and four more Republican colleagues in urging ICE to stop trying to “grant administrative amnesty to millions of illegal aliens” and to start enforcing immigration laws.60
Significantly, the administration worked around these politics and in August 2011 announced a plan for implementing the Morton Memo with regard to cases already in the removal system and those set to enter the system. The “announcement” came in August 2011—and was accompanied by an avalanche of documentation from DHS.61 One recurring theme in this avalanche was the identification of the Morton Memo as the “cornerstone” guidance.
Around this time, USCIS issued new policy on how to handle Notices to Appear (NTAs).62 The memo outlined the priorities USCIS would follow in deciding whether or not to issue an NTA or refer a case to ICE. The memo highlighted the significance of using prosecutorial discretion before deciding whether a noncitizen should be placed in the removal system. This new guidance also served as an important reminder that all of the components of DHS (not just ICE) are authorized to issue or file NTAs with the immigration court and in turn exercise prosecutorial discretion favorably at what may be the most important part of the enforcement process. Whereas the power of whether or not to bring civil immigration charges in the criminal context is cabined to the prosecutor as we saw in chapter 3, ICE, USCIS, and CBP literally all act as prosecutors when it comes to deciding whether or not to bring civil immigration charges against a noncitizen.
Notably and more than one year after the Morton Memo had been originally published, ICE issued yet another memo on prosecutorial discretion targeted at same-sex couples.63 Referencing the category of “family relationships” identified in the Morton Memo, the Family Memo remarks,
Same-sex relationships that rise to the level of “family relationships” are long-term, same-sex relationships in which the individuals—
• are each other’s sole domestic partner and intend to remain so indefinitely;
• are not in a marital or other domestic relationship with anyone else; and
• typically maintain a common residence and share financial obligations and assets.64
Even before the guidance, the White House had indicated that the Morton Memo encapsulates all family relationships, including same-sex ones. But the “family relationships” guidance is more explicit about the breadth of family under the Morton Memo.65 Before the U.S. Supreme Court’s decision in the United States v. Windsor in which the Defense of Marriage Act was found unconstitutional, many same-sex couples involving at least one noncitizen relied on prosecutorial discretion in order to stay together and avoid removal. The chronology that began with the absence of a statutory remedy for recognizing same-sex couples under immigration law and was followed by a specific prosecutorial discretion policy by the agency to address these cases fits squarely within the thesis of this book and the “third” theory of prosecutorial discretion, to act as a stop-gap measure while legislation is pending.
While the Obama administration was successful in producing more memoranda on prosecutorial discretion during its tenure than had previous administrations, immigration advocates were critical of the effectiveness with which these memoranda were implemented. For example, the proimmigration reform group America’s Voice remarked, “For thousands of immigrant families throughout the nation, the policies outlined in the prosecutorial discretion memo are not merely words on a page—they are a lifeline for keeping families intact. The guidance in the memo includes the common-sense rationale that mothers and fathers whose sole violations are tied to their desire to be with their families should be treated differently than serious criminals. However, the unfortunate truth is that even under this new policy, loving families continue to be separated.”66 Similarly, the Fair Immigration Reform Movement published a report assessing the implementation of the Morton Memo one year later and found that noncitizens with compelling equities continued to be targets for deportation. In one story reported by the Fair Immigration Reform Movement,
Marvin came to this country from Guatemala twelve years ago when he was still only a teenager. Marvin’s life now revolves around his five-year old daughter Madelyn, a U.S. Citizen. Marvin and his wife, Leslie, have been married since 2009 and are active members of their church. In October 2011, Marvin was stopped by a police officer and detained because he didn’t have a driver’s license because it is illegal for him to obtain one. Marvin has now been in detention for seven months; his daughter and wife are suffering emotionally and financially without Marvin at home with them. With two U.S. Citizen sisters as well as his daughter, his strong ties to his community, and many years here, Marvin is also a clear example of the kind of person and family for whom the prosecutorial discretion policy was supposed to provide relief. But ICE continues to keep him from his family and try to deport him.67
The public stories about how DHS failed to exercise prosecutorial discretion were compelling, and matched by striking statistics about the actual number of people benefiting from the new policies. According to one group of statistics ostensibly produced by DHS, ICE reviewed 219,554 pending removal cases as part of the August 2011 prosecutorial discretion plan, of which 6,544, or 7.5 percent, were identified as amenable for prosecutorial discretion as of April 16, 2012.68 The DHS statistics also revealed that 20,608 out of the 232,181 nondetained cases reviewed by DHS had been “offered” prosecutorial discretion. Within this subset, 4,363 cases had been administratively closed or dismissed.69 The DHS statistics also showed that ICE reviewed about 56,180 detained cases and identified less than 1 percent, or forty of these cases, as amenable to a grant of prosecutorial discretion, likely in the form of release from detention and/or support for a motion to administratively close or dismiss the case.70 Curiously, and without specifying whether the individual was detained or not, the same data set revealed that nearly four thousand individuals had declined an offer of prosecutorial discretion.71 Presumably these individuals rejected the offer based on advice from a lawyer and/or because they were eligible for formal relief before an immigration court such as defensive asylum or cancellation of removal.72 This type of relief is typically available only before an immigration judge, so individuals would prefer not to have their immigration cases dropped or dismissed. Imagine an individual from Iran placed in removal proceedings following charges connected with a visa overstay but who exhibits strong facts in support of a claim for asylum based on political persecution. Offering such an individual an unopposed or joint motion to administratively close her case is misplaced to the extent that she potentially qualifies for the more secure remedy of asylum before an immigration judge.
The DHS statistics were met with strong criticism by immigration advocates and the media. The American Immigration Lawyers Association reported, “The prosecutorial discretion initiative has failed. . . . DHS has reviewed 288,000, a paltry 1.5 percent of the cases were actually granted discretion, and even those were granted only a temporary reprieve, keeping their lives completely in limbo. That’s a very low rate—far less than the percentage that succeed in obtaining relief in court.”73 Similarly, the New York Times declared, “The numbers fall far short of expectations raised among immigrants, including many Latinos, when top administration officials announced they would comb through backlogged court dockets to close cases where the immigrants had strong family ties to this country and no criminal records.”74
Beyond the potentially low number of cases considered for prosecutorial discretion were concerns with the implementation of the Morton Memo.75 DHS appeared to focus only on people in removal proceedings and outside detention. There was little to no information about people who lacked counsel.76 DHS also documented a preference for administrative closure as opposed to other forms such as deferred action, a stay of removal, cancellation of an NTA, and so on.77 Administrative closure comes with limitations because it does not have an independent basis for work authorization, is limited only to people who are already in removal proceedings, and reflects a decision that is ultimately made by the immigration judge, not DHS.78 These measures by DHS were viewed as piecemeal at best and inconsistent with the guidelines depicted by the administration when announcing the Morton Memo and related prosecutorial discretion policy.
Perhaps no other group felt the piecemeal (or perhaps in their view, pitiful) implementation of the Morton Memo than the Dreamers. With the same spirit used in pushing Congress unsuccessfully to pass the DREAM Act, Dreamers pushed the administration to implement a prosecutorial discretion policy to protect them. While the Morton Memo included “residence in the United States since a young age” as a category deserving “particular care and concern,” Dreamers criticized its implementation. The sentiment felt by Dreamers post-Morton can be drawn from the following statement by Dreamer Mandeep Chahal: “While the memo seemed to be on the side of hardworking undocumented immigrants, deportations of young Dreamers and families have not stopped. In fact, DreamActivist, a website devoted to aiding undocumented youth, sends out emails almost daily about new deportation cases involving young immigrants. There has been no real change on the ground in terms of protecting immigrants who were brought to the U.S. as children.”79
On the heels of the criticism about the implementation of the Morton Memo, public pressure from advocates of the DREAM Act, and an authoritative letter sent by ninety-six law professors about the administration’s authority to exercise prosecutorial discretion on a group basis came President Obama’s announcement of Deferred Action for Childhood Arrivals (DACA). Before going into the specifics of the DACA program, a short history about the law professor letter is in order. Eminent law professor and scholar Hiroshi Motomura was approached by DREAM Act activists about crafting a letter outlining the legal authority of the executive branch to exercise prosecutorial discretion favorably on a categorical basis, such as for Dreamers. Motomura drafted a letter that pointed to three specific programs used historically by the immigration agency to grant prosecutorial discretion on a group basis, namely Extended Voluntary Departure, Parole in Place, and deferred action (all three were detailed in chapter 2). The authorities outlined in the letter were obvious to any immigration scholar or historian but carried special weight in a political space where the DREAM Act had failed, the Morton Memo had failed Dreamers, and the administration had earlier stated that it could not exercise prosecutorial discretion on a group basis. Student leaders presented the letter to President Obama at a White House meeting and also held more minor sit-ins in various locations throughout the country to express their demand for a solution by the administration.80 The letter went “viral” after it was delivered to the White House and headlined the New York Times, but perhaps the most important audience it swayed was the administration.
On June 15, 2012, the Department of Homeland Security issued a memorandum in tandem with an announcement from the White House that provides prosecutorial discretion in the form of “deferred action” to certain young people living in the United States without legal status.81 To qualify for DACA individuals must demonstrate that they (1) came to the United States before the age of sixteen as of June 15, 2012; (2) were in the country on June 15, 2012, and had continuously resided in the United States for at least five years; (3) are currently in school, graduated from high school, obtained a general education development certificate, or were honorably discharged from the Coast Guard or Armed Forces; (4) have not been convicted of a felony, significant misdemeanor, or three nonsignificant misdemeanors; (5) are not a threat to national security or public safety; and (6) were not older than thirty-one as of June 15, 2012.82 Within two months, DHS assembled a process by which DACA applicants could submit their application to USCIS and issued guidance like a “Frequently Asked Questions” document for use by applicants and their attorneys. Chapter 7 provides a more expansive take on the transparency that came with the DACA program.
DACA was heralded by immigration advocates as an important (but temporary) remedy after young people turned out in the thousands to reveal their undocumented status and showcase their intellectual promise, and also pressured the White House and the administration to exercise prosecutorial discretion favorably toward them.83 The private bar, law school clinics, and nonprofit organizations mobilized in dramatic ways to serve the potentially hundreds of thousands of individuals who may be eligible for DACA.84 For example, the immigration clinic at the University of Texas School of Law served hundreds of potentially DACA-eligible individuals.85 Likewise, an event organized by the Illinois Coalition for Immigrant and Refugee Rights drew more than two thousand people on the first day of the application period for DACA with a line “snaking through hallways in the Navy Pier event center and down the pier, past a charter yacht and a Ferris wheel and south along Lake Michigan.”86 Moreover, websites organized by Dreamers were replete with information and tools for DACA applicants.87 Finally, organizations collaborated on written practice advisories and tools to complement the information posted by USCIS.88 Through the first quarter of 2014, 638,054 individuals have applied for DACA and 521,815 applications have been approved.89
Despite its successes, DACA faced criticism by some members of Congress, ICE officials, and restrictionists.90 In fact, ten ICE agents filed a lawsuit in federal district court in Texas challenging the legality of the Morton Memo and the DACA program.91 Crane v. Napolitano was eventually dismissed because of a lack of standing,92 but it spoke volumes to the divide even within DHS over the use of prosecutorial discretion. Building on this criticism is a constitutional challenge by law professors Robert Delahunty and John C. Yoo, who argue that the Obama administration has breached its constitutional duty to enforce the immigration laws against individuals eligible under DACA.93 They made this argument not in a courtroom but rather in the University of Texas Law Review.94 Yoo and Delahunty centered their argument on article II, section 3, of the U.S. Constitution (the “Take Care Clause”), which states in part that the president “shall take Care that the Laws be faithfully executed.”95 Specifically, they argue that the Obama administration’s DACA program is a violation of the president’s duties under the Take Care Clause because under DACA the president is failing to enforce the immigration statute. This argument is misplaced and based on a flawed understanding of immigration and constitutional law. Importantly, the president’s faithful execution of the immigration laws is not just limited to bringing enforcement actions against individuals and ultimately deporting them but also includes prioritizing the deportable population in a cost-effective and conscientious manner and providing benefits to deportable noncitizens when they qualify for them.96 Delahunty and Yoo fail to identify the numerous sources of authority for prosecutorial discretion in immigration law. The Supreme Court has reviewed the roles of prosecutorial discretion in the administrative, immigration, and criminal law contexts. Likewise, as we saw in chapter 4 the U.S. Congress has affirmed the role of prosecutorial discretion in immigration law. In language identifying the evidence that would be required for proving lawful status for purposes of a federally recognized state driver’s license or identification card, Congress explicitly included “deferred action” as a valid lawful status in the REAL ID Act of 2005.97
Yoo and Delahunty also charge that by creating the DACA program, the Obama administration “effectively wrote into law ‘the DREAM Act.’ ” While it is true that would-be Dreamers bear the equities and qualities that would be traditionally considered under a prosecutorial discretion policy, it is inaccurate to conclude that the DACA program is identical to the DREAM Act. Beneficiaries of the DREAM Act are provided with a secure lawful conditional permanent residence and eventually have the opportunity to apply for permanent status and citizenship. The DREAM Act contains a series of requirements relating to continuous physical presence, good moral character, and age at the time of entry into the United States.98 Significantly, the DREAM Act requires noncitizens to show that they bear no significant criminal history and are “not inadmissible” under the INA. By contrast, DACA results in no lawful status, no path to permanent residency, and no means of qualifying for U.S. citizenship.99
The political dust of prosecutorial discretion briefly settled because of the debates on comprehensive immigration reform. For example, many of the immigration advocacy groups and attorneys who previously invested their time and resources to conduct workshops and legal clinics on DACA or engaged with agency officials to recommend generous interpretation of the ambiguous terminology used in the agency’s DACA guidance, rechanneled some of this advocacy and education toward comprehensive immigration reform. Following the November 2012 presidential election and reality that 10 percent of voters were Hispanic, advocates believed they had greater leverage to demand a long-term legislative solution to immigration.100 Indeed, a new legislative debate was sparked and in 2013 resulted in the passage of a thousand-plus-page bill in the Senate that would holistically repair the broken immigration system.101 Meanwhile, Senator Marco Rubio (R-FL) inaccurately warned his colleagues that if Congress fails to act President Obama may attempt to legalize the entire undocumented population by executive order.102 Furthermore, House Judiciary Chairman Bob Goodlatte (R-VA) has “gone off the rails” over DHS’s sensible exercises of prosecutorial discretion and continued to advance an antireform legislative agenda.103 The chatter about prosecutorial discretion appeared quieter as immigration reform legislation took center stage in 2013.
Pressure from immigration advocates and communities on the administration to expand its prosecutorial discretion policy was renewed in early 2014 when the prospects for immigration legislation in Congress again waned. Criticism against the administration was further sparked by the accumulated removal numbers during the Obama administration. In March 2014, in response to this criticism and during the completion of the manuscript for this book, President Obama indicated that he would review immigration enforcement policies.104 As this manuscript goes to print and the window for comprehensive immigration reform in 2014 closes, there remains a possibility that the administration will announce a prosecutorial discretion policy aimed at undocumented people residing in the United States.