Consider Sara Martinez, 47, whose daughter is an American citizen. Since arriving from Ecuador, Ms. Martinez has paid her taxes, learned English and never broken a law, according to the New York Immigration Coalition, which has taken up her case. In January 2011, she was on a bus in Rochester with her daughter when three border patrol agents asked her for identification. She could produce only her Ecuadorean passport, and was arrested. She has applied to Immigration and Customs Enforcement for prosecutorial discretion three times and been denied, without explanation, even though she meets new criteria for such discretion: she has close ties to the community and is not a threat to public safety. Ms. Martinez’s six-year-old daughter has suffered from nightmares, had trouble sleeping and eating and expressed fear that the “police” will come again and take away her mother (who is not in detention while the case is pending) for good.1
For Sara, and an unknown number of other individuals, a prosecutorial discretion “denial” often leads to the noncitizen’s deportation or “removal,” which in turn has been equated to “banishment,” “exile,” and “punishment.”2 In addition to the hardships faced by a noncitizen removed from the United States are potential hardships on the family or community he or she leaves behind, and often the family is forced to move to the country of removal with him or her. Furthermore, absent a waiver, a removal order prevents the noncitizen from returning to the United States or applying for formal immigration benefits or relief from removal for a minimum of five years, and in some cases forever.3 Prosecutorial discretion can alleviate such hardships. Prosecutorial discretion decisions, however, are made daily without publicly available information about the facts behind cases approved, data about cases denied, or concern for the human implications in a regime where such cases have no vehicle for review. The historic lack of transparency of prosecutorial discretion, reports of inconsistent application of discretion from one U.S. region to the next, and the lack of incentives for officers to exercise prosecutorial discretion judiciously cannot be ignored. Judicial review of such decisions has been discouraged, even though the very potential for such review can serve as an important incentive that strengthens the quality of a DHS officer’s decision making and thereby reduces the need for judicial review.
The absence of judicial review can lead to absolute discretion, which Kenneth Culp Davis defines as “[w]hen no other authority can reverse the choice made, even if it is arbitrary and unreasonable.”4 Yet Davis himself concedes that some absolute discretion is inevitable and expresses this inevitability through examples such as an executive pardon and a police officer’s decision to write a ticket.5 Absolute discretion is also an accepted principle in immigration law. In 1889, the Supreme Court interpreted various portions of the U.S. Constitution to give the “political branches” the plenary power to regulate immigration without a check from the judiciary.6 The plenary power doctrine continues to be used to uphold a variety of congressional and executive actions that might be deemed unconstitutional if applied to U.S. citizens. The acceptance of absolute discretion in immigration matters has also been recognized in administrative law through the Chevron doctrine, which basically requires the courts to “defer” to an agency’s interpretation of a statute if the statute itself is ambiguous and the agency’s interpretation is reasonable.7 The theory behind agency deference is reasonable and rests on the idea that the agency (in this case DHS) has specialized knowledge about the rules they administer and enforce. A more detailed analysis about the philosophy of judicial review appears later in this chapter, but the goal here is to provide a context for thinking about the immigration agency’s historical position against judicial review of immigration prosecutorial discretion decisions.The immigration agency’s stance on judicial review has been tied to the legal conclusion that such decisions are committed to the agency’s absolute “discretion” under the Administrative Procedure Act (APA), barred by the immigration statute, and therefore immune from judicial review. Judicial review authorizes courts to review both legislation and executive actions for compliance with the law.8 Two important principles that emerge from the judicial review function are the “rule of law,” or the extent that judges are charged with examining whether particular actions are in compliance with the law, and “separation of powers,” which is recognized by the limits placed on the issues judges hear and the standard they apply even with such review. This chapter examines the role of the judiciary in prosecutorial discretion decisions and argues that as a normative (and possibly legal) matter, certain prosecutorial decisions by the DHS should be afforded judicial review under the standards promulgated under the APA. Over the past decade, the agency has published substantial guidance on prosecutorial discretion, which today contains “more than enough law” by which a federal court could review prosecutorial decisions that are contrary to the agency’s own guidance.9 While an exploration into whether and when selective enforcement of immigration laws can violate a constitutional right is beyond the scope of this book, it should be pointed out that prevailing on such a claim is difficult.10
For more than a decade, the immigration agency has relied on select provisions of the Immigration and Nationality Act, APA, and court opinions applying these provisions to support its position that prosecutorial discretion decisions in immigration matters are immune from judicial review. Specifically, the immigration agency has depended on the conclusions in two Supreme Court decisions, Heckler v. Chaney and Reno v. ADC, to (re)state that prosecutorial actions in immigration law are not susceptible to judicial review.11 As an example, the 2000 Meissner Memo reads:
Courts recognize that prosecutorial discretion applies in the civil, administrative arena just as it does in criminal law. Moreover the Supreme Court “has recognized on several occasions over many years that an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a design generally committed to an agency’s absolute discretion.” Heckler v. Chaney. Both Congress and the Supreme Court have recently reaffirmed that the concept of prosecutorial discretion applies to INS enforcement activities, such as whether to place an individual in deportation proceedings. INA section 242(g); Reno v. American-Arab Anti-Discrimination Committee. The “discretion” in prosecutorial discretion means that prosecutorial decisions are not subject to judicial review or reversal, except in extremely narrow circumstances.12
But it remains uncertain whether every immigration prosecutorial discretion decision is prohibited from federal court review. Once the immigration agency decides to publish policy guidance and publicly announces that it will not pursue particular kinds of enforcement actions against certain individuals, judicial review may be appropriate if the agency has abused its own standards. As documented in chapters 2 and 5, DHS has amassed a reading room of prosecutorial discretion decisions since Reno, which creates a highly meaningful standard against which federal judges could review unlawful decisions.
As described in chapter 2, the Meissner Memo instructed that “[s]ervice 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.”13 The Meissner Memo outlined a generous list of humanitarian factors that officers should consider in making prosecutorial discretion decisions and made broad references to criminal law to explain the legality of such discretion.14 Even after INS was abolished, DHS continued to issue guidance documents on prosecutorial discretion.15 As described in chapter 5, ICE published comprehensive guidance on prosecutorial discretion that identified more than twenty different forms of prosecutorial discretion and several positive equities the agency should consider in making discretionary determinations. Nearly every document created by DHS identified Morton Memo I as the seminal guidance to be followed. Finally, DHS created the Deferred Action for Childhood Arrivals (DACA) program for certain noncitizens who entered the United States before the age of sixteen and were without lawful status on June 15, 2012. The DACA program included specific eligibility criteria, a six-page form, a ten-page set of written instructions about how to fill out the form, a mandatory fee, and reams of internal guidance and public information about how DACA requests would be processed. Together, these new policies coupled with robust procedures and instructions for the DACA program in particular require at least consideration about whether such policies are drawn in specific enough terms to permit judicial review.
The APA is an important source of authority for review immigration prosecutorial discretion decisions that might otherwise be thought immune from judicial review. The APA is a federal statute that allows an individual to sue a federal agency based on an unlawful agency action. An APA lawsuit is normally filed in federal district court. The APA provides review to “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.”16 Section 704 identifies the actions reviewable as “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.”17 The APA was enacted by Congress in 1946 and had four central purposes: (1) to require agencies to keep the public informed of their organization, procedures, and rules; (2) to provide for public participation in the rule-making process; (3) to establish uniform standards for the conduct of formal rule making and adjudication; and (4) to define the scope of judicial review.18
The breadth of judicial review under the APA and a way that it could be used as a tool for immigration prosecutorial discretion review are illustrated by a case from the Supreme Court called Abbott Laboratories v. Gardner. Abbott involved thirty-seven individual drug manufacturers and one pharmaceutical association challenging regulations requiring that labels and advertisements for prescription drugs that bear proprietary names for the drugs or the ingredients carry the corresponding “established name” every time the name is used.19 The petitioners argued that the regulations exceeded the Food and Drug Commissioner’s authority under the statute and were subject to judicial resolution. The government argued that pursuant to the first APA exception, no review was available because the governing food and drug statute includes a special review procedure for some regulations and therefore excluded review of the others. Rejecting the government’s argument, the Court held that judicial review was available under the APA, and that the impact of the food and drug regulations on the petitioners was “sufficiently direct and immediate.”20 The Court noted that “[t]he legislative material elucidating [the APA] manifests a congressional intention that it cover a broad spectrum of administrative actions, and this Court has echoed that theme by noting that the . . . ‘generous review provisions’ must be given a ‘hospitable’ interpretation.”21 This decision indicated that executive decisions thought to be immune from judicial review could in fact be reviewed if the impact was particular.
APA review has further received a “hospitable” interpretation in immigration cases involving a motion to “reopen.” A motion to “reopen” a removal case is a discretionary decision ordinarily made by an immigration court or the Board of Immigration Appeals (BIA) in order to consider new facts or evidence in a removal case where a decision has already been rendered.22 The details about motions to reopen are specified in the immigration regulations, and generally require the applicant to file a written motion and attach supporting documentation.23 The BIA has rendered a number of decisions pertaining to the scope and jurisdiction of motions to reopen.24 Despite the supposedly discretionary nature of such decisions, the Supreme Court has concluded that federal courts have jurisdiction to review denials of motions to reopen deportation proceedings and that such review will be based on an “abuse of discretion” standard.25
In 2010, in Kucana v. Holder, the Supreme Court unanimously held that motions to reopen decisions, made discretionary by the attorney general, remain subject to judicial review.26 The petitioner, Agron Kucana, moved to reopen his removal proceedings based on new evidence in support of his asylum claim.27 The BIA denied his motion to reopen and the Seventh Circuit Court of Appeals held that it lacked jurisdiction to review his case because the INA precludes such review.28 The Supreme Court then granted certiorari to decide whether the preclusion language within INA § 242(a)(2)(B) applied only to determinations made by statute or also to decisions made discretionary through regulations.29 In concluding that the regulation governing motions to reopen may be judicially reviewed, the Court relied upon the long-standing “presumption favoring interpretations of statutes [to] allow judicial review of administrative action,”30 stating: “Any lingering doubt about the proper interpretation of 8 U.S.C. § 1252(a)(2)(B)(ii) would be dispelled by a familiar principle of statutory construction: the presumption favoring judicial review of administrative action. When a statute is ‘reasonably susceptible to divergent interpretation, we adopt the reading that accords with traditional understandings and basic principles: that executive determinations generally are subject to judicial review.’ ”31 While the Kucana decision is limited to the judicial review of discretionary decisions to deny or grant a motion to reopen, the principle expressed by this Court is broader and supports checks and balances over unfettered discretion by the executive branch.
Even if a federal court assumes jurisdiction over DHS prosecutorial discretion decisions, the scope and standard of review are pivotal to correct abuses. If review in a federal court is a means to a favorable outcome for the noncitizen, then it barely matters if courts identify certain prosecutorial discretion decisions within their scope of review but then apply too high of a standard of review. For example, if Maria has standing to file a challenge to a denial by DHS to “cancel” her Notice to Appear or charging document based on documentation that she entered the United States at the age of nine, has three U.S. citizen children, has long-term residence in the United States, and herself suffers from a medical condition that requires regular attention in the United States, a federal court judge may be sympathetic but unable to reverse to remand (send back) a decision to DHS for further review if the standard requires the judge to find that DHS’s factual determination to not cancel the NTA was “clearly erroneous.” The standard outlined in the APA is a bit more flexible than the preceding hypothetical. Section 706 of the APA instructs a reviewing court to set aside agency actions that are “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.”32
The APA standard for judicial review has been applied by numerous federal courts in immigration cases. For example, courts have reviewed whether an immigration adjudicator’s denial of a “continuance” was arbitrary and capricious. A “continuance” is a request that is normally made in writing to an immigration judge with information about the time and date of a removal hearing, preferred dates that a party is available to reschedule such hearing, and reasons why a continuance is desired. The decision to grant or deny a continuance is discretionary and governed by a regulation that states, “The Immigration Judge may grant a motion for continuance for good cause shown.”33 There is no form for such motions, but the Department of Justice’s Executive Office for Immigration Review (EOIR) has published information about continuances in its Immigration Court Practice Manual.34 Similarly, the BIA has interpreted the “good cause” standard.35 For example, a noncitizen defendant in removal proceedings might argue that he or she has just discovered (through a newly hired attorney) that he or she is potentially eligible to a form of relief that was not originally considered at this preliminary hearing. The defendant might request extra time to determine whether he or she meets the eligibility criteria. An immigration judge might determine that discovery of a new form of relief is “good cause” and then grant the motion to continue so the noncitizen can properly evaluate whether he or she is eligible for a new form of relief and then file the appropriate paperwork.
Although the grant of a continuance is within the discretion of the immigration judge, it is well established that the BIA and federal courts do have jurisdiction to review continuance decisions.36 The BIA has further held that it will not reverse a decision to deny a motion to continue a case unless the respondent establishes that the denial materially affected the outcome of the case.37 In Hashmi v. Attorney General of the U.S., removal proceedings were continued several times for petitioner Ajmal Hussain Shah Hashmi while his marriage-based petition (I-130 application) was pending.38 After eighteen months, the immigration judge (IJ) denied another continuance because the case had been pending far longer than the eight-month period suggested by the “case-completion goals” set by the Department of Justice.39 The circuit court found that the IJ’s denial of a motion for a continuance based on case-completion goals rather than on the facts and circumstances was arbitrary and an abuse of discretion.40
The foregoing cases illuminate how “arbitrary,” “capricious,” and “an abuse of discretion” might be applied to prosecutorial decisions in immigration matters. As many of the directives on immigration prosecutorial discretion list multiple factors that an immigration officer should consider in deciding whether or not prosecutorial discretion should be exercised favorably, it is unlikely that a noncitizen who is denied can always meet an “abuse of discretion” or similar standard by arguing that he or she met some of the “positive” factors listed in a particular directive. Even the directives themselves offer enough flexibility to the immigration officer to reject seemingly strong cases.41 On the other hand, some directives like the Morton Memo caution that no one factor is determinative. To the extent that denials of prosecutorial discretion are based upon only one factor or fail to take into account those factors that warrant “particular care and concern” in Morton Memo I, federal court review may be appropriate. For example, if Maria (in the hypothetical case above) can document that DHS failed to take into account some of the humanitarian considerations that the Morton Memo has deemed worthy of “particular care and concern” such as being an individual with a serious medical condition and being present in the United States since she was a child, then she might be in a better position to meet the “abuse of discretion” standard by arguing that DHS failed to follow its own guidelines. Similarly, if Maria happens to have a relatively minor criminal history in the form of a misdemeanor shoplifting conviction from her teenage years and can show that DHS denied her request to cancel a Notice to Appear because of this conviction, she might be in a posture to argue that DHS abused its discretion by singling out one negative factor, ignoring her many positive attributes and denying her prosecutorial discretion.
The preceding section revealed how courts have interpreted the APA to support judicial review of agency decisions. Despite the APA’s strong presumption in favor of judicial review, the APA itself contains an exception to judicial review to the extent that “agency action is committed to agency discretion by law.”42 Below are some of the seminal decisions analyzing the APA’s “committed to agency discretion” exception. In Citizens to Preserve Overton Park v. Volpe, the U.S. Supreme Court considered whether the petitioners had a right to judicial review under section 701 of the APA.43 The petitioners, a group of private citizens and some local and national conservation organizations, argued that the Secretary of Transportation had violated two statutes, the Department of Transportation Act and Federal-Aid Highway Act, by approving the construction of a six-lane highway through a 342-acre city park in Memphis known as Overton Park.44 The statutes prohibited the use of federal funds to build highways through public parks if a “feasible and prudent” alternative route existed.45 The Court held that the secretary’s action was subject to judicial review under the APA and reversed and remanded the case back to the district court to make a proper determination about whether the secretary’s decision that no “feasible and prudent” alternative to a highway through a park was a meaningful determination or an abuse of discretion. Writing for the majority, Thurgood Marshall was clear in the Court’s position that the secretary’s determination about whether a feasible alternative existed was not a discretionary decision immune from court review and resolved that the “committed to agency discretion” limitation under the APA applies only in those rare instances where the particular statutes are so broad that “no law” can be found to apply.46 “Law to apply” may include not only statutory language, but also regulations, policy statements, and memoranda.47 In applying this new standard, the Court held that the “committed to agency discretion” exception did not apply. Following the language of the APA, the Court held that the proper standard of review was whether the action was “ ‘arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law,’ or if the action failed to meet statutory, procedural or constitutional requirements.”48
Another case, Heckler v. Chaney, involved a group of death row inmates challenging the failure of the Food and Drug Administration (FDA) to take various enforcement actions in connection with drugs being used for human execution.49 The Supreme Court construed the exception narrowly, suggesting that review is precluded “in those rare instances” where “the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.”50 The Court found that the FDA’s decision not to prosecute violations under the Federal Food, Drug and Cosmetic Act was unreviewable because such exercises of prosecutorial discretion are “committed to the agency’s discretion.”51 The Court found that an agency’s “decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise.”52 The Court found that the agency’s refusal to act is “only presumptively unreviewable; the presumption may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers.”53 Heckler is distinguishable from the immigration cases that may be reviewable because it focused largely on the agency’s refusal to take an enforcement action, as opposed to the implications of denying prosecutorial discretion and taking an enforcement action.54 The Court took great care in pointing out this distinction when it stated: “In addition to these administrative concerns, we note that when an agency refuses to act it generally does not exercise its coercive power over an individual’s liberty or property rights, and thus does not infringe upon areas that courts often are called upon to protect. Similarly, when an agency does act to enforce, that action itself provides a focus for judicial review, inasmuch as the agency must have exercised its power in some manner.”55 Notably, Heckler has been singled out by the immigration agency as the basis for shielding immigration decisions involving prosecutorial discretion from judicial review.56 However, such a reading does not account for the agency’s amassing of standards around prosecutorial discretion over the past decade, nor does it address situations where the agency diverges from these standards and acts to enforce the law. Today, the standards outlined in Overton Park and Heckler support the premise of this chapter that many of the guidelines identified in directives like Morton Memo I or DACA contain “more than enough law” by which a federal court could review prosecutorial decisions that are contrary to the agency’s own guidance.57
The limitations of the outcome in Heckler are also illustrated by the body of decisions surrounding the review of “affirmances without opinions” by the BIA. The BIA is the highest administrative appellate body in the Department of Justice’s EOIR.58 In 1999, the DOJ issued regulations that enabled the BIA to issue truncated decisions in the form of an “affirmance without opinion” (AWO) for particular cases raised on appeal.59 The BIA’s authority to issue AWOs was expanded in 2002 by a regulation issued by former Attorney General John Ashcroft.60
Following the promulgation of the 2002 regulations, federal circuit courts were flooded with appeals from noncitizens who were given an AWO in lieu of a meaningful review by the BIA. The practical effect of the AWO practice was that federal circuit courts received thousands of appeals challenging the quality and legality of the decisions being made by the immigration courts.61 At the same time, these courts grappled with whether judicial review was available for decisions in which an AWO was issued. In many of these cases, the government relied on Heckler v. Chaney to argue that the BIA’s decision to streamline a particular case was committed to agency discretion and was not subject to judicial review.62 Rejecting the government’s position, the First, Third, and Ninth Circuits found that federal courts have jurisdiction to review AWO procedures in immigration cases.63 To illustrate, in Haoud v. Ashcroft, the First Circuit held: “Here, the Board’s own regulation provides more than enough ‘law’ by which a court could review the Board’s decision to streamline. As 8 C.F.R. § 1003.1(e)(4) sets out supra, the Board cannot affirm an IJ’s decision without opinion if the decision is incorrect, errors in the decision are not harmless or immaterial, the issues on appeal are not squarely controlled by Board or federal court precedent and involve the application of precedent to a novel fact situation, or the issues raised on appeal are so substantial that a full written opinion is necessary.”64 Federal courts have also considered the standards outlined in Heckler to analyze whether the decision to “administratively close” an immigration case is “committed to agency discretion by law.”65 As discussed in the previous chapter, administrative closure is a form of discretion not included in the INA or the governing regulations, but rather has historically been guided by the following passage from Matter of Gutierrez, a precedential decision by the BIA: “Administrative closure of a case is used to temporarily remove the case from an Immigration Judge’s calendar or from the Board of Immigration Appeal’s docket. A case may not be administratively closed if opposed by either of the parties.”66
Significantly, Matter of Gutierrez confused the prosecutorial role of the DHS attorney and the independent discretion of the IJ by giving DHS unilateral power over the administrative closure decisions. On January 31, 2012, the BIA issued an important decision, Matter of Avetisyan, to clarify the independent judgment and discretion of the IJ and posit that IJs may “administratively close [removal proceedings], even if a party opposes, if it is otherwise appropriate.”67 Specifically, the BIA held that
[i]n determining whether administrative closure of proceedings is appropriate, an Immigration Judge or the BIA should weigh all relevant factors, including, but not limited to: (1) the reason administrative closure is sought; (2) the basis for any opposition to administrative closure; (3) the likelihood the respondent will succeed on any petition, application or other action he or she is pursuing outside of removal proceedings; (4) the anticipated duration of the closure; (5) the responsibility of either party, if any, in contributing to any current or anticipated delay; and (6) the ultimate outcome of removal proceedings (for example, termination of the proceedings or entry of a removal order) when the case is recalendared before the Immigration Judge or the appeal is reinstated before the BIA.68
In Alcaraz v. Immigration and Naturalization Service, the court considered whether the BIA erred by failing to administratively close a couple’s removal proceedings because they were eligible for “repapering.”69 The petitioners were married, entered the United States without inspection in 1989, were both employed, and had a U.S. citizen daughter.70 Although the directives governing repapering were subregulatory, in that they were issued in the form of memoranda by INS and EOIR, the court found that the petitioners were potentially eligible for repapering and remanded the cases for further consideration.71 The court highlighted the legal position that agencies may be required by the courts to comply with internal memoranda.72
The court disagreed with the government’s argument that the court lacked jurisdiction to review the case because the INS’s repapering decision was either precluded by the statute under INA § 242(g) or “committed to the agency’s discretion by law” under the exemption in the APA. As to the judicial exemption outlined in section 701(a)(2) of the APA, the court made a reference to Heckler v. Chaney to note that the jurisdictional bar “is applicable in those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply.”73 However, the court found that the discretion of the agency had been legally constrained by the repapering memoranda and guidance issued by INS, and for this reason the statute was not drawn in such broad terms that there is “no law to apply.”74 The court affirmed that the “law” in Heckler’s “no law to apply” corresponds not just to the statute but also to policy memoranda and guides from the agency.75
Distinguishable from this jurisprudence and the ample agency guidance on prosecutorial discretion are a few notable decisions by the Supreme Court that have found an action was “committed to agency discretion under law” and therefore immune to APA review. Webster v. Doe involved an employee terminated under a provision of the National Security Act of 1947 (NSA), which allowed the Central Intelligence Agency (CIA) director “in his discretion” to terminate any employee “whenever he shall deem such termination necessary or advisable in the interests of the United States.”76 The employee was a covert electronics technician and was terminated from his employment after voluntarily informing the CIA that he was a homosexual.77 The employee filed a lawsuit in the federal district court seeking declaratory and injunctive relief alleging violations of the APA and the U.S. Constitution.78 Deciding against the fired employee, the Court found that the decision by the CIA was “committed to agency discretion” because the NSA provision was drawn in such broad terms that it provided no meaningful standard for reviewing the termination reasons.79 Contrast the language contained in the NSA statute allowing for termination of an employee “whenever he shall deem such termination necessary or advisable in the interests of the United States” with Morton Memo I or DACA guidance, which contain a wealth of language about the factors that should be considered when making prosecutorial discretion decisions.80 Morton Memo I runs six pages and lists no fewer than nineteen factors that DHS employees should consider in deciding whether prosecutorial discretion should be exercised favorably while creating a short list of compelling humanitarian situations like “serious health conditions” and serious negative factors like “serious felons” worthy of “prompt particular” care. Moreover, the DACA policy is posted on the website of USCIS and includes an official form, written instructions on how to fill out the form, a processing fee, and a robust list of “Frequently Asked Questions” in five languages. The documents associated with DACA coupled with the specific eligibility criteria spelled out in the policy are so substantial and so obviously different from the single line in the NSA statute.
Indeed, the standards outlined in Morton Memo I and the DACA guidance are more developed than many of the documents that judges have previously concluded contain “more than enough law” to warrant APA review. Together, the intent of the APA to create a judicial review scheme by which agency actions may be “checked,” the jurisprudence in support of judicial review over agency action, and the body of circuit case law reading “committed to agency discretion” narrowly all show that federal courts should have jurisdiction to review select immigration prosecutorial discretion decisions under the APA.81 For example, if twenty-year-old Juanita qualifies for and is able to document the DACA core requirements of having entered the United States before the age of sixteen, graduated from a four-year college, and no having any criminal history or run-in with law enforcement, but then is denied without explanation, Juanita should be able to challenge the DACA denial under the APA because a judge has “more than enough law” in the form of a memorandum from the agency, a “Frequently Asked Questions and Answers” document on the agency website, a multipage form and form instructions, and a related regulation. The judge has ample guidance and information from which to draw a conclusion about whether Juanita’s denial was arbitrary.
The APA restricts judicial review not only for decisions that are “committed to the agency’s discretion,” but also in situations where “statutes preclude judicial review.”82 Accordingly, it is important to examine the Immigration and Nationality Act (INA) for indications that prosecutorial discretion decisions by the immigration agency are foreclosed from judicial review.
A plain reading of the APA would suggest that if a section of the INA specifically precludes judicial review for a particular action, then such actions are unreviewable under the APA as well. As described in chapter 2, Congress made significant changes to the immigration statutes in 1996.83 One change narrowed judicial review in immigration matters and in this spirit included a provision governing judicial review over specific prosecutorial discretion decisions. INA § 242(g) expressly states that no court has “jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision . . . to commence proceedings, adjudicate cases or execute removal orders against any alien under this Act.”84
In Reno v. ADC, the Supreme Court interpreted INA § 242(g) to mean that immigration prosecutorial discretion decisions are immune from judicial review.85 Writing for the majority, Justice Scalia clarified that the bar to judicial review is limited to the three acts included in the statute “to commence proceedings, adjudicate cases or execute removal orders” and made a specific reference to the practice of granting “deferred action.”86 Even though Justice Scalia could have read INA § 242(g) in broad enough terms to capture any immigration prosecutorial discretion decision, he read the statute literally and left the door open for judicial review of decisions falling outside of these three acts “to commence proceedings, adjudicate cases or execute removal orders.” The Court’s narrow interpretation is so significant today because the public has a better understanding about immigration prosecutorial discretion and is better positioned to identify and pursue court review for a variety of immigration prosecutorial discretion decisions that fall outside INA § 242(g), such as (1) deciding to issue a Notice to Appear, (2) opposing a motion to dismiss or administratively close a Notice to Appear, (3) denying a stay of removal, and (4) denying a request for DACA. Similarly, the Alcaraz court (discussed above) considered the statutory prohibitions outlined in INA § 242(g) and clarified by Reno to conclude:
Under [INA § 242(g)], we lack jurisdiction to consider “to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders.” [INA § 242(g)] [emphasis added]. While the second step in the repapering process involves a decision to commence (or “reinitiate”) proceedings, the first step, the administrative closure of proceedings, does not implicate [INA § 242(g)]. The Alcarazes’ repapering claim only raises the issue of administrative closure. Therefore, we are not barred from hearing this claim by [INA § 242(g)].87
In applying the narrow reading of section 242(g) to the full range of actions that encompass prosecutorial discretion, it becomes increasingly clear that decisions that lie outside the three acts listed in 242(g) may be subject to APA review. The analysis demonstrates that in spite of the statutory preclusions of review over a few discrete decisions involving prosecutorial discretion, there are a number of decisions that remain subject to APA review. The June 17 Morton Memo describes the following discretionary enforcement decisions to illustrate the scope of prosecutorial discretion, many of which fall outside the actions outlined in 242(g):
• Deciding to issue or cancel a notice of detainer
• Deciding to issue, reissue, serve, file, or cancel a Notice to Appear
• Focusing enforcement resources on particular administrative violations or conduct
• Deciding whom to stop, question, or arrest for an administrative violation
• Deciding whom to detain or to release on bond, supervision, personal recognizance, or other condition
• Seeking expedited removal or other forms of removal by means other than a formal removal proceeding in immigration court
• Settling or dismissing a proceeding
• Granting deferred action, granting parole, or staying a final order of removal
• Agreeing to voluntary departure, the withdrawal of an application for admission, or other action in lieu of obtaining a formal order of removal
• Pursuing an appeal
• Executing a removal order and
• Responding to or joining in a motion to reopen removal proceedings and to consider joining in a motion to grant relief or a benefit.88
Notable but not necessarily critical to the analysis is the fact that some of the examples furnished by Morton Memo I, such as the cancellation of an NTA and a motion to dismiss removal proceedings, are governed by regulations.89 The BIA has further made a distinction between the DHS’s scope of prosecutorial authority before the initiation of removal proceedings and similar decisions made after such proceedings.90
Congress has identified specific discretionary remedies as immune from judicial review as a matter of statute. Specifically, INA § 242(a)(2)(B) precludes judicial review over many of the formal immigration decisions involving a discretionary component such as the criminal waiver of inadmissibility, cancellation of removal, adjustment of status, and “any other decision or action . . . specified under this title to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 208(a).”91 These decisions involve formal immigration remedies that include a discretionary component and are adjudicated by DHS or EOIR depending on the jurisdiction. For example, Francis is a mother of two U.S. children who has lived in the United States for the past twenty years and currently works as a manager at a local bank. If DHS places Francis in removal proceedings before an IJ after charging her with residing and working in the United States without permission, she might pursue a formal application for relief from removal called cancellation of removal. To be eligible for cancellation of removal, Francis would have to establish that she has been physically present in the United States for a continuous period of not less than ten years immediately preceding the date of such application, has been a person of good moral character during such period, has not been convicted of certain criminal offenses and that removal would result in exceptional and extremely unusual hardship to her U.S. citizen children.92 Francis would also have to show that she qualifies for cancellation of removal as a matter of discretion. Cancellation of removal and other formal discretionary remedies specified in INA § 242(a)(2)(B) are different from immigration prosecutorial discretion because the eligibility criteria are typically spelled out in the immigration statute, confer a formal and lawful status for the applicant, and may in some cases result in permanent relief in the form of a green card. By contrast, the eligibility for immigration prosecutorial discretion is not spelled out in the statute, does not confer a lawful status, and cannot be granted by an IJ. Nevertheless, the humanitarian reasons for formal relief like cancellation and tenuous protection like prosecutorial discretion are similar and serve as a reminder for the reasons why judicial review even matters. The broad role of discretion in immigration law was articulated by the Supreme Court in Arizona v. U.S. when it stated, “Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service.”93
Even though some sections of the immigration statute like the one identified above appear to preclude judicial review, another section of the INA was amended in 2005 to give courts of appeal the jurisdiction to review constitutional claims or questions of law in cases related to a final order of removal.94 While this amendment expanded review for certain claims previously barred from judicial review, such as crime-related removals, it is unlikely that INA § 242(a)(2)(D) created a new judicial review forum for prosecutorial discretion decisions. To illustrate, the language limits claims based on constitutional claims or questions of law raised upon a “petition for review,” which is a document traditionally filed after the noncitizen has been ordered removed. By contrast, the actions barred by INA § 242(g) are broader than the review available upon a filing of a petition to review.
One normative question and counterargument to my proposal is whether Congress would have intended to support judicial review of decisions involving prosecutorial discretion when it went out of its way to preclude it for more formal discretionary forms of relief from removal. I am not particularly persuaded by the argument given the ordinary rules of statutory construction,95 and the reasonable case that without APA review prosecutorial discretion decisions are immune from review before any administrative or judicial form. Contrast this with § 242(a)(2)(B), where the decisions themselves are legally reviewable by an IJ and the BIA.
The literature on the role of judicial review over formal immigration decisions is illuminating, and also relevant to understanding the normative benefits of federal court review over prosecutorial discretion decisions.96 These benefits of judicial review are well summarized by immigration scholar Stephen H. Legomsky: “The judicial attributes discussed up to this point, independence and generalist legal knowledge, effectively improve the quality of the decisions that actually are reviewed in court. But judicial review also serves another function, one that operates even in cases that never reach court. The mere possibility that an alien will seek judicial review of an asylum decision encourages the various administrative authorities to study the case carefully and to state their reasoning intelligibly. . . . As a final benefit, judicial review in federal court provides a structure for the gradual development of legal doctrine.”97 Perhaps recognition of judicial review over certain prosecutorial discretion decisions can also lead to higher quality decisions by DHS by creating the kind of internal accountability Professor Legomsky describes. In this way, success of a judicial review scheme that includes certain prosecutorial discretion decisions should not be measured simply by how many people challenge a denial on APA ground or succeed in having a prosecutorial discretion denial set aside and remanded to DHS. Success should also be measured by examining how prosecutorial discretion decisions are improved in the first instance and whether fewer prosecutorial discretion denials are even challenged or set aside in federal court precisely because the availability of judicial review has affected the self-check by a DHS.
Lenni Benson also argues that judicial review may have its “own efficiency value” to the extent that federal courts clarify the meaning of vague statutory terms such as the definition of “aggravated felony.”98 Moreover, Benson describes how federal circuit review over immigration cases provides greater clarity in the changing strategies of the agency prosecutors, the procedural behaviors of the IJs, and the institutional reforms of the administrative process. When courts refine the interpretive tools for applying statutes and implementing procedures, they provide guidance to the agency prosecutors and to the administrative officials. This conversation between the courts and the agencies can help answer the open questions and thus help the system operate more effectively.99
In distinguishing the journey “from here to there,” Benson defines there as a “sound, effective, efficient and manageable method of judicial review.”100 But the here of judicial review cannot be ignored and, according to Benson, represents the “expensive, time-consuming and exponentially expanding reservoir of cases that is our current system.”101 Beyond the monetary costs associated with judicial review is the concern with empowering appointed federal judges with limited immigration expertise to override the decisions made by experts who specialize in immigration. On the other hand, Legomsky has argued that federal courts have the benefit of reviewing the evidence and decisions made by the “expert” immigration agent and have the training to provide legally sound opinions.102 Moreover, there is a concern that noncitizens utilize judicial review in order to delay their deportation.103 However, without specific data about the motivations by noncitizens, “intent to delay deportation” is speculative. It is plausible that most noncitizens choose judicial review in order to exercise a substantive or procedural right under the law. Arguably, cases that are reversed by the federal court or remanded to the BIA would indicate that review is a means to achieving justice or a fair result, not a delay tactic. Legomsky also points to uniformity as a cost to judicial review, meaning that judges can rule differently on cases that present similar facts and, as a consequence, create inequality.104
Judicial review can also have negative consequences on the administrator, especially when the challenge is based on an internal guidance or “subregulatory” guidance as opposed to a rule specified in the statute or regulations. Immigration scholar and former INS General Counsel David A. Martin argues that pushing for enhanced judicial review over subregulatory guidance in immigration matters may cause a reduction of such guidance. As described in an informal electronic communication by Martin:
Judicial review will inevitably reduce transparency by discouraging the promulgation and publication of such guidance. From my perspective as a former central office government lawyer, it’s usually good management and good administration to publish careful guidance. . . . But if the price (from the agency’s perspective) of written guidance is immediate or at least expanded exposure to judicial review, then the agency will cut back on the issuance of written guidance. Much more will be left to case-by-case decisions by individual adjudicators, which can simply obscure from view the important considerations or de facto policies. . . . We don’t always have good administrators, of course, but then we don’t always have good judges. It’s important to structure reforms in a way that doesn’t make life overly burdensome or inflexible (or impossible) for those who are good administrators and who try to change course or improve administration from the inside.105
Professor Martin raises a good point about the negative impact that exposure to judicial review can have on an agency’s future policymaking. Indeed, most thoughtful people would be troubled by a situation where the fear of judicial review causes the agency to repeal its most substantial policies and replace them with something overbroad such as the statute in focus in Webster v. Doe. However, the agency should not be shielded from judicial review as it pertains to prosecutorial discretion decisions because of the possibility for less clear guidance in the future. It may also be the case that the prospect for court review can prompt the administrator to follow its own agency guidance more carefully. Moreover, the focus here is on the body of guidance the agency has actually produced to govern prosecutorial discretion and the possibility that judicial review is appropriate when such guidance is ignored or abused. Morton Memo I was released with great public fanfare, reaffirmed as the “cornerstone” guidance in subsequent policies issued by the agency, and raised in several public meetings with advocates and zorneys. Likewise, the DACA guidance was unleashed at a speech from the president’s Rose Garden and thereafter accompanied by a flurry of memoranda and guidance for the public. Even if one accepts that “ordinary” internal guidance should be shielded from judicial review, Morton Memo I and DACA guidance were no ordinary policy.
Beyond judicial review, federal judges can contribute in meaningful ways to the immigration agency’s use of prosecutorial discretion. Federal judges have weighed in about the immigration agency’s prosecutorial discretion guidance in their opinions. Months following the publication of Morton Memo I and its progeny, Chief Judge Theodore A. McKee issued an important concurrence for the Third Circuit Court of Appeals about prosecutorial discretion.106 The case involved a highly educated software engineer from India who was sponsored for a green card based on a petition from a U.S. employer but who nevertheless was deemed to be subject to the immigration law’s ten-year unlawful presence bar because of a visa overstay.107 While the case itself was rejected based on a classic Chevron deference to the BIA’s earlier position (a position that has since been reversed by the BIA!)108 that pending adjustment applicants who leave the United States and attempt to reenter on “advance parole” are nevertheless subject to the unlawful presence bars, Chief Judge McKee offered the following commentary:
I can only hope that Cheruku will be afforded such review and that the result will be favorable to her. My optimism in that regard is buttressed by a memorandum issued by U.S. Immigration and Customs Enforcement proving guidance to “ICE” law enforcement personnel and attorneys for the exercise of discretion in removing aliens. . . . Some of the discretionary factors that ICE will consider include the person’s criminal history or lack thereof, whether the person is otherwise likely to be granted temporary or permanent status or other relief from removal, and the person’s length of presence in the United States. Although it is certainly not our place to tell an administrative agency how to apply its policies, I do note that it appears that Cheruku would qualify for a favorable exercise of discretion under the new policy given her lack of criminal background, her employer’s desire that she continue working as a software engineer, and her residence in the United States for the last 16 years.109
Chief Judge McKee indeed had “enough law” by which to review how DHS had applied its prosecutorial policies to people like Cheruku, but, leaving that point aside, the case itself should inspire federal judges to take positions on DHS’s use of prosecutorial discretion and question cases that are taking up federal resources by landing in court after a removal order is issued by the agency. Moreover, Chief Judge McKee’s commentary should motivate the DHS to consider the importance of review and ensure that its officers follow the “should” directive embedded in its own prosecutorial discretion guidance.
Beyond the Third Circuit, on February 6, 2012, the U.S. Court of Appeals for the Ninth Circuit published five opinions that ordered DOJ to “advise the court by March 19, 2012, whether the government intends to exercise prosecutorial discretion in [these cases] and, if so, the effect, if any, of the exercise of such discretion on any action to be taken by this court with regard to [these cases].”110 The petitioners in these cases presented strong equities, such as long-term presence in the United States, children who are U.S. citizens, and no criminal record.111
The orders by the Ninth Circuit were not exactly a “review” of prosecutorial discretion but instead a judicial request that the government review the cases in light of Morton Memo I and implementing guidance and return to the court with a decision on prosecutorial discretion. Notably, Judge Diarmuid O’Scannlain issued a dissent in all five cases concluding that the aforementioned memo was “internal guidance,” the judicial branch had limited review over prosecutorial discretion, and the judiciary lacked authority to demand “a preemptive peek into whether and when (and no doubt, before long, why) the executive branch will exercise such discretion.”112 These five decisions raise important questions about the role of the judiciary in decisions involving prosecutorial discretion, because the court was able to encourage DHS to follow its own policy on prosecutorial discretion.113 They also reveal the court’s ability to examine whether or not prosecutorial discretion has been properly exercised and then remand it back to DHS if it feels that a favorable decision is consistent with policy memoranda. As an example, had the Cheruku case functioned as a review of the agency’s prosecutorial discretion decision to place Cheruku in removal proceedings, Judge McKee may have reached a conclusion that this decision was arbitrary and inconsistent with Morton Memo I and consequently should have been set aside and remanded to DHS for further investigation.
Another valuable use of prosecutorial discretion is to reduce the burden on the circuit courts. Perhaps this is one reason why the federal circuit courts have discussed immigration prosecutorial discretion so plentifully and why some courts have taken creative steps to remove sympathetic immigration cases from their dockets. For example, in October 2012, the Second Circuit Court of Appeals announced that it would suspend pending petitions at the circuit for ninety days so that the government could determine whether or not the cases on the circuit’s docket reflected high priorities to the administration or may be worthy of a favorable grant of prosecutorial discretion and removal from the docket. Said Judge Dennis Jacobs: “[I]t is wasteful to commit judicial resources to immigration cases when circumstances suggest that, if the Government prevails, it is unlikely to promptly effect the petitioner’s removal.”114 Likewise, the First Circuit Court of Appeals delayed ruling in a case involving a couple whose son had applied for deferred action under DACA. Judge Michael Boudin detailed the list of equities that applied to the parents and further alluded to his desire that DHS grant prosecutorial discretion: “[B]ecause they are the parents of a young adult who appears to be a strong candidate for deferred action, the government may well wish to avoid splitting up the family by declining to remove them as well. To ensure that they are not removed before the government has time to consider the question, we also stay the mandate for 90 days.”115 In addition to the measures federal circuit courts have taken to motivate the immigration agency to remove “low priority” cases from their dockets, the recognition of APA review for certain prosecutorial discretion denials can reduce the number of cases that are filed with the federal circuit courts in the first place.
This chapter examined the normative arguments about judicial review over immigration decisions, described the standards outlined in the APA and INA for judicial review of agency actions, and applied these standards to a portion of federal circuit court decisions involving administrative discretion to conclude that noncitizens possibly do have a procedural right to challenge a prosecutorial discretion decision by the agency under the APA because there exists “more than enough law” against which a judge can determine whether a decision was rationally made. The implications of an arbitrary denial of prosecutorial discretion are real: “[I]t visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom. That deportation is a penalty—at times a most serious one—cannot be doubted. Meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standards of fairness.”116