Transparency is an instrument used by government to promote democracy and the government’s own legitimacy.1 Transparency is a challenge, however, because too much of it can reveal information that is sensitive to the national security or the individual; or transparency may prove too costly if it results in reams of regulation and public input during its development or even litigation that would not have taken place. The immigration system is by no means immune to the transparency challenge. This chapter defines transparency and explains why it matters. It also describes the agency’s historical lack of transparency in immigration cases involving prosecutorial discretion.
While the agency has issued several guidance documents about prosecutorial discretion, they have never been treated as binding rules or been accompanied by published statistics or regulations on the method by which one should go about applying for such relief. It may be that the agency’s dependence on memoranda and other guidance documents to set its policy on prosecutorial discretion has contributed to the opaqueness.2 My quest for data on prosecutorial discretion from DHS sheds light on the lack of transparency and efficiency that has pervaded the agency for years. I filed multiple FOIA requests to the DHS subagencies (ICE, CBP, and USCIS) beginning in October 2009, first inquiring about all records and policies pertaining to prosecutorial discretion decisions and later narrowing the request to deferred action cases.3 While the data I received from the agency are detailed in chapter 4, the paragraphs that follow focus on the procedural treasure hunt I undertook to receive data on deferred action, however incomplete. Importantly, many of the challenges I endured in obtaining from DHS linger, notwithstanding the welcome improvements that have taken place as a result of DACA and the policy changes described in chapter 5.
In the case of USCIS, the first data set I received in 2011 was a 270-page document in addition to statistical charts about deferred action.4 The data were variable depending on the office and location, as USCIS did not formally track information about deferred action. It is not possible to conclude that the records I received were complete, nor is it possible to analyze the entirety of what I received because there was a disparity between how the data on deferred action were collected and recorded by each office, if at all. The legible data I received on deferred action came in one of three variations: (1) spreadsheet or chart, (2) Form G-312s Deferred Action Case Summaries, or (3) a written request or memorandum by the applicant or attorney seeking deferred action. Moreover, the data I received came more than one year after my initial FOIA request, and with assistance from the USCIS ombudsman, who agreed to help move my FOIA request along. The inchoate form of the data I received from USCIS and the method by which I received it are consistent with findings of the USCIS ombudsman with regard to transparency and the deferred action program in 2011:
• Stakeholders lack clear, consistent information regarding requirements for submitting a deferred action request and what to expect following submission of the request.
• There is no formal national procedure for handling deferred action requests.
• When experiencing a change in the type or number of submissions, local USCIS offices often lack the necessary standardized process to handle such requests in a timely and consistent manner. As a result, many offices permit deferred action requests to remain pending for extended periods.
• Stakeholders lack information regarding the number and nature of deferred action requests submitted each year; and they are not provided with any information on the number of cases approved and denied, or the reasons underlying USCIS’s decisions.5
My subsequent efforts to obtain information from USCIS about the deferred action program through FOIA in 2013 were slightly more successful. While some of these data are analyzed in chapter 4, they are mentioned again here to highlight the increased transparency from USCIS and efforts made by the FOIA office to provide me with information in a timely manner. The first set of data was a spreadsheet detailing the outcome in 17,040 work permit applications among individuals granted deferred action between June 17, 2011, and June 4, 2013.6 The second set of data was a spreadsheet containing information about the number of individual and renewal deferred action requests made during a four-month period. As described in chapter 4, the second data set profiled 578 deferred action cases with specific information about the person’s nationality, a short reason for why deferred action was being granted or denied, and a few other data points. Absent from the data set were whether a person was represented and specific detail for why a case was granted or rejected. As an illustration, many of the “reasons” provided in the deferred action logs included a single word like “humanitarian” or a specific sentence like “Subject claims to be a victim of an immigration scam. No other extenuating circumstances provided.”7
USCIS also provided a set of policy documents on its deferred action program following a request through FOIA.8 The response included 2012 “Standard Operating Procedures” (SOP) for processing deferred action cases at USCIS field offices, clarification that deferred action is not an “adjudication,” and confirmation that an individual who is denied deferred action will not automatically be placed into removal proceedings or removed from the United States.9
In reflecting on my quest for deferred action information by USCIS, I believe establishing a relationship with the FOIA office at USCIS improved my chances of receiving a response and also allowed for more flexibility at the agency because they would let me know offline whether they were able to practically pull data or whether the data even existed at all. My correspondence with USCIS in between my written FOIA requests allowed me to clarify my request by phone and, if necessary, reduce the scope of my request. Beyond having regular communication by email and telephone with USCIS about my FOIA requests, time and practice improved my requests. In comparing my initial deferred action request to USCIS in October 2009 to the ones I made in 2013, there is more specificity about the data I am requesting, more clarity about how far back I would like the agency to go in pulling certain records, and more disaggregation between a request for policy and a desire for “records” or cases involving deferred action. Finally and importantly, USCIS appears to have also improved its own tracking methodology for deferred action cases. They are able to pull information electronically about deferred action cases that was previously unavailable because the data were not captured.
Unfortunately, USCIS still lacks several tools necessary for making the deferred action program accessible and transparent. Outside of the DACA program, USCIS has not created any kind of form or instructions for the public on individual requests for deferred action. Likewise, there is no way for attorneys or individuals to assess whether a deferred action request has been accepted for processing or rejected because there is no requirement or language from USCIS about how it will handle a deferred action request once it is received or how long the processing will take. Finally, there is no stated list of criteria or body of cases by USCIS about the types of cases it will process for deferred action, nor is there a mechanism for appealing or asking for a reconsideration of a request when a request is denied. In fact, the promulgation of DACA may have only added to the public confusion about the non-DACA deferred action program. To date, the SOP I received through FOIA is the only document accessible to the public on the agency’s policy for non-DACA deferred action. The public should not have to rely on an internal memorandum unearthed by an FOIA in order to access basic information like how or where to apply for deferred action.
In the case of ICE, I initially received a single chart detailing active cases in which deferred action was granted, but the chart was thin on detail about the facts involved in each case, the process by which deferred action was considered, the evidence presented to meet the eligibility for deferred action, and the conditions under which each case was granted. It took a lawsuit and careful deliberation between myself and the opposing party to obtain information, years later, about deferred action cases and stays of removal at ICE.10 ICE itself conceded that it has tracked its own deferred action cases only since fiscal year 2012.11
The data I eventually received from ICE also had some limitations. As described in chapter 4, it appears that the data field in which an ICE officer reports the primary “humanitarian” factor contributing to a grant of or a primary “adverse” factor contributing to a denial of deferred action is limited to one field, meaning that there may have been more than one positive or a combination of positive and negative factors that influenced the outcome of a deferred action cases. Therefore, it was impossible to conclude whether individuals with criminal histories were granted deferred action. Moreover, I was unable to obtain information about who initiated the case, the gender of the applicant, the number of family members, the level of education, whether or not work authorization was granted, whether or not the individual was detained, what stage of enforcement the individual was at when his or her deferred action case was processed (e.g., pre-removal, post-detention, post-removal, etc.), and the length of stay in the United States, among others. Moreover, the ICE data contained no information about the background of the individuals making decisions about the deferred action or stay of removal cases. Insight about adjudicators’ background and experience has contributed to a rich analysis in other immigration studies, but it was utterly lacking in these deferred action cases.12
Likewise, the data appeared to be limited to cases that had been decided, as opposed to those that were still pending or were abandoned. Transparency in the number of cases pending or abandoned could be useful for determining the universe of cases on the agency’s deferred action “docket” during a given period. Moreover, because the data provided by ICE lacked A-numbers or other identification markers, I could not verify if a single applicant submitted multiple applications for deferred action or submitted an application for both deferred action and a stay.
Finally, I was unable to conclude how many cases involved a pro se applicant. According to the data I received from ICE, only 30 of the 3,837 involved a pro se applicant. Out of these 30 pro se cases, 3 of 8 deferred action cases were granted, while 14 of 22 stay cases were granted. The sample size was too small to reach a conclusion about whether individuals proceeding without counsel are more or less likely to prevail in a deferred action case. The data were limited because the actual field ICE uses to record whether or not an applicant is pro se or proceeding without counsel is a nonmandatory field.13 Therefore, it is possible that while only 8 (of 698) deferred action cases were marked as pro se in the data provided by ICE, the number could be much higher. By the same token, it is conceivable that the vast majority of individuals who are processed for deferred action are represented by counsel, seeing as deferred action has historically been an elusive remedy. Deferred action is available only to those individuals with compelling equities and attorneys familiar enough with how the agency handles such cases.14 Another data point ICE was unable to provide was whether a stay or deferred action case was initiated by ICE or the applicant (or his or her attorney). I should also acknowledge that “at least I got something!” Without the information, I would not be in a position to specify what was missing and/or which additional data points would have been helpful.
ICE still faces several transparency challenges with regard to deferred action and its prosecutorial discretion program more generally. Notably, ICE has created several guidance documents about the humanitarian and other factors it will use to determine whether a favorable exercise of discretion is warranted.15 However, there is no indication that the manner in which ICE collects information on deferred action has improved or changed. Moreover, ICE has not created any form for the attorneys or advocates to use in order to request deferred action or any other form of prosecutorial discretion, nor has it articulated the conditions under which one form of prosecutorial discretion may be favored over another. For example, an attorney could pursue deferred action, a stay of removal, or both, for a single case, but lack the tools necessary to know which form to try first. Likewise, there is no way for attorneys or individuals to assess whether a prosecutorial discretion request has been accepted for processing or rejected because there is no requirement about how ICE will handle prosecutorial discretion requests once they are received. Finally, there is a dearth of information by ICE about the guidelines they follow when they are representing the government in removal proceedings. Whereas the decisions by ICE to join or not oppose a motion to terminate, to continue a case, or to close a case all constitute forms of prosecutorial discretion, ICE has not produced any policy about the circumstances under which one motion might be favored over another, if at all. Likewise, there is little guidance from ICE about the situations where it will stipulate to relief or not appeal a case in which the immigration judge has granted the noncitizen relief from removal, two important forms of prosecutorial discretion.
CBP earned the lowest transparency marks. In my earlier work, I speculated that CBP lacked a specific policy about how it executes prosecutorial discretion generally and deferred action in particular.16 My FOIA experience also suggests that CBP lacks data about prosecutorial discretion grants or denials.17 The closest data resembling prosecutorial discretion relate to the number of Notices to Appear issued by CBP over a two-year period.18 In response to an FOIA request made by the Penn State Law’s Center for Immigrants’ Rights to CBP about the rate and circumstances under which Notices to Appear are issued, cancelled, or filed, CBP turned over more than a thousand pages of information detailing the issuance of Notices to Appear during fiscal years 2011 and 2012.19 The data included information about the country of citizen and entry date and time in the United States for each individual. The FOIA response also included a brief discussion about CBP’s “policy” on NTAs and referenced its Border Patrol Training guidance. However, the response lacked any information about CBP’s use of prosecutorial discretion when issuing or preparing NTAs or indication of how many NTAs were never issued or filed because of a prosecutorial discretion.
In addition, CBP provided documents to the American Immigration Lawyers Association (AILA) in response to an FOIA request for CBP policies around the exercise of discretion. Specifically, CBP provided AILA the following documents: clarification on a 2002 INS “Zero Tolerance Policy” memorandum, factors to consider when exercising discretion and a list of available forms of discretion, a memorandum on the exercise of discretionary authority, policy differences between the exercise of discretion and prosecutorial discretion, and a memorandum outlining CBP’s civil immigration enforcement priorities.20 In the section titled “Prosecutorial Discretion Options,” the CBP memorandum on discretion identified (1) withdrawal of application for admission, (2) voluntary return, and (3) release from detention and issuance of a Notice to Appear as examples.21 The documents provided to AILA were themselves redacted and in some cases outdated, but the receipt of any written information by CBP about its use of discretion was welcome. While CBP’s policies about the use of prosecutorial discretion generally have been largely elusive, some attorneys have come to understand these policies through personal experience. In the experience of one prominent attorney, “CBP exercises prosecutorial discretion by refraining from filing an NTA and admitting a person to the United States or by granting parole or deferred inspection such that the person later qualifies for admission.”22
Even though advocates have been able to squeeze out a few items from CBP, a few dated and redacted policy documents and reams of charts identifying the NTAs do not translate to successful transparency. Attorneys and advocates remain uncertain about the role of CBP in immigration prosecutorial discretion and the guidelines it follows when making related decisions. Moreover, there is a lack of any public information or data from CBP about the forms of prosecutorial discretion it uses or statistics about the individuals who have been considered for such discretion.
Importantly, DHS has taken some important steps to improve transparency in a few areas. To illustrate, DHS has offered important and specific information about the requirements and statistics associated with Deferred Action for Childhood Arrivals (DACA).23 As iterated in previous chapters, DACA is a program that enables certain people to apply for deferred action status and work authorization with the USCIS if they meet the following requirements: they entered the United States before their sixteenth birthday; have continuously resided in the United States since June 15, 2007; were in unlawful status and physically present in the United States on June 15, 2012, and at the time of application for DACA; are currently in school or have already graduated; and have not been convicted of a felony, significant misdemeanor, or three other crimes, and are not otherwise a threat to public safety or the national security.24 As with traditional deferred action, a DACA grant provides an individual with protection from removal and a favorable grant of prosecutorial discretion.25 USCIS has created a separate application and work authorization application form for DACA, and has published the processing times for DACA requests on a monthly basis.26 In a never-before-seen format, USCIS has also hosted teleconferences to answer attorneys’ and advocates’ questions about the data or future of DACA,27 and has created a separate webpage featuring “filing tips” for individual requesting DACA.28 Notably, USCIS has been collecting and posting data about DACA applications on a monthly basis. The USCIS data also break down DACA applications by nationality, state residence, and case status.29 The DACA data show that the most represented countries in the DACA program are Mexico, El Salvador, Honduras, and Guatemala.30 Lacking from the publicly available DACA data provided by USCIS are the reasons why cases are approved or denied, and information about whether the individual has representation. USCIS has also shared its internal policy guidance on DACA following an FOIA request made in October 2012. The FOIA request was transferred to DHS and resulted in a response dated March 2013 and totaling 459 pages.31 The document provided the internal training modules and policy guidance used by DHS to implement DACA and notably has served as a public reference for practitioners and potential applicants. While the data on DACA are by no means comprehensive, these efforts are groundbreaking in their transparency and provide an opening for considering the ways in which the agency can and should track data about deferred action more generally.
USCIS has also been more transparent about its policy about the circumstances under which it will exercise discretion during the NTA process. USCIS issued a robust memorandum on November 7, 2011, articulating the circumstances under which an NTA would be issued or referred to ICE for further consideration.32 Titled “Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens,” the NTA policy was aimed at informing interested parties about the various categories for NTA issuance and achieving coordination and consistency with ICE’s own prosecutorial discretion policy. Elaborating on this policy and in response to an FOIA request by Penn State Law’s Center for Immigrants’ Rights and the American Bar Association Commission on Immigration, USCIS produced its internal policy on the issuance of NTAs in addition to select charts containing data on the number of NTAs issued during fiscal years 2011 and 2012. The data set totaled 193 pages and illustrated more than twenty kinds of cases for which NTAs were issued by USCIS. In fiscal year 2012, 43,845 NTAs were issued, and many cases involved green card, asylum, and credible fear candidates.33 Importantly, the documents provided by USCIS articulated a prosecutorial discretion policy for NTAs, noting that “USCIS has the prosecutorial discretion when deciding to issue, serve or file Form I-862, Notice to Appear.”34 Furthermore, the FOIA-produced guidance explains that people with a pending or approved USCIS application that may lead to permanent residence, those under the age of eighteen, and noncitizen spouses of those in the U.S. Armed Forces constitute “humanitarian factors” for which prosecutorial discretion should be exercised. The USCIS documents identify six steps that adjudicators must take if an NTA should not be issued, and also requires a prosecutorial discretion memorandum to be placed in the file of the affected individual.35
Beyond its efforts to improve transparency in a few discreet areas associated with prosecutorial discretion, DHS has created a new platform for requesting information through FOIA.36 The new platform allows individuals to make requests electronically on a standardized form to various DHS components, including USCIS and ICE. The FOIA website for DHS also includes additional visual and text-based examples for how to check the status of an FOIA request and the kinds of information that are exempt from FOIA, among other items. DHS and USCIS in particular should be recognized for improving transparency about specific prosecutorial discretion topics such as DACA and NTAs. Likewise, the creation of a web-based platform for FOIA may increase the number of requests made by individuals for information about prosecutorial discretion at the immigration agency and lead to greater transparency. However, whether or not the information should be made available without having to go through FOIA is a worthwhile question. Moreover, the lack of transparency around the non-DACA deferred action program and the ongoing dearth of information or guidance from ICE or CBP about seeking prosecutorial discretion reveal that there is more to be done.
Transparency advances values that are crucial to the administration of government such as consistency in the outcome of cases that include similarly relevant facts, acceptability by the public, and efficiency in the actual administration of the program.37 Without clear guidelines and transparency about the prosecutorial discretion program, individuals with identical factual circumstances will be treated differently. No agency should tolerate this kind of arbitrary outcome. This sentiment is illustrated in a statement by the CIS ombudsman about deferred action cases at USCIS: “[M]inimal measures, including tracking requests for deferred action and regular review by USCIS headquarters of the requests and the determinations made, would help to ensure that there is no geographic disparity in approvals or denials of deferred action requests and that like cases are decided in like manner. . . . If implemented, this recommendation would make USCIS more efficient by tracking requests for deferred action and helping to ensure consistency in adjudications.”38 “Acceptability” is not so much focused on whether a particular process is in fact fair or acceptable, but rather on whether the procedure is perceived to be fair by members of the public and parties to the process.39 Open rules and procedures about prosecutorial discretion allow people to make reliable plans based on an articulated set of criteria proffered by the agency and over time will result in a body of case law to indicate how these criteria are applied to individual cases.40
“Efficiency” refers to the time and expense invested in a particular process. Professor Roger C. Cramton explains that efficiency “emphasizes the time, effort, and expense of elaborate procedures. The work of the world must go on, and endless nit-picking, while it may produce a more nearly ideal solution, imposes huge costs and impairs other important values.”41 One might think that by keeping the prosecutorial discretion process under wraps, DHS is being more efficient. After all, nearly every form of prosecutorial discretion lacks an official application form, processing fee, system for reviewing denials of prosecutorial discretion, and reporting or data collection requirements. But this secrecy has resulted in negative publicity about the “failure” of prosecutorial discretion, congressional hearings about prosecutorial discretion, and multiple FOIA requests to DHS seeking basic information about the prosecutorial discretion program.42 These costs are significant to DHS and make the prosecutorial discretion program less efficient.
DHS can transcend the transparency challenge by enacting some of the reforms outlined in the final chapter, and recognizing why transparency matters in the long run. The Supreme Court has concluded that “[o]nce an alien enters the country, the legal circumstances change, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent”43 and has furthermore compared deportation to “exile” or “banishment.”44 Transparency about prosecutorial discretion improves the possibility that justice will be served for people whose roots and presence are in the United States.