The human impact of U.S. immigration law cannot be overstated. Each person who faces deportation has a story that may include a spouse, children, and parents and deep roots inside the United States. She might be an undocumented mother who is a primary caregiver for a young U.S. citizen daughter who suffers from a life-threatening disease. He may be a teenager who aspires to work as a doctor and who was brought to the United States as a baby without any knowledge about his immigration status. He may be a middle-aged man who has faced hardship in his birthplace and a jail sentence in the United States but whose dream is to provide for his family in the United States and teach his own children about the value of hard work. Deportation can hand these people cruel and unusual fates, which can also damage the souls of those who are left behind. As this book demonstrates, prosecutorial discretion is a powerful sword because it empowers the government to decide this fate for thousands of people and their families.
The Department of Homeland Security should be commended for publicizing its position on immigration prosecutorial discretion under the Obama administration by issuing comprehensive guidance aimed at protecting people who present sympathetic equities. Notably, DHS has gone one step further with DACA by creating a program that is transparent and aimed at protecting young people who satisfy the program’s core elements and in modern times reflect the humanitarian face of the long-standing deferred action program. The administration has also withstood the costs for showcasing its position on prosecutorial discretion and creating DACA, including congressional attempts to repeal its discretionary authority and critiques about the limits of its authority. This criticism lacks a foundation against a rich history of prosecutorial discretion in immigration law over several administrations, but the political risk taken by the Obama administration should be recognized. There is a gap, however, as one considers the impact of the administration’s current prosecutorial discretion policy on the lives of people who remain in the shadows or alternatively are apprehended and eventually deported. Relying on the history and values explored in this book, this chapter identifies recommendations aimed at bridging this gap.
From my point of view, the principal flaw of the government’s immigration prosecutorial discretion policy is a willingness to categorically label people who bear positive qualities, like being the parent of a U.S. citizen and a steadily employed construction worker, as an “enforcement priority” because of an infraction of immigration or criminal law and without regard to the nature of the violation or their equities. DHS must embrace the idea that a person with a criminal or immigration history may still be deserving of relief and explain in more detail how a person’s positive attributes interact with his or her adverse ones. In a context where the criminal code has grown exponentially as illustrated by chapter 3, a congressional stalemate has emerged on immigration reform for yet another year, and the very premise of prosecutorial discretion is to intentionally take no action against people who have violated the law, it is infeasible for DHS to maintain a policy that uses a bright-line test to divide its “enforcement priorities” from those who are worthy of protection from removal. The challenge is that some people who deserve protection as a humanitarian matter are flawed and in some cases even forced to break the law when the immigration laws themselves are broken. While DHS has dutifully published “priorities” guidance describing the people who should be targeted for enforcement action by the agency, these documents fail to define priorities in a way that captures the whole person or prospects of a legislative solution. To illustrate, ICE “priorities” include a breadth of people—those with criminal histories, individuals who recently entered the United States unlawfully, and those who are inside the United States with removal orders.1 Of the 368,644 noncitizens removed by ICE in fiscal year 2013, 151,834 had no criminal history and another 95,453 had criminal convictions involving a misdemeanor or crimes punishable by less than one year of imprisonment.2 Possibly, these individuals had other qualities the agency never learned about or overlooked because they fell within one of the agency’s priorities, which proved to be fatal to any favorable grant of prosecutorial discretion. In fact, some of the people identified as a “priority” for removal by ICE may affirmatively qualify for a legalization program passed by Congress in the future. While DHS memoranda on prosecutorial discretion specify that no one factor is dispositive to a prosecutorial discretion decision,3 the profiles of those removed by ICE,4 anecdotes from immigration advocates and members of Congress about the impact of these removals on families,5 and the absence of any language in the current policy about how and if DHS will navigate the complexity involved in exercising prosecutorial discretion favorably toward people whose flaws are intermingled with otherwise humanitarian factors or equities suggest otherwise. The agency should modify its formula for “priorities” and design it in such a way that a person’s equities are the primary feature of the calculus, and where no one factor is fatal to a prosecutorial discretion decision. This design is in keeping with the humanitarian purpose of immigration prosecutorial discretion and its history.
Historically, DHS has favored decisions for prosecutorial review as early as possible in the enforcement process.6 Among the series of enforcement stages at which DHS may exercise discretion, the pre-removal stages of enforcement, such as whether to arrest a person, whether to issue, cancel, serve, or file an NTA, and whether or not to detain a person, are among the most important during which DHS can exercise prosecutorial discretion to ensure that resources are managed wisely and individuals with strong equities are not subject to isolation from the community, an unfair process, separation from family, or exile to another country. While the guidance from DHS on prosecutorial discretion accurately identifies these “early” enforcement forms of prosecutorial discretion, the guidance itself lacks information about the methods DHS officers can use to improve prosecutorial discretion before an NTA is filed with the immigration court or after removal proceedings have begun. As discovered in one study,7 there appears to be little to no record keeping about the NTAs that are not prepared, perfected, served, or filed as a matter of prosecutorial discretion.8 Echoing the recommendations of that report, which remain unrealized at least publicly, DHS should stop issuing NTAs against lawful permanent residents with strong equities, individuals eligible for a benefit or relief at the USCIS (e.g., U visa applicants), and individuals who bear the qualities and equities outlined in DHS policy.9 Likewise, NTAs should be filed with the immigration court only after a DHS attorney has reviewed and signed the NTA.10 While some interpret stated DHS policy as embracing all of the above recommendations, the transparency challenges outlined in chapter 7 coupled with the anecdotes sprinkled in reports like “To File or Not to File”11 suggest that these early-stage decisions are not being handled consistently or efficiently.
On the other hand, when DHS is presented with a person who qualifies for a type of relief that requires him or her to be in front of an immigration judge, such as cancellation of removal, or with an individual who technically could be issued a swift removal order, like a reinstatement removal order, which is aimed to remove people based on a previous removal order,12 DHS must use the factors listed in existing and hopefully revised policy guidance to file the NTA and procedurally place the individual into a removal hearing. For the undocumented individual who is potentially eligible for cancellation of removal, filing an NTA opens the door for her to explain to an immigration judge how her longtime residence, good standing, and compelling hardship to a qualifying relative satisfy her burden for lasting relief.13 For the person who might otherwise be deported rapidly through reinstatement, a filed NTA enables him to see an immigration judge and be afforded a fair hearing and the right to apply for relief like adjustment of status (green card) or asylum.14 DHS must adopt a national policy that confirms through clear guidance and human examples how filing an NTA can serve as a favorable act of prosecutorial discretion.
After the NTA has been filed, DHS should adopt a clear policy for how it handles prosecutorial discretion in removal proceedings before the immigration judge. DHS should issue a policy that allows ICE attorneys to join noncitizens or affirmatively make motions to terminate, administratively close, or continue removal cases while any agency for DHS is processing a request for deferred action or other remedy. The policy should identify the menu of tools DHS may use to exercise prosecutorial discretion during removal proceedings and include not only the various types of motions identified above, but also other actions like a decision to not appeal a case where relief has been granted by the immigration judge. Likewise, if DHS chooses to appeal a decision in which the noncitizen was granted relief by the immigration judge and in custody, ICE must exercise its prosecutorial discretion to release the individual absent exigent circumstances. While EOIR has taken a positive step in issuing a policy about how immigration judges should adjudicate continuances, closures, and terminations in removal cases where DHS has decided to exercise prosecutorial discretion, the policy itself is incomplete because it is limited to cases where such discretion has already been granted, does not address detention, and was published only for EOIR so that it has no virtual or actual application to DHS.15
Noncitizens must be notified about a prosecutorial discretion decision. Like the agency has done with the DACA program, DHS must notify any individual considered for prosecutorial discretion about the receipt and outcome of his or her case. Likewise, if the individual has filed for a specific type of prosecutorial discretion such as a stay of removal, cancellation of an NTA, joint motion to reopen, and so on, DHS must acknowledge the receipt of the request in writing and provide a written decision. The correspondence should also identify the existence and process for any related benefits, such as work authorization. Moreover, it should include an explanation about the limitations of prosecutorial discretion. Finally, a similar letter should be sent to the individual’s attorney, when applicable.
Individuals who allege they have been denied as an abuse of prosecutorial discretion should have a right to review. In particular, judicial review should be available to certain decisions that are “arbitrary, capricious, and an abuse of discretion.” The standard for review could be “abuse of discretion” and, echoing one judge, could be articulated as decisions “made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as an invidious discrimination against a particular race or group.”16 In applying this standard to particular acts of prosecutorial discretion, the standard could be (1) whether the determination to deny prosecutorial discretion represented a change in policy and, if yes, (2) whether DHS had a rational explanation for altering its policy.
The importance of federal court review is not limited to a favorable outcome for the noncitizen; such review ensures that noncitizens denied prosecutorial discretion are given an appropriate “day in court.” The investment DHS has made to ensure that prosecutorial discretion is exercised properly on the front end must be matched on the back end by a review process to protect individuals and families who present compelling equities. Moreover, the opportunity for federal court review may promote the agency’s desire to follow its own guidance on prosecutorial discretion and (re)consider cases in which prosecutorial discretion was denied.17
As an alternative to a judicial review scheme, DHS should consider an administrative review process outside of USCIS, CBP, or ICE. The Office of the Secretary could create an office responsible for reviewing petitions by noncitizens denied prosecutorial discretion who present evidence that the various DHS memoranda on prosecutorial discretion were ignored or misapplied.18 The review process could begin as a pilot, rely on electronic filings, and result in a body of published decisions. Published decisions can improve transparency about the prosecutorial discretion program and, among other benefits, enable noncitizens who proceed through the immigration process without counsel to understand the contours of prosecutorial discretion and the application process.
DHS or an entity outside of DHS should create a professional code of conduct about the prosecution function. The code should create a process whereby public and government employees may file complaints against officers who are alleged to have engaged in prosecutorial misconduct as well as language about the potential repercussions an officer may face for knowingly violating the code. DHS must have an instrument for holding officers accountable when DHS guidance on prosecutorial discretion is not followed. Possibly, this code of conduct should be published in the Federal Register by DHS or an outside government agency. Appropriate sanctions must be applied to officers who systemically deny prosecutorial discretion requests to individuals who fit within the humanitarian criteria outlined in DHS guidance, or who act in a manner that falls outside the newly created code of conduct.
DHS must publish deferred action as a regulation in the Federal Register.19 The regulatory language must recognize both the humanitarian and economic bases for deferred action. The cases analyzed in chapter 4 illustrate how the agency has long used specific criteria to adjudicate deferred action cases, and to enable individuals to avoid removal and reside in a tenuous status within the United States with dignity. Deferred action is the kind of the program that should be subject to “notice and comment” rule making under the Administrative Procedure Act. As an alternative, DHS should consider codifying “best practices” for formulating policy guidance on deferred action.20 DHS’s failure to recognize deferred action as a rule has left noncitizen grantees vulnerable to removal at a future date while preventing a countless number of qualified noncitizens from having knowledge about deferred action.
Rule making would also assist with narrowing the various factors used by adjudicators to determine whether deferred action should be granted. The data on deferred action cases indicate that decisions are based on distinguishable criteria and that a single regulation would only bolster the application of these criteria in like cases, and stave the inevitable abuse of discretion that stems from a system where cases are decided by different officers and without accountability. The benefit of using rules to guide discretionary decisions is not a new argument and has been affirmed by scholars in various other immigration contexts.21
Rule making is also cost-effective. The costs associated with rule making could be recovered by enabling immigration adjudicators to follow a clear rule, since unclear rules foster a longer and more costly adjudications process. Clearer rules on deferred action could also remove the costs associated with documenting every rationale and factor in a particular A-file, or gaining approval from a supervisor before granting deferred action. Implementation of a regulation would not necessarily increase litigation costs but, to the contrary, infuse a level of internal quality control and incentive for immigration adjudicators to apply the rule faithfully.22
Any proposed rule should include information about the scope of deferred action, including the information that it is a temporary benefit available to eligible noncitizens who meet specific criteria and who warrant deferred action as a matter of discretion. Possibly, this rule might include the list of individuals identified in the Morton Memo as “warranting particular care and consideration:”
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 conditions23
Those who are successful in obtaining deferred action should be granted temporary residence for a renewable three-year period, work authorization, and permission to travel for good cause. A grant of deferred action should not lead directly to permanent residency, but neither should it prohibit a grantee from applying for a more permanent legal benefit if he or she is otherwise eligible. The period during which an individual is in deferred action status should be recognized as a lawful status.24 If the regulation on deferred action requires alteration after it is published, DHS should make adjustments to the regulation, “relying on exceptions, time extensions, variances, and waivers.”25
The proposed regulation should be modest in its scope and focus on a fragment of the undocumented population who present compelling equities consistent with the agency’s historical criteria for deferred action. In this way, the goal would not be to create a regulation that grants deferred action to anyone. The political risk and inefficiencies of creating a regulation that broad are high and furthermore may undermine the integrity of the existing deferred action program. Moreover, the breadth of prosecutorial discretion forms analyzed in this book clarify that DHS has other countless tools outside of deferred action to protect people who are or should not be rubber-stamped as an enforcement priority.
The immigration agency has previously expressed reservations about promulgating rules under the Administrative Procedure Act. The best illustration of this was in 1979, when the INS proposed a rule that would have explained the various criteria utilized by officers in determining the discretionary component of “adjustment of status” and other immigration remedies involving a discretionary component.26 Many of these provisions would have required a favorable exercise of discretion in the absence of adverse factors. This rule-making effort was abandoned in January 1981 because INS opined that it could not foresee the universe of discretionary factors that may be present and was concerned about losing its discretionary power.27
The tension described by INS between taking steps to limit arbitrary discretion on one hand and the difficulty of predicting the new or multiple relevant factors on the other is a difficult one, and may explain the reasons why the agency would today hold reservations about publishing a rule on deferred action. Nevertheless, the agency argument that regulatory language providing factors to assess discretionary adjudication would limit its flexibility is unpersuasive. The agency has the ability to craft a rule that both lists criteria and adopts a discretionary component. In fact, there are existing humanitarian-like remedies that operate in this way. For example, cancellation of removal is a remedy codified as a result of the 1996 laws that is available to eligible non-LPRs and LPRs who meet specific statutory requirements such as continuous physical presence and residence in the United States for a specified time period or hardship to a qualifying family member who is a green card holder or U.S. citizen, and cancellation furthermore requires showing that the individual qualifies for relief as a matter of discretion.28
While DHS has done a fine job in implementing the DACA program, there is much left to accomplish with the general deferred action program. DHS should centralize the processing of all deferred action cases at USCIS to promote consistency, uniformity, and efficiency. DHS should create a form for deferred action requests, and require a user fee for processing the form. Consistent with other benefits applications, an applicant who is unable to pay a filing fee should be eligible to fill out a fee-waiver form. The application should be filed at a regional service center. USCIS should provide a written notification of receipt and the outcome to each applicant or his or her attorney. Finally, DHS should specify that enforcement action would not generally be taken against an individual because of information provided in a deferred action application or a denial of such application. Centralizing deferred action processing will enable the agency to publish statistics and track cases more efficiently and consistently.
DHS should make available to the public statistics about all deferred action cases. DHS should provide information about the number of deferred action cases processed, the facts of sample cases, the gender and nationality of the individuals processed, whether or not such cases are initiated by the applicant or the agency, the number of cases granted and denied, descriptions about the reasons for the grant or denial in such cases, whether or not the individual is represented by counsel, and whether or not work authorization was granted. In some cases, this will require DHS to expand the number of data points it collects on deferred action cases. For example, if a case is denied because of a “lack of compelling factors,” the agency should track what factors were lacking and/or provide a short summary of the facts so that supervisors and others reviewing the information can interpret the data in a meaningful way. Such statistics must be made part of the annual statistics published by DHS and also posted on the various websites. Likewise, DHS should consider collecting biographic information about the officers adjudicating deferred action cases. This kind of information would provide a window for the public and the agency about the background of its officers and the extent to which particular experiences influence how cases are handled or perceived. Finally, DHS must publish the training officers receive on deferred action. Cumulatively, collecting and publishing information about the deferred action program will advance transparency and provide the public with tools for measuring efficiency, accuracy, and consistency in deferred action cases.
Some of the proposals outlined above have been adopted by DHS for the DACA program, but they have by no means been expanded to cover non-DACA deferred action and individuals who fall within the new regulation. DHS must commit to using the “best practices” of the DACA program and the tools outlined in this chapter as a blueprint for overhauling and codifying its broad deferred action program.
* * *
As I was readying the final manuscript and about to review page proofs for this book (which was the result of years of laboring in obscurity), it turns out that President Barack Obama on November 20, 2014, shone an exciting, bright light on the issue, by enacting a generous deepening of deferred action and revised guidance on enforcement priorities and discretion. I quickly scrambled to write these two paragraphs in a vain hope that they would serve as a bookmark and placeholder, one to which I will return. But not now, and not in this book, which I have already put to bed. I know that my work is not the last word—not even my own last word—so I will be grateful to have a new chapter on prosecutorial discretion being written in life, as well as at my desk.
President Obama announced a series of executive actions on immigration that dramatically highlight the legal, policy, and political relevance of prosecutorial discretion. These actions include an expansion of the DACA program and the establishment of a new Deferred Action for Parental Accountability (DAPA) program for qualifying parents of U.S. citizens and lawful permanent residents in cases where the parents have resided in the United States since January 1, 2010. These actions also include a new priorities memorandum entitled “Policies for Apprehension, Detention, and Removal of Undocumented Immigrants,” which sets forth refined priorities for immigration enforcement. Effective January 5, 2015, the memorandum also contains a prosecutorial discretion policy that supersedes many of the related memoranda published by former ICE Director John Morton in 2011.
These actions are significant, but they do not involve a concept that is new as a legal or historical matter. Rather, they are consistent with some of the values expressed in this book, especially those related to greater transparency, uniformity, and robust use of the deferred action program. For example, the administration has publicized its new prosecutorial discretion policy and expressed an intention to produce explanations, instructions, and forms as necessary. Likewise, the administration has centralized the expanded DACA and new DAPA program at USCIS and rested the qualifications on largely humanitarian-based factors, such as a close family relationship and long-term residence in the United States.