U.S. CONST. art. II, § 3, cl. 5.
“[The President] shall take care that the laws be faithfully executed.”
Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163 (1952) (codified as amended in various sections of 8, 18, and 22 U.S.C.).
Also known as the McCarran-Walter Act, the Immigration and Nationality Act of 1952 consolidated existing immigration provisions into one organized body of law, eliminated racial restrictions on immigration and naturalization, and revised the national origin quota system.
Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002) (codified at 6 U.S.C. § 101 (2002)).
In response to the September 11 attacks, Congress enacted the Homeland Security Act on November 25, 2002. The act abolished INS and moved most of its functions to the Department of Homeland Security, charged with protecting the United States from domestic emergencies and with enforcing immigration law and policies.
INA § 103(a), 8 U.S.C. 1103 (2006).
The statutory sections governing the authority of the attorney general in administering and enforcing immigration laws.
INA § 239, 8 U.S.C. § 1229 (2006).
The statutory section governing Notices to Appear.
INA § 240, 8 U.S.C. § 1229a (2006).
The statutory section governing immigration removal proceedings.
8 C.F.R. § 239 (2010).
The agency regulation governing Notices to Appear and cancellation of Notices to Appear.
The agency regulation governing removal proceedings.
8 C.F.R. § 287 (2010).
The agency regulation governing the powers and duties of immigration field officers.
Lennon v. Immigration and Naturalization Serv., 527 F.2d 187 (2d Cir. 1975).
In a footnote, the Second Circuit described the nonpriority program as an “informal administrative stay of deportation.”
Nicholas v. Immigration and Naturalization Serv., 590 F.2d 802 (9th Cir. 1979).
The Ninth Circuit held that the Operations Instruction on deferred action conferred a substantive right for petitioners.
Heckler v. Chaney, 470 U.S. 821 (1985).
The Supreme Court held that the decision of an administrative agency to exercise its discretion to refuse to take certain enforcement actions is “presumptively unreviewable” under the Administrative Procedure Act.
U.S. v. Armstrong, 517 U.S. 456 (1996).
The Supreme Court held that in selective prosecution claims, defendants must show that the government declined to prosecute similarly situated suspects.
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999).
The Supreme Court held that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 precludes federal courts from reviewing the following discretionary actions: the decision to commence proceedings, to adjudicate cases, or to execute removal orders.
(LEGACY) IMMIGRATION AND NATURALIZATION SERVICE, OPERATIONS INSTRUCTIONS, OI § 103.1(a)(1)(ii) (1975)
The now-defunct Operations Instruction on deferred action by the Immigration and Naturalization Service that remained private until the Lennon lawsuit.
Memorandum from Sam Bernsen, General Counsel, Immigration and Naturalization Serv., on Opinion Regarding Service Exercise of Prosecutorial Discretion (July 15, 1976), available at http://www.ice.gov/doclib/foia/prosecutorial-discretion/service-exercise-pd.pdf.
Meissner Memo (2000)
Memorandum from Doris Meissner, Commissioner, Immigration and Naturalization Services, on Exercising Prosecutorial Discretion (November 17, 2000) (on file with author).
Forman Memo (2004)
Memorandum from Marcy M. Forman, Acting Director of Office of Investigations, U.S. Immigration and Customs Enforcement, on Issuance of Notices to Appear, Administrative Orders of Removal, or Reinstatement of a Final Removal Order on Aliens with United States Military Service (June 21, 2004), available at http://www.ice.gov/doclib/foia/prosecutorial-discretion/aliens-us-military-service.pdf.
Howard Memo (2005)
Memorandum from William J. Howard, Principal Legal Advisor, on Exercising Prosecutorial Discretion to Dismiss Adjustment Cases (October 6, 2005), available at http://www.ice.gov/doclib/foia/prosecutorial-discretion/pd-dismiss-adjustment-cases.pdf.
Howard Memo (2005)
Memorandum from William J. Howard, Principal Legal Advisor, on Prosecutorial Discretion (October 24, 2005) (on file with author)
Myers Memo (2007)
Memorandum from Julie L. Myers, Assistant Secretary, on Prosecutorial and Custody Discretion (November 7, 2007) (on file with author).
Vincent Memo (2009)
Memorandum from Peter S. Vincent, Principal Legal Advisor, U.S. Immigration and Customs Enforcement, on Guidance Regarding U Nonimmigrant Status (U visa) Applicants in Removal Proceedings or with Final Orders of Deportation or Removal (September 25, 2009), available at http://www.ice.gov/doclib/foia/prosecutorial-discretion/u-visa-applicants.pdf.
Morton Memo on Pending or Approved Applications or Petitions (2010)
Memorandum from John Morton, Assistant Secretary, U.S. Immigration and Customs Enforcement, on Guidance Regarding the Handling of Removal Proceedings of Aliens with Pending or Approved Applications or Petitions, to Peter S. Vincent and James Chaparro (August 20, 2010), available at http://www.ice.gov/doclib/foia/prosecutorial-discretion/handling-removal-proceedings.pdf.
Morton Memo on Civil Immigration Enforcement (March 2011)
Memorandum from John Morton, Director, U.S. Immigration and Customs Enforcement, on Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens, to All ICE Employees (March 2, 2011), available at http://www.ice.gov/doclib/foia/prosecutorial-discretion/civil-imm-enforcement-priorities_app-detn-reml-aliens.pdf.
Morton Memo I (June 2011)
Memorandum from John Morton, Director, U.S. Immigration and Customs Enforcement, on Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens (June 17, 2011), available at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf.
Morton Memo II (June 2011)
Memorandum from John Morton, Director, U.S. Immigration and Customs Enforcement, on Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs (June 17, 2011), available at http://www.ice.gov/doclib/secure-communities/pdf/domestic-violence.pdf.
USCIS Memo on NTAs (November 2011)
Policy Memorandum from U.S. Citizenship and Immigration Serv. on Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens (November 7, 2011), available at http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/NTA%20PM%20(Approved%20as%20final%2011-7-11).pdf.
Vincent Memo on Case-by-Case Review (November 2011)
Memorandum from Peter S. Vincent, Principal Legal Advisor, U.S. Immigration and Customs Enforcement, on Case-by-Case Review of Incoming and Certain Pending Cases, to All Chief Counsel and Office of Principal Legal Advisor (November 17, 2011), available at http://www.ice.gov/doclib/foia/prosecutorial-discretion/case-by-case-review-incoming-certain-pending-cases-memorandum.pdf.
DACA Memo (2012)
Memorandum from Janet Napolitano, Secretary of Homeland Security, on Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012), available at http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf.
USCIS Parole Memo (2013)
Memorandum Parole of Spouses, Children and Parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and Nationality Act § 212(a)(6)(A)(i) (November 15, 2013) (on file with author).
CRS on Prosecutorial Discretion (2013)
KATE M. MANUEL AND TODD GARVEY, CONG. RESEARCH SERV., R42924, PROSECUTORIAL DISCRETION IN IMMIGRATION ENFORCEMENT: LEGAL ISSUES (2013), available at http://www.fas.org/sgp/crs/misc/R42924.pdf.
CRS Memo on DACA (2013)
Memorandum from Andorra Bruno, Todd Garvey, Kate M. Manuel, and Ruth Ellen Wasem, on Analysis of June 15, 2012 DHS Memorandum, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (July 13, 2012) (on file with author).
Hinder the Administration’s Legalization Temptation Act (HALT Act), H.R. 2497, 112th Cong. (1st Sess. 2011), available at http://www.gpo.gov/fdsys/pkg/BILLS-112hr2497ih/pdf/BILLS-112hr2497ih.pdf.
Hinder the Administration’s Legalization Temptation Act (HALT Act), S. 1380, 112th Cong. (1st Sess. 2011), available at http://www.gpo.gov/fdsys/pkg/BILLS-112s1380is/pdf/BILLS-112s1380is.pdf.
Susan M. Akram and Kevin R. Johnson, Race, Civil Rights, and Immigration Law after September 11, 2001: The Targeting of Arabs and Muslims, 58 N.Y.U. ANN. SURV. AM. L. 295 (2002).
Celesta A. Albonetti, Prosecutorial Discretion: The Effects of Uncertainty, 21 LAW & SOC’Y REV. 291 (1987).
Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law, 61 STAN. L. REV. 869 (2009).
Angela J. Davis, The American Prosecutor: Independence, Power, and the Threat of Tyranny, 86 IOWA L. REV. 393 (2001).
Bruce A. Green and Fred C. Zacharias, Prosecutorial Neutrality, 2004 WIS. L. REV. 837 (2004).
Stephen H. Legomsky, The New Path of Immigration Law: Asymmetric Incorporation of Criminal Justice Norms, 64 WASH. & LEE L. REV. 469 (2007).
David A. Martin, On Counterintuitive Consequences and Choosing the Right Control Group: A Defense of Reno v. AADC, 14 GEO. IMMIGR. L.J. 363 (2000).
Nancy Morawetz, Understanding the Impact of the 1996 Deportation Laws and the Limited Scope of Proposed Reforms, 113 HARV. L. REV. 1936 (2000).
Michael A. Olivas, Dreams Deferred: Deferred Action, Prosecutorial Discretion, and the Vexing Case(s) of DREAM Act Students, 21 WM. & MARY BILL RTS. J. 463 (2012).
Jaya Ramji-Nogales, Andrew I. Schoenholtz, and Phillip G. Schrag, Refugee Roulette: Disparities in Asylum Adjudication, 60 STAN. L. REV. 295 (2007).
Carolyn B. Ramsey, The Discretionary Power of “Public” Prosecutors in Historical Perspective, 39 AM. CRIM. L. REV. 1309 (2002).
Shoba Sivaprasad Wadhia, Business as Usual: Immigration and the National Security Exception, 114 PENN ST. L. REV. 1485 (2010).
Shoba Sivaprasad Wadhia, The Immigration Prosecutor and the Judge: Examining the Role of the Judiciary in Prosecutorial Discretion Decisions, 16 HARV. LATINO L. REV. 39 (2013).
Shoba Sivaprasad Wadhia, My Great FOIA Adventure and Discoveries of Deferred Action Cases at ICE, 27 GEO. IMMIG. L.J. 345 (2013).
Shoba Sivaprasad Wadhia, The Policy and Politics of Immigrant Rights, 16 TEMP. POL. & CIV. RTS. L. REV. 387 (2007).
Shoba Sivaprasad Wadhia, Reflections on Prosecutorial Discretion One Year after the Morton Memo, 2012 EMERGING ISSUES 6417 (June 2012).
Shoba Sivaprasad Wadhia, Response to the Obama Administration, the DREAM Act and the Take Care Clause, 91 TEXAS L. REV. 59 (2013).
Shoba Sivaprasad Wadhia, The Role of Prosecutorial Discretion in Immigration Law, 9 CONN. PUB. INT. L.J. 243 (2010).
Shoba Sivaprasad Wadhia, Sharing Secrets: Examining Deferred Action and Transparency in Immigration Law, 10 U.N.H. L. REV. 1, 34–38 (2011).
Leon Wildes, The Deferred Action Program of the Bureau of Citizenship and Immigration Services: A Possible Remedy for Impossible Cases, 41 SAN DIEGO L. REV. 819, 830 (2004).
Leon Wildes, The Nonpriority Program of the Immigration and Naturalization Service Goes Public: The Litigative Use of the Freedom of Information Act, 14 SAN DIEGO L. REV. 42 (1976).
Leon Wildes, The Operations Instructions of the Immigration Service: Internal Guides or Binding Rules?, 17 SAN DIEGO L. REV. 99 (1979).
ANGELA J. DAVIS, ARBITRARY JUSTICE: THE POWER OF THE AMERICAN PROSECUTOR (2007).
KENNETH CULP DAVIS, DISCRETIONARY JUSTICE: A PRELIMINARY INQUIRY (1969).
DANIEL KANSTROOM, AFTERMATH: DEPORTATION LAW AND THE NEW AMERICAN DIASPORA (2012).
DANIEL KANSTROOM, DEPORTATION NATION: OUTSIDERS IN AMERICAN HISTORY (2007).
DAVID M. REIMERS, STILL THE GOLDEN DOOR: THE THIRD WORLD COMES TO AMERICA (2d ed. 1992).