A Defense of Immigration-Enforcement Discretion: The Legal and Policy Flaws in Kris Kobach’s Latest Crusade

By David A. Martin*, Thursday, 20 December 2012 - "This Essay disputes the legal claims set forth in a recent lawsuit that seeks to invalidate a policy of the Department of Homeland Security.  The policy gives protection against deportation to unauthorized immigrants who came to the country as children, and the Department defends it as an exercise of prosecutorial discretion.  The plaintiffs claim that no such discretion exists, because the Immigration and Nationality Act, as amended in 1996, requires that virtually all aliens who entered without inspection be detained and placed in removal proceedings whenever encountered by immigration agents.  Closely examining the statutory language and drawing on the author’s own extensive involvement as General Counsel of the Immigration and Naturalization Service in the 1996 consideration of legislative amendments and administrative implementation, this Essay makes the case that the plaintiffs’ argument misunderstands both Congress’s intent and consistent agency practice before and after those amendments."

* David A. Martin is the Warner-Booker Distinguished Professor of International Law and Joel B. Piassick Research Professor of Law at the University of Virginia School of Law.  The author served as General Counsel of the Immigration and Naturalization Service from 1995 through 1997 and returned to government service as Principal Deputy General Counsel of the Department of Homeland Security from 2009 through 2010.  The views presented here are the author’s and should not be taken as the views of the Department of Homeland Security or any other government agency.  Thanks go to Andrew Schoenholtz, Nicholas Perry, Paul Virtue, and Michael Wishnie for helpful comments on an earlier draft, and to Jennifer Bryer for excellent research assistance.