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“Imagine” the Improbable: John Lennon, the Supreme Court, and the Resurrection of Prosecutorial Discretion in Immigration Cases

July 03, 2023 (7 min read)

Angelo A. Paparelli, June 30, 2023

"Many happy thoughts and feelings collided in my mind and heart as I read the June 23, 2023 decision of the Supreme Court in U.S. v. Texas.

Pleasant Surprise. Few would have imagined that a coalition of conservative and liberal justices would agree that federal immigration authorities are endowed with largely unreviewable discretion to overlook comparatively minor immigration offenses committed by otherwise law-abiding noncitizens as the authorities choose to focus scarce enforcement resources on bad actors who threaten our security and safety.

Rejecting the pleas of Texas and Louisiana, the majority held that the courts lack authority to intervene in “one discrete aspect of the executive power—namely, the Executive Branch’s traditional discretion over whether to take enforcement actions against violators of federal law.” The opinion cited a string of relevant cases:

The Executive Branch—not the Judiciary—makes arrests and prosecutes offenses on behalf of the United States. See United States v. Nixon, 418 U. S. 683, 693 (1974) (“the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case”); Printz v. United States, 521 U. S. 898, 922–923 (1997) (Brady Act provisions held unconstitutional because, among other things, they transferred power to execute federal law to state officials); United States v. Armstrong, 517 U. S. 456, 464 (1996) (decisions about enforcement of “the Nation’s criminal laws” lie within the “special province of the Executive” (internal quotation marks omitted)); Buckley v. Valeo, 424 U. S. 1, 138 (1976) (“A lawsuit is the ultimate remedy for a breach of the law, and it is to the President, and not to the Congress, that the Constitution entrusts the responsibility to ‘take Care that the Laws be faithfully executed’” (quoting U. S. Const., Art. II, §3)); see also United States v. Cox, 342 F. 2d 167, 171 (CA5 1965).

That principle of enforcement discretion over arrests and prosecutions extends to the immigration context, where the Court has stressed that the Executive’s enforcement discretion implicates not only “normal domestic law enforcement priorities” but also “foreign-policy objectives.” Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 490–491 (1999). In line with those principles, this Court has declared that the Executive Branch also retains discretion over whether to remove a noncitizen from the United States. Arizona v. United States, 567 U. S. 387, 396 (2012) (“Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all”). (Emphasis added.)

Fond Nostalgia. In the immigration context, the principle of prosecutorial discretion first came to light when immigration authorities tried to deport John Lennon, and separate him from his beloved Yoko. A most clever immigration lawyer, Leon Wildes, discovered through resort to the Freedom of Information Act, the existence of a then-unknown “Nonpriority Program” — which now is understood as “prosecutorial discretion.”

Then a law professor, Shoba Sivaprasad Wadhia (now the Officer for Civil Rights and Civil Liberties within the Department of Homeland Security [DHS]), has recounted that history and the evolution of prosecutorial discretion. (For those who prefer a cinematic experience rather than text, here is a video in which Mr. Wildes describes the case, featuring clips from John and Paul.) So too have several administrative law professors confirmed the legal doctrine of prosecutorial in their amici curiae brief to the Supreme Court in U.S. v. Texas. , as did then Director of U.S. Immigration and Customs Enforcement (ICE), John Morton, in a June 17, 2011 directive which cited numerous earlier agency decisions on point.

Enthusiasm and Excitement. More recent examples of prosecutorial discretion are the September 30, 2021 Memorandum of DHS Secretary Alejandro Mayorkas (the policy Texas and Louisiana unsuccessfully sought to overturn in U.S. v. Texas) which observed:

In exercising our discretion, we are guided by the fact that the majority of undocumented noncitizens who could be subject to removal have been contributing members of our communities for years. They include individuals who work on the frontlines in the battle against COVID, lead our congregations of faith, teach our children, do back-breaking farm work to help deliver food to our table, and contribute in many other meaningful ways. Numerous times over the years, and presently, bipartisan groups of leaders have recognized these noncitizens’ contributions to state and local communities and have tried to pass legislation that would provide a path to citizenship or other lawful status for the approximately 11 million undocumented noncitizens. The fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them.

We will use our discretion and focus our enforcement resources in a more targeted way. Justice and our country’s well-being require it. (Emphasis added.)

Wonderment and Timidity. Will U.S. v. Texas prompt the Supreme Court ultimately to sustain the program for Dreamers known as Deferred Action for Childhood Arrivals (DACA) on substantive grounds? Will the case embolden the Biden Administration to ask Justice Department lawyers to reconsider the DOJ legal opinion suggesting that President Obama lacked the legal authority to create a new executive program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). This blogger is not so courageous as to predict these things will happen; but, my fingers are crossed.

Curiosity. Another now-resurrected memorandum urging the thoughtful exercise of prosecutorial discretion followed the instruction of Secretary Mayorkas — an April 3, 2022 Memorandum of Kerry Doyle authorizing ICE trial attorneys to stipulate to the dismissal of removal proceedings where mitigating factors suggest that certain noncitizens are not enforcement priorities. The Doyle memorandum noted:

[Mitigating] factors may include, but are not limited to, whether the noncitizen is pregnant, postpartum, or nursing; whether the noncitizen is a lawful permanent resident (LPR) (particularly where LPR status was obtained many years ago and/or at a young age); whether the circumstances of a noncitizen’s arrest indicate an underlying discriminatory motive or retaliation for asserting their legal rights; whether the type of criminal conduct committed by a noncitizen has since been decriminalized; and the noncitizen’s status as a cooperating witness or confidential informant or other assistance sought from the noncitizen by, or provided by the noncitizen to, federal, state, local or tribal law enforcement, including labor and civil rights law enforcement agencies.

One strategy not yet widely discussed is for noncitizens whose removal proceedings have been terminated to apply for employment authorization under under 8 CFR § 274a.12(c)(14) which authorizes the issuance of a work permit to a noncitizen “who has been granted deferred action, an act of administrative convenience to the government that gives some cases lower priority, if the alien establishes an economic necessity for employment.” This may not be met with immediate approval but a denial would be considered final agency action and litigation brought under the Administrative Procedure Act could overturn the decision as arbitrary, capricious or otherwise unlawful. Perhaps, U.S. v. Texas may prompt such an outcome for the successfully litigious immigration lawyer. Fingers crossed.

Hope. Among the most interesting prospects to immigration lawyers outside of the deportation context is “adjudicative discretion,” a close cousin of prosecutorial discretion. Adjudicative discretion allows immigration officers to refrain from imposing penalties (such as by denying otherwise-approvable requests for immigration benefits), when extraordinary circumstances arise and a fault-free noncitizen falls out of legal status. This can happen when a work-authorized nonimmigrant is terminated for employment and cannot find a job during the 60-day grace period allowed by regulations, or when an applicant for admission to the U.S. is given a shortened period of admission, i.e., one that is shorter than the customarily authorized period of authorized stay, and unknowingly falls into a condition of unlawful presence and becomes subject to a 3- to 10- year bar on visa issuance and admission to the country.

These provisions are found in agency regulations, such as 8 CFR §§ 214.1(c)(4) and 248.1(b), which allow the restoration of lawful status the discretion of U. Citizenship and Immigration Services (USCIS) if a “failure to file before the period of previously authorized status expired . . . [where] the delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and [USCIS] finds the delay commensurate with the circumstances.”

I co-authored an article on it long ago (“Imagining The Improbable: Extraordinary Immigration Solutions For The Hapless And Hopeless“) and blogged about it here (“Rendering unto the Immigration Caesars“) and here (“Immigration Good Behavior — a Riddle Riddled with Riddles“). Will USCIS officers infer from U.S. v. Texas that refraining from needlessly subjecting hapless out-of-status noncitizens to removal proceedings (where ICE trial attorneys may very well stipulate to dismissals of the cases) is an unwise use of scarce government resources and therefore increasingly exercise adjudicative discretion favorably? One can only hope.

Again, fingers crossed."