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Immigration Prosecutorial Discretion and Deportation

May 01, 2014 (4 min read)

Prof. Shoba Sivaprasad Wadhia writes: "Word is out that deportations have peaked during the Obama Administration and the safety valve that remains is prosecutorial discretion.  The New York Times has shed light on the human costs of deportation in an editorial supporting administrative solutions to the immigration paralysis in Congress and a story showcasing the demographics of deportations over the last decade.  While the alarm over families and individuals impacted by high deportations against people with relatively minor offenses has been captured well by the media, the picture painted assumes that the current Administration has failed to exercise prosecutorial discretion judiciously or that deportation numbers are the only problem.  Both assumptions deserve attention.

Prosecutorial discretion” in immigration law refers to the agency’s decision about the degree to which immigration laws should be carried out if at all.  Despite the political risks involved, the Obama Administration offered new policy guidance on prosecutorial discretion, and protected hundreds of thousands of young people through a deferred action program known as Deferred Action for Childhood Arrivals or DACA.  Any fair comparison to the previous Administration should consider the degree to which immigration prosecutorial discretion was even on the table formerly.  In the years that followed September 11, 2001, the agency enforced the immigration laws at all costs, as it rolled out program after program under a proxy of national security.  To illustrate, more than 13,000 Muslim boys were served with deportation papers after voluntarily complying with a “special registration” program that has since been discredited by the Administration.  During this time, any attempt to even raise the agency’s prosecutorial discretion to refrain from serving deportation papers to a young man whose only offense may have been a visa overstay was muted.

The theory behind immigration prosecutorial discretion is humanitarian (people with compelling equities) and also economic (government resources should be managed wisely and target the most dangerous).  These two theories are today well known and were first revealed in connection with the immigration case of music icon John Lennon.  Another theory of prosecutorial discretion is political, and operates when statutory attempts to fix broken immigration laws stall or fail. Historically, immigration advocates become more public and demanding of an Administration to provide a temporary solution using prosecutorial discretion in the wake of such inaction.  Indeed, the current push by immigration advocates to protect thousands more who might qualify for “legalization” under the Senate immigration bill reflects a reaction to humanitarian crisis that has broken families and led to high deportation numbers.  But the crisis originates largely from the paralysis in Congress, not from a lack of compassion by the Obama Administration.

Equally troubling to the number of deportations is the method by which people have been deported.  Of the 368,644 non-citizens deported in 2013, 101,000 people were ejected through expedited removal and 159,624 people were subject to a reinstated final order.   Expedited removal and reinstatement are two programs created by Congress that permit the agency to summarily deport noncitizens without due process.  Remarkably, the majority of people deported in 2013 never saw a court room or immigration judge, and instead were quickly removed by the Department of Homeland Security.  These speed deportations were applied to the very same people immigration advocates demand protection for- primary breadwinners, spouses and parents of United States citizen children.  Possibly, individuals who bear these equities should have the opportunity to present them to an immigration judge as opposed to a DHS.  Enter in prosecutorial discretion.  In cases where DHS has the legal authority to place a person in a speed deportation program like expedited removal, it also has prosecutorial discretion to place this same person in a full court proceeding.  The premise that DHS can exercise discretion by placing such individuals in regular removal proceedings is established by the general principles of prosecutorial discretion, agency memoranda and secondary treatises.  At a minimum, individuals who have equities like a United States citizen child or bear humanitarian or medical needs like long-term care should be given a full court proceeding and the opportunity to apply for relief from removal that he may otherwise be prohibited from seeking.

Beyond the procedural solutions to place individuals in a regular court proceeding are the substantive ones that may include a form of prosecutorial discretion that is more cost-effective (like the decision to refrain from filing charges in the first place) or more beneficial to the noncitizen (like a grant of deferred action).  The act of abstaining from enforcing the immigration law against a person through a favorable exercise prosecutorial discretion can take place at many different stages of the enforcement process, not just the charging stage.  The Department of Homeland Security has a variety of different tools to carry out this discretion.  Notably, the conversation about immigration prosecutorial discretion has been normalized and active, but immigration reform must happen legislatively to result in a long-term solution." - April 2014.