Excerpted From: Shoba Sivaprasad Wadhia, Discretion and Disobedience in the Chinese Exclusion Era, 29 Asian American Law Journal 49 (2022) (199 Footnotes) (Full Document)


ShobaSivaprasadWadhiaThis Article examines the use of prosecutorial discretion to protect Chinese subject to deportation following a foundational nineteenth-century Supreme Court immigration law case, known as Fong Yue Ting. Prosecutorial discretion refers to the choice made by the executive branch to refrain from taking immigration enforcement action against a person or group of persons because of limited resources or equities, or both. Government officials and scholars have long pointed to limited government resources as key reasons for why the Executive branch may choose to refrain from arresting, detaining, or deporting a noncitizen or groups of noncitizens. A second theory driving prosecutorial discretion is humanitarian. Noncitizens with specific equities that include economic contributions to the United States, long term residence in the United States, service as a primary breadwinner or caregiver to an American family, or presence in the United States as a survivor of sexual assault are among the reasons the government has used to protect individuals or groups of people. A final reason prosecutorial discretion might persist is as a stop gap to anticipated future legislation. These rationales for prosecutorial discretion are well documented in domestic immigration history, but this Article is the first to trace these dimensions to the Chinese Exclusion era in what may be the greatest untold story of prosecutorial discretion in immigration law.

Part II describes the Chinese Exclusion era and the Supreme Court jurisprudence to emerge from this era. Part III examines the role of prosecutorial discretion in the wake of Fong Yue Ting and challenges the facial argument around “resources” as a basis for prosecutorial discretion. It examines the role humanitarianism and politics played when Chinese were protected. It expands upon a conversation started by Gabriel “Jack” Chin, analyzing the legal history and tension between proponents of the Geary Act, anti-racist views of Congress, and available resources at the executive branch level to deport Chinese. This Part also provides a historical precedent for exercising discretion for a class of people or put another way, for refusing to deport a whole category of people. Part IV examines how acts of civil disobedience relate to the use of prosecutorial discretion with respect to the plaintiffs in Fong Yue Ting, who refused to comply with a law. Part V examines contemporary exercises of prosecutorial discretion and the specific rationales that have informed such discretion. Part VI considers the role of civil disobedience in the modern era and contrasts the political actions taken by the Chinese community in resisting to the Geary Act to the actions taken by undocumented or DACA-mented individuals as well as those who resisted the Muslim and African ban. This Part also sharpens the policy argument to protect political activists through prosecutorial discretion. Part VII examines the role of race in historical exclusions and selective enforcement decisions and explores how racial disparities persist even with a more facially neutral statute. This part identifies the ways immigration enforcement and discretion can be improved to limit racial disparities

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This Article documented some of the earliest uses of prosecutorial discretion in the immigration system and considered how it ties to the modern history and application of prosecutorial discretion. The history documented in the Chinese Exclusion era provides an understanding of the landscape that resulted in the protection of an entire class from deportation. This Article also considered the degree to which civil disobedience informs prosecutorial discretion choices by the government after Fong Yue Ting and its contrast to the way discretion is being (mis)applied to civil disobedience actions by immigrants in the modern era. Finally, this Article analyzed the intersection of race and discretion in the creation and implementation of the Geary Act, contemporary exercises of prosecutorial discretion, and the conditions that cause racial disparities. Understanding the history and texture of prosecutorial discretion in immigration will help provide a foundation for future policy.

Associate Dean for Diversity, Equity, and Inclusion, Samuel Weiss Faculty Scholar, and Clinical Professor of Law at Penn State Law in University Park.