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Excerpted From: Nicole Hallett, Rethinking Prosecutorial Discretion in Immigration Enforcement, 42 Cardozo Law Review 1765 (September 2021) (296 Footnotes) (Full Document)


NicoleHallettTwo weeks after President Trump took office, Guadalupe Garcia de Rayos was deported. She had crossed the U.S.-Mexico border illegally at fourteen and had lived in the United States for more than two decades. In 2008, she was arrested by immigration authorities and ordered deported by an immigration judge. But Immigration and Customs Enforcement (ICE) did not move to deport her. Instead, Garcia de Rayos had regular check-ins with ICE. It was at one of these check-ins shortly after Trump's inauguration that she was arrested and deported to Mexico, one of the first people deported under the Trump administration's policy of designating every undocumented immigrant a priority for deportation. She left behind her two U.S.-citizen children and the country she had called home for more than half her life.

The U.S. immigration system is broken; almost everyone on all sides of the issue agrees. And yet, we are no closer to comprehensive immigration reform than we were in 2007 and 2013; the last two times such efforts failed in Congress. Instead, the congressional impasse on immigration has emboldened successive administrations to stretch executive power to its limits in attempts to accomplish what Congress either cannot or will not. The result is an immigration policy that swings violently depending on the administration in office. Obama's generous enforcement priorities and creation of programs such as Deferred Action for Childhood Arrivals (DACA), which allowed undocumented immigrants brought to the United States as children to apply for deferred action, is followed by Trump's “zero tolerance” at the border and a crackdown on sanctuary jurisdictions. In his first months in office, Biden has changed course on immigration policy yet again, implementing new priorities for deportation that decrease the number of people that the federal government has prioritized for deportation. Meanwhile, Congress has abdicated its role in trying to fix the system, instead delegating most of its power to the executive branch to decide how to enforce the draconian immigration laws Congress has passed.

Prosecutorial discretion--or the power of the executive to decide when, how, and whether to enforce the law against particular individuals or groups always been a feature of the immigration system and has been a predominant one since at least the 1990s. Like in the criminal justice system, prosecutorial discretion is important both in terms of allocating scarce resources and in mitigating unjust outcomes. But prosecutorial discretion as it is used today in immigration enforcement goes beyond these twin objectives. It has become a tool for a wholesale rewriting of immigration policy to suit the objectives the current administration espouses. There are limits, of course; both the Obama and Trump administrations' immigration policies were subject to extensive legal challenges in the courts. However, the breadth and scope of the laws governing deportation and the heightened power that the executive branch enjoys in the area of immigration has meant that successive administrations have been able to use prosecutorial discretion to accomplish what they could not legislatively.

The record of using prosecutorial discretion to make immigration policy has been mixed at best. It has provided temporary relief to deserving individuals who otherwise would have been deported or forced to live in the shadows, undoubtedly a positive result. On the other hand, this widespread use of prosecutorial discretion has inflicted severe costs. Criminal justice scholars have long recognized that reliance on prosecutorial discretion almost inevitably leads to arbitrary, biased, and unjust results. This is even more so in the immigration context because the system has fewer constitutional safeguards and because the immigration laws themselves are even more capacious and open to interpretation. Moreover, certain features of immigration law, such as the lack of a statute of limitations for most immigration violations, the black-and-white consequences of committing an immigration violation, and the lack of procedural protections for immigrants in removal proceedings make the immigration system uniquely unsuitable for extensive reliance on prosecutorial discretion.

While scholars such as Shoba Sivaprasad Wadhia and Daniel Kanstroom have previously written about the use of prosecutorial discretion in the immigration context, their focus has been primarily on understanding how it has operated and why it has become so important. Less explored is how often these policies have failed to fulfill their humanitarian objectives and how it has given rise to a whole new problem--individuals like Guadalupe Garcia de Rayos and the DACA recipients who remain in limbo indefinitely.

Now is a particularly good time to rethink prosecutorial discretion in immigration enforcement. In June 2020, the Supreme Court struck down the Trump administration's rescission of DACA without resolving fundamental questions about its legality. The Biden administration has restored DACA to its status under the Obama administration, but new legal challenges are looming. Although it is difficult to read the Supreme Court tea leaves, the Regents decision suggests the Court could find a DACA-like program unlawful in the future. Moreover, the Trump administration's attempt to end DACA has revealed just how vulnerable such programs are to revocation by hostile administrations, leaving those affected by these policies in a constant state of limbo.

This Article lays out how past discretion policies have failed and how, given the design of the current immigration system, they were destined to fail. It assumes that prosecutorial discretion will always be a feature of any enforcement system, including the immigration system, and, therefore, it explores ways to design future discretion polices to accomplish the stated goals of such policies' proponents--injecting humanity into an otherwise inhumane system. It does not assume either that comprehensive immigration reform will happen or that it will not. The author is skeptical that comprehensive immigration reform is on the horizon, but such reforms would improve the system, even in the absence of a legislative overhaul. However, it takes a critical eye towards the decision by some immigration advocates and policymakers to invest political capital into expanding prosecutorial discretion rather than on pushing for legislative action. In the end, it concludes that the system itself must change in order for prosecutorial discretion to work the way it should. Implementing these reforms should be a priority of the Biden administration, which takes over at a time when systematic reform of immigration policy has never been more urgent.

[. . .]

Prosecutorial discretion in immigration enforcement is here to stay. Even with legislative reforms, it will remain an important part of a just and humane enforcement regime. Yet, the focus on getting the executive to exercise more and more discretion has largely failed to account for the ways that prosecutorial discretion fails to mitigate unjust outcomes. The best hopes for discretion-based relief--DACA and DAPA--are not the panacea they once appeared to be. And future legal developments may render DACA-like programs incapable of accomplishing the goals its supporters set out to accomplish. If discretion is going to remain a major feature of our immigration policy, we must focus on reforming the system so that discretion works better. Immigrants' rights advocates should be careful about advocating for more discretion in the absence of these structural reforms.

The solutions proposed here may be unsatisfying to some who are pessimistic about the prospect of any legislative reform whatsoever. It may be, however, that some of these reforms would appeal to legislators who are not keen on granting affirmative relief to a large number of individuals in one fell swoop, but who might be open to certain structural reforms that would make the system fairer. Moreover, the alternative--a system overly reliant on discretion that is exercised in an inconsistent, arbitrary, and biased way--is simply not viable. Reformers should work to design a system in which prosecutorial discretion works to advance justice, rather than the opposite.

Associate Clinical Professor of Law, University of Chicago Law School, Director of the Immigrants' Rights Clinic.

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