Immigration

  • January 27, 2016
    BookTalk
    Beyond Deportation
    The Role of Prosecutorial Discretion in Immigration CasesThe Role of Prosecutorial Discretion in Immigration Cases
    By: 
    Shoba Sivaprasad Wadhia (with a Foreword by Leon Wildes)

    by Shoba Sivaprasad Wadhia, author and Samuel Weiss Faculty Scholar at Penn State Law- University Park

    As a law student in summer 1998, I began working for a boutique immigration law firm in Washington D.C., and during my years there met noncitizens from all over the globe seeking refuge from persecution abroad; opportunities to continue research at an internationally renowned institution; and relief from deportation (removal) to remain with their families in the United States; among others. The most compelling cases I handled as lawyer involved prosecutorial discretion (PD), a powerful sword used by the immigration agency (now Department of Homeland Security or DHS) to shield certain people from deportation. I later spent six years with an advocacy organization committed to comprehensive immigration reform but also challenged by the sharp reaction to the terrorist attacks of September 11, 2001, which resulted in many immigration policies with far reaching consequences for Arab, Muslim and South Asian communities and with minimal attention to or understanding for the role of prosecutorial discretion in immigration cases. When I joined Penn State Law in 2008 to teach, train and write about immigration, the study of prosecutorial discretion emerged as a natural calling for my research and culminated into several law reviews and my first book: Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases.

    In the immigration context, prosecutorial discretion can be exercised at many different stages of enforcement, not just the charging stage. When DHS makes a decision not to detain a mother who legally qualifies for detention or chooses to stay a removal order for a middle aged man who has been ordered removed but serves as a primary caregiver to his United States citizen children, DHS is said to be exercising prosecutorial discretion favorably. The economic reasons for prosecutorial are pronounced as DHS has the resources to deport less than 4 percent of the entire undocumented population. The reasons for a prosecutorial discretion grant are not limited to resources as there are also humanitarian reasons for why DHS might wish to shield a person from deportation. The political factors that influence prosecutorial discretion are an important third reason we have this kind of discretion  -- Congress failed to move forward on a comprehensive immigration solution; advocates pushed the Executive Branch to use prosecutorial discretion; and now the U.S. Supreme Court has decided to address whether the administration’s own prosecutorial discretion exceeds legal boundaries if it turns out that the plaintiffs-states who have sued have the legal authority to do so.

    The role of prosecutorial discretion during the Obama administration is a fascinating one, but only one piece of a larger history that is discussed in my book. Published in 2015 by NYU Press, Beyond Deportation takes the reader through a rich history of prosecutorial discretion and profiles scores of noncitizens who have been processed for this kind of discretion for largely humanitarian reasons -- family, medical and other goals. One chapter describes the immigration case of the former Beatle John Lennon and the efforts undertaken by his attorney Leon Wildes to obtain public information about the agency’s deferred action program. The next chapter describes the relationship between the use prosecutorial discretion in the criminal justice system to that in the immigration system and the extent to which prosecutorial discretion in immigration law derives from criminal law. Another chapter chronicles my journey in seeking data through the Freedom of Information Act (FOIA) and highlights the need for transparency in immigration prosecutorial discretion.

  • January 21, 2016
    Guest Post

    by Eric J. Segall, the Kathy and Lawrence Ashe Professor of Law, Georgia State University College of Law

    Texas’ lawsuit against the Obama administration over its proposed new immigration regulations adds one more important public policy issue to the Court’s term which already has abortion, affirmative action, voting rights, and freedom of speech and religion on its agenda. This battle over immigration policy, however, does not belong in federal court because Texas should not be allowed to turn what is essentially a political controversy between Republicans and Democrats over immigration reform into a federal case.

    The Supreme Court has long required every plaintiff in federal court, including individuals, corporations, and the states, to suffer a personal injury caused by the defendant that can be redressed by the Court. This requirement of injury, known as standing, is a constitutional prerequisite to jurisdiction that cannot be waived by the parties or the Court. The Justices have repeatedly said that standing is necessary to maintain the appropriate separation of powers between unelected, life tenured federal judges and the elected branches of government.

    President Obama’s new immigration regulations, collectively known as DAPA, seek to change the immigration status of approximately four million undocumented aliens who are parents of children who are either legal citizens or legal resident aliens. Texas argues that only Congress has the power to alter the legal status of those immigrants.

    Texas may disagree strongly and sincerely with the President’s policy and/or think such a policy is illegal, but it may only challenge that policy in federal court if it has suffered an injury sufficient to satisfy the Court’s standing doctrine. The primary injury Texas has alleged in this lawsuit is that it will incur increased expenses because, once the regulations go into effect, Texas will feel obliged to provide driver’s licenses at reduced costs to some people with altered immigration status under DAPA. Yet, nothing in DAPA implicates the manner in which Texas provides driver’s licenses to its citizens. The proposed regulations leave all issues relating to Texas driver’s licenses, including their costs, up to Texas.

    Texas also argues that, even though it has the final decision on whether to grant driver’s licenses to DAPA beneficiaries, the need to change or reconsider its current policies gives it sufficient injury to support its lawsuit. Texas also argues that it will incur additional expenses in a host of different ways including “healthcare, law-enforcement, and education costs,” if DAPA goes into effect.

    Texas’ argument fails to support standing because it would allow any state to sue the federal government every time either Congress or the president increases or decreases the number of legal immigrants in this country.  Whenever the federal government changes immigration requirements, both the states’ expenses (in terms of its services) and revenues (through taxes now collected from more legal residents) “may” go up or down. But changes in Texas’ public policy because of those shifts remain completely up to the State of Texas.

    If the states could sue the federal government every time either Congress or the president passes legislation that alters how Texas manages its own public policy due to the number of people lawfully in the state, virtually all federal policy (beyond immigration law) will be transferred from elected officials to federal judges. The very purpose of the standing doctrine is to prevent that transfer of power.

    Texas relies on the Court’s 5-4 decision in Massachusetts v. EPA where the justices allowed Massachusetts to challenge decisions made by the EPA relating to global warming which allegedly harmed the coastline in that state. But, in that case Massachusetts asserted that its own sovereign property was being damaged by allegedly illegal federal policies. In this case, Texas remains sovereign over all of its internal policies and all of its property.

  • January 20, 2016
    Guest Post

    by Shoba Sivaprasad Wadhia, the Samuel Weiss Faculty Scholar and Clinical Professor of Law, Penn State Law; author of Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press 2015)

    Early Tuesday, January 19, 2016 the United States Supreme Court agreed to hear the case of United States v. Texas, a largely political lawsuit brought by a faction of 26 states challenging the legality of two programs announced by President Obama on November 20, 2014. Specifically, the high court agreed to hear arguments on the following issues: “(1) Whether a state that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA) to challenge the Secretary of Homeland Security’s guidance seeking to establish a process for considering deferred action for certain aliens because it will lead to more aliens having deferred action; (2) whether the guidance is arbitrary and capricious or otherwise not in accordance with law; (3) whether the guidance was subject to the APA’s notice-and-comment procedures; and (4) whether the guidance violates the Take Care Clause of the Constitution, Article II, section 3.” Rulings on the first three of those issues were requested by the government; the fourth issue was raised on the Court's own initiative.  On November 9, 2015, by a 2-1 majority, a panel of the Fifth Circuit Court of Appeals ruled against the Administration.

    The executive actions being challenged by states are coined as an expansion of “Deferred Action for Childhood Arrivals” (DACA) and the creation of "Deferred Action for Parents of Americans and Legal Residents” (DAPA). These actions would expand a pre-existing deferred action program for young people and create a new program for qualifying parents who have resided in the United States for at least five years. Deferred action is a form (among more than a dozen forms) of prosecutorial discretion in immigration law. When prosecutorial discretion is exercised favorably towards a person, the government (in this case Department of Homeland Security or DHS, the agency whom Congress has specifically delegated to administer and enforce the immigration laws) abstains from bringing a legally valid immigration charge against a person or group of persons. Prosecutorial discretion exists for humanitarian reasons to the extent the individual bear positive equities like intellectual promise or the position as a primary caregiver to a family; and for economic reasons as DHS has limited resources and the responsibility to target its enforcement against true priorities. This dual activity of enforcing the immigration laws against high priorities and exercising prosecutorial discretion favorably towards others lies at the core of the Take Care Clause which I have described in earlier work in the following way:

    Importantly, the President’s faithful execution of the immigration laws is not just limited to bringing enforcement actions against individuals and ultimately deporting them, but also to prioritizing the deportable population in a cost-effective and conscientious manner, and providing benefits to deportable noncitizens when they qualify for them. The President must “walk and chew gum” at the same time to carry out an effective immigration policy. 

    Apart from the deferred action programs is another memo announced on November 20, 2014 entitled “Policies for Apprehen­sion, Detention, and Removal of Undocumented Immigrants.”  These policies identify priorities for removal which include but are not limited to those with criminal histories, recent entrants, and those with removal orders issued on or after January 1, 2014. This memo is operational today and has sparked great debate and controversy since the Administration’s announcement to conduct raids against Central American families and unaccompanied children who seemingly fall within these priorities. This same memo contains a primer on the use of prosecutorial discretion, but immigration attorneys and advocates have criticized its actual implementation since its inception.

  • January 20, 2016
    Guest Post

    by Gabriel J. Chin, Martin Luther King Jr. Professor of Law, UC Davis School of Law

    The Supreme Court granted certiorari this week in United States v. Texas; the case will undoubtedly be one of the term’s most interesting, important, or both. In a 2-1 decision, the Fifth Circuit invalidated the Obama Administration’s DAPA program making “deferred action” available to as many as four million unauthorized migrants who are parents of U.S. citizens or green card holders. Deferred action represents a formal decision by the government to exercise prosecutorial discretion not to initiate deportation proceedings; it creates neither a right to remain nor a path to permanent status. However, by regulation, the government may grant work authorization to holders of deferred action.

    The Court will review several critical questions.

    The merits issues are whether the administration had the power to establish the program, and if it did, whether it should have gone through formal notice and comment under the Administrative Procedure Act. As Congress does not appropriate enough money to completely enforce the immigration laws (or any other laws, for that matter) there is no question that prosecutorial discretion, for better or for worse, is inevitable. There is also little doubt that even in the government, bosses are allowed to give direction to subordinates about how programs are to be carried out.

    The line between permissible “guidance” and formal, binding enforcement rules requiring notice and comment is debated by the parties. But given that the program does not purport to give noncitizens enforceable rights to relief and allows for case by case, discretionary evaluation of applications in the field, there is a strong reason to believe that the program constitutes permissible enforcement guidance. Certainly it is hard to dispute the idea that, in principle, discretion should be exercised consistently, transparently, and based on reasons rather than at the whims of individual officers in the field. I consider it unlikely that a majority of the Court will rule that general, non-binding guidance of this sort is impermissible.

  • January 19, 2016
    Guest Post

    by Pratheepan Gulasekaram, Associate Professor of Law at Santa Clara University. Professor Gulasekaram teaches constitutional law and immigration law. He is also the co-author of the recently published book, The New Immigration Federalism (Cambridge Press).

    A Supreme Court term already loaded with high-profile cases on unions, voting representation, abortion, and affirmative action just added another blockbuster. The Court’s decision to hear United States v. Texas, the challenge to President Obama’s 2014 Deferred Action for Parental Accountability program (DAPA) by 26 states or state officials, will have far-reaching consequences for both the future of immigration enforcement and the power of states to upset those policies. In resolving the case, the Court holds in the balance the lives and livelihoods of an estimated five million persons, nearly half of the current undocumented population of the United States.

    The program has been on hold since a federal district court judge in Texas ruled that the Obama Administration (specifically, the Department of Homeland Security) violated the Administrative Procedure Act’s requirement of “notice and comment” rulemaking when it implemented DAPA. On appeal, a split Fifth Circuit panel ruled that even if DHS had complied with notice-and-comment procedures, DAPA was beyond the agency’s statutory authority. In addition, both lower courts found that the state of Texas had standing to prosecute the case, allowing a federal court to reach those conclusions on the merits. In granting certiorari, the Supreme Court asked the parties to also brief the question whether the President’s action was a violation of his constitutional duties under Art. II to “take care that the laws be faithfully executed.”

    Of course, the merits questions in the case raise difficult and important questions of delegated statutory authority to the executive branch, administrative law and procedure, and, most broadly, the president’s constitutional authority. I will not comment on these, as they have been the subject of extended commentary here, here, and here. Of the questions presented, the standing inquiry might be the least discussed, but one with the potential to seriously affect immigration policymaking well beyond the current presidential administration and programs like DAPA. This is especially true in our present-day quagmire of party polarization and congressional gridlock. Before discussing the case itself, though, it is worth contextualizing the political and legal dynamics that have culminated in this landmark case, highlighting the role both partisanship and federalism have played in landing Texas before the high Court.

    As I detail in a recently co-authored book, immigration policy since Sept. 11, 2001 has fallen victim to party polarization in a way that had previously not been true of immigration politics. That polarization largely explains the inability of Congress to pass immigration over the past 15 years, despite several attempts and broad support from the American public. In turn, Congress’ silence has cleaved space for two emerging policy dynamics. First, states have stepped more fully into the legislative void, enacting an unprecedented volume of both restrictionist and integrationist policies. Second, the federal executive branch has become much more conspicuous and robust in fashioning immigration policy through both enforcement calibration and litigation. The Texas case implicates both trends, and their partisan roots, simultaneously.

    From 2004 through 2011, restrictionist state enactments reached record levels, with most of those policies enacted by Republican-controlled state governments seeking to enhance immigration enforcement and encourage unauthorized immigrants to “self-deport.” As I chronicle in a forthcoming law review article, the Obama Administration took the unusual step of suing several states – including Arizona and Alabama – to quash these state immigration regulations. The Court’s 2012 ruling in Arizona v. United States struck down several provisions of these laws, based in large part on a conflict between the state laws and the Administration’s enforcement priorities. Upholding the state immigration enforcement law in Arizona would have changed business-as-usual in immigration federalism, shifting significantly more power to the states to potentially dictate the volume and characteristics of immigration enforcement. Instead, some have argued that the case reified – perhaps expanded – executive control over immigration policy.

    As it turned out, the administration’s victory in Arizona was only the second most prominent executive-led immigration event of 2012. That summer, the president announced his Deferred Action for Childhood Arrivals program (DACA), providing deportation relief and the possibility of employment authorization to a large portion of undocumented youth. DACA, along with the Arizona case and the president’s reelection, triggered another wave of state and local enactments, but this time with a more integrationist bent. States expanded driver’s license, public assistance, and educational benefit availability for undocumented immigrants. Not surprisingly, in contrast to restrictionist schemes, integrationist policies were passed almost exclusively from jurisdictions – like California and New York City - controlled by Democrats.