by Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar, Director of the Center for Immigrants’ Rights Clinic at Penn State Law-University Park and author of Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press 2015)
The 4-4 ruling in U.S. v. Texas on June 23 stunned the minds and hearts of the Administration, affected individuals and families and legal experts who held on to the belief that the Supreme Court would issue a decision that was reasoned and consistent with the rule of the law. Instead, the Supreme Court issued a nine word ruling: “The judgment is affirmed by an equally divided court.” The ruling did not include information about the individual position of the justices or a rationale behind this ruling. The impact of U.S. v. Texas on immigrants is immediate and prevents those who would have qualified to apply for two deferred action programs designed by the Administration and aimed at undocumented parents and young people who meet certain guidelines.
In the wake of last week’s ruling in Texas, it is important for the immigrant communities, attorneys and advocates to be aware of the existing discretionary tools available beyond the 2014 deferred action programs. For as long as the immigration system has operated, prosecutorial discretion has enabled thousands of individuals and families to stay together. Potentially, those would have qualified for the 2014 deferred action programs known as DAPA and DACA Plus are by virtue of their eligibility low enforcement priorities and eligible for some form of prosecutorial discretion. Unaffected by the litigation is a memorandum published by Department of Homeland Security Secretary Jeh Johnson. The Johnson Memo identifies several factors that DHS employees should consider when making prosecutorial discretion decisions, including but not limited to: length of time in the U.S.; military service; family or community ties in the U.S.; status as a victim, witness or plaintiff in civil or criminal proceedings; and humanitarian reasons like poor health, age, pregnancy, a young child, or a seriously ill relative.
The Johnson Memo contains important language about how discretion should be exercised during the detention process and states discourages detention for noncitizens “who are known to be suffering from serious physical or mental illness, who are disabled, elderly, pregnant, or nursing, who demonstrate that they are primary caretakers of children or an infirm person, or whose detention is otherwise not in the public interest.” While many forms of prosecutorial discretion can be exercised at any stage of enforcement, the Johnson Memo emphasizes the importance of exercising this discretion early in the enforcement process.