January 27, 2016

Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases

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.

Beyond Deportation closes with a flurry of recommendations for “deferred action” (one among a dozen kinds of prosecutorial discretion) and broader proposals for how DHS implements its prosecutorial discretion policy. DHS must use prosecutorial discretion early in the enforcement process and in many cases before a person is even placed in the removal system. DHS must codify the deferred action program as a regulation or assemble a more formal program that ensures greater transparency, consistency and efficiency in cases decisions. DHS must look at the whole person when making choices about whether prosecutorial discretion should be exercised favorably.

Beyond Deportation covers a topic that is near to my heart but my inspiration for writing this book belongs to my mentor and friend Michael A. Olivas. As law students and legal scholars grapple with the wave of headlines or latest litigation question faced by the courts on the question of prosecutorial discretion, my hope is that they gain a better understanding for the historical role of and legal foundation for prosecutorial discretion in immigration cases and the extent to which compassion has served as the foundation for how such decisions are made.