Prosecutorial discretion in immigration enforcement stands at a crossroads. It was the centerpiece of Obama’s immigration policy after efforts to pass comprehensive immigration reform failed. Under the Trump administration, it was declared all but dead, replaced by an ethos of maximum enforcement. Biden has promised a return to the status quo ante, but the record of using prosecutorial discretion to accomplish humanitarian goals in immigration enforcement under Obama was, at best, mixed. Moreover, it is unclear whether Biden can depend on the availability of programs such as Deferred Action for Childhood Arrivals (DACA), Obama’s signature prosecutorial discretion program. Although the Supreme Court struck down the Trump administration’s attempt to end DACA, it did so without deciding whether the program was lawful. Future legal challenges may leave the executive branch with even fewer options for reforming the immigration system without Congressional action. The Biden administration will need to rethink how to use prosecutorial discretion to accomplish its immigration policy goals.
This Article argues that the Obama administration’s experience revealed the clear shortcomings of using prosecutorial discretion in lieu of legislative reform to mitigate the harshest consequences of the current immigration system. Though it has, in some circumstances, led to positive individual outcomes, it has failed to provide the kind of systemic relief that was promised, both because of the limitations of prosecutorial discretion in general, and because of special characteristics of the immigration system that make it particularly ill-suited for the widespread use of discretion to accomplish humanitarian goals. Rather than simply reinstating Obama-era discretion policies, future administrations must implement reforms to the immigration system that would allow prosecutorial discretion to work better to advance the stated goal of these policies—injecting some humanity into an otherwise inhumane system.
Introduction
Two weeks after President Trump took office, Guadalupe García de Rayos was deported.1 She had crossed the U.S.-Mexico border illegally at fourteen and had lived in the United States for more than two decades.2 In 2008, she was arrested by immigration authorities and ordered deported by an immigration judge.3 But Immigration and Customs Enforcement (ICE) did not move to deport her. Instead, García 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.4
The U.S. immigration system is broken; almost everyone on all sides of the issue agrees.5 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.6 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.7 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.8 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.9
Prosecutorial discretion—or the power of the executive to decide when, how, and whether to enforce the law against particular individuals or groups10—has always been a feature of the immigration system and has been a predominant one since at least the 1990s.11 Like in the criminal justice system, prosecutorial discretion is important both in terms of allocating scarce resources and in mitigating unjust outcomes.12 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.13 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.14
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.15 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,16 the black-and-white consequences of committing an immigration violation,17 and the lack of procedural protections for immigrants in removal proceedings18 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.19 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 García 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.20 The Biden administration has restored DACA to its status under the Obama administration,21 but new legal challenges are looming.22 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.23 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.
I. A Short Primer on Prosecutorial Discretion in Immigration Enforcement
A. Legal, Moral, and Practical Foundations of Prosecutorial Enforcement
Prosecutorial discretion has been a feature of the executive branch’s duty to “take care that the laws be faithfully executed” since the beginning of the Republic.24 Courts have largely taken for granted the power of the executive to determine how to utilize its limited enforcement resources, and have repeatedly held that “an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.”25 As the sheer number of criminal and civil laws has exploded over the past century, the importance of prosecutorial discretion has only increased.26 There is simply no way that the government can fully enforce all of the criminal and civil offenses on the books today; doing so would require dedicating vastly more resources than are currently available for enforcement activities.27
These decisions are justified not only because the government has limited resources, but also because justice requires the executive to have such discretion.28 The legislatures that enact the laws cannot anticipate how those laws will interact with the facts and circumstances of individual cases. Even just laws, if enforced fully, will give rise to unjust results, and thus, law enforcement must have discretion in deciding how, when, and whether to enforce the laws in any particular case or category of cases. Moreover, some individuals who could be justly convicted of a crime or charged with a civil offense are nevertheless worthy of leniency because of extenuating factors in their lives.29 Similar to the pardon power, prosecutorial discretion gives the executive the power to exercise mercy in appropriate circumstances.30
Today, it is well established that the government has the power to decline prosecution in both individual cases, and to make policy decisions regarding enforcement that apply to groups of individuals.31 For example, when states began to legalize marijuana use, the federal government issued guidance that it would not enforce low-level marijuana offenses in jurisdictions that had legalized marijuana as long as those states implemented robust regulatory schemes to minimize harmful effects of legalization.32 The Bush administration took similar actions in the field of environmental regulation, declining to enforce some provisions of the Clean Air Act.33
In the immigration context, decisions regarding when to exercise prosecutorial discretion in individual cases has been equally uncontroversial.34 In Reno v. American-Arab Anti-Discrimination Committee, the Supreme Court reaffirmed that immigration authorities have discretion to “decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation” and upheld a statute that stripped judicial review from courts reviewing such decisions.35 Although the Obama administration’s Deferred Action for Parents of Americans (DAPA) program was challenged in the courts as both a violation of the Administrative Procedure Act and the Take Care Clause,36 the administration’s guidelines for which non-citizens would be priorities for deportation were not challenged and were considered to be squarely within the government’s discretionary powers.37
There are multiple ways that immigration officials can exercise prosecutorial discretion. First, ICE can decline to initiate removal proceedings for individuals with whom it comes in contact during its enforcement activities.38 This type of prosecutorial discretion occurred often during the Obama administration, when individuals would be arrested, fingerprinted, questioned, and then released.39 Such discretion occurs through both prioritization policies and through the decisions of individual ICE officers.
Second, ICE can obtain a removal order from an immigration court, but then decline to execute it, allowing the individual to stay indefinitely. This is the type of prosecutorial discretion that García de Rayos had enjoyed before ICE deported her in February 2017. Almost a million non-citizens remain in the United States after receiving a removal order, and many of whom have the tacit or express permission of ICE to do so.40
Third, ICE can decide not to engage in certain enforcement activities. For instance, until recently, ICE had a policy not to engage in civil immigration enforcement at schools, courthouses, and hospitals.41 Similarly, the Obama administration moved away from large workplace raids and instead focused workplace enforcement on employer violations.42
Fourth, ICE can affirmatively grant what is called “deferred action,” which grants an individual quasi-legal status and work authorization for one- or two-year increments.43 Deferred action can be granted in individual cases, or it can be granted as part of a program such as DACA.44 Importantly, prosecutorial discretion does not and cannot lead to lawful or permanent status in the United States or to U.S. citizenship.45 It simply allows the non-citizen in question to remain temporarily in the United States and, in some circumstances, to work legally.46 Although there are differences between these types of prosecutorial discretion, in terms of both scope and effect, they share a common feature—they all involve a decision by an executive branch official not to fully enforce the law in a particular case.
Prosecutorial discretion has been a feature of immigration enforcement since the early days of restricted immigration in the late 1880s. However, two factors have led the immigration system to become increasingly dependent on widespread use of prosecutorial discretion to function. First, the number of non-citizens subject to the immigration laws has grown, necessitating the need to allocate enforcement resources efficiently. After falling slightly in the middle of the twentieth century, the number of non-citizens residing in the United States has increased, from slightly less than 10 million in the mid-1960s to almost 45 million today.47
Perhaps more importantly, the number of undocumented immigrants has increased from roughly 3.5 million in 1990 to 10.7 million in 2016, tripling the number of non-citizens who are deportable by their mere presence in the United States.48 Although resources spent on immigration enforcement have also increased,49 there is widespread recognition that the government can only prosecute a small percentage of immigration violators each year. There are currently 1.3 million (and growing) backlogged removal cases in immigration courts waiting to be adjudicated.50 More arrests would simply increase the queue, not lead to more deportations, without a massive influx of funds into the immigration system.51
In addition, Congress has passed increasingly harsh immigration laws, which have made a large percentage of non-citizens deportable.52 This trend began in the 1980s, roughly at the same time as skyrocketing crime rates led to the enactment of draconian criminal laws.53 The Anti-Drug Abuse Act of 1988 created a new category of deportability for non-citizens convicted of “aggravated felonies,” which at that point were limited to crimes such as murder and serious drug trafficking offenses.54 By 1996, Congress had expanded the definition of aggravated felony to include many serious and non-serious crimes, including in some circumstances simple assault and shoplifting.55
At the same time, Congress severely limited the forms of relief that were available to non-citizens who had been convicted of a crime or who were undocumented. What had once been quite a broad form of relief called “suspension of deportation” became what is now called “cancellation of removal.”56 Unless a non-citizen fears persecution or other harm in their home country or can gain status through a U.S. citizen relative, cancellation of removal is the main form of relief available to most non-citizens in removal proceedings. And most non-citizens are not eligible or will not meet the exacting requirements. Non-citizens convicted of an aggravated felony are now categorically barred from eligibility for cancellation of removal.57 Other criminal convictions do not constitute an absolute bar, but often result in a denial.58 Moreover, undocumented immigrants—in addition to showing good moral character—must show that their deportation would cause “exceptional and extremely unusual hardship” to a U.S. citizen or permanent resident spouse, parent, or child,59 a standard that courts have interpreted to preclude relief in all but the most extraordinary cases.60
The result is what then-General Counsel of the Immigration and Nationality Service David Martin called a “perfect storm”—the vast majority of non-citizens today are or could be deportable, either because of criminal conduct or because of status-related violations, and if they are placed into removal proceedings, most will have no available form of relief.61 As Adam Cox and Cristina Rodríguez have explained, the current structure of the immigration system—wherein many non-citizens are deportable but few will ever be deported because of resource constraints—gives the executive branch enormous power over who will be deported from the country.62 As Congress has asserted itself in the immigration field with progressively harsher amendments to the Immigration and Nationality Act, the power to make the actual decisions about who will be able to stay and who will be deported has been transferred almost exclusively to the executive.
In addition, because the immigration laws have become so unforgiving, prosecutorial discretion has become necessary to avoid cruel outcomes. Indeed, there is some evidence that Congress itself assumed that the immigration agencies would use prosecutorial discretion to moderate the harshest consequences of the 1996 laws. As Shoba Sivaprasad Wadhia has written,63 a few years after the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, members of Congress—including a few who sponsored the 1996 law—wrote to the Immigration and Nationality Service (INS) to urge it to issue guidelines on the use of prosecutorial discretion because “[t]here has been widespread agreement that some deportations were unfair and resulted in unjustifiable hardship.”64 Though the INS pushed back on this notion, arguing in a letter that “prosecutorial discretion guidelines—without carefully drafted substantive amendments to the INA—remain an inadequate tool to alleviate the excessively harsh consequences of the 1996 amendments in truly exceptional cases,”65 Congress failed to revisit the law.
Similarly, all efforts to pass the DREAM Act, which would have protected undocumented immigrants brought to the United States as children,66 died as soon as President Obama announced the DACA program in 2012.67 After President Trump cancelled the program in September 2017, renewed efforts were made to pass the DREAM Act through Congress, but efforts were again shelved after courts enjoined the program’s cancellation.68 Implicit in these decisions is the belief that legislative reform was unnecessary because DACA—essentially a large prosecutorial discretion program—made it unnecessary. DACA allowed Congress to shirk its responsibilities a little longer.
Thus, at various points Congress has forged ahead with strict immigration overhauls and declined to amend those policies once the harsh consequences became clear. The executive branch is both required to utilize prosecutorial discretion because of resource demands and is expected to by a Congress that has abdicated its authority to fix the problems that it has created through its past legislative actions. Moreover, this practice of using prosecutorial discretion has increased over time as the number of potentially deportable non-citizens has gone from a few individuals to a large percentage of the non-citizens currently in the United States. It has now become the dominant form of humanitarian relief available to the majority of deportable non-citizens.
B. Prosecutorial Discretion Policies from the 1970s to Present
The progression of the executive’s prosecutorial discretion policies and guidelines track these developments in the immigration system. In the 1970s, the numbers of deportations were fairly low—just over 17,000 in 1973, for example69—and the government’s use of prosecutorial discretion was much opaquer than it is today. Prior to 1975, INS could put individuals into “non-priority” status, whereby certain deportable non-citizens were declared not to be a priority for deportation. 70Leon Wildes, The Nonpriority Program of the Immigration and Naturalization Service Goes Public: The Litigative Use of the Freedom of Information Act, 14 San Diego L. Rev. 42 (1976). The program operated largely in secret, with INS officials going so far as to deny its existence.71
The government finally released information about the program in response to litigation brought by the attorney for John Lennon, who, they alleged, had been improperly denied “non-priority” status because of political reasons.72 The purpose of the policy was “to avoid a result which on humanitarian grounds would be unconscionable.”73 The Operations Instructions, in which the program was memorialized, listed five factors for the INS to consider when deciding whether to grant “non-priority” status: “(1) advanced or tender age, (2) long residence in the United States, (3) physical or mental condition requiring care . . . in the United States, (4) family situation [that would be affected by expulsion], and (5) “criminal, immoral, or subversive activities or affiliations—recent conduct.”74
Lennon’s attorney, Leon Wildes, analyzed records of the 1,843 non-priority decisions issued in 1974 that he had obtained under the Freedom of Information Act and found that individuals of all types had been granted “non-priority” status:
Nonpriority has been granted to aliens who have committed serious crimes involving moral turpitude, drug convictions, fraud, or prostitution. Moreover, nonpriority has been given to Communists, the insane, the feebleminded, and the medically infirm. In sum, nonpriority has been granted to those who have violated almost any provision of the Act.75
Decisions were made based on humanitarian factors, regardless of the grounds of deportability.76
“Non-priority” status eventually became known as deferred action with the Operations Instructions becoming the Standard Operating Procedures in 1996.77 Though the standards remained functionally similar,78 in practice, many fewer non-citizens with criminal convictions, particularly drug convictions, were granted deferred action after the passage of IIRIRA and the modern dawn of draconian immigration laws.79 In other words, as legal changes increased the importance of prosecutorial discretion, the actual use of discretion declined.
In the waning days of the Clinton administration, INS Commissioner Doris Meissner issued a memo reiterating that prosecutorial discretion remained an important tool and that “[s]ervice officers are not only authorized by law but expected to exercise discretion in a judicious manner at all stages of the enforcement process.”80 Meissner’s memo sets forth an expanded list of factors to be considered, including immigration status (in particular whether a non-citizen is a lawful permanent resident), length of residence in the United States, criminal history, humanitarian concerns, past immigration violations, likelihood of ultimately removing the individual, whether the individual is eligible for relief, current or past cooperation with law enforcement, honorable U.S. military service, community attention on the case, and resource constraints.81 It also contained a list of factors that were not to be considered, including an individual’s race, political opinion, or religion, an individual officer’s personal feelings regarding the individual, and the effect on the officer’s own career or professional advancement.82
Throughout the early 2000s and after the transfer of immigration enforcement from the Department of Justice to the newly created Department of Homeland Security (DHS),83 prosecutorial discretion remained an important feature of the immigration system. Successive memoranda from DHS officials laid out specific situations in which prosecutorial discretion should be exercised, while reaffirming the right of immigration officers to make decisions regarding whether to pursue removal in particular cases.84 Although the process was more transparent than it had been before the 1970s—at least the memos that governed prosecutorial discretion were made public—it remained difficult to understand exactly how these decisions were made. The guidelines were applied unevenly and inconsistently. The 1996 laws and the spike in illegal border crossings—which peaked at 1.6 million a year in 200085—put enormous strain on the immigration system. But rather than utilizing prosecutorial discretion more broadly, the backlog in the immigration courts began to grow, and many non-citizens with removal orders were not removed, not because a decision was made to decline to execute the removal order, but simply because there were not enough planes to put people on.
The Obama administration came into office with grand hopes of comprehensive immigration reform.86 But after repeated attempts to get Republicans to the bargaining table,87 Obama began to use his executive authority to reform the immigration system administratively. Obama first took a conservative approach, utilizing the same kinds of memoranda on prosecutorial discretion that had been favored by his predecessors. In 2011, ICE Director John Morton issued a memo listing no fewer than thirty-one factors for officers to consider when deciding whether to exercise discretion.88 Still, many non-citizens who did not meet the enforcement priorities were being removed despite the guidance.89
After the failure of the DREAM Act in 2010,90 Obama decided to take further action. In 2012, he announced DACA, which protected undocumented immigrants brought to the United States as children from deportation and gave them the opportunity to apply for work authorization, which in turn made them eligible for other benefits.91 Though the program was not unprecedented—past presidents had issued policies to protect particular categories of people from deportation92—it was unprecedented in its scope. It was estimated that 1.8 million people might be eligible for the program; approximately 800,000 ended up applying and being granted deferred action for renewable two-year periods.93
After the failure of comprehensive immigration reform in 2013, the Obama administration announced DAPA and an expanded DACA program. DAPA would have allowed undocumented immigrants who met certain conditions and who had at least one U.S. citizen child to apply for deferred action.94 The expanded DACA program removed several of the requirements in the original program, such as the upper age limit.95 Altogether, approximately five million undocumented immigrants would have been eligible for relief from deportation under these programs.96 Several states went to court to block DAPA and expanded DACA.97 After a district court in Texas and the Fifth Circuit Court of Appeals enjoined the programs,98 the injunction was upheld by an equally divided Supreme Court.99 The programs never went into effect.100
At the same time, then-Secretary of Homeland Security Jeh Johnson issued a memorandum with new civil immigration enforcement priorities that rescinded most previous memos on prosecutorial discretion.101 Unlike previous memos that listed factors that officers were instructed to consider when determining whether to exercise discretion, the Johnson Memo listed three clear priority categories for removals, and designated a very large group of individuals who would not be a priority absent an additional determination by immigration officials.102
Priority 1 listed five categories of non-citizens who were considered threats to national security, border security, and public safety, including non-citizens engaged in terrorism, those apprehended crossing the U.S.-Mexico border, and non-citizens convicted of aggravated felonies.103 Individuals in the first priority were to be removed unless “there are compelling and exceptional factors that clearly indicate the alien is not a threat to national security, border security, or public safety and should not therefore be an enforcement priority.”104
Priority 2 was “misdemeanants and new immigration violators,” including non-citizens convicted of three or more misdemeanors, a significant misdemeanor, or who had illegally reentered the country after being deported.105 Non-citizens in the second priority category were to be removed unless “there are factors indicating the alien is not a threat to national security, border security, or public safety, and should not therefore be an enforcement priority.”106
Priority 3 was “other immigration violations,” which despite sounding broad, was actually limited to non-citizens who had been issued orders of removal after January 1, 2014, about ten months before the memo was issued.107 These individuals were to be removed “unless they qualify for asylum or another form of relief under our laws or, unless, in the judgment of an immigration officer, the alien is not a threat to the integrity of the immigration system or there are factors suggesting the alien should not be an enforcement priority.”108
That left most undocumented immigrants, at least those without criminal records who had been in the United States for more than a couple years, as non-priorities for deportation. Though the memo stated that “[n]othing in this memorandum should be construed to prohibit or discourage the apprehension, detention, or removal of aliens unlawfully in the United States who are not identified as priorities herein,” it required the ICE Field Office Director to determine that the removal of an individual not designated a priority be determined to serve an “important federal interest” by the ICE Field Director.109
This was the first time that the immigration agencies had set a default position of non-removability for a large category of removable individuals. The Obama administration decided to take a categorical approach to prosecutorial discretion, as opposed to the case-by-case determinations that had been favored in previous administrations, largely because of institutional pushback from immigration officials who resented the directives not to enforce the law to the fullest extent possible.110 The Morton Memo, which had been Obama’s first attempt to expand the use of prosecutorial discretion, had not in fact changed policy on the ground very much.111 DACA and DAPA, and to a lesser extent the Johnson Memo, were attempts by the administration to take discretion away from rank-and-file immigration officers who were perhaps disinclined to exercise it.112
And indeed, prosecutorial discretion became much more commonly exercised under the Johnson Memo than it had been previously. After the memo was issued, interior deportations dropped thirty-two percent the following fiscal year.113 Moreover, the overwhelming majority of individuals removed were in one of the three priority categories. In fiscal year 2015, ICE only removed sixty-seven individuals who did not fall within a priority category but whose removal had been determined to serve a federal interest.114 Despite the institutional resistance to the policy, it was effective in implementing guidelines that were being followed by individual immigration officers.
The status quo was upended once again with the election of Donald Trump in November 2016. Trump had made immigration the centerpiece of his campaign and had been particularly critical of the Obama administration’s use of prosecutorial discretion,115 calling for the President’s impeachment after Obama’s November 2014 executive actions.116 Shortly after his inauguration, Trump issued three executive orders concerning immigration. One of those orders, “Enhancing Public Safety in the Interior of the United States,” changed ICE’s enforcement priorities once again in a way that completely transformed the immigration system.117 The priorities, as stated in the new executive order, were individuals who:
(a) Have been convicted of any criminal offense; (b) Have been charged with any criminal offense, where such charge has not been resolved; (c) Have committed acts that constitute a chargeable criminal offense; (d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency; (e) Have abused any program related to receipt of public benefits; (f) Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or (g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.118
The executive order had the effect of prioritizing most undocumented immigrants for removal. There were no factors to be considered and the humanitarian element of previous prosecutorial discretion policies was completely eliminated. It did not matter how long an individual had been in the United States, whether they had U.S. citizen family members, or whether they had a medical condition. Moreover, given the fact that the priorities included individuals who had committed the elements of a crime, even if they had not been convicted, it allowed immigration officials to find almost any reason to designate someone as a priority for removal. In the words of one advocacy organization, it “expanded ‘enforcement priorities’ so broadly as to render the term meaningless.”119
On February 20, 2017, then-Secretary of Homeland Security John Kelly issued a memorandum implementing the President’s executive order.120 Like the Johnson Memo, it rescinded all previous memos on prosecutorial discretion, except for those governing DACA and DAPA.121 It also banned the exercise of discretion “in a manner that exempts or excludes a specified class or category of aliens from enforcement of the immigration laws.”122 Instead, under the memo, discretion could only be exercised on a “case-by-case basis in consultation with the head of the field office.”123 The memo contained no factors for immigration officials to consider when deciding whether to exercise discretion. Though it technically still allowed the immigration agencies to exercise discretion in individual cases, the purpose of the memorandum was to seriously curtail the use of prosecutorial discretion: “Effective immediately . . . Department personnel shall faithfully execute the immigration laws of the United States against all removable aliens.”124
It became clear in the months following the issuance of the memorandum that the use of prosecutorial discretion in immigration enforcement was all but dead.125 In fiscal year 2018, the first full fiscal year of the Trump administration, removals were up seventeen percent from 2016.126 Many of those removals were people, like Guadalupe García de Rayos, who were checking in with ICE on old orders of removal. But they also included people who would have been obvious candidates for prosecutorial discretion during any other administration. The case of Rosa María Hernández, a 10-year-old with cerebral palsy who was arrested on her way to the hospital for gallbladder surgery, illustrates the extent to which the immigration officials have ceased exercising discretion on humanitarian grounds.127
Of course, because resources were still limited, the administration could not deport all removable non-citizens. Instead, whether someone was slated for removal depended on being in the wrong place at the wrong time—a kind of random enforcement that is not tied to priorities at all. In addition, because due process still requires that most non-citizens have the opportunity to fight their removal in immigration court, the death of prosecutorial discretion simply meant an even longer backlog of cases in immigration court. The administration’s efforts to speed up removal proceedings and clear the backlog—for instance, through case completion quotas for immigration judges—were unsuccessful at addressing the problem.128
The Biden administration took action immediately to resurrect prosecutorial discretion. On January 20, 2021, Biden revoked the Kelly memo and directed his Department of Homeland Security to issue new directives.129 That same day, DHS issued a memorandum putting a one hundred day pause on deportations, and naming new interim enforcement priorities: (1) national security risk; (2) recent border crossers; and (3) individuals convicted of aggravated felonies.130 The deportation pause was later enjoined,131 an ominous sign for the future of DACA, but the new enforcement priorities remain in effect. As a result, immigration arrests have fallen sharply in the early months of the new administration.132 With these changes, many undocumented immigrants will be able to avoid deportation for a few more years. But these swings in enforcement priorities obscure the fact that the laws governing removal of non-citizens have remained largely unchanged since 1996. Prosecutorial discretion has become the primary way that immigration policy is made in the United States, and it is not working very well.
II. The Problems with Prosecutorial Discretion as a Humanitarian Tool
The use of prosecutorial discretion is unavoidable, morally necessary, and legally sound, and this is no less the case in the immigration context. And yet, the widespread reliance on prosecutorial discretion to correct the injustices in our immigration system is not without severe costs to the immigrant communities who are subjected to the immigration system.
A. Problems with Prosecutorial Discretion Generally
The costs of prosecutorial discretion have long been recognized in the criminal justice system, and many of these costs translate to the immigration system as well. Prosecutors in both systems have an enormous amount of power in deciding how to enforce the law. Absent extreme circumstances, prosecutorial decisions are unreviewable. Thus, when officials act according to implicit bias, take illegitimate criteria into account, or fail to act in the interests of justice, there is very little recourse available.
1. Implicit Bias
When individual prosecutors make decisions about who and how to charge, the biases of those individuals are unavoidably imported into the decision-making process. Two of the most pernicious biases are race and class. In her book, Arbitrary Justice, Angela Davis describes two murders in Washington, D.C., one committed by a white college student and the other committed by a working-class black man, where the charging decisions came out differently:
Both cases were homicides involving a decedent with a reputation for violence and a defendant who claimed that he acted in self-defense. Yet the cases were prosecuted differently, with no apparent justification for the difference in treatment. It was difficult not to attribute McKnight’s favorable treatment to his status as a white student at a prestigious university.133
The empirical research supports Davis’s conclusion. For example, some studies have found that prosecutors are far more likely to seek the death penalty in the case of homicides in which the victim was white and the perpetrator was black.134 A study of indigent defendants in San Francisco found that black suspects are booked for seven percent more crimes and twenty-four percent more felonies than white defendants, controlling for other contextual factors.135 White defendants are also offered better plea deals.136 All of these disparate effects are layered on top of the over-policing of low-income communities of color that contributes to more poor people of color entering the criminal justice system to begin with. Although there are overtly racist prosecutors and police officers, most of these disparities are caused by implicit bias that is not easily ferreted out of the system.
These biases hold equal or greater sway in the immigration system.137 The same implicit biases that cause disparate outcomes for defendants of color also affect decisions about which immigrants get arrested, placed into removal proceedings, and deported. To begin with, racial profiling in immigration enforcement is rampant, with ICE in particular targeting Latinx immigrants in enforcement actions.138 Unlike in the criminal justice system, courts have permitted immigration officers to use race as one factor used to establish reasonable suspicion or probable cause to arrest suspected undocumented immigrants.139 Practically speaking, race or ethnicity is often the only evidence immigration officers have before questioning and arresting individuals for immigration violations.140 And such Fourth Amendment violations cannot be used to stop an individual’s deportation unless he or she can show the violation was egregious.141 The same biases that give rise to racial profiling also are likely to influence individual officers’ decisions about whether to exercise prosecutorial discretion in any particular case, regardless of whether race or ethnicity are explicitly prohibited factors for consideration.
Moreover, the biases of the criminal justice system are replicated in the immigration system due to the connection between criminal convictions and deportability.142 Because people of color have higher rates of felony convictions (despite committing crimes at similar rates as whites), a greater percentage of immigrants of color have convictions that make them deportable. For example, although only seven percent of non-citizens in the United States are black, they make up twenty percent of the non-citizens facing removal on criminal grounds.143 Disparate sentencing practices also have an effect. One study found that black defendants receive sentences that are on average nine percent longer than sentences of white defendants.144 Since many convictions only become aggravated felonies with sentences of at least one year,145 sentence length could lead to more black non-citizens being subjected to the harshest immigration consequences.
Many immigrants of color are vulnerable to removal even if they have never committed a crime. Undocumented immigrants who are arrested but never convicted may end up in ICE custody due to programs like Secure Communities, through which ICE lodges detainers and takes custody of individuals in local and state jails.146 The incentives to plead guilty in the criminal system even when a person is innocent also take a toll. Although in 2010 the Supreme Court held in Padilla v. Kentucky that defense attorneys must advise non-citizen defendants of the immigration consequences of plea deals,147 the Court subsequently held that its holding was not retroactive.148 As a result, many non-citizens are removable for criminal convictions that they pled guilty to on advice of counsel to avoid serving a lengthy sentence at a time when their attorney had no obligation to inform them that the conviction would lead to their deportation.
Thus, immigrants of color are affected by implicit bias in a layered, multi-faceted way. They are victimized by over-policing, the biases of criminal prosecutors, and the criminal justice system, like all people of color. But they are also victimized by an immigration system that prioritizes them for removal on the basis of their prior encounters with the criminal justice system, 149See Johnson Memo, supra note 94; Kelly Memo, supra note 120. amplifying the effects of implicit bias. In a system rife with implicit bias, prosecutorial discretion will always be applied unevenly with “the least favored members of the community—racial and ethnic minorities, social outcasts, the poor . . . treated [the] most harshly.”150 In a system totally dependent on discretion to function, the problem of implicit bias will inflict heavy costs on low-income immigrants of color, ensuring that the goal of a just immigration system remains out of reach.
2. Illegitimate Criteria
Race and class are not the only biases that affect the exercise of discretion by prosecutors. Prosecutors often use criteria that many people would consider illegitimate or unrelated to the resource-management or humanitarian rationales for broad use of discretion, including the prosecutor’s personal animus or beliefs and political considerations. High-profile crimes often prompt prosecutors to seek harsh penalties, even in cases where it would not otherwise be warranted because of public pressure. Conversely, a high-profile suspect may not get charged at all if it would be politically inexpedient.151
Immigration officials are likewise susceptible to using illegitimate criteria to decide whether to arrest, initiate removal proceedings, or execute a removal order. For example, ICE has targeted immigrants’ rights activists in enforcement actions in retaliation for engaging in protected speech. Migrant Justice, a Vermont farmworker organization, filed suit against ICE in 2018 alleging that the agency had targeted its members and leaders because of its anti-immigration enforcement activism.152 The plaintiffs dismissed the lawsuit after ICE agreed to pay the plaintiffs $100,000 in damages and to grant them deferred action for five years.153
In another example, ICE arrested and attempted to execute a removal order against Ravi Ragbir, an activist with the New Sanctuary Coalition (NSC) in New York City, after he spoke out against President Trump’s immigration policies and made statements to the media critical of ICE.154 Ragbir alleged in a lawsuit that an ICE official had told a minister connected to NSC that activists “don’t want to make matters worse by saying things.”155 The Second Circuit concluded in 2019 that Ragbir had stated a cognizable First Amendment claim.156 These are just two examples of activists who have alleged that ICE has targeted them because of their First Amendment-protected activities. Though ICE denies targeting anyone because of their speech, ICE’s almost limitless discretion inevitably leads to questions about how they choose to exercise it in individual circumstances.
For non-citizens without constitutional claims, the legal options are far more limited. The Supreme Court made clear in Reno v. American-Arab Anti-Discrimination Committee that, like in the criminal context, most selective prosecution claims in the immigration context are unreviewable.157 In Reno, the Court concluded that members of the Popular Front for the Liberation of Palestine, which the government characterized as a terrorist organization, could not bring a selective prosecution claim.158 In explaining its decision, it reasoned that selective prosecution claims were less compelling in the immigration context both because deportation is not a punishment and because of the foreign policy and national security concerns inherent in immigration enforcement are higher than in the domestic context.159 The Supreme Court’s recent decision in Department of Homeland Security v. Thuraissigiam further complicates attempts to litigate claims against ICE by holding that the constitutional writ of habeas corpus is not available to litigate challenges to deportation orders.160 For most immigrants targeted by ICE, there will be no recourse in the courts.
Conversely, public pressure has occasionally been effective at getting ICE to reverse course and exercise discretion after initially declining to. For example, after ICE deported Jose Gonzalez Carranza, a widower of a soldier who had been killed in Afghanistan, the public opprobrium was swift and unforgiving.161 ICE reversed course and allowed him to reenter the United States four days later after Republican Governor of Arizona, Doug Ducey, criticized the decision.162 At first, this may appear to be a good use of prosecutorial discretion. But the decision was not made based on the application of a set of factors to Gonzalez’s case. Instead, the widower was lucky enough to have a lawyer, and even luckier to have a lawyer who knew how to leverage the press coverage to his client’s advantage. For every case like Gonzalez’s, there are ten other non-citizens without lawyers whose stories did not garner press coverage and who were deported in obscurity despite their positive equities.
In these cases, ICE made decisions about who to deport based either on impermissible factors, such as political speech, or on factors that have little to do with the merits of individuals’ cases, such as the amount of press coverage the case has garnered. A system that gives prosecutors enormous power comes at a cost—similarly situated individuals will be treated differently based on factors that ICE should not consider.
3. Institutional Design Problems
The prosecutor holds a unique position in our adversarial system. Unlike other parties, including the lawyer representing the criminal defendant, prosecutors have an obligation to see that justice is done.163 They represent “the people,” not themselves, and have special ethical duties that other lawyers do not have. As the American Bar Association’s Criminal Justice Standards for the Prosecutor Function puts it:
The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict. The prosecutor serves the public interest and should act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances. The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.164
In practice, these principles are rarely upheld. Instead, prosecutors inevitably suffer from a “prosecutor bias” that tilts the system away from justice and towards maximum enforcement.165 As Rachel Barkow has explained, when an institution has dueling missions, one mission will inevitably win out.166 It is simply unrealistic to expect prosecutors to act both as zealous advocates for their positions and to operate with the best interests of justice in mind.167 This institutional conflict is seen most clearly in cases in which new evidence casts doubt on old convictions. Even when evidence of actual innocence is overwhelming, prosecutors often refuse to join in motions to overturn the conviction, choosing to double down instead of admit error.168
The institutional design problems in the immigration system are equally problematic, and perhaps more so. The ethical obligations of immigration officials to “seek justice” are less clear-cut than in the criminal context. Arguably, as government employees, they have the same obligations as traditional law enforcement and prosecutors to be ministers of justice, not simply zealous advocates for a particular result.169 In practice, however, ICE operates with an ethos of maximum enforcement, perhaps even more so than criminal prosecutors.
The Office of the Principal Legal Advisor states its mission as “protect[ing] the homeland by diligently litigating cases,” not seeking justice.170 The mission of Enforcement and Removal Operations, the division of ICE that is most often responsible for deciding whether to initiate proceedings, is even more unambiguous. Its mission is “to protect the homeland through the arrest and removal of those who undermine the safety of our communities and the integrity of our immigration laws.”171 Compare that to the mission statement of the Department of Justice, which includes “to ensure fair and impartial administration of justice” among the Department’s aims.172
Forged in the aftermath of 9/11 and populated by officials with extreme views on immigration enforcement,173 ICE’s culture is perhaps unsurprising. While some ICE officials do take seriously the commitment to exercise discretion to achieve humanitarian goals, many do not. For example, some immigration courts have a much higher percentage of removal proceedings closed by ICE as an exercise of discretion than others, ranging from 46.6 percent of all cases in the Tucson Immigration Court, to 0 percent in many immigration court locations.174 Not only does this lead to unjust results in individual cases, but it leads to a system in which discretion is often exercised arbitrarily depending on which official happens to make the decision. From a humanitarian perspective, we should be bothered by a system in which some officials decline to exercise discretion at all because of their mission tilt.
President Obama attempted to solve this problem by relocating the decision-making authority on whether to grant deferred action to United States Citizenship and Immigration Services (USCIS), the sub-agency in DHS that grants immigration benefits.175 But in the Trump era, even USCIS has been reoriented into an enforcement agency.176 As long as the power of discretion is located in the agency tasked with enforcement, then the use of discretion to accomplish humanitarian goals will be limited.
B. Special Problems with Prosecutorial Discretion in the Immigration Context
Many of the problems that plague the criminal justice system’s reliance on prosecutorial discretion apply with equal force in immigration enforcement. But the immigration system has additional features that make the widespread use of prosecutorial discretion even more problematic, and less likely to accomplish the humanitarian goals that supporters of discretion tout.
1. System Differences
Prosecutors in the criminal justice system wield enormous power to decide who and what to charge and whether to offer a plea. Many scholars have written about how prosecutors abuse this power. Yet, there are checks that exist in the criminal justice system that prevent prosecutors from going too far. Angela Davis writes about a case dismissed because of “prosecutorial vindictiveness,” after the prosecutor punished a criminal defendant for not acting as an informant by charging the underage defendant as an adult.177 Davis makes the point that judicial intervention of this type is very rare,178 but the prospect, however remote, that a court will intervene puts a restraint on prosecutorial behavior.
Those checks on prosecutorial power are absent in the immigration context. ICE trial attorneys operate in administrative tribunals that are “courts” in name only.179 Immigration courts are not Article III courts, and they even lack some of the basic features that many Article I courts have. Immigration judges are not administrative law judges (ALJs) under the Administrative Procedure Act, meaning they are not required to pass merit-based screening to be appointed and they lack statutory protection from removal.180 What this means is that immigration judges are at the mercy of the administration that employs them. If their grant rates drift too high, or if they are seen as disadvantaging ICE in removal proceedings, then their appointment can be non-renewed, or even terminated. Though historically the Attorney General has not taken such actions, the mere specter can cause immigration judges to adjust their conduct to be more government friendly.181
The Trump administration took multiple steps in order to curtail the independence of immigration judges in its last two years.182 Former Attorney General Jeff Sessions issued several decisions that curtailed immigration judges’ ability to manage their own docket by restricting the ability to terminate proceedings and administratively close cases unless ICE consents.183 In 2018, an immigration judge was removed from dozens of cases in the Philadelphia immigration court because he had raised due process concerns in a case in which ICE sought a removal order of an unaccompanied minor who had failed to appear in court.184 The union of immigration judges filed a grievance, arguing that the move violated the judge’s “decisional independence.”185 Immigration judges are supposed to exercise “independent judgment and discretion” by regulation,186 but the reality is far different.
In March 2018, the Department of Justice announced a series of benchmarks that immigration judges need to meet in order to receive satisfactory job reviews.187 These included a case completion quota of more than 700 per year (which amounts to almost three cases per day, assuming no vacation or sick days), as well as benchmarks regarding how quickly individual cases are resolved.188 Though the benchmarks do not instruct immigration judges on how the cases must be resolved, shorter resolution times inevitably lead to a higher rate of removal orders. For example, one of the benchmarks requires that “[i]n 95% of all cases, individual merits hearing is completed on the initial scheduled hearing date, unless, if applicable, DHS does not produce the alien on the hearing date.”189 Complicated claims for relief may require multiple days of testimony; the benchmark encourages immigration courts to deny a non-citizen’s request for a second hearing day, which could lead a meritorious claim to be denied. As one immigrants’ rights organization argued, “forcing judges to meet an arbitrary quota within an underfunded and backlogged court system will only result in limiting due process, curtailing judges’ deliberations, and denying immigrants adequate time to find lawyers and gather evidence.”190
In 2019, the Department of Justice moved to decertify the immigration judges’ union on the ground that immigration judges were “managers,” unable to unionize.191 The Federal Labor Relations Authority agreed, decertifying the union and leaving immigration judges with even fewer protections against political interference.192 Dozens of immigration judges resigned or retired “due to concerns about their jobs becoming politicized.”193 Though many of the Trump administration’s actions with respect to immigration courts were unprecedented, the system is set up in such a way as to permit such politicization and lack of independence. With such a system, prosecutors do not need to fear a judge who will check their prosecutorial power, leading to greater abuses.
The other incentives that prosecutors have in the criminal justice system to exercise discretion are also absent in the immigration context. There are no juries, and no possibility for jury nullification,194 which is a rare but important consequence for a prosecutor who has abused his or her authority.195 Prosecutors in the criminal system may be more inclined to exercise favorable discretion when they fear jury nullification than when they do not.196 Unlike in many state systems, ICE prosecutors are not elected and so do not have the democratic accountability that such elections provide. While democratic electability of prosecutors may cause prosecutors to avoid exercising discretion lest they upset their voters,197 there is no doubt that it helps avoid the worst abuses. Prosecutors have, on occasion, been voted out for egregious examples of misconduct, something an ICE prosecutor does not fear.198 Only non-citizens—by definition non-voters—are subject to the immigration system, further complicating any democratic accountability.199
Non-citizens in removal proceedings are not entitled to counsel at the government expense,200 and only about thirty-seven percent of non-citizens in removal proceedings have counsel as a result.201 This means that even non-citizens who might be good candidates for prosecutorial discretion are unlikely to be able to navigate the system to request and obtain it. Prosecutors know that given the complexity of immigration law, unrepresented non-citizens are going to be unlikely to be able to fight their removal effectively, which removes one of the primary incentives that prosecutors have in the criminal system to exercise discretion. Indeed, eighty-three percent of non-detained non-citizens without attorneys are ordered removed versus forty percent who have counsel.202
Likewise, the burden of proof in immigration cases is much lower than the “beyond reasonable doubt” standard mandated by the Sixth Amendment.203 In many cases, the non-citizen has the burden of proof. For example, once the government proves alienage,204 the non-citizen must prove that they are present pursuant to a lawful admission,205 or if not, that they are eligible for some form of relief from deportation.206 For most undocumented immigrants, for whom proving alienage is not onerous, this means that burden of proof rests entirely with them and not the government. Even in cases where ICE bears the burden of proof, for instance in proving that a lawful permanent resident was convicted of a deportable offense, the burden—which is “clear and convincing evidence,” not “beyond a reasonable doubt”—is easily met with court documents.207 The burden then shifts to the non-citizen to prove eligibility for relief.
Neither do the other protections of the Sixth Amendment apply, 208Lara-Torres v. Ashcroft, 383 F.3d 968, 973 (9th Cir. 2004) (“[S]ince deportation and removal proceedings are civil, they are ‘not subject to the full panoply of procedural safeguards accompanying criminal trials . . . .’” (quoting Magallanes-Damian v. Immigr. and Naturalization Serv., 783 F.2d 931, 933 (9th Cir. 1986))); Montilla v. Immigr. and Naturalization Serv., 926 F.2d 162, 166 (2d Cir. 1991) (“Because a deportation proceeding is civil, not criminal, in nature, various constitutional protections are not required.”). despite the fact that deportation is often a greater punishment than what is at risk in many criminal trials.209 Thus, for example, evidentiary rules are relaxed in removal proceedings,210 and the government often uses affidavits that contain anonymous allegations to prove removability grounds related to gang membership or terrorism.211 Unlike in the criminal context, ICE rarely declines to initiate proceedings because it is worried about meeting its burden of proof.212 Instead, ICE has every incentive to initiate proceedings.
All of these features mean that ICE has none of the incentives to exercise discretion that exist in the criminal system. There is nothing about the system that tempers the ethos of maximum enforcement discussed above. In such a system, it is unsurprising that prosecutorial discretion has failed to mitigate the harshest aspects of our immigration system.
2. Legal Differences
The use of prosecutorial discretion in the immigration context to accomplish humanitarian goals is further complicated by two features of immigration law that distinguish it from criminal law. As discussed above, the immigration laws are written in such a way that the majority of non-citizens could be removed for one reason or another. In this way, the immigration and criminal laws are similar—criminal justice scholars have long noted that the proliferation of federal and state criminal statutes means that we are all violating the law all the time without even realizing it.213 For example, certain loitering laws have long been criticized, and occasionally struck down, as allowing for the arrest of almost anyone in public.214 Likewise, traffic rules can provide police with a pretext to pull over almost anyone they want.215 Immigration laws are similar in that they regulate a wide range of conduct and even simple clerical errors can render a non-citizen deportable. A motivated ICE official can find a pretext upon which to initiate proceedings for all but the most law-abiding individuals.
However, immigration law is different in two key respects. First, immigration violations are continuing violations and there is no statute of limitations on their applicability. A non-citizen without status is without status every second of every day in perpetuity unless they gain status in some way, or they are removed. A non-citizen convicted of a crime thirty years ago remains removable today, despite the passage of time. A person engaging in criminal activity is most worried about getting caught while engaged in the activity and shortly afterwards. A removable non-citizen can be arrested at any time and placed in removal proceedings for conduct that occurred half a lifetime ago. There has been much criticism of the term “illegal” to describe undocumented immigrants as dehumanizing and othering.216 But it is accurate in one respect: our immigration laws declare that the person’s mere existence is unlawful, something that cannot be said for most other legal violations.
Second, all grounds of removability lead to the same outcome regardless of the severity of the conduct that gives rise to it.217 Thus, a non-citizen convicted of murder is subject to the same consequence as a lawful permanent resident who does not carry their green card with them at all times: removal. This is very different from the criminal context where prosecutorial discretion can be exercised not only in whether to charge someone, but also in how much time they will serve, either in the decision on what to charge or in a plea agreement. Except in the most egregious criminal conduct, a life sentence is not possible. Many people get convicted of minor crimes and are sentenced to community service or probation. There is no equivalent in the immigration context.
There are a few caveats to this second point. First, there is a type of relief called “voluntary departure,” that some might view as a type of plea bargain. Voluntary departure allows a removable non-citizen to leave the country voluntarily and avoid a removal order, which allows them to avoid some of the bars to reentry that attach to a removal order.218 But if the primary consequence is separation from family and community, it hardly matters that the person was free to leave on their own.
Those bars to reentry represent another type of difference in the length of the “sentence” imposed. Individuals who have been removed from the United States face anywhere from a five-year bar to a lifetime bar on reentry, depending on the grounds of removability.219 Thus, an undocumented immigrant might have a five-year or ten-year bar, depending on how long they were present in the United States unlawfully, whereas a person convicted of an aggravated felony is barred for life.220 However, the bars do not give people the right to reentry after the specified period of time. Instead, they merely remove a barrier. Most undocumented immigrants will not be eligible to reenter regardless of the bar. A non-citizen removed on criminal grounds will in all likelihood be found inadmissible because of that past criminal conduct and will be unable to return.221 Thus, while the differences in the length of bars appears to represent a difference in the length of a “sentence,” in reality it is nothing of the sort. The harsh reality is that most people who are deported will never be permitted to return legally.222
The third type of “plea bargaining” that happens occasionally in the immigration context is when ICE consents to the grant of relief (e.g., asylum or cancellation of removal). While this type of discretion cannot be dismissed, it also represents a kind of binary choice—either ICE consents to the grant of relief in their discretion or it does not. There is no possibility of a reduced sentence, probation, or some other equivalent to the range of choices that are available in the criminal context.
Within this landscape, deferred action has emerged as a kind of a middle path for ICE officials who want to exercise discretion, equivalent to the role a plea bargain would play in the criminal justice system. It provides a non-citizen with temporary permission to stay in the country, as well as permission to work in certain circumstances. But it does not lead to a green card or citizenship and can be revoked at any time. The person remains removable.223 In some ways, this solves the twin dilemmas of using prosecutorial discretion in the immigration context: the fact that removal is the only consequence available for committing an immigration violation and the fact that a non-citizen who is removable often remains removable for life.
However, it comes with its own set of costs. Mainly, that the discretion is always revocable. Once a non-citizen enters the enforcement and removal system, they are never done with it. Non-citizens who receive this kind of discretion must live a kind of temporary existence, knowing that at any point, for any reason, that discretion can be revoked.224 Many of the most heart-breaking stories in the Trump era are stories in which such discretion was revoked, none more sensationally than with DACA.
C. Case Study: DACA
DACA presents an interesting case study for exploring whether prosecutorial discretion can be used to accomplish humanitarian goals in the immigration context because it was created in part to address the problems with previous discretion policies. DACA was the result of years of advocacy by immigration advocates to sidestep Congress’s inaction on immigration and agency resistance to aggressive uses of discretion.225 The program was trumpeted by supporters and DACA recipients themselves as a successful public policy that had improved the lives of the hundreds of thousands of young people who applied and were granted deferred action under the program.226
It was designed in such a way as to avoid some of the problems that come with using prosecutorial discretion to accomplish humanitarian goals. DACA addressed concerns about bias and inconsistency by making the process more rule-bound than before.227 In lieu of factors to consider or priority categories, DACA set forth seven requirements. A person was eligible to apply if they: (1) were under thirty-one years of age as of June 15, 2012; (2) came to the United States while under the age of sixteen; (3) continuously resided in the United States from June 15, 2007 to the present; (4) entered the United States without inspection before or their lawful immigration status expired as of June 15, 2012; (5) were physically present in the United States on June 15, 2012 and at the time of making the request for consideration of deferred action with USCIS; (6) were currently in school, graduated from high school, obtained a GED, or honorably discharged from the Coast Guard or armed forces; and (7) had not been convicted of a felony offense, a significant misdemeanor, or more than three misdemeanors and did not pose a threat to national security or public safety.228 Although DHS retained discretion to deny applications for deferred action in individual cases even when these criteria were met, the vast majority of applications were granted.
DACA also addressed institutional resistance by moving adjudication of discretion requests from frontline ICE enforcement officials to USCIS.229 USCIS traditionally has not had a role in immigration enforcement, and thus, moving the process to USCIS allowed a somewhat more “neutral” adjudicator to decide whether to grant deferred action. In this way, DACA was very successful. While the 2011 Morton Memo had little effect on grants of prosecutorial discretion, approximately 800,000 people applied and were granted DACA in the first five years of the program.230
Yet, the program was unable to solve some of the challenges of using prosecutorial discretion as a humanitarian tool in the immigration context. The main problem continued to be that DACA provided only temporary status that could be revoked at any time. Because lack of legal status is a continuing violation, DACA did not and could not provide any type of permanent relief. It was, as Lindsay Pérez Huber has described it, an “‘illusion of freedom’ that provide[s] limited opportunities, yet, continue[s] to exclude undocumented youth from full participation in American society.”231 Moreover, the institutional resistance to DACA and broad discretion policies more generally did not disappear; it just went underground, waiting for a more receptive administration in which to reassert itself.
Shortly after Trump’s inauguration, it became clear that the “illusion of freedom” was gone. In February 2017, Daniel Ramirez became one of the first DACA recipients to be arrested under Trump after ICE accused him of having a gang affiliation.232 A month later, Daniela Vargas, a DACA recipient and immigrants’ rights advocate, was arrested after speaking at a rally.233 The fear that all DACA recipients were at risk was confirmed when on September 5, 2017, the Trump administration announced that it was rescinding the program.234 Court challenges quickly enjoined the rescission of the program, and DACA recipients waited anxiously for the Supreme Court to weigh in.235
In June 2020, the Supreme Court decided Department of Homeland Security v. Regents of the University of California, which held that the Trump administration’s attempt to end DACA was unlawful under the Administrative Procedure Act.236 However, the decision did very little to resolve the question of DACA’s legality. Justice Roberts, writing for the majority, reaffirmed that “[a]ll parties agree” that DHS can end DACA and the only question before the Court was whether it did so in a lawful manner.237 On this question, the Court held that DHS had failed to consider whether the different parts of DACA could be disentangled and did not take into account the reliance interests of DACA recipients.238 It thus struck down the rescission as arbitrary and capricious, while giving the administration a roadmap if it wanted to try again.239
Justice Roberts was careful not to decide the question of DACA’s legality, but his opinion suggests an answer anyway. If the entire program was unlawful, it would not matter whether DHS considered whether to disentangle the decision not to initiate removal proceedings from the decision to provide DACA recipients work authorization and other benefits. Yet, if the entire program was lawful, then terminating it because it was unlawful would clearly not pass muster under the Administrative Procedure Act. The only conclusion to draw is that Roberts believes that part of DACA is unlawful. Given his recitation of the clearly established principle that the executive can decline to initiate proceedings240 and the Court’s equally divided decision upholding the injunction striking down DAPA’s work authorization provision,241 it seems clear which part of DACA may be held unlawful in the future.
DACA has now been reinstated by Biden.242 Yet, the last four years have exposed two major problems with DACA-like programs. First, the aspects of DACA that distinguished it from previous discretion policies—namely that it provided a level of security and access to work authorization that previous policies lacked—may be challenged and eventually struck down. It is this part of DACA that has allowed DACA recipients to go to school, have careers, access state and federal benefits, and start families. Second, as the Supreme Court made clear, a future administration may decide to end such programs at any time as long as they abide by the requirements of the Administrative Procedure Act.
The legal and political uncertainty surrounding DACA is devastating. In a study of undocumented youth before DACA, Roberto Gonzales found that their unlawful status “took a serious toll on their health, well-being, and future outlooks.”243 Those harms, partially mitigated after DACA went into effect, have returned. As one DACA recipient tweeted: “MY DACA WAS RENEWED! This means 2 more yrs of living/working/driving without the constant fear of deportation. It also means 2 more yrs of soul crushing anxiety + stress as my future, and that of 700K #DACA recipients, remains uncertain . . . .”244 Indeed, many DACA-eligible individuals never applied, citing fear that applying would expose them or their families to immigration enforcement.245
DACA was always a poor substitute for legislative reform. When it was announced, President Obama made clear that he preferred that Congress act to pass the DREAM Act, stating that “[p]recisely because [DACA] is temporary, Congress needs to act. There is still time for Congress to pass the DREAM Act this year, because these kids deserve to plan their lives in more than two-year increments.”246 Still, the conventional wisdom was that while DACA was technically temporary, future administrations—even conservative ones—would pay a heavy political cost for ending the program.247 That conventional wisdom has proven false.
Moreover, the political capital that Obama expended on DACA was not without costs, particularly in the field of immigration. DACA at once polarized the immigration debate and also relieved whatever political pressure there was to pass the DREAM Act. It is, of course, uncertain what would have happened had Obama declined to take executive action to solve the problem of undocumented youth. Perhaps nothing would have happened, leaving undocumented youth without even the short-term protection that DACA provided. But moving forward, future administrations will need to decide where to spend their political capital on immigration. Likewise, advocates will need to make strategic decisions about where to focus their organizing energy.
DACA unquestionably had positive effects,248 and few DACA recipients would say that it would have been better for the program to have never existed at all. Still, DACA has exposed the severe limitations of using prosecutorial discretion to solve the problems in our immigration system. Even a program that was designed in order to solve the problems inherent in previous prosecutorial discretion regimes was unable to overcome some of the fundamental problems with using discretion in place of legislative reform to accomplish humanitarian goals. And future DACA-like programs may be even less effective because of legal constraints caused by future court decisions.
III. Towards a Better Prosecutorial Discretion System
Given the failure of prosecutorial discretion to inject humanity into our immigration system, legislative reforms remain a priority. Many immigration scholars have identified “over-removability” as a problem in the current immigration system. Some have written about the need to revise the criminal grounds of deportability to decrease the number of minor crimes that might render a non-citizen deportable, or even get rid of the criminal grounds of deportability altogether. For example, Kari Hong has argued that criminal grounds of removability are “[o]verinclusive, [d]isproportionate, [i]rrational, [i]nefficient, and [e]xpensive” and should be abolished.249 Other scholars have written about ways to more explicitly incorporate a balancing of the equities in removability, which would essentially turn a plea for discretion into a legal claim. For instance, Shoba Sivaprasad Wadhia has argued that prosecutorial discretion should be codified in regulations and subjected to judicial review.250 Michael Wishnie takes another tack by reading into the Immigration and Nationality Act, by way of the Due Process Clause, a requirement that a sanction (deportation) should be proportional to the offense.251 This “proportionality” claim would allow immigration judges and federal courts to weigh the equities in the cases of individual immigrants. Still others have called for an expanded form of cancellation of removal that would allow more non-citizens with positive equities to qualify for relief.252 Comprehensive immigration reform proposals usually include some form of amnesty for undocumented immigrants without criminal records who have been here for a certain length of time.253 A few scholars have even gone as far as calling for an end to deportation altogether.254
These are all proposals worthy of consideration, but they suffer from several problems. First, some of them fall into the “pie in the sky” category of proposals that are unlikely to be enacted in our lifetimes. Abolishing the criminal grounds of deportability, for example, seems about as likely as the author of this Article winning an Olympic medal—it could conceivably happen, but the confluence of events that would be necessary to make it so are so attenuated that no one should bet on it. Some of the proposals seem more likely, but are still remote. Courts could step in and hold that deportation is subject to proportionality under the Due Process Clause, but early litigation has not thus far been particularly promising.255 An amnesty as part of comprehensive immigration reform is possible, but like past amnesties, it would provide a one-time solution to the problem. And while Congress may step in and expand forms of relief to mitigate the need for prosecutorial discretion, the prospects of such reform seem tenuous at best.256 Furthermore, any expanded form of relief would undoubtedly still exclude individuals worthy of discretion. Absent a true end to all deportations, prosecutorial discretion will remain an important feature of any system—an enforcement system without it would be as unjust as it would be unworkable.
Absent broad legislative reform, there may be ways to tweak the immigration laws and system to allow it to function more like the criminal justice system when it comes to prosecutorial discretion. The criminal justice system is, quite obviously, not perfect. But the immigration system is even less so, and bringing it more in line with what already exists in the criminal context would make prosecutorial discretion both function better and be less vital to producing just outcomes. These changes fall into two major categories: (1) reforming both the limits and consequences of removability to more effectively mirror criminal liability, and (2) redesigning the immigration adjudicatory system to more closely resemble the criminal justice system with respect to institutional checks and individual rights.
A. Statute of Limitations for Removability Grounds
One way to reform the immigration system to more closely mirror the criminal justice system would be to implement a statute of limitations for removability grounds.257 A statute of limitations would bring immigration law more in line with other criminal and civil statutes. Civil immigration violations are almost unique in not having a statute of limitations. All but the most serious crimes (such as murder and treason) have a statute of limitations, as do civil regimes that impose fines or other penalties.258 Putting a limit on how long the government has from when a non-citizen becomes removable, because of a criminal conviction, entering without inspection, or overstaying a visa, would both encourage the government to remove non-citizens quickly and solve the problem of non-citizens being removed decades after becoming removable. It would also limit the length of time non-citizens could remain in limbo after being granted prosecutorial discretion, creating an endpoint after which the fear and threat of deportation would cease. Individuals like Guadalupe García de Rayos would not have to live in fear indefinitely.
Though a statute of limitations may seem like a remarkable proposition given the current legal regime and political climate, one existed for the first seventy years of U.S. immigration enforcement. In 1888, when Congress passed the first statute that provided for deportation of non-citizens who fell into certain categories, it limited deportation to one year following entry into the country.259 That limitations period was gradually expanded from one year to three years260 to five years,261 before being abolished completely in the 1952 Immigration and Nationality Act (INA).262
Vestiges of time limitations still exist in the current law. For example, a little-known provision of the INA allows individuals who have been physically present since January 1, 1972, to register for a green card despite any unlawful presence they have accrued.263 The date for “registry” as it is called was updated multiple times in the twentieth century, but has not been updated since the Immigration Reform and Control Act of 1986.264 Cancellation of removal also has a time limitation built into it—requiring lawful permanent residents to have resided in the United States for seven years and all other non-citizens to have resided in the United States for ten years before being eligible to apply,265 although these provisions function less like a statute of limitations and more like a substantive requirement because of the other onerous requirements non-citizens have to meet in order to qualify. Finally, there is precedent for the criminal grounds of removability to have a statute of limitations of sorts. A single crime involving moral turpitude, one of the categories of crimes that renders an individual deportable, does not render an individual deportable unless it occurred within five years of initial entry.266
Andrew Tae-Hyun Kim has written about how the historical justifications for statutes of limitations apply with equal force in the immigration context.267 The first reason typically advanced for statutes of limitations is the idea that “at some point in time, even highly culpable defendants deserve to be free of civil or criminal liability.”268 This justification is what has animated past amnesty programs for undocumented immigrants who have been here for a certain number of years, such as the 1986 legalization program that resulted in 2.7 million gaining legal status.269 It also accords with the public discourse that has developed around the Trump administration’s aggressive enforcement actions against individuals with old removal orders. There is something particularly troubling about someone facing deportation for events that occurred decades ago. This justification is perhaps even stronger when talking about individuals who are removable because of old criminal convictions because they have already been convicted and have paid their debt to society.
Statutes of limitations are superior to prosecutorial discretion at producing humanitarian outcomes in multiple respects. For one, statutes of limitations do not depend on fickle or biased decision—makers to grant mercy in particular cases. For another, they are absolute and not subject to future reconsideration if circumstances change.
The second justification Kim discusses—the costs of uncertainty to those at risk for future prosecution270—is even more important in the immigration context than in many of the civil and criminal contexts in which statutes of limitations are taken for granted. The consequences of deportation can be extremely dire—permanent banishment from community, permanent separation from friends and loved ones, entire lives destroyed. A person facing civil or criminal liability in other contexts may fear serious consequences, but they are rarely as life-altering as those suffered by someone facing deportation. As discussed above, the uncertainty of existing in a liminal immigration status such as deferred action, or in living life in the shadows, cannot be dismissed lightly.271
It is unclear how this proposal would affect the million or so individuals who already have removal orders, given that statutes of limitations typically only apply to the initiation of proceedings. But there is some precedent for the idea that there should be a limit on how long a legal obligation should hang over someone’s head, even after the conclusion of proceedings. For example, civil judgments can typically only be collected for a certain number of years.272
One possible critique of a statute of limitations in the immigration context is that it would encourage non-citizens to avoid capture by law enforcement, and that it would reward non-citizens who can successfully evade discovery. This critique, of course, is equally valid in all cases in which there is a statute of limitations. Individuals who have committed criminal or other civil offenses likewise have an incentive to avoid discovery until after the statute of limitations has run. Moreover, non-citizens who fear deportation already have such incentives in the current system and are unlikely to act any differently because there may be a light at the end of the tunnel.
A statute of limitations based on discovery of a removability ground rather than the accrual of that ground would, of course, solve this problem. So, a statute would begin to run when an individual who crossed the border without inspection was discovered to be in the country unlawfully rather than on the date they crossed the border.273 This is currently how federal law treats the crimes of improper entry and illegal reentry.274 However, a discovery-based limitation would also fail to provide many of the benefits that an accrual-based limitation would. It would provide no certainty for the millions of removable non-citizens who have not encountered the immigration enforcement system. Nor would it allow mercy in some of the most deserving cases of individuals who have lived long, productive lives in the United States before being caught.
It is also worth considering whether a statute of limitations would create incentives for government actors that would undercut these justifications. One could argue that rather than making the prosecutorial discretion system work better, a statute of limitations may have the opposite effect. For example, a statute of limitations on removability grounds may discourage the government from granting deferred action because the option of later removing an individual may be foreclosed. But there may be advantages to a system in which the government must prioritize whom to remove lest they lose the right to remove them at all. The government simply cannot deport everyone, and a statute of limitations would require them to focus on recent arrivals, who are less likely to have the kinds of positive equities that would counsel in favor of discretion anyway. After a brief adjustment period, where the government may be moved to quickly remove individuals who are nearing the statute of limitations, the system would function better overall. Moreover, other reforms, such as expanding the available penalties for civil immigration violations, reforms discussed below, may ameliorate this concern by giving the government other options besides removing someone or letting them go entirely.
B. Expand Available Penalties for Civil Immigration Violations
As discussed above, unlike in most other civil and criminal enforcement regimes, there are essentially only two outcomes in removal proceedings. Either relief is granted and proceedings are terminated, or an individual is ordered removed.275 The result is the same whether the individual was convicted of serious crimes such as murder or terrorism, or whether they committed a technical violation like failing to file the correct form in a timely matter.276 The black-and-white nature of deportation increases the importance of prosecutorial discretion to avoid unjust outcomes. It also decreases the options available for an official who wants to exercise discretion but does not want to completely absolve the individual of culpability for the past immigration violation. There is no equivalent to a reduced sentence, probation, or diversionary programs that are commonplace in the criminal justice system. 277Cf. Davis, supra note 12, at 5 (discussing prosecutor’s power of charging and plea bargaining).
Giving the government other options besides removal for enforcing our immigration laws would decrease reliance on deferred action and other current forms of discretion and would allow ICE officials to exercise discretion in more durable ways. What other options are possible? It could be a fine-based system, which would allow non-citizens to avoid removal and instead pay a fine to the government to violate the law.278 Non-citizens could agree to serve in the military or could be sentenced to a certain number of hours of public service. Similar to sentences of incarceration, non-citizens could be ordered removed for a certain amount of time, before being allowed to apply to reenter at the conclusion of the sentence, similar to the current bars to reentry but with a promise of reentry at the end.
There may be objections to all of these outcomes. Fine-based systems disadvantage the poor. Service-related sentences are difficult for individuals with onerous work or family obligations to fulfill. There is the question about what would happen if individuals given lesser sentences cannot or do not comply with the requirements of the sentence. Removal, even temporary removal, would be a hardship on individuals, families, and communities. But all of these sentences would be preferable for many facing permanent and irrevocable removal in the current system.
The main objection to such a proposal would undoubtedly be that it ignores the foundational principle underlying the modern immigration enforcement regime, which is that control over a nation’s borders is an issue of national security and sovereignty, and that deportation is not a punishment, but a process by which the government exercises its right to determine who can remain in the country. The Supreme Court established this principle early in the nation’s experiment with deporting non-citizens in Fong Yue Ting v. United States in 1893.279 In that case, the Court explained that “[t]he right to exclude or to expel all aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace, [is] an inherent and inalienable right of every sovereign and independent nation, essential to its safety, its independence, and its welfare.”280 As a result, it held that “‘[d]eportation’ is the removal of an alien out of the country, simply because his presence is deemed inconsistent with the public welfare, and without any punishment being imposed or contemplated.”281
The understanding of deportation as an exercise of sovereignty rather than a system of punishment has held for more than one hundred years, despite the change in immigration enforcement from an administrative system operating at ports of entry to a vast law enforcement regime that incarcerates almost 500,000 non-citizens a year,282 costs almost $25 billion per year in federal funding to operate,283 and employs 50,000 immigration enforcement officers284—more than the total number of people (including support staff) working for the FBI. 285How Many People Work for the FBI?, FBI, https://www.fbi.gov/about/faqs/how-many-people-work-for-the-fbi [https://perma.cc/D7SK-PXZ5] (last visited on Dec. 4, 2019). There have been a few cracks in the designation of deportation as nonpunitive—for instance, in Padilla v. Kentucky, the Supreme Court recognized deportation as a collateral consequence of criminal convictions, holding that “deportation is a particularly severe ‘penalty.’”286 Many scholars have called for deportation to be reclassified as a criminal process so that the Sixth Amendment’s procedural protections would attach.287
However, expanding the penalties available for violations of civil immigration laws would not require such a drastic change in the understanding of what deportation is and why it exists. Indeed, any such proposal would surely still include the right of the government to remove individuals permanently when they are declared public safety threats to the United States. It would merely recognize that deportation does not need to be the only penalty for every civil immigration violation, and that the national security and sovereignty interests of the United States can continue to be protected in a system that allows some deserving individuals to escape deportation by “pleading” or being “sentenced” to a lesser penalty.
There are questions that would need to be answered in order to implement this proposal. For instance, for an individual who received a “lesser” sentence than removal, would that sentence then come with work authorization, permanent status, and a path to citizenship at its conclusion, or would an individual continue to live a contingent, if slightly more secure, existence? There would surely be questions about who would be deserving of removal in this new context. Hard questions would remain about how to implement lesser penalties, particularly for non-citizens suffering from physical, mental, or financial limitations. Yet, moving away from a black-and-white system of punishment would open up these possibilities for the first time, and would allow us to actually address the question of what should be the penalty for committing a civil immigration violation.
C. Redesigned Immigration Adjudication
Another way to improve the functioning of the prosecutorial discretion system is to design the immigration adjudication system so that it provides a true check on executive enforcement power. Two features of the criminal justice system that could be imported into the immigration system are the right to assigned counsel at the government’s expense and an independent immigration court that operates separately from the political branches of government. These reforms would not only increase the integrity of the immigration system more generally, but would also lead to a more sensible use of prosecutorial discretion by immigration officers.288 These reforms, together with the changes to the limits and consequences of removability discussed above, would go far in reforming the prosecutorial discretion system to function more like discretion in other contexts.
Courts have consistently held that non—citizens do not have a Sixth Amendment right to appointed counsel in removal cases.289 Although several courts of appeals have opined that the Due Process Clause could occasionally require the appointment of counsel,290 courts engaging in the Mathews v. Eldridge balancing test have for the most part concluded that the burden on the government would be too great to require appointed counsel in all removal proceedings. Courts have even failed to find a right to appointed counsel in the case of particularly vulnerable non-citizens such as children,291 though one district court did find that mentally incompetent individuals in removal proceedings have a due process right to appointed counsel under the Rehabilitation Act.292 Some states and localities have moved to implement “civil Gideon” programs for some non-citizens in removal proceedings, but those programs have been enacted legislatively, not through the courts.293
Nevertheless, expanding access to counsel for non-citizens in removal proceedings would have several benefits on the functioning of the system as a whole. First, represented non-citizens are much more likely to win their cases because the avenues for relief currently available are so complicated that most non-citizens only have a realistic possibility of winning with counsel.294 Second, because represented citizens are more likely to win, ICE prosecutors and immigration officials would be encouraged to exercise prosecutorial discretion in meritorious cases, either by declining to initiate proceedings, or by utilizing some of the alternative penalties discussed above.
Similarly, an independent immigration court would not only increase the legitimacy of the immigration system as a whole, but it would encourage better use of prosecutorial discretion. Like in the case of access to counsel, many scholars have proposed reforms to the immigration courts. Some have proposed that Congress should create an Article I court, similar to U.S. bankruptcy courts and U.S. tax courts.295 Others have gone so far as to propose that removal hearings should be conducted by Article III courts.296 Both proposals stem from the widespread belief that the immigration courts as they are currently constituted are beholden to political forces, crippled by overwhelming caseloads, and lacking in procedural safeguards for non-citizens.
Making immigration courts more independent would allow prosecutorial discretion to function better by providing a true check on prosecutorial overreach and encouraging executive branch officials to utilize discretion to avoid losses in the courts. This would be especially so if immigration courts were given the authority to levy penalties that fell short of permanent removal, or to terminate proceedings for prosecutorial misconduct. Facing a court that may disagree that a particular individual deserved permanent banishment would encourage officials to exercise discretion before reaching the conclusion of proceedings. Like prosecutors who are not sure that a jury will buy their case, immigration officials will need to make calculations about which cases to bring, or risk losing their reputations in front of independent judges. Moreover, independent judges could slap down egregious prosecutorial misconduct by terminating proceedings in rare cases. Like in the criminal context, this would not have to happen very often to have a real effect on prosecutorial behavior.
Conclusion
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.