Enforcing Immigration Equity by Jason A. Cade University of Georgia Law School March 11, 2015 Fordham Law Review, Forthcoming

Abstract:

Congressional amendments to the immigration code in the 1990s significantly broadened grounds for removal while nearly eradicating opportunities for discretionary relief. The result has been a radical transformation of immigration law. In particular, the constriction of equitable discretion as an adjudicative tool has vested a new and critical responsibility in enforcement officials to implement rigid immigration rules in a normatively defensible way, primarily through the use of prosecutorial discretion. In this Article, I contextualize recent executive enforcement actions within this scheme. I argue that the Obama administration’s targeted use of limited enforcement resources and initiatives such as Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA) reflect defensible efforts to systematize equitable decision-making principles within the new world of American immigration law.

Having laid bare the practical realities of the modern immigration system, I go on to argue that reliance on executive discretion alone fails to ensure the justifiability of individual deportation decisions. Of particular importance, the Department of Homeland Security under the current administration has all but abandoned any consideration of the normative merits of removal when it comes to noncitizens with any kind of criminal history. Indeed, the administration has used criminal history as an indiscriminate marker of undesirability, regardless of the seriousness of the underlying offense, the passage of time, the permanent resident status of the noncitizen, the severity of hardship that deportation would cause for the noncitizen’s family, and any other mitigating factors. A deportation system that allocates all responsibility for fairness and proportionality to enforcement actors raises other problems, as well, including lack of finality and heightened risk of conflict with other branches and levels of government. These difficulties in turn can stymie the use of enforcement discretion as an effective equitable tool.

The situation cries out for legal redress. The reinvigoration of adjudicative discretion through statutory reform is a goal well worth pursuing. But even in the absence of Congressional intervention, there is much that the federal judiciary can and should do to address this new set of problems. In particular, courts must more closely regulate the operation of the modern deportation system and increase structural opportunities for equitable consideration. I conclude by briefly discussing several recent Supreme Court cases that appear to herald an institutional response to the decline of adjudicative equity in removal proceedings.