Friday, July 10, 2015
Live from the White House last November, President Barack Obama announced his plan to upgrade the existing Deferred Action for Childhood Arrivals Program for young people pursuing education and to design a deferred action program for qualifying parents of United States Citizen or Lawful Permanent Resident children who can show they have resided in the United States for several years and are a low-priority for enforcement. What may now seem like old news is the pause button or “injunction” placed on these deferred action programs by a federal district court in Brownsville, TX after 26 states filed a lawsuit alleging that these programs fall outside of the law. The legal foundation for deferred action has been clouded by productions featuring the courts, Congress, and a campaign trail on which Presidential candidates are announcing how they might strip or expand these unborn deferred action programs. Unscripted is the presidential candidate Donald Trump who in a handful days lost the support of major news networks, retailers and chefs after targeting Mexicans as “rapists” and “drug smugglers.” The performance continues with a court hearing in New Orleans today, during which hundreds of immigrant rights advocates will protest and three appellate judges will hear arguments from both sides about whether the injunction should be lifted. Backstage are the families who face separation or deportation, a tragedy unfolding while the Administration continues to carry out its enforcement priorities while the deferred action programs remain on hold. Meanwhile, the Administration has tried to mitigate this heartbreak with greater explanations about the use of prosecutorial discretion in individual cases.
Prosecutorial discretion gives the Administration enormous power to decide whether or not a person should be deported. This kind of discretion has been used by many administrations and is a long accepted principle in immigration and involves a choice made by the government about whether and to what degree the laws should be enforcement against a person or group. “Deferred action” is one among more than one dozen types of prosecutorial discretion in immigration. One recurring theme in these cases is humanitarian --deferred action has been granted to noncitizens with lengthy residence in the United States, advanced or tender age, a serious medical condition, and those who are primary caregivers. I have studied case profiles and documentson the topic of prosecutorial discretion, obtained through the Freedom of Information Act and which sometimesinvolved months of communication and negotiation with the government about what information could be provided and whether such data are even tracked by the government. Transparency in prosecutorial discretion cases matters because it creates the possibility that people with strong equities will be protected and treated consistently by the government. Process matters too. The traditional deferred action program continues to lack a form, specific criteria, or even instructions for how to make a request. The government also lacks a formal mechanism for reviewing prosecutorial discretion decisions, which raises suspicion and almost guarantees that equally compelling cases will be decided differently.
It remains uncertain how the story of President Obama, lawsuits and campaigns will end. When the curtains are lowered, I hope there emerges a space for improving how prosecutorial discretion is administered in immigration law. The human face of immigration and specific power of prosecutorial discretion to shield individuals with compelling stories from the fate of deportation cannot be ignored.
Wadhia is the Samuel Weiss Faculty Scholar, law professor, and director of the Center for Immigrants’ Rights at Penn State Law and author of “Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases” (New York University Press, 2015).