Immigration Remarks for the 10th Annual Wiley A. Branton Symposium

Sharing Secrets: Examining Deferred Action and Transparency in Immigration Law

Bipartisan politics has prevented meaningful reform to a system in dire need of solutions: Immigration. Meanwhile there are eleven million noncitizens with no valid immigration status who currently reside in the United States and the Department of Homeland Security (DHS) does not have the necessary resources to effect their removal. DHS does have the authority through prosecutorial discretion to prioritize these cases and provide relief to individuals with compelling circumstances that warrant humanitarian consideration; nonetheless, DHS’s exercise of prosecutorial discretion is underutilized, inconsistently applied and lacks transparency. This Article suggests a remedy – that the immigration prosecutor’s role should redefined to be one more akin to criminal prosecutors with a concomitant obligation to seek justice. Others have argued that DHS prosecutorial discretion should be subject to notice and comment rulemaking and a presumption of judicial review. However, if prosecutorial discretion is to remain a solidly executive branch prerogative to counter legislation painted with too broad a brush (a defect of almost all legislation) and a mechanism to prioritize individuals for deportation, such as violent repeat criminal offenders, it should be shielded from rulemaking and a presumption of judicial review.While immigration prosecutors are trained to support granting relief in cases where the evidence and law support a grant of relief, they do not see their role as separate from DHS agents and adjudicators, and as such do not see it as their role to seek justice. This Article contributes to the ongoing scholarship and dialogue calling for heightened ethical obligations, guidelines and principles for attorneys appearing before the Executive Office for Immigration Review (EOIR), to meet the challenges of practicing immigration law, while promoting efficiency and fairness in an effort to restore confidence and justice to a system subject to much condemnation.

Legal scholars and judges have long examined the role of judicial review in immigration matters, and also criticized the impacts of the “plenary power” doctrine and statutory deletions of judicial review for certain immigration cases. Absent from this scholarship is a serious examination of the judiciary’s role in immigration decisions involving prosecutorial discretion. I attribute this absence to both a silent concession that prosecutorial discretion decisions are automatically barred from judicial review because of the plain language of the Immigration and Nationality Act (INA); the judicial review “exceptions” in the Administrative Procedures Act (APA), and the cases that analyze these sections; and the effects of reading a decade-plus shelf of memoranda by the immigration agency declaring that no prosecutorial discretion provides a procedural or substantive benefit or a right. The role of prosecutorial discretion in immigration matters is well established, and generally refers to the agency’s determination about whether or not the immigration laws should be enforced against a particular individual or group of persons. The theory of prosecutorial discretion rests on both humanitarian and monetary considerations. First, prosecutorial discretion recognizes that certain noncitizens bearing positive attributes and qualities have no formal relief available under the immigration laws. Second, prosecutorial discretion acknowledges that the number of noncitizens who are technically “deportable” under the immigration laws is much larger than the immigration agency can successfully handle with its available resources. More specifically, prosecutorial discretion may be exercised by DHS at any stage of immigration enforcement, including, but not limited to, interrogation, arrest, charging, detention, removal proceedings, on appeal, or after a removal order has become final. Building upon my research on the role prosecutorial discretion in immigration law, this Article examines the role of the judiciary in prosecutorial discretion decisions. This Article begins with providing an overview about the immigration process generally, and of prosecutorial discretion in particular. Part II examines the normative arguments about judicial review over immigration decisions. Part III of this Article describes the legal framework for judicial review of agency actions generally and prosecutorial discretion decisions particularly. Part IV examines a handful of federal circuit court decisions applying the judicial review scheme outlined in the governing statutes to discretionary immigration decisions, and challenges the appropriateness of applying Heckler v. Chaney to every prosecutorial discretion decision in the immigration context. Part V analyzes the potential for judicial review over select prosecutorial discretion decisions and offers related recommendations.

On November 20, 2014, President Barack Obama announced a series of immigration programs aimed to reform the immigration system. Deferred Action for Parents of Americans or Lawful Permanent Residents (DAPA) and extended Deferred Action for Childhood Arrivals (DACA) represent two such programs announced by the President. Both programs extend deferred action (one form of prosecutorial discretion) to qualifying individuals. Deferred action has been part of the immigration system for more than 50 years, and has been named explicitly by Congress, federal courts, and the agencies responsible for administering immigration laws. Additionally, regulations list deferred action as one basis for work authorization. The President’s deferred action programs offered room for a healthy debate about immigration law and policy. The debate was intensified by a lawsuit brought by the state of Texas and 25 other states challenging the deferred action programs, and a subsequent judicial opinion enjoining these programs. Much of the tension has centered on the ability for a deferred action grantee to obtain ancillary benefits like employment authorization or lawful presence. This conflict has enabled great distortion about the limits and benefits of prosecutorial discretion in immigration law. In this Article, I seek to clarify the relationship between prosecutorial discretion and employment authorization and describe the historical precedent for allowing qualifying noncitizens to apply for work authorization based on a prosecutorial discretion grant. I also examine the policy questions that are raised by the current legal framework and policy for work authorization. My methodology for this Article is to review the primary and secondary sources of law for prosecutorial discretion and work authorization; analyze a related data set of more than 200,000 work authorization applications processed by the United States Citizenship and Immigration Services retrieved through the Freedom of Information Act; and begin a policy discussion on the benefits of enabling prosecutorial discretion beneficiaries to be authorized to work in the United States. This Article is the first to analyze the law and policy of work authorization and prosecutorial discretion and builds naturally from my body of work developed on the role of immigration prosecutorial discretion generally, and deferred action in particular.

On November 20, 2014, President Barack Obama announced a series of immigration programs aimed to reform the immigration system. Deferred Action for Parents of Americans or Lawful Permanent Residents (DAPA) and extended Deferred Action for Childhood Arrivals (DACA) represent two such programs announced by the President. Both programs extend deferred action (one form of prosecutorial discretion) to qualifying individuals. Deferred action has been part of the immigration system for more than 50 years, and has been named explicitly by Congress, federal courts, and the agencies responsible for administering immigration laws. Additionally, regulations list deferred action as one basis for work authorization. The President’s deferred action programs offered room for a healthy debate about immigration law and policy. The debate was intensified by a lawsuit brought by the state of Texas and 25 other states challenging the deferred action programs, and a subsequent judicial opinion enjoining these programs. Much of the tension has centered on the ability for a deferred action grantee to obtain ancillary benefits like employment authorization or lawful presence. This conflict has enabled great distortion about the limits and benefits of prosecutorial discretion in immigration law. In this Article, I seek to clarify the relationship between prosecutorial discretion and employment authorization and describe the historical precedent for allowing qualifying noncitizens to apply for work authorization based on a prosecutorial discretion grant. I also examine the policy questions that are raised by the current legal framework and policy for work authorization. My methodology for this Article is to review the primary and secondary sources of law for prosecutorial discretion and employment authorization; analyze a related data set of more than 200,000 work authorization applications processed by the United States Citizenship and Immigration Services retrieved through the Freedom of Information Act; and begin a policy discussion on the benefits of enabling prosecutorial discretion beneficiaries to be authorized to work in the United States. This Article is the first to analyze the law and policy of employment authorization and prosecutorial discretion and builds naturally from my body of work developed on the role of immigration prosecutorial discretion generally, and deferred action in particular.

On November 20, 2014, President Barack Obama announced a series of immigration programs aimed to reform the immigration system. Deferred Action for Parents of Americans or Lawful Permanent Residents (DAPA) and extended Deferred Action for Childhood Arrivals (DACA) represent two such programs announced by the President. Both programs extend deferred action (one form of prosecutorial discretion) to qualifying individuals. Deferred action has been part of the immigration system for more than 50 years, and has been named explicitly by Congress, federal courts, and the agencies responsible for administering immigration laws. Additionally, regulations list deferred action as one basis for work authorization. The President’s deferred action programs offered room for a healthy debate about immigration law and policy. The debate was intensified by a lawsuit brought by the state of Texas and 25 other states challenging the deferred action programs, and a subsequent judicial opinion enjoining these programs. Much of the tension has centered on the ability for a deferred action grantee to obtain ancillary benefits like employment authorization or lawful presence. This conflict has enabled great distortion about the limits and benefits of prosecutorial discretion in immigration law. In this Article, I seek to clarify the relationship between prosecutorial discretion and employment authorization and describe the historical precedent for allowing qualifying noncitizens to apply for work authorization based on a prosecutorial discretion grant. I also examine the policy questions that are raised by the current legal framework and policy for work authorization. My methodology for this Article is to review the primary and secondary sources of law for prosecutorial discretion and work authorization; analyze a related data set of more than 200,000 work authorization applications processed by the United States Citizenship and Immigration Services retrieved through the Freedom of Information Act; and begin a policy discussion on the benefits of enabling prosecutorial discretion beneficiaries to be authorized to work in the United States. This Article is the first to analyze the law and policy of work authorization and prosecutorial discretion and builds naturally from my body of work developed on the role of immigration prosecutorial discretion generally, and deferred action in particular.

Reading Regents and the Political Significance of Law

The US immigration court system seeks to “fairly, expeditiously, and uniformly administer and interpret US immigration laws” (DOJ 2022a). It represents the first exposure of many immigrants to due process and the rule of law in the United States, and occupies an integral role in the larger US immigration system. Yet it labors under a massive backlog of pending cases that undermines its core goals and objectives. The backlog reached 1.87 million cases in the first quarter of FY 2023 (Straut-Eppsteiner 2023, 6). This paper attributes the backlog to systemic failures in the broader immigration system that negatively affect the immigration courts, such as: Visa backlogs, United States Citizen and Immigration Services (USCIS) application processing delays, and other bottlenecks in legal immigration processes. The immense disparity in funding between the court system and the Department of Homeland Security (DHS) agencies that feed cases into the courts. The failure of Congress to pass broad immigration reform legislation that could ease pressure on the enforcement and court systems. The lack of standard judicial authorities vested in Immigration Judges (IJs), limiting their ability to close cases; pressure parties to “settle” cases; and manage their dockets. The absence of a statute of limitations for civil immigration offenses. Past DHS failures to establish and adhere to enforcement priorities and to exercise prosecutorial discretion (PD) throughout the removal adjudication process, including in initial decisions to prosecute. The location of the Executive Office for Immigration Review (EOIR), which oversees US immigration courts, within the nation’s preeminent law enforcement agency, the Department of Justice (DOJ). The misconception of many policymakers that the court system should primarily serve as an adjunct to DHS. A past record of temporary judge reassignments and government shutdowns. The paper supports a well-resourced and independent immigration court system devoted to producing the right decisions under the law. Following a short introduction, a long section on “Causes and Solutions to the Backlog” examines the multi-faceted causes of the backlog, and offers an integrated, wide-ranging set of recommendations to reverse and ultimately eliminate the backlog. The “Conclusion” summarizes the paper’s topline findings and policy proposals.

Contents Foreword ix Leon Wildes Acknowledgments xiii Introduction 1 1. Primer: Understanding How Prosecutorial Discretion Functions in the Immigration System 7 2. The Early Years: The Deportation Case of John Lennon and Evolution of Immigration Prosecutorial Discretion 14 3. Lessons from Criminal Law: How Immigration Prosecutorial Discretion Compares to the Criminal System 33 4. Deferred Action: Examining the Jewel (or a Precious Form) of Prosecutorial Discretion 54 5. Presidential Portrait: Prosecutorial Discretion during the Obama Administration 88 6. Going to Court: The Role of the Judiciary in Prosecutorial Discretion Decisions 109 7. Open Government: Transparency in Prosecutorial Discretion and Why It Matters 134 8. Reform: Improving Prosecutorial Discretion in the Immigration System 146 Abbreviations 157 Authorities 161 Notes 169 Index 223 About the Author 233

In May 2006, the US Department of Homeland Security (DHS) began detaining noncitizen families at the T. Don Hutto Family Residential Facility, a former medium-security prison operated by the Corrections Corporation of America. In April 2007, a group of lawyers sued DHS, arguing that Hutto's conditions violated children's rights. This article first situates family detention in relation to two relatively separate literatures – immigration geopolitics and children's rights – and legal precedent. Second, it shows how noncitizen children are framed more as ‘child-objects’ in immigration law than agential, liberal subjects. Immigration law figures adults, however, as criminalized migrant-subjects, ineligible for the due process on which liberal legal regimes are based. The article then analyzes how the judge balanced ‘irreparable harm’ to detained children, the ‘public interest’, and US Immigration and Customs Enforcement's (ICE) discretion to detain noncitizens. Relying upon ‘geostrategic discourses’ of external threat and internal safety, the judge argued that US detention represents a safe space compared to families' countries of origin. Twisting national security with the ‘best interests of the child’, the judge authorized a legal framework for family detention, but with specific spatial requirements. In turn, this new alignment of sovereign and children's rights expanded ICE's power to detain noncitizens. These legal, discursive and spatial tactics form what is called here a geopolitics of vulnerability in which ICE seeks to displace national (in)securities onto detained families. Tracing the intersections of children's legal subjectivity and immigration, the article illuminates deeper struggles over executive power, the spatial practices of immigration enforcement and immigration law.

On October 12, 2017, the United States Attorney General, Jeff Sessions, took a short trip from Pennsylvania Avenue across the Potomac to Falls Church, Virginia. The Attorney General went to Falls Church to address personnel of the Executive Office of Immigration Review (EOIR), the agency that administers the United States’ immigration courts. The Attorney General's chosen topic for the day was “the fraud and abuse in our asylum system.” “Over the years,” the Attorney General argued, “Congress has rationally passed legislation designed to create an efficient and fair procedure to properly admit persons andexpedite the removalof aliens who enter the United States illegally.” The Attorney General is referring here to the “expedited removal” procedures that Congress created in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Expedited removal gives the Department of Homeland Security the power to deport, without a hearing, any person who was not admitted to the United States and who cannot prove continuous presence for the prior two years. The Department of Homeland Security currently exercises a narrower expedited removal authority pursuant to the Department's prosecutorial discretion. Only individuals apprehended within two weeks of entry and within 100 miles of a land border are subject to expedited removal, per Department regulations.

Since the executive branch is charged with the responsibility to enforce immigration laws, the executive has vast discretionary authority to enforce those laws in a manner that is comparable to Congress’s plenary power over immigration legislation. The basis for federal policymaking on enforcement—through executive action, prosecutorial discretion, or deferred action—is the recognition that the executive is the “one voice” that decides the appropriateness of whether a particular noncitizen should be subject to removal or deportation. One example is the Deferred Action Program for Childhood Arrivals (DACA). Whether the president’s broad deferred action programs are constitutional was left unanswered by a deadlocked Supreme Court in United States v. Texas (2016), leaving the precise answer to the question of the president’s authority for a later day.

Immigrant doctors have helped fill physician shortages for years. In the current political climate, are they welcome?

As a national institution, the law is held to be above prejudice and bias (Gibbons, 1994). However, in recent years, as public awareness of `homeland security' has been heightened and borders have been tightened, the laws regarding immigration have come under close scrutiny. This article explores the language of immigration laws that target the notion of `diversity' and the political contexts in which those laws were created. More specifically, it addresses the following questions: Is there prejudice or bias in US immigration laws? If so, from where do those negative ideologies arise? And, finally, what does `diversity' actually mean in the context of US immigration? This analysis, which utilizes the tools of corpus and appraisal analysis, shows how contradictory positions surrounding the ideology of diversity exist within seemingly positive political discourses and demonstrates how those underlying judgements about diversity interact with and shape the very language of the laws that ensue.

Now as farmworker women, we're educating ourselves. We're helping other farmworker women to know their rights. We have conferences where we teach women how to defend themselves, how to get legal assistance, how to sue.... We also have conferences on domestic violence, sexual harassment, pesticides, and AIDS (Rothenberg 57). Maria Carmona, one of founders of Women's Leadership Project, illustrates how migrant workers deploy various strategies of resistance through which they struggle against forms of coercion exercised by state and transnational capital. The Farmworker Women's Leadership Project, as well as unions such as United Farm Workers (UFW) and Farm Labor Organizing Committee (FLOC), represents strategies of formal, organized opposition. The struggle for a safe working environment, a living wage, and a measure of control over workplace has been at center of migrant laborers' political battles. Yet, these battles are waged not only through picket line, strike, and ballot box but also through production of narratives that articulate forms of oppositional knowledge and identity. Transnational capital generates discursive strategies that create racial, national, and gendered divisions of labor that target specific bodies for specific kinds of work. Producing truth claims, these discourses seek to contain resistance and coerce workers into compliance. In worker testimony, we witness how farm laborers analyze, critique, and resist these discourses. Through narrative, workers engage in struggle over truth claims produced by power. Migrant laborers not only generate oppositional knowledge about workplace and their labor, but also redefine the family and the self. In this essay I analyze hegemonic narratives about migrant labor, and I consider forms of cultural resistance produced by workers through testimony. (1) I discuss novel Under Feet of Jesus, arguing that Helena Maria Viramontes not only critiques prevailing discourses of criminality that serve to legitimize exploitation of migrant labor but also offers tools for intervention into current legal and representational practices that seek to define migrant workers through essentializing race and gender stereotypes. Contemporary narratives featuring stereotype of illegal alien suppress long history of migration between United States and Mexico. Putting aside for a moment larger issues raised by Treaty of Guadalupe Hidalgo and United States appropriation of land formerly owned by Mexico, United States has relied upon labor from Mexico throughout twentieth century. In first quarter of last century, agricultural interests began to pressure US government to facilitate use of Mexican agricultural workers in fields. In 1925, one year after Border Patrol was created, Department of Labor and Immigration Bureau initiated programs attempting to restrict Mexican immigration to those who were either already employed or guaranteed employment on US farms. Some of very same immigration laws which had been used to exclude Chinese in nineteenth century (the head tax, literacy requirements, public charge provisions, and Alien Contract Labor Law) were waived to ensure flow of Mexican farm workers into fields. During Depression, these immigration laws, still on books, were used to restrict Mexican immigration, and, in Los Angeles from 1929 to 1935, 80,000 people of Mexican descent, regardless of their legal right to be in United States, were deported to Mexico. In 1942, as World War II produced another labor shortage, an Executive Order initiated bracero program which recruited four to five million Mexicans to work in United States. At end of war, while employers were still bringing in workers, federal government instituted large-scale expulsions of Mexican immigrants in mass militarized roundups of 1954 and 1955. …