The White House is expected to announce an executive action that would protect noncitizens from the harsh consequences of immigration enforcement. The legality of prosecutorial discretion in immigration law is well settled but the policy questions linger. The immigration agency has more than twenty different kinds of prosecutorial discretion in its arsenal, and “deferred action” serves as one. The role of prosecutorial discretion in immigration law is critical because it allows the Department of Homeland Security or immigration agency to manage its limited resources by targeting certain dangerous individuals for immigration enforcement and shielding people who bear compelling equities, like being the mother to a United States citizen child or a teenager who entered the United States as a toddler and is pursuing higher education, from removal (deportation). The use of prosecutorial discretion is also political because advocates become more demanding for the Administration to use executive action when Congress is unable to pass affirmative legislation or creates legislation that removes the ability to protect people through formal discretionary relief.  

While much of the public understanding for deferred action arose out of program aimed at qualifying “Dreamers” called Deferred Action for Childhood Arrivals or DACA (itself a form of deferred action), the immigration agency has been processing deferred action cases for  decades. In 1975, the immigration agency (then called Immigration and Naturalization Service) issued a policy called the “Operations Instructions” which at the time reflected a deferred action program for individuals bearing one or more of the following attributes: advanced or tender age; many years presence in the United States; physical or mental condition requiring care or treatment in the United States; and impact of deportation on family in the United States.   

Even after INS was abolished and the Department of Homeland Security was created, the agency continued to issue guidance documents about the role of prosecutorial discretion and deferred action in particular. Today, the immigration statute and regulations that govern this statute specifically name deferred action as a remedy for certain noncitizens. For the last several years, I have sought and received data on the agency’s deferred action program through the Freedom of Information Act to analyze the individual profiles and the degree to which common factors influence an outcome. I looked at a sample of 698 deferred action cases that were processed at twenty-four field offices of Immigration Customs Enforcement (ICE) between October 1, 2011 and June 30, 2012. Within this sample, deferred action was granted to noncitizens with United States citizen (USC) dependents, presence in the United States since childhood; primary caregivers to individuals with serious medical conditions; or those with long-term presence in the United States; and those with a serious mental or medical care condition. Data collected from the four regional services of United States Citizenship and Immigration Services (USCIS) indicates that 578 deferred action cases processed in 2013 over a four-month period. Within this sample size, deferred action was granted to noncitizens for largely humanitarian reasons. In one case, deferred action was granted to a Guatemalan native whose child was a United States citizen with medical issues. In another case, deferred action was granted to a Mexican father of a United States citizen son who is disabled and dependent on his father. In another case, deferred action was granted to a Nigerian whose mother has cancer and was undergoing treatment. The current and previous Administrations have also used deferred action as tool for protecting particular classes like victims of crime.   

This history reveals that outside the DACA program, the Department of Homeland Security continues to use long-established standards like a close family relationship or long term residence in the United States in deferred action cases. Any future program announced by the Administration that relies on these humanitarian factors would be grounded in history and not borne out of thin air. Creating a bold prosecutorial discretion policy using traditional criteria and sound procedures is a sensible response that goes beyond deportation.   

Wadhia is Samuel Weiss Faculty Scholar, Penn State Law, and the author of Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (New York University Press, 2015).