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.
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).