Sharing Secrets: Examining Deferred Action and Transparency in Immigration Law

This Article is about deferred action and transparency in related immigration cases falling under the jurisdiction of the Department of Homeland Security (DHS). While scholars from other genres have written extensively on the topic of prosecutorial discretion, the subject is largely absent from immigration scholarship, with the exception of early research conducted by Leon Wildes in the late 1970s and early 2000s, and a law review article I published in 2010 outlining the origins of prosecutorial discretion in immigration law and related lessons that can be drawn from administrative law and criminal law. That article ends with specific recommendations for the agency that include both codifying deferred action into a regulation and recognizing it as a formal benefit as opposed to a matter of “administrative convenience,” streamlining the array of existing memoranda of prosecutorial discretion floating within each DHS agency, and increasing oversight of prosecutorial discretion to ensure that officers and agencies that fail to exercise prosecutorial discretion by targeting and enforcing the laws against low-priority individuals are held accountable. In this Article, and building upon recommendations published in The Role of Prosecutorial Discretion in Immigration Law, I describe the state of prosecutorial discretion and deferred action in particular by surveying the political climate, public reaction, and advocacy efforts in the last two years. I also chronicle my repeated Freedom of Information Act (FOIA) requests to DHS for information about deferred action, and the stumbling blocks I encountered during this 19-month journey. The Article will show that while deferred action is one of the very few discretionary remedies available for noncitizens with compelling equities, it currently operates as a secret program accessible only to elite lawyers and advocates. Moreover, the secrecy of the program has created the (mis)perception by some that deferred action can be used as a tool to legalize the undocumented immigrant population or ignore congressional will. This article explains why transparency about deferred action is important and makes related recommendations that include, but are not limited to, subjecting the program to rulemaking under the Administrative Procedures Act, issuing written decisions when deferred action is denied, posting information about the application process, and maintaining statistics about deferred action decisions. Without these remedies, noncitizens that possess similarly relevant equities will face unequal hardships. Background: The Department of Homeland Security is a cabinet-level agency with jurisdiction over many immigration functions. The Department has jurisdiction over immigration “services” such as asylum, citizenship, and green card applications; border-related enforcement actions such as border patrol and inspections; and interior enforcement activities, such as the detention and removal of noncitizens. The immigration court system is called the Executive Office for Immigration Review and rests within the Department of Justice. Removal proceedings are initiated by DHS and operate as adversarial hearings at which U.S. Immigration and Customs Enforcement attorneys represent the DHS. On the other hand, noncitizens are entitled to find their own lawyers at no expense to the government. Many noncitizens in removal proceedings are unrepresented because the proceeding itself is considered “civil” and without guaranteed safeguards like court-appointed counsel. At a removal proceeding, an Immigration Judge reviews allegations and charges with the noncitizen defendant, enters pleas, and if appropriate presides over applications for relief from removal such as asylum, adjustment of status, and cancellation of removal. The noncitizen bears the burden of proving that she is eligible for such relief. Decisions by the Immigration Judge may be appealed with the Board of Immigration Appeals. Not every noncitizen residing or entering the United States without legal authority is placed in removal proceedings. Some are removed expeditiously by the Department through other means, while others are considered for prosecutorial discretion. A favorable exercise of “prosecutorial discretion” identifies the Department of Homeland Security’s authority to not assert the full scope of the agency’s enforcement authority in each and every case. The Department’s motivations for exercising prosecutorial discretion are largely economic and humanitarian. According to the agency’s own statistics, ICE has the resources to remove less than 4% of the total undocumented population. Moreover, many individuals and groups who present redeeming qualities such as lengthy residence, employment or family ties in the U.S., and/or intellectual, military, or professional promise are living in the U.S. vulnerable to immigration enforcement and without a statutory vehicle for legal status. In the first two years of the Obama Administration, such humanitarian cases have swelled in the wake of congressional stalemates over even discrete immigration reforms. At one time prosecutorial discretion was called “nonpriority” and later “deferred action,” but today, prosecutorial discretion is associated with many different actions by the government. For example, a DHS officer can exercise favorable discretion by granting a temporary stay of removal, joining in a motion to terminate removal proceedings, granting an order of supervision, cancelling a Notice to Appear, or granting deferred action. Prosecutorial discretion can also be exercised during different points in the enforcement process, including, but not limited to, interrogation, arrest, charging, detention, trial, and removal.