The History of Prosecutorial Discretion in Immigration Law

This Article describes the historical role of prosecutorial discretion in immigration law and connects this history to select executive actions announced by President Obama on November 20, 2014. "Prosecutorial discretion" in immigration law refers to the decision the Department of Homeland Security (DHS)1 makes about whether to enforce the immigration law against a person or a group of persons.2 When an immigration officer from DHS chooses not to bring legally valid charges against a person because of the person's family ties in the United States or other equities, prosecutorial discretion is being exercised favorably.3But prosecutorial discretion is not just limited to whether and what kinds of charges DHS can bring against the noncitizen. Other forms of prosecutorial discretion, like a decision by DHS to grant deferred action to a young person who is thriving as a college student, reflect a positive act by the agency.4 In some special cases, DHS may allow this person to receive a work authorization and may recognize the person as "lawfully present" in the United States.5 Whether prosecutorial discretion is carried out invisibly through non-enforcement or overtly through affirmative acts, the discretion itself is tenuous. It leads only to an "immigration purgatory" in which the noncitizen is able to reside in the United States without the fear of deportation.On November 20, 2014, President Obama announced a series of executive actions on immigration that highlight the role of prosecutorial discretion in immigration law, four of which are described in this Article.6 The first policy change-one that has received great attention-is the establishment of a new Deferred Action for Parents of American and Lawful Permanent Residents (DAPA) program. This program will enable undocumented parents to request deferred action (a form of prosecutorial discretion) and work authorization if they can show (1) continuous residence in the United States since January 1, 2010; (2) a relationship as the parent to a U.S. citizen or lawful permanent resident (LPR) child born on or before November 20, 2014; (3) unlawful status on November 20, 2014 and on the date of application; (4) that they are not an enforcement priority for removal; and (5) that they pose no other factor that in the exercise of discretion would deem DAPA inappropriate.7 If a person is unable to satisfy one or more of these requirements, she is barred from requesting DAPA.8 In this way, the DAPA requirements are likely to operate as bright-line requirements, a conclusion that can be confirmed only after more information becomes available about the application process and requirements.A second policy change will expand the Deferred Action for Childhood Arrivals (DACA) program. Established in 2012, DACA enables young people who came to the United States before the age of 16 to apply for deferred action if they have resided in the United States since June 15, 2007.9 USCIS created internal policies and public information about how it would interpret certain terms, such as "continuous residence" and "no lawful status."10 Under the original program, DACA recipients were eligible to apply for work authorization and were protected from removal for a period of two years.11 The changes made to the DACA program on November 20, 2014 are seemingly simple but significant to people who may have been ineligible for the original DACA program. Specifically, the changes announced on November 20, 2014 would extend the period a person would receive DACA from two years to three years and would manicure the age and residency requirements by removing the age cap and adjusting the residency clock to 2010.12 These changes make more people eligible to apply.A third change made by the President's executive actions pertains to DHS's enforcement priorities. Specifically, the President announced a new priorities memorandum, entitled "Policies for Apprehension, Detention and Removal of Undocumented Immigrants" ("November 2014 Priorities Memo"), which sets forth refined priorities for immigration enforcement. …