This blog post will focus on a small but important portion of my new book Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases and specifically the historical relationship between prosecutorial discretion and criminal activity. As a primer, prosecutorial discretion in immigration cases refers to any choice made by the Department of Homeland Security (DHS) (or its predecessor, the Immigration and Naturalization Service) about whether and/or to what extent to enforce the law against a person. While deferred action is the most popular form of prosecutorial discretion in the public discourse, DHS can exercise this discretion through many means. It can, for example, choose to throw out a legally valid charging document or choose not to appeal a decision by an immigration judge that favors the noncitizen. These choices are driven largely by economic constraints on DHS and compassion for people with profound reasons for residing in the United States.
Since the unleashing of the now rescinded Morton Memo on Prosecutorial Discretion on June 17, 2011, immigration advocates and attorneys have pointed to instances where DHS failed to implement its own guidelines or alternatively, failed to create a policy that makes it possible for a person with a specific indiscretion but strong humanitarian equities to be protected from removal through a favorable exercise of prosecutorial discretion. As an illustration, the Deferred Action for Childhood Arrivals (DACA) program established in 2012 disqualifies individuals who have been convicted of a felony, “significant misdemeanor” or three “non-significant” misdemeanors. Data obtained from ICE on individual deferred action cases outside of the DACA program reveal that a good number of denials are driven by having a criminal history. Likewise, immigration advocates and attorneys have featured the stories of deported individuals like Pastor Max Friesen, a husband and father to United States citizen children and published related reports about those “denied” prosecutorial discretion because of a criminal history. Together, these events have created a picture where only people with compelling equities and no criminal record will receive the temporary benefit of prosecutorial discretion. (Possibly, it has also created an impression that noncitizens are more likely to commit crimes, a topic that falls beyond the scope of this blog essay but deserves a mention in light of an onslaught of related media attention and concrete data that immigrants are in fact less likely to engage in criminal activity than the native born.)
Unlike today, historically, having a criminal record has not been fatal to a prosecutorial discretion grant. As detailed in Beyond Deportation and thanks to the groundbreaking research conducted by Leon Wildes (who also authored the foreword for the book), the Immigration and Naturalization Service (INS) routinely processed and granted deferred action cases for individuals with a wide range of criminal activities—turpitudinous, drug-related, and fraud-related. As described by Mr. Wildes: “In sum, [deferred action] has been granted to those who have violated almost any provision of the Act.” Indeed, the agency had a history of protecting imperfect people with strong humanitarian equities through prosecutorial discretion. This history highlights the humanitarian foundation of prosecutorial discretion and deferred action in particular. Many of the elements showcased by DHS in recent years as particularly positive qualities: presence of family in the United States, residence in the United States since childhood and role as a primary caregiver, among others, resemble the equities long used by INS and DHS in processing individual requests for prosecutorial discretion and deferred action in particular.
On November 20, 2014, new guidelines on enforcement priorities and prosecutorial discretion were issued by DHS Secretary Jeh Johnson. These guidelines serve as a critical tool for individuals seeking protection from deportation through prosecutorial discretion. Notably, the language of these guidelines offers a possibility that a person with a criminal history may still qualify for prosecutorial discretion. For example, individuals with certain criminal convictions may be protected if “there are factors indicating the alien is not a threat to national security, border security, or public safety and should not therefore be an enforcement priority.” How this language is implemented by DHS employees will matter most. As recommended in the concluding chapter of Beyond Deportation, “DHS must embrace the idea that a person with a criminal or immigration history may still be deserving of relief and explain in more detail how a person’s positive attributes interact with his or her adverse ones. In a context where the criminal code has grown exponentially, a congressional stalemate has emerged on immigration reform for yet another year, and the very premise of prosecutorial discretion is to intentionally take no action against people who have violated the law, it is infeasible for DHS to maintain a policy that uses a bright-line test to divide ‘enforcement priorities’ from those who are worthy of protection from removal.”
Wadhia is the Samuel Weiss Faculty Scholar at Penn State Law, where she directs the Center for Immigrants’ Rights Clinic and teaches immigration-related courses. Her book, Beyond Deportation, was published by NYU Press in 2015. She would like to thank Professor César Cuauhtémoc García Hernández for inviting her to guest blog for CrImmigration.
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