Amending the Unwritten Constitutional Use of Broad Prosecutorial Discretion in Immigration Law, Toward a Hyper-narrow Concept an Analysis of the Daca Program

• Publication year: 2019

Raquel Muniz^*

Abstract: Prosecutorial Discretion (PD) is an unwritten constitutional norm that has been used by the federal executive branch to ensure faithful execution of the law. The current administration has undermined PD through its narrow application within immigration law, resulting in practical implications for students and others who depend on PD.

Introduction

Karla Ornelas and her family arrived in the United States in 2006, settling alongside a community of farmworkers in Central Valley, California, after her parents left Mexico to pursue better economic opportunities.¹ She was younger than ten years old when she arrived in California, and she grew up longing to become a doctor to return to help her Central Valley farming community. In the fall of 2017, she was entering her third year of college at UC Davis and preparing to apply to medical school when she learned that President Donald J. Trump had rescinded the Deferred Action for Childhood Arrivals (DACA) program. Being a DACA recipient herself, the news was devastating. The news caused her uncertainty and constant anxiety, feelings that, though not new, given her immigration status, were exacerbated after the rescission announce-ment.² But, Karla was not alone in her concerns. She is one of approximately 900,000 young undocumented immigrants who benefited from DACA, the program instituted in 2012 during the Obama era.

The DACA program did not provide absolute security for DACA recipients, but it did ameliorate some of their conditions. These youths' experiences related to their immigration status have been well documented in the literature. Young undocumented immigrants like Karla often find out about their status when applying to college and for financial aid, and they subsequently experience a host of mental and emotional tolls that stem from the uncertainty of their status. For example, young undocumented immigrants often live in low-income households, lack social support, and experience issues of identity as they turn of age in a society that is hostile to "illegal" immigrants.³ These interrelated issues can and often do lead to depression, anxiety, chronic sadness, frustration, stress, substance abuse, self-harm, and suicide attempts.

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Karla's story is not isolated but is rather symptomatic of larger issues in immigration law, politics, and policies in American society. These young undocumented immigrants experienced improved conditions after the DACA program went into effect,⁴ although DACA did not remove all challenges associated with their immigration status.⁵ While DACA did not provide a path to legalization, the use of favorable prosecutorial discretion (PD) alleviated some of the concerns of these young immigrants who feared deportation prior to the DACA program. The Trump administration's approach to prosecutorial discretion in the immigration system changed that.

An Unwritten Constitutional Norm: The Broad Use of Favorable Prosecutorial Discretion in the U.S. Immigration System

Pre-Obama Era: Established, Solid Beginnings

Favorable prosecutorial discretion in immigration law—the federal government's choice not to prosecute certain undocumented immigrants—is not a novel idea but is rather an unwritten constitutional norm exercised through the powers of the federal executive branch. As with other unwritten constitutional norms, favorable PD in the immigration system grew from a nascent practice into a custom that was eventually validated through multiple sources of law and across the three branches of the federal government. Favorable PD in the immigration system can be said to be fundamentally grounded on the U.S. Constitution's Article II, Section 3 (the Take Care Clause), which states that the president "shall take Care that the Laws be faithfully executed."⁶ It is in ensuring the laws be faithfully executed, the Supreme Court has recognized, that the executive branch has the inherent power and discretion to decide whether to prosecute any given case.⁷

The executive branch's favorable use of PD in the immigration system has been acknowledged and validated throughout decades of case law,⁸ administrative agency regulations/guidance,⁹ and legislative action.¹⁰ For example, as early as 1976, the Supreme Court in Arizona v. United States explicitly acknowledged the role of PD in the immigration system, detailing the importance of PD in reaching equitable outcomes for undocumented immigrants that come in contact with immigration enforcement agents.¹¹ The Court in Arizona explained that equitable outcomes in these cases require consideration of human factors, including an immigrant's long ties to the community, children born in the United States, or a record of distinguished service.¹² Given that the legal sanctions for undocumented immigrants found in the immigration code are severe, courts have found that favorable exercise of PD is one way to protect the civil liberties of these immigrants.¹³

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Similarly, agency regulations/guidance and statutory law have simultaneously and symbiotically cemented the same idea that favorable use of PD in the immigration system is not only useful but necessary. For example, in 1976, the legacy Immigration and Naturalization Service (INS) established administrative agency guidance on PD. General Counsel Sam Bernstein drafted a legal opinion citing the Take Care Clause, statutory law, and early case law from 1825 in support of the favorable use of PD in the immigration system.¹⁴ The inherent power to use PD favorably if so desired was also codified in the Immigration and Nationality Act (INA), the primary source of statutory immigration law in the United States. The INA grants the executive branch broad discretion to manage and decide on immigration issues: The Secretary of Homeland Security is charged with the administration and enforcement of immigration law and policy¹⁵ and the judiciary is limited from interfering in three areas, namely, removal proceedings, case adjudications, and execution of removal orders.¹⁶

Against this backdrop of jurisprudence, regulations/guidance, and statutes recognizing the executive branch's power to exercise PD favorably in the immigration system, the executive branch has continually exercised PD favorably by deferring removal action for certain individuals in need. In its most general sense, deferred action—originally known as "nonpriority status"¹⁷—is the executive branch's decision to not begin deportation proceedings against certain individuals or a group of individuals who are otherwise eligible for remov-al.¹⁸ As with PD in general, the Supreme Court has also recognized deferred action by name, explaining that the executive branch had historically adopted a regular practice known as deferred action, in which the executive branch deferred deportation for humanitarian reasons or for its own convenience.¹⁹

The documented historical practice of deferred action enjoyed a cloak of secrecy until it came to public view in the 1970s, as a result of a Freedom of Information Act (FOIA) request in John Lennon's and Yoko Ono's litigation over deportation efforts stemming from Lennon's British conviction for possession of marijuana.²⁰ The practice of deferred action had been hidden from the public, and INS officials often publicly denied the practice.²¹ However, following the public revelation, INS issued its first public guidance on the agency's use of deferred action through an Operations Instruction (OI). ²² The OI described deferred action as a necessary practice when an opposite adverse action would be unconscionable given the pressing, appealing humanitarian factors.²³ While the use of deferred action as a favorable exercise of PD is not specifically granted in statutes, the legislative branch has nonetheless historically recognized deferred action in, for example, the INA, wherein Congress outlines that deferred action is reserved and falls within the executive branch's power.²⁴

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The executive branch's ability to exercise deferred action in immigration has been historically employed consistently regardless of political ideologies, such that different presidents across the political spectrum have granted deferred action on a programmatic basis.²⁵ For example, the Reagan administration established the Family Fairness program, a functional form of deferred action, to address the unanticipated implications of the Immigration Reform and Control Act (IRCA) legislation.²⁶ In 1986, Reagan signed IRCA, providing a pathway to legalization for hundreds of thousands of undocumented immigrants. However, IRCA was limited only to those who qualified under IRCA's strict criteria, which fractured family units into those who qualified and those who did not.²⁷ Through the Family Fairness program, the administration deferred deportation for the minor children of immigrants who qualified for legalization under IRCA.²⁸ In 1990, George H.W. Bush expanded the program to include children and spouses of immigrants who were legalized through IRCA.²⁹ Although some described the program as extended voluntary departure, the program was the functional equivalent of deferred action inasmuch as the individuals who qualified were allowed to remain in the United States.³⁰ Years later, under the George W. Bush administration, the United States Citizenship and Immigration Services (USCIS) announced a deferred action program for student victims of Hurricane Katrina³¹ and a program for widows of U.S. citizens.³² In sum, favorable use of PD in immigration, including deferred action, has become a constitutional norm that has an established and solid foundation on the constitution, jurisprudence, agency guidance, and consistent programmatic use via presidential actions.

Obama Era: Systematizing the Unwritten Constitutional Norm via the DACA Program

On June 15, 2012, then-Secretary of Homeland Security Janet Napoli-tano issued a memorandum entitled Exercising Prosecutorial...