Cooperative Enforcement in Immigration Law

• Author: Amanda Frost
• Position: Professor of Law, American University Washington College of Law
• Pages: 1-51

Cooperative Enforcement in Immigration Law Amanda Frost  ABSTRACT: Immigration officials take two approaches to unauthorized immigrants: Either they seek to deport them, or they exercise prosecutorial discretion, allowing certain categories of unauthorized immigrants to remain in the United States without legal status. Neither method is working. The executive lacks the resources to remove more than a small percentage of the unauthorized population each year, and prosecutorial discretion is by definition an impermanent solution that leaves unauthorized immigrants vulnerable to exploitation at both work and home—harming not just them, but also the legal immigrants and U.S. citizens with whom they live and work. This Article suggests a third way. Immigration officials could supplement the current removal-or-forbearance dichotomy with a cooperative-enforcement approach, under which they would assist those unauthorized immigrants who are low priorities for removal to legalize their status. Administrative law scholars have long promoted cooperative enforcement in other fields, describing how administrative agencies have begun to replace the rigid, adversarial, command-and-control regime that dominated the regulatory environment in the 1970s and 1980s with a collaborative approach to rulemaking and enforcement. Just as officials at other federal agencies now work with regulated entities to help them come into compliance with federal law, immigration officials could also employ a combination of outreach and education, flexible interpretation of regulations and statutes, and the liberal exercise of their discretion to assist unauthorized immigrants apply for, and obtain, legal status.  Professor of Law, American University Washington College of Law. I received valuable comments from Jennifer Daskal, Pratheepan Gulasekaram, Joseph Landau, Amanda Leiter, Maureen Mahoney, Mark Noferi, Juliet Stumpf, Shoba Sivaprasad Wadhia, and the participants at the faculty workshops at the University of Maryland Law School, University of Temple Beasley School of Law, the University of Georgia School of Law, and the 2016 Immigration Law Professors Workshop. Special thanks to Ann Garcia for her valuable research assistance, and to American University Washington College of Law for providing the research grant to support the writing of this article. 2 IOWA LAW REVIEW [Vol. 103:1 I. INTRODUCTION ................................................................................. 2 II. THE FAILURE OF THE REMOVAL-OR-FORBEARANCE APPROACH ........................................................................................ 9 A. T HE F AILURE OF R EMOVAL ........................................................ 11 B. T HE F AILURE OF F ORBEARANCE ................................................. 13 C. T HE P OLITICAL C OSTS OF R EMOVAL - OR -F ORBEARANCE ............... 19 III. COOPERATIVE ENFORCEMENT IN THE ADMINISTRATIVE STATE .............................................................................................. 20 A. F ROM C OERCION TO C OOPERATION ............................................ 21 1. The EPA’s Protection of Endangered Species .............. 23 2. The SEC’s “No-Action” Letters ....................................... 24 3. The FDA’s “Notice of Detention and Hearing” for Illegal Products ................................................................ 25 4. OSHA’s Education and Outreach .................................. 26 B. C OOPERATIVE E NFORCEMENT IN I MMIGRATION L AW .................. 27 1. Cancellation of Removal ................................................. 29 2. U Visas for Victims of Crimes ......................................... 32 3. Special Immigrant Juvenile Status ................................. 34 4. Waivers and Exceptions for Unlawful Presence ............ 36 IV. ASSESSING A COOPERATIVE APPROACH TO IMMIGRATION ENFORCEMENT ................................................................................ 38 A. O BJECTIONS TO C OOPERATIVE E NFORCEMENT IN I MMIGRATION L AW ................................................................... 39 1. Rewarding Lawbreakers .................................................. 39 2. Incentivizing Illegal Immigration .................................. 41 3. Immigration Exceptionalism .......................................... 42 4. Antithetical to Attrition-Through-Enforcement Strategies .......................................................................... 44 B. B ENEFITS OF C OOPERATIVE E NFORCEMENT IN I MMIGRATION L AW ................................................................... 46 1. Reducing the Size of the Unauthorized Immigrant Population ........................................................................ 46 2. Bringing Beneficiaries Out of the Shadows .................. 47 3. Bipartisan Appeal ............................................................ 48 4. Normalizing Immigration Law ....................................... 49 V. CONCLUSION .................................................................................. 50 I. INTRODUCTION On June 23, 2016, an eight-member Supreme Court announced that it had deadlocked in United States v. Texas , 1 one of the most important 1. United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam). 2017] COOPERATIVE ENFORCEMENT IN IMMIGRATION LAW 3 immigration cases in decades. 2 Texas and 25 other states had challenged the Obama Administration’s blanket exercise of prosecutorial discretion granting a temporary reprieve from removal to millions of unauthorized immigrants. Although the tie vote set no precedent, it kept in place the lower court’s nationwide preliminary injunction and, together with the election of Donald J. Trump to be the next president, sounded the death knell for Obama’s initiative. 3 The case exemplifies the problems with the longstanding dichotomy in immigration enforcement, in which immigration officials believe they have only two choices: deport unauthorized immigrants or exercise prosecutorial discretion, allowing certain categories of unauthorized immigrants to remain in the United States without legal status. This Article suggests a third way: The immigration bureaucracy could adopt a cooperative enforcement model similar to that used by other federal agencies, under which government officials would proactively assist a subset of unauthorized immigrants come into compliance with the law. Administrative law scholars have long promoted cooperative enforcement in other fields, arguing that administrative agencies should replace the rigid, adversarial, command-and-control regime that dominated the regulatory environment in the 1970s and 1980s with a collaborative approach to rulemaking and enforcement. 4 Over the past 20 years, agencies such as the 2 . See, e.g. , Linda Greenhouse, The Supreme Court vs. the President , N.Y. TIMES (Feb. 4, 2016), https://www.nytimes.com/2016/02/04/opinion/the-supreme-court-vs-the-president.html (describing the case as presenting a “blockbuster constitutional question”); Dara Lind, United States v. Texas , the Biggest Immigration Case in a Century, Explained , VOX (Apr. 15, 2016, 10:50 AM), http://www.vox. com/2016/4/15/11424614/supreme-court-immigration-dapa-daca; Adam Liptak & Michael D. Shear, Supreme Court Tie Blocks Obama Immigration Plan , N.Y. TIMES (June 23, 2016), https://www. nytimes.com/2016/06/24/us/supreme-court-immigration-obama-dapa.html (describing the Court’s decision in United States v. Texas as “perhaps [the Supreme Court’s] most important statement this term”). 3 . See Liptak & Shear, supra note 2 (stating that the Court’s decision “effectively end[ed]” President Obama’s deferred action initiatives). 4 . See, e.g. , IAN AYRES & JOHN BRAITHWAITE, RESPONSIVE REGULATION: TRANSCENDING THE DEREGULATION DEBATE 5 (1992) (promoting responsive regulation in which agencies emphasize “flexibility,” “participat[ion],” and “negotiation” with regulated entities rather than the top-down, “punitive” and “repressive” regulatory style of the past); JOHN BRAITHWAITE, RESTORATIVE JUSTICE AND RESPONSIVE REGULATION 29 (2002) (explaining that responsive regulation should be used “in deciding whether a more or less interventionist response is needed”); Jody Freeman, Collaborative Governance in the Administrative State , 45 UCLA L. REV. 1, 4–7 (1997) (describing new methods of regulation in which agencies shift away from adversarial enforcement and toward cooperation with regulated entities); Robert L. Glicksman & Dietrich H. Earnhart, Depiction of the Regulator-Regulated Entity Relationship in the Chemical Industry: Deterrence-Based vs. Cooperative Enforcement , 31 WM. & MARY ENVTL. L. & POL’Y REV. 603, 611–44 (2007) (discussing the benefits of cooperative enforcement over punitive, command-and-control style regulation); Kristin E. Hickman & Claire A. Hill, Concepts, Categories, and Compliance in the Regulatory State , 94 MINN. L. REV. 1151, 1160 (2010) (explaining that one theory of enforcement assumes that “regulated parties want to comply with the law and will respond more positively to persuasion, education, and assistance than to penalties”); Bradley C. Karkkainen, Environmental Lawyering in the Age of Collaboration , 2002 WIS. L. REV. 555, 557 (describing criticism of the “command-and-control” 4 IOWA LAW REVIEW [Vol. 103:1 Occupational Safety and Health Administration (“OSHA”), the Food and Drug Administration (“FDA”), the Environmental Protection Agency (“EPA”), and the Securities and Exchange Commission (“SEC”) have adopted initiatives to work together with regulated entities to assist them in coming into compliance with the law through education, consultation, and flexible interpretations of legal standards. 5 The immigration bureaucracy could do the same. The Immigration and Nationality Act contains a number of provisions permitting unauthorized immigrants to apply for legal status. For example, some unauthorized immigrants who are...