Cooperative Enforcement in Immigration Law

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

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 ... (see full summary)

 
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1
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.THE FAILURE OF REMOVAL ........................................................ 11
B.THE FAILURE OF FORBEARANCE ................................................. 13
C.THE POLITICAL COSTS OF REMOVAL-OR-FORBEARANCE ............... 19
III. COOPERATIVE ENFORCEMENT IN THE ADMINISTRATIVE
STATE .............................................................................................. 20
A.FROM COERCION TO COOPERATION ............................................ 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.COOPERATIVE ENFORCEMENT IN IMMIGRATION LAW .................. 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.OBJECTIONS TO COOPERATIVE ENFORCEMENT IN
IMMIGRATION LAW ................................................................... 39
1.Rewarding Lawbreakers .................................................. 39
2.Incentivizing Illegal Immigration .................................. 41
3.Immigration Exceptionalism .......................................... 42
4.Antithetical to Attrition-Through-Enforcement
Strategies .......................................................................... 44
B.BENEFITS OF COOPERATIVE ENFORCEMENT IN
IMMIGRATION LAW ................................................................... 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 (describ ing
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 (descr ibing the C ourt’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 us ed
“in deciding whether a more or less interventionist response is needed”); Jo dy 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. & POLY REV. 603, 611–44 (2007) (discussing the benefits
of cooperative enforcement over punitive, command-and-contro l 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”

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