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Beyond Deportation

Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases

Shoba Sivaprasad Wadhia
With a Foreword by Leon Wildes
Copyright Date: 2015
Published by: NYU Press
Pages: 240
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  • Book Info
    Beyond Deportation
    Book Description:

    When Beatles star John Lennon faced deportation from the U.S. in the 1970s, his lawyer Leon Wildes made a groundbreaking argument. He argued that Lennon should be granted "nonpriority" status pursuant to INS's (now DHS's) policy of prosecutorial discretion. In U.S. immigration law, the agency exercises prosecutorial discretion favorably when it refrains from enforcing the full scope of immigration law. A prosecutorial discretion grant is important to an agency seeking to focus its priorities on the "truly dangerous" in order to conserve resources and to bring compassion into immigration enforcement. The Lennon case marked the first moment that the immigration agency's prosecutorial discretion policy became public knowledge. Today, the concept of prosecutorial discretion is more widely known in light of the Obama Administration's Deferred Action for Childhood Arrivals or DACA program, a record number of deportations and a stalemate in Congress to move immigration reform.

    Beyond Deportationis the first book to comprehensively describe the history, theory, and application of prosecutorial discretion in immigration law. It provides a rich history of the role of prosecutorial discretion in the immigration system and unveils the powerful role it plays in protecting individuals from deportation and saving the government resources. Shoba Sivaprasad Wadhia draws on her years of experience as an immigration attorney, policy leader, and law professor to advocate for a bolder standard on prosecutorial discretion, greater mechanisms for accountability when such standards are ignored, improved transparency about the cases involving prosecutorial discretion, and recognition of "deferred action" in the law as a formal benefit.

    eISBN: 978-1-4798-0754-3
    Subjects: Law, Political Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
    (pp. ix-xii)
    Leon Wildes

    The INS had a long tradition of denying that it ever had a humanitarian program to benefit noncitizens. In official bar association liaison committee meetings with the New York district director of the INS that I attended before 1972, District Director Peter Esperdy, in response to a direct question, denied the existence of a “nonpriority” program or any other policy by which the INS might defer or decline the removal of eligible noncitizens. Although district directors had been routinely forwarding meritorious hardship cases to regional commissioners, this beneficial program was practicedsub rosaand was never publicly discussed or acknowledged....

    (pp. xiii-xvi)
  5. Introduction
    (pp. 1-6)

    Envision a young man named Roman who is brought to the United States as a toddler, grows up in an all-American household along the Eastern Shore, completes his schooling and attends college, and marries his high school sweetheart, a U.S. citizen. Certain marks on Roman’s record, such as a criminal conviction many years previous, are sufficient to make him deportable from the United States and leave him with no avenue for appeal or protection.

    In the past twenty years, immigration laws have been shaped to leave people like Roman without options to reside in the United States lawfully with their...

  6. 1 Primer: Understanding How Prosecutorial Discretion Functions in the Immigration System
    (pp. 7-13)

    This chapter introduces the reader to the complexity of the immigration design and the extent to which prosecutorial discretion operates within this design. Likewise, it underscores the significant role of DHS in exercising prosecutorial discretion and the fact that all three major agencies, USCIS, CBP, and ICE, have the authority to use this discretion. Finally, this chapter provides the reader with an understanding of the largely humanitarian and economic reasons why prosecutorial discretion exists.

    Prosecutorial discretion has been a main ingredient of the immigration system since its creation. As described in greater detail in chapter 3, many of the principles...

  7. 2 The Early Years: The Deportation Case of John Lennon and Evolution of Immigration Prosecutorial Discretion
    (pp. 14-32)

    While prosecutorial discretion has long existed in the immigration context, it operated for decades in secrecy and away from the public. Indeed, few people today are aware of the debt that immigration prosecutorial discretion owes to an unlikely hero—the member of the Beatles known as John Lennon. Lennon’s case brought the issue of immigration prosecutorial discretion into the public eye for the first time. This chapter details the immigration case of John Lennon and the efforts undertaken by his attorney, Leon Wildes, to encourage the immigration agency to publish its policies about prosecutorial discretion. This chapter also chronicles the...

  8. 3 Lessons from Criminal Law: How Immigration Prosecutorial Discretion Compares to the Criminal System
    (pp. 33-53)

    Prosecutors have long been viewed as powerful officials who exercise tremendous discretion over ordinary person’s life. While scholars have written extensively about the history, power, and abuse of criminal prosecutorial discretion,² the literature has been less engaged with how prosecutorial discretion in the criminal system is related to such discretion in the immigration law system, a mostly civil system that possesses criminal-law-like features such as interrogation, arrest, detention, the filing of charges, and in some cases a hearing before an immigration judge with the government serving as the “prosecutor” and the noncitizen serving as the “defendant.” This chapter explains how...

  9. 4 Deferred Action: Examining the Jewel (or a Precious Form) of Prosecutorial Discretion
    (pp. 54-87)

    This quote comes from Anthony, an undocumented Filipino living in the United States who qualified for a special form of deferred action called Deferred Action for Childhood Arrivals (DACA).² This chapter educates the reader about deferred action, one of the most precious forms of prosecutorial discretion. The chapter is broken into three parts: (1) general history of deferred action in immigration law, (2) the use of deferred action to protect victims of domestic violence, sexual assault, and other crimes, and (3) an analysis of deferred action data retrieved from INS and DHS. As recounted earlier, deferred action is one of...

  10. 5 Presidential Portrait: Prosecutorial Discretion during the Obama Administration
    (pp. 88-108)

    Barack Obama’s presidency has been unique in that his administration has been very public about its use of prosecutorial discretion and has received much media attention and controversy. This chapter looks at the role of prosecutorial discretion in immigration matters during Obama’s presidency. It reenacts the arguments from lawyers, policy pundits, select members of Congress and ICE’s own union toward new prosecutorial discretion policies issued during the Obama administration. During this period, DHS issued no fewer than a dozen policy documents about the role of prosecutorial discretion in immigration law. This chapter summarizes some of the most salient of these...

  11. 6 Going to Court: The Role of the Judiciary in Prosecutorial Discretion Decisions
    (pp. 109-133)

    For Sara, and an unknown number of other individuals, a prosecutorial discretion “denial” often leads to the noncitizen’s deportation or “removal,” which in turn has been equated to “banishment,” “exile,” and “punishment.”² In addition to the hardships faced by a noncitizen removed from the United States are potential hardships on the family or community he or she leaves behind, and often the family is forced to move to the country of removal with him or her. Furthermore, absent a waiver, a removal order prevents the noncitizen from returning to the United States or applying for formal immigration benefits or relief...

  12. 7 Open Government: Transparency in Prosecutorial Discretion and Why It Matters
    (pp. 134-145)

    Transparency is an instrument used by government to promote democracy and the government’s own legitimacy.¹ Transparency is a challenge, however, because too much of it can reveal information that is sensitive to the national security or the individual; or transparency may prove too costly if it results in reams of regulation and public input during its development or even litigation that would not have taken place. The immigration system is by no means immune to the transparency challenge. This chapter defines transparency and explains why it matters. It also describes the agency’s historical lack of transparency in immigration cases involving...

  13. 8 Reform: Improving Prosecutorial Discretion in the Immigration System
    (pp. 146-156)

    The human impact of U.S. immigration law cannot be overstated. Each person who faces deportation has a story that may include a spouse, children, and parents and deep roots inside the United States. She might be an undocumented mother who is a primary caregiver for a young U.S. citizen daughter who suffers from a life-threatening disease. He may be a teenager who aspires to work as a doctor and who was brought to the United States as a baby without any knowledge about his immigration status. He may be a middle-aged man who has faced hardship in his birthplace and...

    (pp. 157-160)
    (pp. 161-168)
  16. NOTES
    (pp. 169-222)
  17. INDEX
    (pp. 223-232)
    (pp. 233-233)