JURIST Guest Columnist Shoba Sivaprasad Wadhia, of Penn State Law, discusses President Obama’s executive actions on immigration and analyzes the two main immigration reform programs …

On November 20, 2014, President Obama announced a series of executive actions on immigration aimed at reducing deportations for people who present positive equities such as a close family relationship or long term residence in the US. In announcing these actions, the President used the phrase “families not felons” to explain his plan to prioritize immigration enforcement against some groups over others. This commentary describes the ingredients of and relationship between two programs announced by the president—the Deferred Action for Parental Accountability Program and Revised Enforcement Priorities [PDF].

The Deferred Action for Parental Accountability Program or “DAPA” will enable certain undocumented parents to request for deferred action if they meet the following criteria: 1) continuous residence in the US since January 1, 2010; 2) parental relationship to a US citizen or lawful permanent resident born on or before November 20, 2014; and 3) not an enforcement priority for removal. The legal basis [PDF] for the DAPA program is rooted in the US Constitution, case law, immigration statute, regulations and policy guidance and enjoys a long history. Deferred action is one form of prosecutorial discretion, which in immigration law refers to the Department of Homeland Security’s choice about who to target for removal if at all. The policy reasons behind the DAPA program are largely humanitarian and are aimed at keeping families together if the dependent enjoys a permanent immigration status and the parent has resided in the US for a meaningful period of time. There are also economic reasons for creating programs like DAPA to the extent it facilitates better management of limited resources. According to one estimate [PDF] the Department of Homeland Security has the resources to remove 400,000 or less than 4% of the total removable population.

The DAPA bar (the requirement that the parent is not an enforcement priority) is controversial and requires one to study the scope of the revised priorities memo (RPM). Effective January 5, 2015 the RPM supersedes several earlier guidance documents issued by the Department of Homeland Security on prosecutorial discretion and civil enforcement priorities and targets roughly three classes of people: 1) threats to national security, border security and public safety, including but not limited to those with felony convictions; 2) misdemeanants and recent entrants, including but not limited to those convicted for driving under the influence or misdemeanors for which the individual was sentenced to time in custody of 90 days or more; and 3) other immigration violators, including noncitizens with final orders of removal on or after January 1, 2014. For attorneys and advocates involved in criminal or removal defense, the scope of these classes is breathtaking as it includes a range of misdemeanors, non-violent felonies and immigration violations that do not meet the ordinary understanding of a “crime.” The DAPA bar is automatic for a person otherwise eligible for DAPA such as a mother of three children born in the United States who is working as the primary caretaker for her children and has lived in the United States for many years but with a misdemeanor that falls within the RPM. Despite the controversy, the choice made by the administration to exclude enforcement priorities from the DAPA program was a policy choice within the domain of its authority.

Importantly, there are noncitizens living in the United States who may neither qualify for DAPA nor be labeled as an enforcement priority. For example, there could be a parent with no criminal history whose only child is a recipient of Deferred Action for Childhood Arrivals (DACA) and therefore cannot satisfy the requirement that the child be a United States citizen or lawful permanent resident. Similarly, a single male in his 20s may be working on a farm without a family or transgression and therefore fall outside the DAPA policy and the priorities memo. This is not a new phenomenon. The Department of Homeland Security uses more than one dozen kinds of “non-enforcement” actions (i.e. canceling a charging document) and positive actions (i.e., granting deferred action) when making prosecutorial discretion decisions. In other words, deferred action is not the only way the Department of Homeland Security may exercise prosecutorial discretion favorably. Possibly, the mom of a DACA child or the farmworker above may be considered individually for another type of prosecutorial discretion like a stay of removal or dismissal of a case under a theory that they do not constitute enforcement priorities.

Perhaps a more provocative piece of the President Obama’s executive actions is its attempt to carve out exceptions to the categories listed in the RPM. For example, in describing Priority 1, the RPM states [PDF]

[A]liens in Priority l must be prioritized for removal unless they qualify for asylum, or other form of relief under our laws, or unless in the judgment of [DHS] there are compelling and exceptional factors that clearly indicate the alien is not a threat to national security, border security, or public safety and therefore, should not be an enforcement priority.

Based on a plain reading of this language, a person with compelling equities like long term residence in the United States or a seriously ill relative would be considered for a form of prosecutorial discretion even if she has a felony conviction from many years ago. This has not always been the case. Having studied scores of deferred action cases processed by the Department of Homeland Security in the last several years, there was a concern that single reasons were driving deferred action denials. Lamenting over one data set of 698 deferred action cases I obtained from ICE in 2012 I reflected:

[ICE’s] findings do not include an analysis about how a negative factor interacts with a positive one. For example, how does ICE treat someone who has a criminal history and a USC dependent? This kind of information is vital as it contributes to the public understanding about whether having a criminal history is fatal or just a factor behind a deferred action determination.

Insofar as the Department of Homeland Security historically avoided articulating a policy for protecting people with strong equities and a criminal history because it was too political or for other reasons, the Obama Administration should be acknowledged for incorporating these more complex cases into its policy.

Ultimately, the “devil is in the details” and to predict how the President Obama’s executive actions will play out in practice would be premature. Importantly, whether and how these programs are implemented will matter to immigrants and their families who make the choice to come out of the shadows and apply for DAPA or another form of prosecutorial discretion. The administration is expected to issue more precise guidelines about its executive actions in the future, but will have to tread cautiously against the politics that have already accompanied the DAPA program even before it has become operational. Nevertheless, there remains a real possibility for a robust policy consistent with President Obama’s DAPA program and revised enforcement priorities.

Shoba Sivaprasad Wadhia, the Samuel Weiss Faculty Scholar and Clinical Professor at Penn State Law, is an expert on immigration law and one of the nation’s leading scholars on the role of prosecutorial discretion in immigration law. Her work identifies the historical role of prosecutorial discretion in immigration law, the extent to which some acts of discretion operate as a benefit and the dynamic role and need for transparency, sound procedures and accountability. Her book, Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases, will be published by New York University Press in 2015 and is the first on the topic.

Suggested citation: Shoba Sivaprasad Wadhia, Felons, Families and Prosecutorial Discretion, JURIST – Academic Commentary, Jan. 2, 2015, http://jurist.org/academic/2015/01/shoba-wadhia-prosecutorial-discretion.php