[Excerpt] “This Article is about deferred action and transparency in related immigration cases falling under the jurisdiction of the Department of Homeland Security (DHS). While scholars from other genres have written extensively on the topic of prosecutorial discretion, the subject is largely absent from immigration scholarship, with the exception of early research conducted by Leon Wildes in the late 1970s and early 2000s, and a law review article I published in 2010 outlining the origins of prosecutorial discretion in immigration law and related lessons that can be drawn from administrative law and criminal law. That article ends with specific recommendations for the agency, such as codifying deferred action into a regulation and recognizing it as a formal benefit as opposed to a matter of “administrative convenience,” and streamlining the array of existing memoranda of prosecutorial discretion floating within each DHS agency. An additional recommendation included increasing oversight of prosecutorial discretion to ensure that officers and agencies that fail to exercise prosecutorial discretion by targeting and enforcing the laws against low-priority individuals are held accountable.
In this Article, and building upon recommendations published in The Role of Prosecutorial Discretion in Immigration Law, I describe the state of prosecutorial discretion and deferred action in particular by surveying the political climate, public reaction, and advocacy efforts in the last two years. I also chronicle my repeated Freedom of Information Act (FOIA) requests to DHS for information about deferred action, and the stumbling blocks I encountered during this 19-month journey. The Article will show that while deferred action is one of the very few discretionary remedies available for noncitizens with compelling equities, it currently operates as a secret program accessible only to elite lawyers and advocates. Moreover, the secrecy of the program has created the (mis)perception by some, that deferred action can be used as a tool to legalize the undocumented immigrant population or ignore congressional will. This Article explains why transparency about deferred action is important and makes related recommendations that include, but are not limited to, subjecting the program to rulemaking under the Administrative Procedures Act, issuing written decisions when deferred action is denied, posting information about the application process, and maintaining statistics about deferred action decisions. Without these remedies, noncitizens that possess similarly relevant equities will face unequal hardships.”
Shoba Sivaprasad Wadhia, Sharing Secrets: Examining Deferred Action and Transparency in Immigration Law, 10 U.N.H. L. REV. 1 (2012), available at http://scholars.unh.edu/unh_lr/vol10/iss1/3