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Institute for Workplace Studies----------------- Professor Samuel B. Bacharach

School of Industrial & Labor Relations-------- Director, Institute for Workplace Studies

Cornell University

16 East 34th Street, 4th floor---------------------- Stuart Basefsky

New York, NY 10016 -------------------------------Director, IWS News Bureau

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Congressional Research Service (CRS)

 

Prosecutorial Discretion in Immigration Enforcement: Legal Issues

Kate M. Manuel, Legislative Attorney

Todd Garvey, Legislative Attorney

December 27, 2013

http://www.fas.org/sgp/crs/misc/R42924.pdf

[full-text, 31 pages]

 

Summary

The term prosecutorial discretion is commonly used to describe the wide latitude that prosecutors

have in determining when, whom, how, and even whether to prosecute apparent violations of the

law. The Immigration and Naturalization Service (INS) and, later, the Department of Homeland

Security (DHS) and its components have historically described themselves as exercising

prosecutorial discretion in immigration enforcement. Some commentators have recently

challenged this characterization on the grounds that DHS enforces primarily civil violations, and

some of its components cannot be said to engage in “law enforcement,” as that term is

conventionally understood. However, even agencies that do not prosecute or engage in law

enforcement have been recognized as having discretion (sometimes referred to as enforcement

discretion) in determining whether to enforce particular violations.

 

Federal regulation of immigration is commonly said to arise from various powers enumerated in

the Constitution (e.g., naturalization, commerce), as well as the federal government’s inherent

power to control and conduct foreign relations. Some, although not all, of these powers belong

exclusively to Congress, and courts have sometimes described Congress as having “plenary

power” over immigration. However, few courts or commentators have addressed the separation of

powers between Congress and the President in the field of immigration, and the executive has

sometimes been said to share plenary power over immigration with Congress as one of the

“political branches.” Moreover, the authority to exercise prosecutorial or enforcement discretion

has traditionally been understood to arise from the Constitution, not from any congressional

delegation of power.

 

Certain decisions have been widely recognized as within the prosecutorial discretion of

immigration officers. These include deciding whether to initiate removal proceedings and what

charges to lodge against the respondent; canceling a Notice to Appear or other charging document

before jurisdiction vests with an immigration judge; granting deferred action or extended

voluntary departure to an alien otherwise subject to removal (deportation); appealing particular

decisions or orders; and imposing fines for particular offenses, among other things. Enforcement

priorities and resources, as well as humanitarian concerns, have typically played a role in

determining whether to exercise discretion in individual cases. For example, the George W. Bush

Administration temporarily suspended employer sanctions in areas affected by Hurricane Katrina,

and the Obama Administration recently began granting deferred action to certain unauthorized

aliens brought to the United States as children.

 

While the executive branch’s prosecutorial or enforcement discretion is broad, it is not unfettered,

and particular exercises of discretion could potentially be checked by the Constitution, statute, or

agency directives. Selective prosecution, or prosecution based on race, religion, or the exercise of

constitutional rights, is prohibited, although aliens generally cannot assert selective prosecution as

a defense to removal. A policy of non-enforcement that amounts to an abdication of an agency’s

statutory responsibilities could potentially be said to violate the Take Care Clause. However,

standing to challenge alleged violations of the Take Care Clause may be limited, and no court

appears to have invalidated a policy of non-enforcement founded upon prosecutorial discretion on

the grounds that the policy violated the Take Care Clause. Non-enforcement of particular laws

could also potentially be challenged under the Administrative Procedure Act if a statute provides

specific guidelines for the agency to follow in exercising its enforcement powers. In addition, an

agency could potentially be found to have constrained its own discretion, as some courts found

that the INS had done in the 1970s with its operating instruction on deferred action.

 

Contents

Introduction ...................................................................................................................................... 1

Federal Power to Regulate Immigration .......................................................................................... 3

Prosecutorial Discretion Generally .................................................................................................. 8

Prosecutorial Discretion in the Immigration Context .................................................................... 10

Potential Limits on the Exercise of Discretion .............................................................................. 13

Constitution ............................................................................................................................. 15

Selective Prosecution ........................................................................................................ 15

“Take Care” Clause ........................................................................................................... 16

Statute ...................................................................................................................................... 19

Whether “Shall” Means Agencies Lack Discretion .......................................................... 21

Deference to Agencies’ Interpretations of Their Governing Statutes ................................ 22

Executive Branch Self-Regulation .......................................................................................... 24

Conclusion ..................................................................................................................................... 26

 

Contacts

Author Contact Information........................................................................................................... 28

 

 

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