Dreams and Nightmares: Immigration Policy, Youth, and Families PDF

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Copyright 2015. University of California Press. All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or applicable copyright law. EBSCO Publishing : eBook Collection (EBSCOhost) - printed on 12/20/2024 8:25 PM via AN: 971384 ; Marjorie S. Zatz, Nancy Rodriguez.; Dreams and Nightmares : Immigration Policy, Youth, and Families Account: s3062123  DREAMS AND NIGHTMARES EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  The publisher gratefully acknowledges the generous support of the General Endowment Fund of the University of California Press Foundation. EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  DREAMS AND NIGHTMARES immigration policy, youth, and families Marjorie S. Zatz and Nancy Rodriguez university of california press EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  University of California Press, one of the most distinguished university presses in the United States, enriches lives around the world by advancing scholarship in the humanities, social sciences, and natural sciences. Its activities are supported by the UC Press Foundation and by philanthropic contributions from individuals and institutions. For more information, visit www.ucpress.edu. University of California Press Oakland, California © 2015 by The Regents of the University of California Library of Congress Cataloging-in-Publication Data Zatz, Marjorie Sue, 1955- author. Dreams and nightmares : immigration policy, youth, and families / Marjorie S. Zatz and Nancy Rodriguez. — First edition. pages cm Includes bibliographical references and index. isbn 978-0-520-28305-3 (cloth : alk. paper)—isbn 0-520- 28305-8 (cloth : alk. paper)—isbn 978-0-520-28306-0 (pbk. : alk. paper)—isbn 0-520-28306-6 (pbk. : alk. paper)— isbn 978-0-520-95889-0 (ebook) —isbn 0-520-95889-6 (ebook) 1. Immigrant youth—United States—Social conditions. 2. Unaccompanied immigrant children—United States— Social conditions. 3. Emigration and immigration law— United States. 4. Immigrant families—Law and legisla- tion—United States. I. Rodriguez, Nancy, author. II. Title. jv6600.z38 2015 325.73—dc23 2014039239 24 23 22 21 20 19 18 17 16 15 10 9 8 7 6 5 4 3 2 1 In keeping with a commitment to support environmentally responsible and sustainable printing practices, UC Press has printed this book on Natures Natural, a fiber that contains 30 post-consumer waste and meets the minimum require- ments of ansi/niso z39.48–1992 (r 1997) (Permanence of Paper). EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  We dedicate this book to the children and families affected by immigration policies and practices. We hope our book contributes to a national dialogue and legislation that prioritizes the best interests of all children. EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  This page intentionally left blank EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  CONTENTS Acknowledgments ix 1. Introduction and Historical Context 1 2. Prosecutorial Discretion: A Mechanism for Balancing Competing Goals 15 3. Legislative Inaction and Executive Action: Mixed Status Families, the Dreamer Movement, and DACA 49 4. Families Torn Apart: Parental Detention and Deportation 77 5. No Good Options: Unaccompanied Minors in the US Immigration System 113 6. Conclusions and Recommendations 157 Notes 167 References 173 Index 195 EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  This page intentionally left blank EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  ACKNOWLEDGMENTS We owe a tremendous debt of gratitude to our key informants Francisco Alatorre, Roxana Bacon, Michelle Brané, Emily Butera, Randy Capps, Evelyn Cruz, Dorien Ediger-Seto, Ashley Feasley, Mary Giovagnoli, Kimberly Haynes, Yali Lincroft, Victoria López, Lindsay Marshall, David Martin, Margie McHugh, Doris Meissner, Anne Marie Mulcahy, Christina Ortecho, Kristyn Peck, Jennifer Podkul, Allison Posner, Lorella Praeli, Nina Rabin, Jennifer Riddle, Beth Rosenberg, Cindy Schlosser, Aryah Somers, Matthew Wilch, Maria Woltjen, Wendy Young, and to those government officials whom we cannot name. Thank you for giving so generously of your time and your expertise. Our key informants were valuable guides as we sought to make sense of the contradictions and complexities in immigration policy and its intersection with the child welfare and criminal justice systems. In many cases, these experts were interviewed multiple times, and they reviewed sections of the book in which they were quoted and gave thoughtful feedback. Special thanks are due to Roxana Bacon, Michelle Brané, David Thronson, and an anonymous reviewer for comments on an earlier draft. As we are social scientists and not immigration attorneys, we are especially appreciative of their careful review of the legal history and implications of laws. Thank you also to Veronica Lerma for her sharp eye in reviewing the final manuscript. Of course, any errors that remain are our own doing. For comments, suggestions, and help along the way we also thank Made- laine Adelman, Kitty Calavita, Gray Cavender, Lauren Heidbrink, Nancy Jurik, Stephen Legomsky, Jamie Longazel, Cecilia Menjívar, Michael Musheno, ix EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  x. acknowledgments Marie Provine, Lisa Raffonelli, Susan Sterett, David R. Schaefer, Susan Terrio, and Maartja van der Woude. An earlier version of chapter 2 was published in Law and Social Inquiry in 2014 as “The Limits of Discretion: Challenges and Dilemmas of Prosecutorial Discretion in Immigration Enforcement” (39(3):666–89). Earlier versions of this research were presented at New York University, the University of Delaware, and Monash University. We appreciate the thoughtful comments of colleagues at those institutions. Thank you to our editor at the University of California Press, Maura Roessner, and to Francisco Reinking, Jack Young, and Pam Suwinsky for their help in the production process. Maura kept urging us on, as what we first called our “octopus” (that ungainly mass that is immigration policy and prac- tice) gained a backbone (prosecutorial discretion) and finally took shape in this book. Maura, thank you for your good eye and ear and for your continual support and encouragement. We also are very grateful to Calvin Fleming, who graciously allowed us to use his stunning photograph as our cover image. And finally, thank you to our children. To Marjorie’s sons Richie, Patrick, and Cameron, and Nancy’s sons Ethan and Isaac, we hope the world you inherit will be kinder to children seeking a safe haven and an opportunity to reunite with their families. EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  chapter 1 Introduction and Historical Context For the president, I think his legacy is at stake here.... We consider him the deportation president, or the deporter-in-chief. —Janet Murguía, president and chief executive officer of the National Council of La Raza (Epstein 2014) I think politicians, in particular, have envisioned the immigration system as something that simply can be contained by building a high enough wall or keeping enough people out. What they rarely think about is all of the fallout and all of the unintended consequences. It’s ultimately the kids who are suffering because we can’t get our act together up front to devise an immigration process that really works for America today. —Mary Giovagnoli, director of the Immigration Policy Center (interview October 10, 2012) The lives of undocumented immigrants are filled with dreams and nightmares. Parents dream of better futures for themselves and their children. Young adults who were brought to the United States as children dream of finally becoming US citizens. Alongside these dreams, though, are nightmares. Children awaken from nightmares of immigration raids in which their undocumented parents or siblings are suddenly taken from them. And teen- agers who always thought they were American find themselves “awakening to a nightmare” (Gonzales and Chavez 2012) when they discover they are undocumented, cannot get driver’s licenses, obtain college loans, or legally work, and live under the threat of deportation. Undocumented immigrant José Ángel N. (2014, 77) writes in his memoir of another immigrant who “left his hometown in search of the American Dream. Smuggling himself across the desert, he had walked right into a nightmare.” The journey north is itself a nightmare for children who risk death, 1 EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  2. chapter one rape, and serious injury as they travel alone from Central America to the United States, hoping to escape violence and poverty and to reunite with parents they have not seen in years. Yet the number of children traveling to the United States by themselves, mostly from Guatemala, Honduras, and El Salvador, increases exponentially each year, reaching what in 2014 was called a “humanitarian crisis” by some and “an influx on top of the influx” by others. An estimated 11.3 million unauthorized immigrants resided in the United States in March 2013 (Passel et al. 2014). Nearly two-thirds of these immi- grants have lived in the United States for more than a decade, and almost half are parents of US-citizen children (Taylor et al. 2011; Passel et al. 2014). The law affects the lives and legal consciousness of undocumented immigrants and their families in multiple ways that are structured and nuanced by gender, age, race, ethnicity, and social position (Abrego 2011; Abrego and Gonzales 2010; Gonzales 2011; Gonzales and Chavez 2012; Kubrin, Zatz, and Martínez 2012; Menjívar and Kanstroom 2013). More than one-fifth of all children in the United States today have at least one parent who is an immigrant. A large subset of these children—4.5 million as of 2012—are US citizens who have at least one parent who is undocumented (Passel and Cohn 2011; Passel et al. 2014). These families inhabit what Cecilia Menjívar (2006, 2011, 2012) has described as a state of liminal legality in which they are acknowledged but are legally nonexistent (Coutin 2000, 2003, 2007; DeGenova 2002). This liminality requires a hyper-awareness of the law, as their legal status may be uncertain and shifting. contemporary us immigration policy and practice in historical context Throughout its history, the United States has wrestled with its immigration policy and practice. Like law making more generally, immigration policy is characterized by temporary fixes aimed at resolving, at least for a time, con- flicts and dilemmas resulting from larger social, political, and economic contradictions (Chambliss 1979; Chambliss and Zatz 1993). Since the country’s founding, the politics of race, ethnicity, gender, and religion have been central to decisions about who should be included in the national fabric and who should be shut out (Calavita 1984, 2007; FitzGerald and Cook-Martín 2014; Gardner 2005; Hing 2004; Johnson 2003; Kanstroom 2012; Kubrin et al. 2012; EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  introduction and historical context. 3 Ngai 2004). The needs of agribusiness and other economic sectors for cheap labor have competed with nativist fears that the United States will be overrun by people who look and sound different (Calavita 1992; Chavez 2008; Newton 2008). These debates play out on national and local stages in the form of moral panics about immigration and crime, fear of loss of jobs and other economic woes due to immigration, and concerns about national security and public safety (Longazel 2013; Varsanyi 2010; Zatz and Smith 2012). The most recent attempt to comprehensively address the political, social, and economic dilemmas underlying US immigration policy was in 1986, with passage of the Immigration Reform and Control Act (IRCA). Though IRCA resolved some immediate problems, legalizing the status of large numbers of immigrants while simultaneously creating an enforcement mechanism that was supposed to deter employers from hiring undocumented workers, it was not a fundamental rethinking of immigration policy, and as a result the under- lying contradictions remained (Calavita 1989). At least in part as a backlash against the legalization elements in IRCA, a decade later the Illegal Immigra- tion Reform and Immigrant Responsibility Act (IIRIRA) and the Antiter- rorism and Effective Death Penalty Act (AEDPA) were passed. As a set, these two 1996 laws provided local and state police with unprecedented authority to enforce civil immigration laws, expanded the number of offenses for which immigration detention is mandatory, and severely restricted the discretion of immigration judges. Following the terrorist attacks of September 11, 2001, the Homeland Secu- rity Act of 2002 created the Department of Homeland Security (DHS). The Immigration and Naturalization Services, which had previously been situated in the Department of Justice, was disbanded, and immigration enforcement and integration were separated into three distinct agencies within DHS: US Immigration and Customs Enforcement (ICE), US Customs and Border Patrol (CBP), and US Citizenship and Immigration Services (CIS, or more typically USCIS). Each agency director reports to the secretary of DHS, which was created as a cabinet position. The move from DOJ to DHS marked a conceptual shift in immigration policy and practice. The Department of Justice was always very aware of due process and equal protection requirements. As a result, immigration enforce- ment and immigrant integration took place within a context of checks and balances framed by constitutional law protections. In contrast, DHS’s man- date is national security and law enforcement is its primary mission. Placing EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  4. chapter one all immigration services under that umbrella legitimizes a focus on enforce- ment over all other aspects of immigration policy and risks a collapse of constitutional concerns. In combination with the 1996 laws and massive con- gressional appropriations for border enforcement, this restructuring has led to increasingly restrictive policies and practices, and to a dramatic increase in deportations. Efforts by the George W. Bush administration to pass comprehensive immigration legislation in 2006 and 2007 failed. A wave of state and local anti-immigrant bills, ordinances, and ballot initiatives followed, beginning about 2005 and peaking in 2011 with introduction of 1,607 bills and resolutions, 306 of which were enacted into law (National Conference of State Legislatures 2012). Tens of thousands of immigrants were picked up and deported in immigra- tion raids on meatpacking factories and other worksites across the country, yet these raids also brought attention to the plight of immigrants’ children and families. Churches, schools, and other local institutions were forced to confront the sudden arrest, detention, and deportation of parents of young children, many of whom were US citizens (Capps et al. 2007; Chaudry et al. 2010; Human Rights Watch 2007). In some communities the sentiment began to shift, as sympathetic media depicted nursing mothers separated from their babies and families unable to locate loved ones who had disappeared into the detention and deportation apparatus. The vulnerability of young people who came to the United States as children and grew up calling America home also became more visible, and demands to regularize the status of these “Dream- ers,” as they came to be called, grew more insistent. Immigration Policy under the Obama Administration President Barack Obama swept into office in 2008 with the support of 67 percent of the Latino voters and 66 percent of voters under age thirty. The nation’s immigration policy was a key election issue, and the newly formed Obama administration anticipated passage of comprehensive immigration reform early in its first term. Once in office, however, the administration deter- mined that the dire economic situation had to be its primary focus. All other domestic policies, with the exception of health care reform, were placed on hold for the first two years of Obama’s presidency. As the recession bottomed out and the country slowly started to recover, congressional gridlock set in, with increasingly chilly relations between the White House and House Republicans EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  introduction and historical context. 5 making passage of any major domestic legislation unlikely. By 2010, it was clear that comprehensive immigration reform would not be enacted anytime soon, and the Latino and immigrant advocate communities became increasingly frustrated and disappointed by President Obama’s unwillingness to follow through with what they saw as a key campaign promise. Within this highly polarized context, the Obama administration needed to identify some options that could ease the plight of unauthorized immigrants living in the shadows while simultaneously addressing fears of uncontrolled immigration. Prosecutorial discretion emerged as a central mechanism in this balancing act and was initially understood by many as a down payment to Latino voters. Prosecutorial discretion offered a means of prioritizing who should be placed in removal hearings and deported and who should be given at least a temporary reprieve. Cases were prioritized based on assessments of a set of positive factors, such as strong family ties in the United States, includ- ing US-citizen children, and negative factors, such as criminal history or security threat. Very quickly, however, the administration faced serious criticism from all sides. Political opponents calling for stronger immigration enforcement argued that ICE officials were not allowed to do their job, and that prosecuto- rial discretion amounted to an unofficial form of amnesty. The administration responded to this criticism by consistently filling immigration detention beds at the level appropriated by Congress. This had the effect of increasing the number of deportations, ultimately capping at just over four hundred thou- sand removals per year in fiscal year 2012. Immigrant communities and advo- cacy groups were angered by the unprecedented number of deportations. Rather than reducing the number of deportations, prosecutorial discretion just reshaped the population of deportees, and it did little to lessen the dev- astating effects on families. Parental detentions and deportations continued at high rates through 2012, though they decreased somewhat in 2013. In 2011 alone, more than five thousand children were placed in foster care when their parents were detained or deported (Wessler 2011b). In the face of this rising tide of detained and deported parents and fragmented families, many immi- grants and their allies came to see prosecutorial discretion as an increasingly empty promise. As the 2012 election approached, it became clear to Democrats that some major action was needed to convince Latino communities that they should bother to vote, and to vote for Obama. In this context, Deferred Action for Childhood EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  6. chapter one Arrivals, or DACA, was announced and quickly implemented in the summer of 2012. DACA is a form of prosecutorial discretion that offers eligible Dreamers relief from deportation and permission to legally work in the United States. In return, the Latino community came out strongly in support for President Obama and other Democrats in the 2012 elections. Though they were still disappointed by his failure to enact comprehensive immigration reform and by the unprecedented numbers of deportations, they saw DACA as a signifi- cant step forward, and Barack Obama as a better bet than Mitt Romney, who had proposed “self-deportation” of Latinos living in the United States. Following these elections, Senate Republicans realized they needed to act quickly to appease Latinos, and they joined with Senate Democrats to pass a comprehensive immigration reform bill on June 27, 2013, with a strong bipar- tisan vote of 68–32. Throughout, the Obama administration took a hard line on immigration enforcement, hoping that this would push open a window of opportunity to make comprehensive immigration reform possible. House Republicans and other opponents were not placated, however, saying that DACA was a de facto amnesty program in violation of the law, and President Obama could not be trusted. House Speaker John Boehner made the decision not to allow a vote on the full Senate bill, though for a while he left a door cracked slightly open to the possibility of piecemeal legislation. Immigration advocates and the Latino community despaired. More than a thousand immigrants were still being deported each day, ripping families apart. Mainstream media outlets such as the New York Times and the Washington Post regularly chastised the administration. For instance, the New York Times editorial board opined, “This enormously costly effort was meant to win Republican support for broader reform. But all it has done is add to the burden of fear, family disruption and lack of opportunity faced by 11 million people who cannot get right with the law” (New York Times Editorial Board 2014). The Latino community called for President Obama to use his executive authority to take additional steps, expanding upon DACA. Yet immigration continues to be an area in which, to borrow from Washington Post reporters Phillip Rucker and Peter Wallsten, President Obama “has been skittish,” first saying he did not have authority to halt deportations, then granting relief to those Dreamers qualifying for DACA but saying he could do nothing further (Rucker and Wallsten 2013). Former Principal Deputy General Counsel for the Department of Homeland Security David Martin concluded, “It would EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  introduction and historical context. 7 have been better for the administration to state its enforcement intentions clearly and stand by them, rather than being willing to lean whichever way seemed politically expedient at any given moment.... It was a pipe dream to think they could make everyone happy” (Thompson and Cohen 2014). Unaccompanied Minors By 2011, another dilemma was unfolding in Central America that would propel thousands, and then tens of thousands, of children to undertake the perilous journey to the United States by themselves. Poverty and lack of economic opportunity have historically been important push factors, sending young men, and sometimes women, to the United States in search of jobs that would allow them to remit funds home to their families (Abrego 2014; Boehm 2012; Dreby 2010; Menjívar 2012; Menjívar and Abrego 2009). Two other fac- tors, though, have altered this dynamic in recent years. First, and of primary importance, violence and accompanying corruption have become widespread in Central America’s northern triangle, and the govern- ments appear incapable of ensuring the safety of their citizenry. Honduras had the highest murder rate in the world in 2012, with 90.4 homicides per 100,000 population (United Nations Office on Drugs and Crime 2014, 24). The history of US military interventions in the region, support for corrupt domestic govern- ments, the drug wars, and trade agreements such as the Central America Free Trade Agreement (CAFTA) that favor the United States at the expense of Central Americans have resulted in widespread poverty, structural inequality, and powerful drug cartels throughout Mexico and northern Central America. Rather than protecting the populace, state actors are complicitous with the cartels, and those who are unwilling to pay homage to the gangs risk not only economic devastation but also their very lives. In many communities, children are no longer able to attend school, and they fear that if they stay at home, they will die. These are the structural causes of the migration. Second, with parents leaving to find employment in the United States, children also confront more generalized violence, including abuse by caregivers. When the southern border to the United States was more porous and the repercussions of getting caught less dire, young adults typically migrated back and forth, working in the United States but going home to visit with their children and other family members. Enhanced border enforcement makes this untenable, though, as smugglers raised their prices in response to the greater difficulty in bringing migrants across the border and it became too risky to try EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  8. chapter one to cross alone. Consequently, children are separated from their parents for years, creating a strong pull factor as they seek to reunite with their parents. These children and adolescents face incredible dangers on their way to the United States. Yet they are willing to risk death, dismemberment, and rape on their journeys, knowing they are at far greater risk if they stay at home. This stark reality was made clear to us when members of a United States Conference of Catholic Bishops delegation reported that mothers and grand- mothers, who were waiting with them for the return of children caught by immigration authorities in Mexico, acknowledged that they brought their daughters and granddaughters to the local clinic to obtain birth control injec- tions. These women knew the girls (and some boys) would likely be raped on their journey, but saw no other choice but to send them on their way, protect- ing them only against becoming pregnant by their rapists. For Catholic moth- ers and grandmothers to acknowledge this reality to a church delegation, the situation must be horrific. The number of unaccompanied minors entering the United States has reached crisis levels, growing from a few thousand each year to 13,625 in fiscal year 2012 to 24,668 in fiscal year 2013 to 57,496 in fiscal year 2014. These num- bers do not include Mexican youth who are turned around at the border. The “surge,” as it has been called, in unaccompanied youth and young mothers with babies and toddlers entering the United States has drawn extensive media coverage. It must be remembered, though, that the overall number of border crossers is still far lower than it was five or ten years ago, and unaccompanied minors represent only about 5 percent of the total population of children liv- ing in the United States without authorization. Most unaccompanied minors are denied asylum and ultimately repatriated, returning to the very conditions they fled. As Jacqueline Bhabha, a leading authority on human rights and child refugees, asserts, these youth are “returned to the danger they fled. Some die; many live in hiding. This state- induced return migration prompts fundamental questions about state com- plicity in serious human rights violations against children” (2014, 204). prosecutorial discretion and the best interests of the child The experiences of children and youth provide a prism through which the interwoven dynamics and consequences of immigration policy become espe- EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  introduction and historical context. 9 cially apparent, as many of the policies and practices that are not explicitly directed at children nevertheless reverberate upon them. At the same time, the ramifications for vulnerable children may draw attention to aspects of policy and practice that the administration has the power to change, even in the absence of legislation. We are particularly interested in the mechanisms through which immigration policies and practices affect youth and families. Which mechanisms, we ask, mitigate their vulnerabilities, and which exacer- bate harm? One mechanism stands apart from the others given its overarching nature and potential reach, and it serves as a unifying theme throughout this book. Prosecutorial discretion, we suggest, has potential to help balance such com- peting goals as public safety and rule of law, on the one hand, and family unity and the best interests of the child on the other. Yet as we shall see, the flexibil- ity of discretion also makes it controversial, and vulnerable to structural impediments and broader political challenges. These limitations are exacer- bated by the ability of middle management and rank-and-file officers to dis- regard the policies, assuming they can wait out a change in administration, and by the fact that ICE attorneys are subject to review, promotion, and dis- cipline by ICE’s non-lawyer management. International conventions and US domestic laws place the best interests of children at the forefront of decision making in most legal arenas. Yet in policy and practice, US immigration law ignores consideration of children’s best interests. The prosecutorial discretion policies of the Obama administra- tion clearly state that discretion should be considered in detention cases involving parents of US citizen or legal permanent resident children. But this ideal is not met in practice, as evidenced by the deportations of unprecedented numbers of parents since 2010, when the prosecutorial guidelines were issued (Wessler 2012a). Prosecutorial discretion could also benefit children and adolescents who came to the United States alone. However, the number of cases of prosecuto- rial discretion involving unaccompanied minors is minimal. Legal representa- tion might help to make the case for prosecutorial discretion, but, again, contrary to the principle of best interests of the child, few unaccompanied minors are represented by counsel. Efforts are being made by nongovernmen- tal organizations and increasingly by the federal government to provide legal representation for the youth, but unlike in family court or even criminal court, representation is not mandated. EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  10. chapter one The DREAM Act expresses a clear concern for the best interests of young people who were brought to the US as small children, and thus cannot be held responsible for their violations of immigration law. It focuses on immigrant integration, addressing the problem of how young people who know no other country and identify as American can best participate in and contribute to American society. Although there is substantial public sympathy for Dream- ers, the DREAM Act has still not been enacted into law. In its absence, the Obama administration offered Deferred Action for Childhood Arrivals. This form of prosecutorial discretion frees eligible teenagers and young adults from the fear of deportation and allows them to legally work in the United States. However, it is only a two-year reprieve. Youth are stuck in a sort of second- or third-class citizenship and, though their status is renewable, a new president could end the program at any time. organization of the book Dreams and Nightmares: Immigration Policy, Youth, and Families takes a criti- cal look at the challenges and dilemmas of immigration policy and practice in the absence of comprehensive immigration reform. Others have addressed the nuances of immigration law and the lived experiences of immigrants, and we draw upon their findings as appropriate. Our primary focus, however, is at the systemic level. Based on original interview data and government archives, we examine the bureaucratic processes of implementing these poli- cies, and the interplay and tensions among policymakers, agency heads, street- level bureaucrats, immigration attorneys, community advocates, and grass- roots activists. Looking across the multiple institutions that interact with immigrant families, we consider the specific structural mechanisms available to the administration, examine which of these have the potential to alleviate or exacerbate harm to youth and their families, and whether they are meeting their objectives. Data and Methods Our analysis is based on interview, observational, and archival data. During the period from February 2012 to May 2014, we conducted formal interviews with thirty-four immigration attorneys and advocates, child welfare advocates, and former government officials. Informants were selected based on their expertise, established through their publications, presentations on conference EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  introduction and historical context. 11 and plenary panels, and recommendations from others working in the field. Interviews were semi-structured and ranged from forty minutes to six hours, averaging one-and-one-half to two hours in length. Almost everyone was re- interviewed a second and often a third or fourth time, sometimes in a formal taped interview and sometimes more informally at meetings or over the phone, and in many cases we engaged in lengthy email dialogues. With their permis- sion, these key respondents are named when we believe doing so will be useful to readers. In other places, when naming our sources does not seem necessary or where it might create difficulties for them, we do not identify our infor- mants. Most interviews were conducted one on one, but in a few instances two or more representatives from the same office were interviewed together. In addition to these formal interviews, we held lengthy informal conversa- tions with five senior government officials, all of whom were attorneys in positions of authority and insider knowledge within their agencies, and with a representative of a Central American embassy, for a total of forty key infor- mants. We do not identify these individuals by name or position, and though we took copious notes during our conversations, which sometimes took place in their offices and sometimes in coffee shops or restaurants, they were not taped. In most cases, we held second and third long, detailed conversations with these officials, and we also clarified points with them via email. Both our formal and informal respondents were provided opportunities to review those sections of the book in which we explicitly draw on their interviews to ensure accuracy and that we did not take their statements out of context. Thirty-nine of the forty key informants reviewed and provided comments on those sections of the manuscript. Supplementing these interviews and conversations, spokespersons from two government agencies also provided emailed responses to queries, includ- ing statistical data not otherwise available. The first author also participated in five meetings of the Interagency Working Group on Unaccompanied Minors. These two-hour meetings were held in September 2012, January, May, and December 2013, and May 2014. They included representatives of the Departments of Homeland Security (ICE, USCIS, CBP, and the Policy Office), Justice, State, and Health and Human Services, the major nongov- ernmental organizations and immigration law clinics working with unac- companied minors, and sometimes a few researchers. These meetings all took place in Washington, DC. We also observed fifteen panels, conferences, network meetings, and report launches involving government officials, policy EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  12. chapter one analysts, and nongovernmental organizations, either in person in Washington, DC or, in a few cases, via webinars or conference calls. These ranged in length from one hour to a full day. In addition, we reviewed hundreds of archival documents including reports by nongovernmental organizations working directly with immigrant youth and families, government memorandums in the public domain or provided to the authors, published government statistics, and published reports by investigative journalists. Following transcription of the interviews, the transcripts and notes from meetings and conversations with government officials were reviewed multiple times and thematically coded. When questions or inconsistencies arose, informants were contacted for clarification. Chapter Summaries Congress has the sole authority to enact federal legislation, but the executive branch has authority to set priorities as to how those laws should be enforced. The Obama administration identified its broad powers of prosecutorial discre- tion as a means of prioritizing immigration enforcement in ways that it hoped would keep the citizenry safe while mitigating harm to families. The “Morton Memos,” as the guidelines promulgated by ICE Director John Morton have come to be known, serve as the backbone to prosecutorial discretion under the Obama administration. In chapter 2, we review the legal history leading up to the Morton Memos and consider the extent to which Morton’s directives diverged from earlier memos. What we call the limits of discretion quickly became apparent, as the administration’s prosecutorial discretion policies were met with challenges from ICE officers and some legislators who saw the guidelines as going too far, and from members of the immigrant and advocacy communities who were disappointed that they did not go far enough. We conclude chapter 2 with an examination of prosecutorial discretion in practice, as we explore who is being deported and why. In chapter 3 we focus on one form of prosecutorial discretion, deferred action. We discuss the development and implementation of the Deferred Action for Childhood Arrivals program in the context of legislative inaction, including both the failure of Congress to enact comprehensive immigration reform and the more limited and popular Development, Relief, and Education for Alien Minors (DREAM) Act. We analyze the important role of Dreamer social movement activists in development of DACA, and their efforts to EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  introduction and historical context. 13 expand DACA into a broader program of administrative relief when it was renewed in 2014. Dreamers’ families typically hold a variety of legal statuses. Often, some family members are undocumented, others are legal permanent residents or US citizens, and in recent years some may be “dacamented” young adults with deferred status. We examine these mixed status families, exploring family dynamics and the effects of growing up in mixed status households on child development and early education. We then look at the teenage years, when many youth learn that they are undocumented and at risk of deportation, and assess the constraints their legal status places on their educational and employ- ment opportunities. We conclude the chapter with explicit attention to the structural mechanisms that help and hinder undocumented youth and youth in mixed status families. In chapter 4, we explore the ramifications of immigration detention and deportation for families, and particularly families in which some or all of the children are US citizens but a parent is undocumented. If prosecutorial dis- cretion was supposed to help keep families intact, we ask, why are so many parents of US-citizen children still being deported? We review the recent history of parental detention and deportation and assess the extent to which detained and deported parents represent threats to public safety. We next compare parental detention for purposes of immigration enforcement with the growing literature on parental incarceration, identifying points of similarity and divergence in their effects on children and families. We also address the complicated intersections among the immigration enforce- ment, criminal justice, and child welfare systems. We end the chapter with an assessment of the structural mechanisms related specifically to parental detention and deportation that mitigate and exacerbate harm to youth and families. Whereas chapter 4 examines the collateral consequences for children when their parents are detained or deported for violations of immigration law, chapter 5 focuses on youth who are themselves caught entering the country without permission. Except in cases when they have been identified as traf- ficking victims or victims of abuse or neglect, Mexican and Canadian youth who seek to enter the United States are turned around at the border, and are not included in this discussion. Youth from noncontiguous countries who arrive without their parents and who are defined as unaccompanied minors are to be transferred from Customs and Border Patrol to the Office of EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  14. chapter one Refugee Resettlement (ORR) in the Department of Health and Human Services within seventy-two hours of apprehension. We examine the exponential increase in the number of unaccompanied minors entering the United States—an increase that has gone from being called a surge to a humanitarian crisis. We ask why so many youth are coming to the United States from Central America and review their horrific experi- ences along the way. Then, we turn to their placement in ORR shelters, their initial legal and health assessments, family reunification, and their likely repatriation back to their home countries. We explore the types of protective status for which these youth may be eligible, the extent to which legal repre- sentation is available to them, and the nature of their immigration court proceedings. Once again, we close the chapter by drawing together various threads to assess the structural mechanisms available to help these youth, and the mechanisms and system stressors that worsen their situation, leaving them even more vulnerable. We conclude in chapter 6 with an overview of our key findings, highlight- ing the mechanisms that exacerbate and reduce harm to children and families. We suggest ways in which our work informs related literatures on crimmigra- tion, race and mass incarceration, and transnational family formation, point to factors that will be critical in the application of future immigration policy and practice, and offer a series of recommendations for policymakers. EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  chapter 2 Prosecutorial Discretion A Mechanism for Balancing Competing Goals Mr. President, please use your executive authority to halt [deportations]. We agree that we need to pass comprehensive immigration reform, but at the same time, you have the power to stop deportations. —Ju Hong, immigration reform advocate, San Francisco, November 25 (Foley 2013) ICE is crumbling from within. Morale is at an all time low as criminal aliens are released to the streets and ICE instead takes disciplinary actions against its own officers for making lawful arrests. — Chris Crane, president of the National Immigration and Customs Enforcement Council 118, testifying before the Senate Judiciary committee (Starr 2013) With deportations under the Obama administration exceeding the two-million mark by spring 2014, demands by advocacy groups and some members of Con- gress that President Barack Obama use his executive authority to suspend deportations grew louder and more pointed. Congressional Republicans coun- tered that if he did so, they would immediately begin impeachment proceedings. And still others argued that taking executive action was not worth the political price and could jeopardize comprehensive legislation. Immigration scholars Karthik Ramakrishnan and Pratheepan Gulasekaram suggest that the political price would be steep, and “an executive order would be far more limited than congressional legislation, because future presidents could reverse the decision and unauthorized immigrants would still not qualify for a pathway to citizen- ship absent congressional approval” (Ramakrishnan and Gulasekaram 2013). 15 EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  16. chapter two Not surprisingly given this ambiguity and risk, President Obama has been hesitant to use his executive authority to grant various forms of administrative relief. One key mechanism that the Obama administration has employed, how- ever, is prosecutorial discretion. This chapter seeks to untangle the tensions leading to, and at times undermining, the use of prosecutorial discretion in immigration enforcement. We explore how prosecutorial discretion became a defining feature of immigration policy, if not practice, under the Obama administration. We then consider recent legal and political challenges to the use of prosecutorial discretion, including deferred action. As we demonstrate, the flexibility of prosecutorial discretion makes it a versatile tool, but also renders it controversial and vulnerable to political challenges. Finally, we examine whether prosecutorial discretion has changed deportation practices, particularly toward parents of US-citizen children. Although prosecutorial discretion may arise at many points within the immigration enforcement system (Motomura 2012), our focus is primarily on decision making by Immi- gration and Customs Enforcement (ICE) agents and prosecutors as they decide whether to arrest, process, detain, and deport individuals. the need for discretion Modern bureaucracies would grind to a halt if they could not exercise discre- tion. Regulatory agencies, criminal courts, schools, and even the local corner convenience store all rely on the appropriate use of discretion to resolve situ- ations in which goals collide. Yet although discretion is apparent in everyday life, how far it should reach, who should be able to wield it, and under what conditions–that is, the limits of discretion—are often less clear. The saga of prosecutorial discretion in immigration enforcement is an important but understudied story for sociolegal scholars, perhaps because social science research on immigration does not generally address prosecutorial discretion, and research on prosecutorial discretion typically focuses on the criminal courts or other regulatory bodies and not on the immigration context. Jon Gould and Scott Barclay remind us that law and society scholars have long recognized the role of administrative and judicial discretion in creating the gap between the law on the books and law in action (Gould and Barclay 2012). And, Lauren Edelman’s work on the tensions between law as it is pro- mulgated and as it actually operates in various contexts demonstrates that EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  prosecutorial discretion. 17 organizational compliance is often more symbolic than substantive, thereby mediating the impact of laws on society (Edelman 1992; Edelman et al. 2011). Michael Lipsky (1980) coined the term “street-level bureaucrat” to describe the sorts of policy choices that police officers, social workers, and other profes- sionals make while in the field. Lipsky contends that street-level bureaucrats are not simply implementing policies, but also using their discretion to inter- pret policy, often to the chagrin of those who are attempting to manage them. Stephen Maynard-Moody and Michael Musheno (2003, 2012) expand upon Lipsky, demonstrating across a variety of professions the multiple ways in which street-level workers assess how best to respond to rules promulgated from above given the situations they encounter on the ground. Evelyn Brod- kin’s research on how street-level organizations adapt to policy and managerial reforms further illustrates some of these trade-offs. Building explicitly on Lipsky’s foundation, Brodkin argues that discretion is “a problem of rational choice” (2011, 259), and if we are “to understand how governance provisions influence discretion, it is necessary to carefully consider the nature of choice and constraint in street-level practice” (2011, 258). Edwin Harwood’s study of immigration enforcement in the 1980s also draws upon Lipsky, suggesting that balancing arrests and resources requires a series of policy adjustments. Some of these adjustments are promulgated from the top, but “official policy directives are often inadequate to the task of accommodating many of the problems that street-level bureaucrats confront in their work” (1986, 178). He continues, “And, as Lipsky notes, some of the coping mechanisms developed by lower-echelon officials may be basic to the organization’s survival, even though they are contrary to official policy” (1986, 178). Similarly, Toch (2012) reminds us that the perspectives held by mid-level police administrators may differ from those of the leadership and from rank- and-file officers, because each reinterprets both policy and concrete events playing out on the ground in light of their respective positions in the police hierarchy. We are particularly interested in the bureaucratic discretion wielded by those charged with enforcing immigration law, and specifically with what has come to be known as prosecutorial discretion. Because prosecutorial discretion is better understood in the criminal law arena and there are a number of important parallels in the development and implementation of discretion in the two spheres, a brief discussion of their shared history may be useful. EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  18. chapter two shared histories: prosecutorial discretion in criminal law and immigration law In 1975, Senator Ted Kennedy introduced legislation to create a US Sentenc- ing Commission. Like state-level determinate sentencing statutes enacted in the late 1970s and early 1980s, federal sentencing guidelines were initially advocated by reformers seeking to reduce racial disparities in sentencing and provide alternatives to lengthy prison terms. About the same time, in 1976, Sam Bernsen, then general counsel to the commissioner for Immigration and Naturalization Services, penned what has come to be known as the first key memorandum defining prosecutorial discretion in immigration enforcement. By the time the federal sentencing guidelines were signed into law in 1984 as part of President Ronald Reagan’s conservative law-and-order movement, however, the guidelines had become far more rigid and the presumptive sen- tences significantly harsher. As Kate Stith and Steve Koh (1993) detail in their landmark analysis of the complicated legislative history of the guidelines, the various bills moving forward through the House and Senate between 1975 and 1984 reflected an underlying tension between two quite disparate goals. On the one hand, liberal proponents of the guidelines saw them as a means of reducing reliance on incarceration and lessening racial disparities by wresting discretion away from biased judges and parole boards. On the other hand, conservative forces sought crime prevention and retribution through a guar- antee of incarceration for a wide range of offenses. The final version of the bill, approved as part of an omnibus continuing resolutions appropriation, had all the hallmarks of a crime control bill, with the reform elements essentially gutted. Two facets of this legislative history are especially important for our pur- poses. First, there was clear recognition among members of Congress that discretion is “an enduring component of any sentencing policy. [Restricting judicial discretion] will not eliminate discretion, but merely shift the discretion to an earlier stage” (H.R. Rep. No. 1017, 98th Congr., 2d Sess. 94 (1984) at 35–36, cited in Stith and Koh (1993, 263)). For this reason, the House bill “required the Department of Justice to issue guidelines for charging decisions and plea negotiations to limit prosecutorial discretion” (1993, 262). Not sur- prisingly, then, Stith and Koh conclude that sentencing disparity “is as great now as it was before the Federal Sentencing Guidelines, though perhaps more EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  prosecutorial discretion. 19 hidden from view” (1993, 287). Other scholars have similarly recognized that sentencing disparities remain. Similar to the Whack-a-Mole game played by children, where stomping on an imaginary mole in one place causes it to pop up in another spot, discretion has simply shifted from judges to prosecutors (see similarly Champion 1989; McCoy 1984; Meithe and Moore 1985, Savels- berg 1992; Ulmer and Kramer 1996; Zatz 1984, 1987). Second, the Sentencing Guidelines Act of 1984 singled out federal drug offenders for sentence enhancements. Earlier versions of the legislation included provisions for lengthy incarceration of habitual offenders, racketeers, and those committing new offenses when released on bail, but the final version added drug offenses to the list and incorporated a subsection “that operates almost as a mandatory minimum statute, requiring ‘a term of imprisonment at or near the maximum term authorized’ for repeat violent offenders and drug offenders” (Stith and Koh 1993, 268). These two features of sentencing reform—shifting the locus of discretion from judges to prosecutors and moving toward mandatory imprisonment for drug offenses—were in large part replicated in immigration law, with legisla- tion passed in 1988 and 1990 expanding the number of offenses—including especially drug offenses—for which offenders are automatically deportable. With passage in 1996 of the Illegal Immigration Reform and Immigrant Responsibility Act and the Antiterrorism and Effective Death Penalty Act, drug offenses and many other crimes that did not warrant detention and deportation at the time they occurred were redefined retroactively as deport- able offenses. In criminal court, prosecutors have authority to dismiss cases, but their primary discretion lies in the determination of which charge(s) to file, espe- cially under federal guidelines and determinate sentencing statutes, where the charge largely determines the sentence. Similarly, prosecutorial discretion in immigration law largely occurs at the end of the process, in determinations about who should be deported, rather than in decisions about who should be admitted into the country (Cox and Rodríguez 2009). Mirroring the lack of attention on the part of social scientists, legal schol- ars have also largely ignored prosecutorial discretion in immigration enforce- ment. With a few recent exceptions (Wadhia 2010, 2013; see also Hing 2013; Motomura 2012; Olivas 2012a; Rabin 2014), they are far more apt to write about immigration policy—the law on the books—than about how prosecu- torial discretion shapes the practice of immigration enforcement—the law in EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  20. chapter two action. As Shoba Wadhia notes in her review of prosecutorial discretion, “While many scholars have written articles about undocumented immigra- tion, restrictions on immigration, and immigrants’ rights, there is a dearth of literature on the role of prosecutorial discretion in immigration law” (2010, 244). Wadhia suggests that “the cost and justice-related theories behind prosecutorial discretion” are similar in the criminal and immigration contexts. Both, she argues, “have witnessed an explosion of activities that qualify as infractions subject to penalties.” Immigration enforcement agencies, she continues, have “historically relied on documents produced and utilized in the criminal context to create guidance for immigration officers” and “the surge in immigration-related criminal prosecution raises a number of ques- tions about how prosecutorial discretion is exercised against noncitizens in both the criminal and civil contexts” (Wadhia 2010, 268; see also Legomsky 2007; Motomura 2012; Wishnie 2012). Multiple competing factors shape the use of prosecutorial discretion in immigration, including the availability of resources for identifying, detaining, and deporting individuals; the humanitarian consequences of removing per- sons with strong family and community ties, and especially those with US- citizen spouses or children and those who came to the United States as young children; and assessments of what constitutes a proportional response to unauthorized immigration and to crimes committed by immigrants (Banks 2013; Hing 2013; Kanstroom 2012; Olivas 2012a; Wadhia 2010; Wishnie 2012). Daniel Kanstroom calls discretion “the flexible shock absorber of the administrative state. It is a venerable and essential component of the rule of law that recognizes the inevitable complexities of enforcement of laws by government agencies” (2012, 215). And, legislative restrictions on judicial dis- cretion and limits on judicial review imposed in 1996 “have simply consolidated this discretion in the agency officials responsible for charging decisions. Pros- ecutorial discretion has thus overtaken the exercise of discretion by immigra- tion judges when it comes to questions of relief ” (Cox and Rodríguez 2009, 518–19). This discretion is severely limited, however, by ICE’s organizational struc- ture and overarching law enforcement mission. ICE is the only agency empow- ered to represent the government in deportation hearings, and ICE attorneys are subject to review, promotion, and discipline by managers who come from law enforcement backgrounds. Prior to their incorporation into the Depart- EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  prosecutorial discretion. 21 ment of Homeland Security (DHS), government immigration attorneys were supervised by other attorneys, and those attorney managers recognized the need for trial lawyers to be granted wide latitude in handling their cases. As we shall see later in this chapter, the law enforcement focus of ICE’s middle management became a serious impediment to the exercise of prosecutorial discretion. discretion in us immigration enforcement: the early days Kanstroom reminds us that discretion has historically been a key component of immigration policy and practice. The Alien and Sedition Acts of 1798 “gave the President unfettered discretion to deport any alien he deemed sufficiently dangerous to warrant the sanction” (2012, 62), and the 1918 Alien Law was used to deport alleged anarchists, Bolsheviks and other dissidents. Similarly, scholars have identified the multiple ways in which US immigration law, since at least the mid-1800s, has selectively permitted and excluded entry based on race, religion, gender, national origin, and other considerations thought rel- evant at the time (Abrams 2005; Calavita 1984; Gardner 2005; Ngai 2004). For example, by defining Chinese women immigrants as prostitutes and thus excludable, the Page Act of 1875 prevented the immigration of Chinese women, thus slowing the growth of Chinese American communities while appearing more inclusive (Abrams 2005). Discretion in immigration law enforcement was also critical in meeting the needs of agriculture and other economic sectors that relied on cheap seasonal labor. Writing just prior to passage of the 1986 Immigration Reform and Control Act, Harwood argues that “a tough, no-holds-barred enforcement policy” would have been difficult because well-organized interest groups wanted weak immigration enforcement, there were not sufficient resources to deport all unauthorized immigrants, and political considerations required trade-offs (1986, 168). According to Harwood, “Whether consciously articu- lated or not, political factors are often clearly intertwined with considerations of optimal resource allocations in the agency’s effort to achieve what it consid- ers to be the most advantageous enforcement strategy” (1986, 172). As a result, the Immigration and Naturalization Services (INS) “must engage in selective enforcement, and even underenforcement, of the law” (1986, 175). Similarly, Calavita (1992) demonstrates how the INS used its discretion during the EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  22. chapter two Bracero Period of 1942–1964 to ignore those undocumented workers that agribusiness needed, while deporting those who were seen as troublemakers. The recent literature on proportionality adds another dimension to this discussion. Proportionality is “the notion that the severity of a sanction should not be excessive in relation to the gravity of an offense” (Wishnie 2012, 416) and “provides a basis for balancing the government’s interest in punishment and an individual’s fundamental rights” (Banks 2013, 1267). Accordingly, deportation should only be used when it is a proportionate response to a criminal act, and the length of any bar to reentry must also be proportionate to the offense. Thus, Daniel Kanstroom concludes, “The key question is not whether the rule of law demands the elimination of discretion—that is simply impossible. Rather, the more serious question is: what is the proper relationship among enforcement duties, such as inevitable discretion, basic rights claims, and judicial oversight?” (2012, 214–15; see also Motomura 2014; Stumpf 2009). legal understandings of prosecutorial discretion in immigration policy and practice According to a senior official in the Department of Homeland Security, the starting point for the Obama administration’s conceptualization of prosecu- torial discretion was Sam Bernsen’s 1976 memorandum. At the time, Bernsen was general counsel to the commissioner for Immigration and Naturalization Services. His memo defines prosecutorial discretion as “the power of a law enforcement official to decide whether or not to commence or proceed with action against a possible law violator.... The reasons for the exercise of pros- ecutorial discretion are both practical and humanitarian” (1976, 1). Bernsen further asserts that prosecutorial discretion “is inherent in the nature of [the INS’s] enforcement function.” He suggests a number of reasons why deporta- tion proceedings may be cancelled, including proceedings that were “improv- idently begun.” In such cases, “the person is placed in the ‘deferred action’... category, meaning that deportation proceedings will not be instituted or continued against the alien” for policy or humanitarian reasons (Bernsen 1976, 6). As we shall see, the concept of “deferred action” reappears over time, most notably in the Vanison et al. memo (n.d.) and in the Deferred Action for Childhood Arrivals policy (Napolitano 2012). Between Bernsen’s memorandum establishing the rationale for prosecuto- rial discretion in immigration enforcement and the contemporary context, EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  prosecutorial discretion. 23 Congress adopted three key pieces of legislation: the 1986 Immigration Reform and Control Act (IRCA), the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), and the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA). IRCA was a comprehensive immigration policy, com- bining a legalization program with employer sanctions for hiring undocu- mented workers. Although IRCA was generally seen as a major, even if time- limited, win for immigration advocates, the 1996 laws slammed the door on immigrants. They substantially broadened the category of deportable offenses and, reminiscent of federal sentencing guidelines, they significantly under- mined, and in many cases essentially eradicated, judicial discretion. The final version of the 1996 laws, according to then-INS General Counsel David Martin, was a “perfect storm” that expanded the grounds for deporta- tion, was retroactive, and precluded most relief possibilities, even for legal permanent residents. Similarly, Lindsay Marshall, then director of the Flor- ence Immigrant and Refugee Rights Project told us: 1996 is sort of like the big year in immigration enforcement.... They massively expanded the number of crimes that can make people deportable. They started this mandatory detention provision that... by legislation, it sort of stripped away the discretion of ICE to decide whether to release someone.... That is used as a reason why they have to detain so many people, because the legislation has that mandatory detention provision. It also took a lot of discretion from immigration judges. It used to be that immigration judges could always, no matter what the case, before making a final decision about deportation, they could consider the impact on US-citizen children before making that decision. And now, unless somebody is eligible for a defense from deportation and there is an element of that defense that says, “you can consider the impact on US citizen family members,” they can’t consider it. A lot of their discretion was taken away in those situations. So that was a really pivotal year. Even when immigration judges want to take family ties into account, we were told, “their hands are tied” if immigrants, including legal permanent residents, have an aggravated felony conviction, regardless of how long ago the offense occurred, whether it was a deportable offense at the time, and even whether it was a felony. Looking back over the years leading up to 1996 and the changes in immigration enforcement that followed, the Supreme Court declared in March 2010, “The landscape of federal immigration law has changed dramatically over the last 90 years. While once there was only a nar- row class of deportable offenses and judges wielded broad discretionary EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  24. chapter two authority to prevent deportation, immigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation” (Padilla v. Kentucky 2010, 1478).... These changes to our immigration law,” the Court concluded, “have dramatically raised the stakes of a noncitizen’s criminal conviction” (2010, 1478). Prosecutorial Discretion in Light of the 1996 Laws: Commissioner Meissner’s Memorandum Given the harshness of the 1996 laws and the limitations they imposed on judges, some members of Congress and the Clinton administration were concerned that the 1996 laws might be interpreted as eliminating all forms of discretion in immigration enforcement. Bo Cooper, then general counsel for INS Commissioner Doris Meissner, wrote an influential memorandum dated October 4, 1999, in which he outlined the legal bases for prosecutorial discre- tion, proposed limits on discretion, and offered examples of its proper use. Cooper had considerable experience in immigration policy, having served as principal legal advisor to INS in two earlier administrations. His memoran- dum was explicitly “intended to be the first step in the INS’ examination of its use of prosecutorial discretion” (Cooper 1999, 1). But the discretion itself, he argued, is not new. Rather, like other law enforcement agencies, INS “does not have the resources fully and completely to enforce the immigration laws against every violator [and so] it exercises prosecutorial discretion thousands of times every day” (1999, 3). A month later, twenty-eight members of Congress sent a letter to Attorney General Janet Reno and INS Commissioner Doris Meissner, citing Cooper’s memo and affirming their sense that the 1996 laws did not erase all elements of discretion. The letter states, “There has been widespread agreement that some deportations were unfair and resulted in unjustifiable hardship” (Hyde et al. 1999, 1). Examples cited include removal proceedings against “legal per- manent residents who came to the United States when they were very young, and many years ago committed a single crime at the lower end of the ‘aggra- vated felony’ spectrum, but have been law-abiding ever since, obtained and held jobs and remained self-sufficient, and started families in the United States” (1999, 1). The letter concludes with a request for guidelines for INS District Directors, “both to legitimate in their eyes the exercise of discretion and to ensure that their decisions... are not made in an inconsistent manner” EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  prosecutorial discretion. 25 (1999, 2). Commissioner Meissner’s November 17, 2000, directive established this guidance and an implementation process. The “Meissner Memo,” as it has come to be known, has stood the test of time, becoming the standard upon which later prosecutorial discretion memos rely. Explicitly referencing the similarities with prosecutorial discretion in the criminal law context, Meissner states, “There are significant differences, of course, between the role of the U.S. Attorneys’ offices in the criminal justice system, and INS responsibilities to enforce the immigration laws, but the general approach to prosecutorial discretion stated in this memorandum reflects that taken by the Principles of Federal Prosecution” (Meissner 2000, 2, n. 2). Echoing the memo from her general counsel as well as the Supreme Court opinion in Reno v. American-Arab Anti-Discrimination Committee (1999), which recently had been decided, Meissner stresses that INS “officers are not only authorized by law but expected to exercise discretion in a judicious man- ner at all stages of the enforcement process” (2000, 1) and to do so “every day” (2000, 2). Clearly identifying the dual bases for prosecutorial discretion—limited resources and humanitarian concerns—and anticipating potential criticism, Commissioner Meissner states that prosecutorial discretion “is not an invita- tion to violate or ignore the law. Rather, it is a means to use the resources we have in a way that best accomplishes our mission of administering and enforc- ing the immigration laws of the United States” (2000, 4). Meissner continues, “INS officers may decline to prosecute a legally sufficient immigration case if the Federal immigration enforcement interest that would be served by pros- ecution is not substantial” (2000, 5). This “individualized determination, based on the facts and the law,” she asserts, holds even in cases in which an immigrant meets the criteria for mandatory detention under the 1996 laws (2000, 6). Meissner outlines a set of factors to be weighed when deciding whether to exercise prosecutorial discretion. These factors should be considered in their totality, rather than piecemeal. They include the person’s immigration status (with lawful permanent residents generally due greater consideration) and length of residence in the United States; history of prior immigration viola- tions or criminal offenses; humanitarian concerns including family ties in the United States, whether the person is now or is likely to become eligible for admissibility, cooperation with law enforcement, honorable US military service, and community opinion; and the extent to which use of resources in this case meets national or regional priorities (2000, 7–8). Recognizing that EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  26. chapter two the various regional offices “face different conditions and have different requirements” (2000, 10), Commissioner Meissner reiterates that INS person- nel “at all levels should understand that prosecutorial discretion exists and that it is appropriate and expected that the INS will exercise this authority in appropriate cases” (2000, 10). This determination was affirmed a year later by the Supreme Court, which held in INS v. St. Cyr (2001) that certain dis- cretionary waivers of deportations remain available to noncitizens. Post-9/11 Organizational Shuffle Eleven days after the terrorist attacks of September 11, 2001, President George W. Bush created an Office of Homeland Security within the executive branch and appointed Tom Ridge as its first director. With passage of the Homeland Security Act a year later, immigration authority was transferred to the newly formed Department of Homeland Security, with immigration enforcement concentrated in one agency, US Immigration and Customs Enforcement. Joining ICE in the newly formed DHS were Citizenship and Immigration Services, Customs and Border Patrol, Coast Guard, Federal Emergency Management Agency, Federal Law Enforcement Training Center, Transpor- tation Security Administration, and the Secret Service. According to a former senior government official, the FBI, CIA, NSA, and other powerful agencies refused to move, resulting in this conglomeration of “second-tier” law enforce- ment and security agencies whose “constant struggle to be taken seriously by the real big boys is an undercurrent that drives a lot of DHS decisions.” Echoing the comments of several immigration attorneys and policy analysts we interviewed, immigration attorney Lindsay Marshall described creation of ICE as “kind of like a self-fulfilling prophecy. You create this agency that is supposed to go after people, and they’ve put a lot of resources there.” The resulting “pressure on the agency to keep those numbers up and do that enforcement” and the “flood of resources” has “continued to ramp up the enforcement and the capacity in detention.” Similarly, another respondent depicted ICE as a “special agency that was focused on law enforcement.... That is their mandate and their mission.” Stepping Stones to the Morton Memos A surge in border enforcement activity resulted in a tripling of caseloads in immigration courts between 2001 and 2005, stretching limited agency resources and making prosecutorial discretion an important tool for achieving EBSCOhost - printed on 12/20/2024 8:25 PM via. All use subject to https://www.ebsco.com/terms-of-use  prosecutorial discretion. 27 agency goals. This led to the next major stepping stone toward today’s exercise of prosecutorial discretion—a 2005 memo by William J. Howard, principal legal advisor for ICE. In addition to the value of prosecutorial discretion in times of scarce resources, Howard also reiterated that it “is a very significant tool that sometimes enables you to deal with the difficult, complex and con- tradictory provisions of the immigration laws and cases involving human suffering and hardship” (Howard 2005, 8). Two years later, in the wake of a series of raids of meatpacking plants and other worksites hiring large numbers of undocumented immigrants, DHS Assistant Secretary and ICE Director Julie Myers issued a memorandum highlighting “the importance of exercising prosecutorial discretion when making administrative arrest and custody determinations for aliens who are nursing mothers” (Myers 2007, 1). Although her memo was limited in scope, Myers explicitly states that field agents and officers are “not only authorized by law to exercise discretion within the authority of the agency, but are expected to do so in a judicious manner at all stages of the enforcement pro- cess” (2007, 1). Absent threats to national security, public safety, or other investigative interests, she asserts, nursing mothers should not be detained. Myers references Meissner’s memorandum as providing the appropriate pro- cess for reaching discretionary decisions and attaches that memo to her own, thus reaffirming its legal guidance. With the 2008 elections, the Democrats again regained the White House, and President Barack Obama appointed former Arizona governor Janet Napolitano to head the Department of Homeland Security. President Obama had hoped to pick up where President George W. Bush left off and to enact comprehensive immigration reform early in his first term (Weiner 2013). Those efforts failed, and by 2010 the growing antipathy between House Republicans and the White House made passage of immigration legislation, and most any other initiative, unlikely in the near future. In this context, the Obama admin- istration and Democratic members of Congress started looking for adminis- trative means of achieving their goals. As a government official told us, “Noth- ing can replace comprehensive immigration r