Originally uploaded at SSRN.

Abstract

Congressional amendments to the immigration code in the 1990s significantly broadened grounds for removal while nearly eradicating opportunities for discretionary relief. The result has been a radical transformation of immigration law. In particular, the constriction of equitable discretion as an adjudicative tool has vested a new and critical responsibility in enforcement officials to implement rigid immigration rules in a normatively defensible way, primarily through the use of prosecutorial discretion. This Article contextualizes recent executive enforcement actions within this scheme and argues that the Obama Administration’s targeted use of limited enforcement resources and implementation of initiatives such as Deferred Action for Childhood Arrivals reflect defensible efforts to systematize equitable decision making principles within the new world of American immigration law.

Having laid bare the practical realities of the modern immigration system, this Article then argues that reliance on executive discretion alone has thus far failed to ensure that individuals are deported only when justified. Of particular importance, the Department of Homeland Security under the current administration has all but abandoned any consideration of the normative merits of removal when it comes to noncitizens with any kind of criminal history. Indeed, the agency has used criminal history as an indiscriminate marker of undesirability, regardless of the seriousness of the underlying offense, the passage of time, the permanent resident status of the noncitizen, the severity of hardship that deportation would cause for the noncitizen’s family, and any other mitigating factors. A deportation system that allocates all responsibility for fairness and proportionality to enforcement actors raises other problems as well, including lack of finality and heightened risk of conflict with other branches and levels of government. These difficulties in turn can stymie the use of enforcement discretion as an effective equitable tool.

The situation cries out for legal redress. The reinvigoration of adjudicative discretion and rollback of overly broad removal grounds through statutory reform are goals well worth pursuing, and this Article describes important measures that lawmakers might take toward those ends. In the absence of congressional intervention, there remain important steps the Executive could take to help ensure the proportionality and fairness of the deportation system, despite the drawbacks of enforcement-based equity. This Article concludes by suggesting that if neither of the political branches takes adequate steps to address this new set of problems, it will be left to the federal judiciary to increase structural opportunities for equitable consideration through closer regulation of the modern deportation system.

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