Remarks on executive action and immigration reform.

• Author: Wadhia, Shoba Sivaprasad
• Position: New Beginnings, Resets & Pivots: The International Legal Practice of the Obama Administration

This essay places the President's executive actions on immigration last November into a larger context by providing a brief history of prosecutorial discretion in immigration cases. This essay also describes how law students at Penn State Law School used the President's announcement of executive actions as a platform for local change in the State College community.

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Drafted August 5, 2015

First, I would like to thank Professor Avidan Cover for inviting me to speak on this panel and to the law students, faculty, and staff who organized this conference. It is an honor to be on such a distinguished panel and also to be in Ohio (more on that later). I will use my time to place the President's executive actions on immigration last November into a larger context by providing a brief history of prosecutorial discretion in immigration cases. I will also describe how law students at Penn State Law School used the President's announcement of executive actions as a platform for local change in our community.

Last November, President Obama announced a line of executive actions on immigration, (1) the most controversial of which include an update to the Deferred Action for Childhood Arrivals (DACA) program (a program originated in 2012) and a new program for qualifying parents of children in a permanent legal status known as Deferred Action for Parents of Americans and Legal Residents (DAPA). (2) These programs are controversial because they aim to protect a potentially large class of individuals from deportation using executive authority. These programs were also rolled out with great doses of transparency, enabling even the best of policy, or intentions, to be seized by politics.

The precise tool the Obama Administration identified for protecting this class was "prosecutorial discretion," which in immigration law refers to the choice by the agency or Department of Homeland Security about whether to enforce the laws against a person or group of persons. (3) There are multiple flavors or forms of prosecutorial discretion. They include the choice by a line officer to stop, interrogate or arrest a noncitizen; the decision by an Immigration and Customs Enforcement (ICE) attorney to cancel, serve or file legally valid immigration charges against a noncitizen; the determination by Customs and Border Protection (CBP) to permit the entry of an inadmissible noncitizen through parole; and as we have seen with this Administration, the choice by United States Citizenship and Immigration Services (USCIS) to grant deferred action. (4) This kind of discretion has operated in the immigration system for many years and is premised on three principles. First, the agency has the resources to deport only a fraction of the unauthorized population, so the idea of targeting limited resources towards enforcement priorities as opposed to parents, children, and workers is deemed reasonable...