Recognizing the Role of Discretion in the Immigration System Commentary
Recognizing the Role of Discretion in the Immigration System
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JURIST Guest Columnist Carolina Núñez of the Brigham Young University J. Reuben Clark Law School says that recent judicial and executive pronouncements highlight the role and importance of discretion in immigration law…

June was a big month for immigration-related news. The US Supreme Court’s decision in Arizona v. US [PDF] reasserted the federal government’s broad and preemptive authority over immigration matters. The Obama administration’s announcement of “deferred action” for DREAMers, the would-be beneficiaries of the proposed DREAM Act, provided needed relief from deportation for a group of young individuals who are perhaps best labeled “undocumented Americans.” Together, these two news items highlight the important role that discretion plays in US immigration law despite the popular conception of immigration law as a rigid, mechanical force that knows only “legals” and “illegals.” The Supreme Court’s opinion and the recently announced deferred action for DREAMers are shedding a more public light on the role of discretion in the immigration arena. They also evidence a continuing trend toward a more nuanced approach to immigration law that accounts for individual circumstances.

In Arizona v. US, the Court held that portions of Arizona’s immigration legislation, SB 1070 [PDF], were preempted by federal law. The federal government challenged four provisions: Section 3, which created a state crime for failure to complete or carry a federally required alien registration document; Section 5(C), which created a state crime for employing an undocumented immigrant; Section 6, which allowed state police officers to make an arrest based on probable cause that the individual had committed a crime that rendered that individual removable from the US; and Section 2(B), which, in part, required state officers making a stop, detention, or arrest to verify the person’s immigration status. Justice Anthony Kennedy, writing for the Court, held that all but section 2(B), for which there was an insufficient record of how Arizona would enforce that provision, were preempted by federal law.

In striking down the three provisions, Kennedy explained that federal immigration law includes an important element of discretion: “A principal feature of the removal system is the broad discretion exercised by immigration officials.” Two broad types of discretion are at play in the immigration removal system. First, the Immigration and Nationality Act (INA) expressly provides many opportunities for the use of discretion in immigration proceedings. For example, an individual seeking the cancellation of removal proceedings requires a favorable exercise of discretion by the presiding immigration judge under the INA. Immigration laws are also subject to the constraints of limited resources, diplomatic concerns, humanitarian imperatives and more on both an individual level and on a larger scale. The federal government, for example, cannot realistically remove all undocumented immigrants in the foreseeable future. Not only would such an effort strain resources, but it would cripple economies, disrupt communities and damage diplomatic relationships abroad. In addition, it would ignore the fact that many undocumented immigrants have legitimate, though unrealized, claims to remain in the US.

Kennedy included both types of discretion in his initial description of the federal government’s power over “the subject of immigration,” noting that federal officers must decide whether to pursue removal of an individual at all and that aliens in removal proceedings can seek discretionary relief under the INA. Kennedy also highlighted some opportunities for the exercise of discretion related to the specific provisions of the Arizona legislation challenged by the US. In striking down Section 3 of SB 1070, which created a state penalty for failure to carry a federally-required alien registration document, Kennedy noted: “Were § 3 to come into force, the State would have the power to bring criminal charges against individuals for violating a federal law even in circumstances where federal officials in charge of the comprehensive scheme determine that prosecution would frustrate federal policies.” Similarly, in analyzing Section 6, which allowed a state officer to arrest a person on probable cause that the person had committed an offense that made him or her removable, Kennedy noted the importance of discretion to the federal scheme. He explained that federal officials must exercise discretion to issue a warrant for an alien’s arrest, citing a 2011 memo [PDF] by US Immigration and Customs Enforcement (ICE) Director John Morton describing factors to consider in deciding whether to pursue removal.

More subtle nods to the importance of discretion in federal immigration enforcement run throughout the opinion. For example, rather than merely restating the well-settled principle that the federal government has the power to regulate immigration as an inherent element of sovereignty, Kennedy’s opinion highlights the link between the federal immigration power and the power over foreign relations — a power that unquestionably consists of discretionary decision- and policy-making. Kennedy explained that “[i]mmigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws.” Ultimately, the Court’s holding reinforced the role of discretion in immigration law. By including discretionary decisions in its preemption analysis, the Court recognized that discretion is an integral part of the federal immigration scheme.

All this is not to say that discretion is new to the immigration sphere. The Arizona v. US opinion does, however, publicly highlight the increasing importance of discretion in the US immigration system. Likewise, the recent memo announcing deferred action for DREAMers puts a long overdue spotlight on the role of discretion. While several internal Department of Homeland Security (DHS) memos dealing with prosecutorial discretion preceded the DREAM Act memo, the timing of the latter memo poised it for heightened public attention. Among other things, the announcement came in the wake of Congress’s failure to pass the DREAM Act last year and after a flurry of state immigration initiatives and related litigation.

Beyond increasing public attention to the role of discretion, the Arizona v. US opinion and DREAMer memo are examples of a more nuanced approach to immigration law that accounts for a broader spectrum of factors and circumstances that inform our conception of what it means to “belong” in the US. Scholars and courts alike have recognized that, ultimately, immigration law shapes the meaning of membership in the US. Kennedy goes even further, writing that “[i]mmigration policy shapes the destiny of the Nation.” Such a complex matter deserves careful attention to the myriad circumstances that affect individuals navigating the US immigration system. The increasing role of prosecutorial discretion provides some much-needed latitude. The DREAMer memo, for instance, recognizes the paradoxical situation in which many young undocumented immigrants find themselves. The beneficiaries of the deferred action policy are individuals who are removable under the INA but who may know no country but the US. Having arrived as children, they have studied or are studying in US schools. The INA does not expressly weigh these factors in the balance (though the proposed DREAM Act would), but prosecutorial discretion is one way to take these factors into account.

The growing public presence of discretion in the US immigration system is a hopeful first step toward a more finely-tuned effort to determine who “belongs.” It also raises interesting questions for the future. If discretion is an integral part of US immigration law, should discretionary decisions be reviewable or subject to some type of oversight? Is discretion best exercised on a categorical or on an individual level? Does discretion play a more significant role in immigration law than it does in other spheres and does that add weight to the preemptive nature of the federal immigration power? Is discretion the best way to account for the varied factors that matter to our conception of belonging and membership? The opinion in Arizona v. US and the DREAMer memo provide an appropriate springboard for commentators, courts, and policy makers to sort through these issues.

Carolina Núñez is an Associate Professor of Law at the Brigham Young University J. Reuben Clark Law School. She researches and writes about alienage, citizenship and immigration law, with a specific emphasis on undocumented immigrants. Her recent publications explore the meaning of membership and the waning importance of presence within US territory as a guarantee of membership benefits.

Suggested citation: Carolina Núñez, Recognizing the Role of Discretion in the Immigration System, JURIST – Forum, Aug. 16, 2012,

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