The Trump Administration Has Prosecutorial Discretion in Immigration Matters During COVID-19, They Should Use it

—Shoba Sivaprasad Wadhia

Prosecutorial discretion is a powerful sword and a vital part of the immigration system. Because of limited resources, DHS has historically set priorities for who it will target for immigration enforcement and who it will leave alone. Humanitarian factors and events that include long term residence in the United States, natural disasters, seriously ill children, and survivors of sexual assault are among the reasons DHS has used discretion to protect people without an immigration status.

In the time of COVID-19, it is crucial that the Department of Homeland Security (DHS) maximize its use of prosecutorial discretion for vulnerable immigrants.

In the past week, DHS has used social media or electronic means to communicate office closures and changes for the immigrants they serve and the attorneys who represent them. To illustrate, U.S. Citizenship and Immigration Services (USCIS), the agency handling immigration benefits and applications that includes asylum, Deferred Action for Childhood Arrivals (DACA), and green cards, has closed its offices through at least April 7. Noticeably absent from these notices is how USCIS will use its prosecutorial discretion to handle pending applications, renewals or extension requests, including deferred action renewals. 

Now is the most critical time for USCIS to use their discretion to extend status, extend the periods a person might be permitted to reside here, or renew deferred action. Dozens of the international students and scholars I interact with as a teacher or counselor are afraid of the future, and their ability to maintain status in time of the novel COVID-virus. Meanwhile, DACA recipients with pending renewals are unsure about receiving a timely decision or losing the jobs that support them or their families. USCIS must also renew or grant those requesting deferred action protection outside of DACA. Last September, I testified before Congress, along with several brave patients and advocates to highlight the history of deferred action and the way it serves as a life-saving form of protection.

But on these important issues, USCIS is silent.

Immigration and Customs Enforcement (ICE) is an arm of DHS with the responsibility to arrest, detain, and deport immigrants from the United States. Early memos from the Trump administration created a possibility where any person with a criminal history, arrest, plausible crime, or removal order was a priority for removal. In the wake of the novel COVID-19 virus, ICE scaled back by issuing a directive last week that ICE will refrain from taking immigration enforcement actions again noncitizens except for those who are a risk to public safety or because they are subject to mandatory detention for criminal reasons. So much more will be needed to ensure that immigrants feel safe to come forward to request medical help or that ICE is in fact operationalizing its new enforcement directive on the ground. As usual, the devil is in the details.

ICE also has the prosecutorial discretion about who to release or detain. In recent days, the discovery of an ICE attorney and detainees testing positive for the novel COVID-19 virus should be more than a wake-up call that ICE must use its discretion to release, especially in cases where individuals and families pose not public safety risk. My time in family detention in my own home state of Pennsylvania provides one example of how ICE continues to detain babies, kids, and parents who should be released. Keeping families in detention is an abuse of discretion.

Customs and Border Protection (CBP) is another leg of DHS. They are responsible for arrests at the border, “short term” detentions, and decisions on admission to name a few. In recent weeks, they have advertised their role in connection with travel bans faced by those who were physically present in certain areas of the world as well as a move last week by the administration to effectively shut down the southern and northern borders of the United States. The implications are significant and may in fact violate other statutes like the Refugee Act of 1980.

Beyond the statutes, CBP has the prosecutorial discretion to allow the entry of individuals on the micro level or implement policies at the macro level that protect immigrants and public health. CBP can choose to place people in regular removal proceedings without subjecting them to speedy removal like “expedited removal” or dangerous new inventions (a discretionary choice) like “Migration Protection Protocols” (MPP).

For two decades, I have represented or researched the various ways immigrants might be protected through prosecutorial discretion. Now is the time to use that tool.

Shoba Sivaprasad Wadhia (@shobawadhia) is an immigration attorney and law professor at Penn State Law in University Park. She is the author of Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press 2015), and Banned: Immigration Enforcement In The Time of Trump (NYU Press, 2019).

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