The Immigration Prosecutor and the Judge: Examining the Role of the Judiciary in Prosecutorial Discretion Decisions

Legal scholars and judges have long examined the role of judicial review in immigration matters, and also criticized the impacts of the “plenary power” doctrine and statutory deletions of judicial review for certain immigration cases. Absent from this scholarship is a serious examination of the judiciary’s role in immigration decisions involving prosecutorial discretion. I attribute this absence to both a silent concession that prosecutorial discretion decisions are automatically barred from judicial review because of the plain language of the Immigration and Nationality Act (INA); the judicial review “exceptions” in the Administrative Procedures Act (APA), and the cases that analyze these sections; and the effects of reading a decade-plus shelf of memoranda by the immigration agency declaring that no prosecutorial discretion provides a procedural or substantive benefit or a right. The role of prosecutorial discretion in immigration matters is well established, and generally refers to the agency’s determination about whether or not the immigration laws should be enforced against a particular individual or group of persons. The theory of prosecutorial discretion rests on both humanitarian and monetary considerations. First, prosecutorial discretion recognizes that certain noncitizens bearing positive attributes and qualities have no formal relief available under the immigration laws. Second, prosecutorial discretion acknowledges that the number of noncitizens who are technically “deportable” under the immigration laws is much larger than the immigration agency can successfully handle with its available resources. More specifically, prosecutorial discretion may be exercised by DHS at any stage of immigration enforcement, including, but not limited to, interrogation, arrest, charging, detention, removal proceedings, on appeal, or after a removal order has become final. Building upon my research on the role prosecutorial discretion in immigration law, this Article examines the role of the judiciary in prosecutorial discretion decisions. This Article begins with providing an overview about the immigration process generally, and of prosecutorial discretion in particular. Part II examines the normative arguments about judicial review over immigration decisions. Part III of this Article describes the legal framework for judicial review of agency actions generally and prosecutorial discretion decisions particularly. Part IV examines a handful of federal circuit court decisions applying the judicial review scheme outlined in the governing statutes to discretionary immigration decisions, and challenges the appropriateness of applying Heckler v. Chaney to every prosecutorial discretion decision in the immigration context. Part V analyzes the potential for judicial review over select prosecutorial discretion decisions and offers related recommendations