Notice & Comment

How Discretion Failed One 10-Year-Old Girl and What the Future Holds, by Shoba Sivaprasad Wadhia

shoba_wadhia_faculty2Much has been said about Rosa María Hernández, the latest target of the Trump administration’s immigration policies. The Department of Homeland Security (DHS) has the responsibility and authorization to enforce the immigration laws against those inside the United States without authorization. However, the government’s choice to target a ten-year old girl with cerebral palsy on her way to an emergency gallbladder surgery is remarkable, and points to the failure of prosecutorial discretion.

Prosecutorial discretion in immigration law refers to the choice made by DHS about whether to enforce the full scope of immigration law against a person or group. Within DHS, United States Citizenship and Immigration Services (USCIS), Immigration Customs Enforcement (ICE) and Customs and Border Protection (CBP) all have the authority to exercise prosecutorial discretion favorably. CBP may exercise this discretion by avoiding specific areas for enforcement or refraining from arresting or detaining someone because of age, medical needs, or other humanitarian considerations. Instead, agents from CBP stopped the ambulance and waited in the hospital until Rosa’s release, after which she was transferred to a detention facility.

The outrage over Rosa’s immigration case is not limited to the actions taken by the government to arrest and detain her but also extend to an important kind of protection known as “deferred action.” Deferred action is a form of prosecutorial discretion in immigration that enables the government to grant temporary protection to individuals with compelling equities. While deferred action became a politically charged phrase in light of a policy announced during the Obama administration called Deferred Action for Childhood Arrivals (DACA), deferred action has been a staple in the immigration system for many decades.

Historically, deferred action has protected thousands of people like Rosa. In 1975, the former Immigration and Naturalization Service issued a policy called the “Operations Instructions” which at the time reflected a deferred action program for individuals bearing one or more of the following attributes: advanced or tender age; many years presence in the United States; physical or mental condition requiring care or treatment in the United States; and impact of deportation on family in the United States.

In the decades that followed, thousands of individuals who entered the United States at a young age or who suffered from a serious medical condition have been processed for and granted deferred action.  Data as recent as 2016 for the Southeast region reveals that 64 percent were granted deferred action based on medical reasons and included children suffering from cerebral palsy. Furthermore, DHS and former INS have long directed agents to avoid immigration enforcement at or near sensitive locations, which include but are not limited to schools, places of worship, and hospitals.

While the current administration has modified enforcement and discretion in significant ways, guidance from DHS maintains that prosecutorial discretion may still be exercised on a case-by-case basis. Even without this guidance, discretion is inescapable in a landscape where the agency has resources to deport 400,000 or less than 4 percent of the deportable population. Thus, what really lies in the hands of the government is the approach it takes to make enforcement decisions. Rather than prioritize enforcement targets and protect from removal those with humanitarian and other equitable factors, DHS has acted aggressively and arbitrarily against the most vulnerable.

Moving forward, DHS must set priorities and a more specific policy for prosecutorial discretion. Further, DHS must ensure that its line officers, adjudicators, and attorneys are trained in how to use this discretion fairly and humanely. Finally, DHS must be held accountable when such prosecutorial discretion is abused.


Shoba Sivaprasad Wadhia is a member of the Board of Trustees of American Immigration Council; the Samuel Weiss Faculty Scholar and Law Professor at Penn State Law and author of Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press). This post was originally published Immigration Impact.

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