Professor’s new book outlines prosecutorial discretion in immigration

April 24, 2015

UNIVERSITY PARK, Pa. – A new book by Penn State Law professor Shoba Sivaprasad Wadhia is the first of its kind to comprehensively examine the history, theory and application of prosecutorial discretion in immigration law. "Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases," published by New York University Press as part of its Citizenship and Migration in the Americas series, will be released on May 8 with a June 2 book launch event in Washington D.C.

"Beyond Deportation" provides a rich history of the role of prosecutorial discretion in the immigration system and unveils the role it plays in protecting individuals from deportation and saving government resources. Wadhia, drawing on her years of experience as an immigration attorney, adviser and law professor, advocates for a bolder standard on prosecutorial discretion, greater mechanisms for accountability when such standards are ignored, improved transparency around the cases involving prosecutorial discretion, and recognition of “deferred action,” a form of prosecutorial discretion, in the law as a formal benefit.

The use of prosecutorial discretion in immigration enforcement gained national prominence in recent years with President Barack Obama’s Deferred Action for Childhood Arrivals (DACA) program and the administration’s more recent Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). Together, these programs provide temporary permission, called “deferred action,” for certain non-citizens to lawfully remain in the United States. Exercising this prosecutorial discretion brings compassion into immigration enforcement and allows DHS to focus its limited resources on truly dangerous individuals, according to Wadhia.

While the president’s executive actions and ensuing legal battles have grabbed national headlines lately, in "Beyond Deportation," Wadhia traces the history of the public’s knowledge of prosecutorial discretion back to the 1970s to a case involving John Lennon. With Lennon facing deportation from the United States, his attorney, Leon Wildes, made the groundbreaking argument that his client should be granted “nonpriority” status pursuant to the Immigration and Naturalization Service’s policy of prosecutorial discretion. The case led the INS, the precursor to DHS, to publicly reveal its practice of using prosecutorial discretion, issue official rules on its application, and allow Lennon to remain in the country.

Wildes, founder and senior partner of Wildes & Weinberg P.C. in New York, provided the foreword to "Beyond Deportation."

Divided into eight chapters, "Beyond Deportation" starts with an introduction to the structure of the immigration process and outlines the overhaul of U.S. immigration agencies following 9/11. It goes on to outline the Lennon case, examine the use of prosecutorial discretion in the criminal system, and provide a detailed analysis of deferred action. Wadhia also looks at the Obama Administration’s use of prosecutorial discretion in immigration, the federal immigration agency’s historical position against judicial review, and the agency’s transparency in these matters. The book closes with Wadhia’s recommendations for improving prosecutorial discretion in immigration and its limitations.

“Even with broad statutory reforms, the role of immigration prosecutorial discretion is critical to ensuring that individuals with compelling equities and desirable qualities are protected from removal, while individuals who present true dangers to the community or national security are targeted for removal,” Wadhia writes in the book’s introduction. “I hope this book provokes reasoned discussion about where prosecutorial discretion fits within the larger structure of immigration law and policy and why it matters even if Congress passes comprehensive immigration reform.”

About the author

Wadhia is the Samuel Weiss Faculty Scholar and the founding director of the Center for Immigrants’ Rights Clinic at Penn State Law, where she supervises law students on a wide range of immigration matters, including policy work of national impact for client organizations, community education to local stakeholders and immigration detainees, and legal support to immigrants challenging deportation. She also teaches doctrinal courses in immigration and asylum and refugee law.

Her scholarship focuses on the role of prosecutorial discretion in immigration law and has served as a foundation for scholars, advocates, and government officials seeking to understand or design a strong prosecutorial discretion policy. Her work has been published by Columbia Journal of Race and Law, Harvard Latino Law Review, Connecticut Public Interest Law Journal, Georgetown Immigration Law Journal, Texas Law Review, and Howard Law Journal, among others. She is regularly called on by the media, including NBC News, MSNBC, The Associated Press, The Economist, and The Washington Post, to lend her expertise to their coverage of immigration law.

Prior to joining Penn State Law, Wadhia was deputy director for legal affairs at the National Immigration Forum in Washington, D.C. She also has been an associate with Maggio Kattar, P.C. in Washington, D.C., where she handled asylum, deportation, and employment-based immigration benefits matters.

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Last Updated July 22, 2015