In Touch With: Shoba Wadhia

Shoba Sivaprasad Wadhia is the founding director of the Center for Immigrants’ Rights Clinic at Penn State Law. She spoke with research editor Cherie Winner about her work and about some of the hot-button political issues involving immigration.

What do you think of proposals to bar potential immigrants based on their nationality or religion?

We already have per-country caps in our immigration system. With individuals who are seeking a permanent visa through employment or family, no more than ‘X’ percentage of these visas can go to nationals of a particular country. We have not historically seen an outright ban on an entire religion. That, in many ways, is unprecedented—and it raises a host of questions ranging from whether it’s constitutional to whether it can even work. I find it hard to believe that a court would uphold the constitutionality of a such a ban. Our refugee law protects people fleeing from persecution on account of race, religion, nationality, political opinion, or membership in a particular social group, so a ban would undercut our own principles around refugee protection. Many who are from countries like Syria are fleeing persecution, and we have obligations, both morally and legally, to protect them.

What about fears that some refugees could be terrorists?

Fear has never been a good foundation for making immigration law or policy. The public deserves to feel safe and to have faith that our government adequately screens individuals before they are admitted into the U.S. Having said that, a proposal that prohibits immigration based on someone’s religious practice is the wrong way to handle major questions of national security. We are not going to find the next terrorist by placing a religious test on people who are arriving in the U.S. In the case of refugees, they are the most-screened immigrant population to the U.S. Most refugees wait for two years or more before they are admitted. The refugee program would be the last program a terrorist would try to use.

Can individual states impose their own immigration standards?

As a general matter, states don’t have the legal authority to ban certain groups of people from entering and residing there, because immigration is a federal responsibility. But states can make the lives of immigrants more difficult. It’s important to recognize that states and localities do play an important role in welcoming immigrants into their communities. It was heartening to see that our leaders in Pennsylvania have embraced Syrian refugees and stated publicly that they would welcome refugees here. That inclusivity is important for individuals who are leaving their homeland, who in some cases have spent a year or more in a refugee camp, afraid about their future and what comes next, who have maybe fled threats of death and violence and who just want safety for themselves and their family.

Tell us a little about the Center for Immigrants’ Rights Clinic.

It’s where law students step out of the classroom and take on a lawyering role by working on projects or individual cases related to immigration or immigrant rights. In an individual case, that might be interviewing a client, understanding the nuances of interviewing somebody who has no more than an elementary-school education, who is traumatized, and who doesn’t speak English. For a policy project, it might include understanding the politics of a particular immigration issue, like asylum, and working in a professional manner with national nonprofits that we represent, in producing a white paper or a report on the issue.

Your book is about prosecutorial discretion—what is that?

Prosecutorial discretion refers to a decision made by the immigration agency on whether or not to enforce the law against a person or a group of persons. There are up to 12 million people who are living in the United States without authorization, and the government has the resources to remove about 400,000, or less than four percent of that population. So it has to prioritize who will be a target for removal, and who will not. It’s not terribly different from the criminal justice system, where a prosecutor is not going to bring charges against every single person who fishes without a license or who drives over the speed limit. A grant of prosecutorial discretion does not have the security of a formal legal status. I sometimes call it ‘immigration purgatory.’ It can be revoked at any time; it is a temporary protection from removal. It’s still powerful to people who previously had been living under the shadows or who have been unable to work or drive. It opens all kinds of doors, even though it’s not a permanent door.

Shoba Sivaprasad Wadhia's first book, Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases, was published in 2015 by NYU Press.

This story first appeared in the Spring 2016 issue of Research|Penn State magazine.