Abstract

http://ssrn.com/abstract=2310125
 


 



Victims or Criminals? Discretion, Sorting, and Bureaucratic Culture in the U.S. Immigration System


Nina Rabin


University of Arizona - James E. Rogers College of Law

August 21, 2013

23 S. Cal. Rev. L. & Soc. Just. __ (2014 Forthcoming)
Arizona Legal Studies Discussion Paper No. 13-38

Abstract:     
This article examines the Obama Administration’s effort to encourage the use of prosecutorial discretion by Immigration and Customs Enforcement (ICE), the executive agency in charge of the enforcement of immigration laws. Since 2010, the Obama Administration has repeatedly stated that agency officials are to focus enforcement efforts on those who pose a threat or danger, rather than pursuing deportation of all undocumented immigrants with equal fervor. Yet despite repeated directives by the administration, the implementation of prosecutorial discretion is widely considered a failure. Data and anecdotes from the field suggest that ICE has yet to embrace this more nuanced approach to the enforcement of immigration laws.

In this article, I argue that one key reason that prosecutorial discretion has not taken hold within ICE is the failure of the President and his administration to adequately account for agency culture. In particular, the prosecutorial discretion initiative directly conflicts with the central role that criminal convictions play in ICE culture. To support my argument, I present an in-depth case study of the agency’s refusal to exercise discretion in a highly compelling case. For over two years, ICE aggressively prosecuted a client of University of Arizona’s immigration clinic who appeared to be the quintessential recipient of prosecutorial discretion, as the victim of domestic violence, sex trafficking, and the primary caregiver for three young U.S citizen children. Despite these equities, ICE’s decision to prosecute was based wholly on the single conviction on her record, which was directly related to her victimization and for which she received a sentence of probation only.

I situate this case study in a theoretical framework regarding bureaucratic culture. Applying this analysis to ICE brings into focus key elements of the agency’s culture, particularly its tendency to view all immigrants as criminal threats. This culture makes the sole fact of a conviction – without regard to its seriousness or context – a nearly irreversible determinant of the agency’s approach to any given case. My analysis of the nature and intensity of ICE’s bureaucratic culture has troubling implications for the capacity of the President and his administration to implement reforms that counter the lack of nuance in the immigration system’s current legal framework. It suggests that locating discretion primarily in the enforcement arm of the immigration bureaucracy has inherent limitations that lead to a system poorly designed to address humanitarian concerns raised in individual cases.

Number of Pages in PDF File: 68

Keywords: immigration, prosecutorial discretion, administrative law

Accepted Paper Series


Download This Paper

Date posted: August 14, 2013 ; Last revised: October 24, 2013

Suggested Citation

Rabin, Nina, Victims or Criminals? Discretion, Sorting, and Bureaucratic Culture in the U.S. Immigration System (August 21, 2013). 23 S. Cal. Rev. L. & Soc. Just. __ (2014 Forthcoming); Arizona Legal Studies Discussion Paper No. 13-38. Available at SSRN: http://ssrn.com/abstract=2310125 or http://dx.doi.org/10.2139/ssrn.2310125

Contact Information

Nina Rabin (Contact Author)
University of Arizona - James E. Rogers College of Law ( email )
P.O. Box 210176
Tucson, AZ 85721-0176
United States
HOME PAGE: http://www.law.arizona.edu/faculty/facultyprofile.cfm?facultyid=305

Feedback to SSRN


Paper statistics
Abstract Views: 498
Downloads: 138
Download Rank: 118,108

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo1 in 0.375 seconds