My Great FOIA Adventure and Discoveries of Deferred Action Cases at ICE

Abstract

This Article describes my adventures in FOIA litigation and analyzes deferred action data collected informally by 24 ICE field offices between October 1, 2011, and June 30, 2012. This Article also offers recommendations for the agency on data collection, recordkeeping, and transparency in deferred action cases. Deferred action is a form of prosecutorial discretion that can be granted at any stage of the immigration enforcement process and historically has been applied both to people who meet group characteristics and on an individual basis in compelling humanitarian circumstances. The theory behind deferred action and prosecutorial discretion more generally is to enable an agency to prioritize its limited resources and also protect the most sympathetic cases from removal. The benefits associated with deferred action are not merely conjectural, as a grant can enable the noncitizen to apply for work authorization if she can show economic necessity and, in some cases, receive a state driver’s license and limited benefits from a state. While scholarship is rife with details about the history and evolution of deferred action in immigration law, the data regarding individuals who are processed for deferred action and transparency about the deferred action program by the agency has been lacking. Moreover, the enhanced tools the USCIS has created for sharing information about DACA (Deferred Action for Childhood Arrivals) and steps by Immigration and Customs Enforcement (ICE) to track deferred action cases offers a new paradigm through which to discuss why transparency matters.