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

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.

Keywords: immigration, prosecutorial discretion, administrative law