The Challenge of Seeing Justice Done in Removal Proceedings

Abstract

Prosecutorial discretion is a critical part of the administration of immigration law. This Article considers the work and responsibilities of the Immigration and Customs Enforcement (ICE) trial attorneys, who thus far have not attracted significant scholarly attention, despite playing a large role in the ground-level implementation of immigration law and policy. The Article makes three main contributions. First, I consider whether ICE attorneys have a duty to help ensure that the removal system achieves justice, rather than indiscriminately seek removal in every case and by any means necessary. As I demonstrate, trial attorneys have concrete obligations derived from statutory provisions, case law, and administrative guidance to seek legitimate objectives, take steps to ensure procedural justice, and exercise equitable discretion in appropriate cases. Second, I argue that the removal system lacks serious structural features to ensure these obligations are met, and as a result, prosecutorial discretion and prosecutorial conduct vary significantly across and within jurisdictions. Little prevents ICE attorneys from indiscriminately pursuing enforcement objectives at the expense of seeing justice done. This matters today, more than ever, because of the categorical and categorically unforgiving nature of the modern statutory removal scheme and the risk of erroneous detentions and removals. Third, the Article develops important parallels between ICE attorneys and criminal prosecutors, suggesting that the immigration system might borrow some of the administrative features employed in criminal systems to encourage earlier prosecutorial screening of cases for positive discretion and equalize some of the power asymmetries that can result in unjust outcomes. I sketch the contours of four such reforms that could be readily implemented without the need for congressional action.

Keywords: prosecutorial discretion, DHS, ICE, OPLA, EOIR, immigration, deportation, removal, proceedings, criminal, discovery, Dent, ethics, due process, enforcement, equitable, trial attorneys, prosecutors, assistant chief counsel, homeland security, Michael Lipsky, James Wilson, Jerry Mashaw, administrative

JEL Classification: K14, K23, K33, K40, K41, K42, D73, J61, F22, L22