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Volume 64, Issue 5
The Status of Nonstatus

By Geoffrey Heeren | 64 Am. U. L. Rev. 1115


Millions of unauthorized immigrants in the United States have no legal immigration status and live in constant fear of deportation.  There are millions more who do have some sort of status, like lawful permanent residency, asylum, or a nonimmigrant visa.  In between is the netherworld of nonstatus.  Here live noncitizens who possess government documentation but few rights.  They have no pathway to lawful permanent residence or citizenship and cannot receive most public benefits.  If nonstatus is denied or revoked by a prosecutor or bureaucrat, there is no right to a hearing or an appeal.  If the Executive Branch discriminates in how it allocates nonstatus, there may not be a legal right to challenge it.

The Boundaries of Executive Discretion: Deferred Action, Unlawful Presence, and Immigration Law

By Peter Margulies | 64 Am. U. L. Rev. 1183


If a policy’s wisdom rebutted all concerns about its legality, American law would be a vastly different domain.  However, the Framers’ design places process over policy.  In crafting a government in which each branch can “resist encroachments of the others,” the Framers limited the opportunities for unilateral executive action.  When unilateral actions are myopic, structural design and sound policy happily coincide.  Conversely, the Framers’ architecture of power can elicit frustration when executive action appears wise and benevolent, while Congress’s stubborn inaction suggests it does not understand the full nature of the problem.  While these occasions test the Framers’ design, they do not warrant discarding the Framers’ structural choices.  The tension between President Obama’s Deferred Action for Parents of Americans and Legal Permanent Residents (DAPA) program and the Immigration and Nationality Act (INA) is a case in point.

D(E)volving Discretion: Lessons from the Life and Times of Secure Communities

By Juliet P. Stumpf | 64 Am. U. L. Rev. 1259


The devolution of immigration authority to line officers, touted as a strength of the Secure Communities program, planted the seeds of the program’s downfall.  Rising from the ashes of Secure Communities, the Priority Enforcement Program (PEP) set priorities for removal and also unveiled a potential antidote to the devolution of agency discretion.  This Article details the rise of Secure Communities and describes the devolution of discretion that ultimately undermined the program.  It then spotlights a little-noticed attribute of the PEP—one that addresses head-on Secure Communities’ devolution of enforcement discretion to the lowest level.  PEP attempts to recapture federal discretion to make macro-level policy decisions about immigration enforcement by siphoning discretion up the chain to higher-level federal officials.  This hydraulic experiment in recapturing agency discretion will ultimately determine whether immigration enforcement priorities are doomed to devolution or poised to find a perch on higher ground.

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The History of Prosecutorial Discretion in Immigration Law

By Shoba Sivaprasad Wadhia | 64 Am. U. L. Rev. 1285


This Article describes the historical role of prosecutorial discretion in immigration law and connects this history to select executive actions announced by President Obama on November 20, 2014.  “Prosecutorial discretion” in immigration law refers to the decision the Department of Homeland Security (DHS)  makes about whether to enforce the immigration law against a person or a group of persons.   When an immigration officer from DHS chooses not to bring legally valid charges against a person because of the person’s family ties in the United States or other equities, prosecutorial discretion is being exercised favorably. 

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NOTE: Bordering Persecution: Why Asylum Seekers Should not be Subject to Expedited Removal

By Alvaro Peralta | 64 Am. U. L. Rev. 1303


In 2013, a Guatemalan woman sought protection in the United States because she was being persecuted on account of her ethnicity.  She was harassed, abused, and raped several times before she fled Guatemala.  When she expressed her fear to U.S. border patrol agents, she was told, “[D]on’t talk.  These are all lies. . . .  All Guatemalans are telling the same lies.”  Border patrol agents forced her to sign a removal order and prevented her from speaking to an asylum officer about her fear of persecution.  They ordered her removed from the United States, and she returned to Guatemala where she suffered additional abuse.  She filed various police reports, but authorities dismissed them.  In 2014 she attempted to re-enter the United States, this time with her young son.  After being forced to recount various occasions of rape and abuse next to her son, the asylum officer determined she did not have a credible fear of persecution, thus preventing her from presenting her asylum claim before a judge.