Sharing Secrets: Examining Deferred Action and Transparency in Immigration Law

This article is about deferred action and transparency in related immigration cases falling under the jurisdiction of the Department of Homeland Security (DHS). While scholars from other genres have written extensively on the topic of prosecutorial discretion, the subject is largely absent from immigration scholarship. In this article, and building upon recommendations published in The Role of Prosecutorial Discretion in Immigration Law, the author describes the state of prosecutorial discretion and deferred action in particular by surveying the political climate, public reaction and advocacy efforts in the last two years. 

The article shows that while deferred action is one of the very few discretionary remedies available for noncitizens with compelling equities, it operates as a secret program accessible only to elite lawyers and advocates. Moreover, the secrecy of the program has created the (mis)perception by some that deferred action can be used as a tool to legalize the undocumented immigrant population or ignore congressional will. The article explains why transparency about deferred action is important and makes related recommendations that include but are not limited to subjecting the program to rulemaking under the Administrative Procedures Act, issuing written decisions when deferred action is denied, posting information about the application process and maintaining statistics about deferred action decisions. Without these remedies, noncitizens who possess similarly relevant equities will face unequal hardships. 

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