Discretion and Proportionality in Immigration Law & Policy

Two experts help us understand why our immigration system is so off-kilter:

"In a new report, Hiroshi Motomura, a law professor at UCLA, argues that prosecutorial discretion, as discussed in recent DHS policy memos, is only one kind of discretion. In fact, discretion plays a role in immigration law from legislation, to implementation, to arrest, to adjudication, to outcomes. He notes that the current emphasis on whether and how to charge an individual with an immigration violation overlooks the far more significant role that discretion plays earlier in the system—at the point where an arrest takes place. Motomura argues that programs such as Secure Communities, which enhance the role of state and local law enforcement in the immigration process, is the critical decision point; this is the moment where an immigrant comes into contact with not only the criminal justice system, but with the immigration system, through interlinked databases and expectations that local law enforcement will detain undocumented immigrants for ICE.

In another report, Yale Law professor Michael Wishnie examines equities at play in immigration law. He notes that the increasingly punitive nature of immigration law post 1996 has shifted the legal equation. When a lawful permanent resident faces removal for a crime committed twenty years ago, and that removal results in a separation from family members for five or ten years, or even forever, the penalty far exceeds the violation. Wishnie argues that the changing nature of immigration law, one that increasingly relies on penalties more akin to criminal law, necessitates changing tactics and arguments in fighting removal cases." - Immigration Impact, Apr. 11, 2012.

Prof. Hiroshi Motomura, UCLA      Prof. Michael Wishnie, Yale