Penn State Law expert responds to President Obama’s immigration policy announcement

UNIVERSITY PARK, Pa. -- After months of closed-door meetings with business leaders, policy experts, and interest groups, President Obama has announced executive actions aimed at protecting qualifying individuals from deportation through a longstanding tool called prosecutorial discretion.

Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar and director of the Center for Immigrants’ Rights at Penn State Law, made the following statement regarding the president’s announcement:

President Obama’s decision to use prosecutorial discretion to defer deportations in certain cases is a bold, sensible, and much-needed action that is firmly grounded in law and humanity.

The legal authority for this action comes from the U.S. Constitution, the immigration statute created by Congress, binding precedent from the U.S. Supreme Court, and regulations and policy documents from the Department of Homeland Security. For decades, the immigration agency has issued guidance documents similar to the president’s executive action about the role of prosecutorial discretion in immigration law and the factors that should be considered in deciding whether such discretion should be exercised favorably. 

This history and these sources of law provide a good indication that programs like this one are not out of thin air. Policies like this one are groundbreaking, not because they are new, but rather, because they have been accompanied with sound procedures and transparency to ensure a consistent and fair process.

Combining traditional humanitarian criteria like a close family relationship, long-term residence in the United States, or presence in the United States since childhood with sound procedures is a prudent response that will lead to a sensible and lawful outcome: temporary protection from deportation and immigration purgatory.

Wadhia also wrote a piece for The Hill newspaper on the executive action and was interviewed was quoted in Roll Call and Canada’s La Presse.

Wadhia is an expert on immigration law and one of the nation’s leading scholars on the role of prosecutorial discretion in immigration law. Her scholarship in this area has served as a foundation for scholars, advocates, and government officials seeking to understand or design a strong prosecutorial discretion policy. Her work identifies the historical role of prosecutorial discretion in immigration law, the extent to which some acts of discretion operate as a benefit, and the dynamic role and need for transparency, sound procedures, and accountability.

Her book, Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases, will be published by New York University Press in 2015 and is the first on the topic.

Wadhia took the lead in drafting a letter with Stephen H. Legomsky, John S. Lehmann University Professor at Washington University School of Law and former U.S. Citizenship and Immigration Services (USCIS) Chief Counsel, and Hiroshi Motomura, Susan Westerberg Prager Professor at UCLA School of Law, that was signed by more than 120 law professors and delivered to the White House on Sept. 3.

The following is a selected list of Wadhia’s published work on immigration prosecutorial discretion:

• The Role of Prosecutorial Discretion in Immigration Law, 9 Connecticut Pub. Int. L. J. 243 (2010) 

• Immigration Remarks for the 10th Annual Wiley A. Branton Symposium, 57 No. 3 HOW. L.J. (2014) 

• My Great FOIA Adventure and Discoveries of Deferred Action Cases at ICE, 27 Geo. Immig. L.J. (2013) 

• Response to The Obama Administration, the DREAM Act and the Take Care Clause, 91 Texas L. Rev. SEE ALSO 59 (2013) 

• The Immigration Prosecutor and the Judge: Examining the Role of the Judiciary in Prosecutorial Discretion Decisions, 16 Harv. Latino L. Rev. 39 (2013) 

• Sharing Secrets: Examining Deferred Action and Transparency in Immigration Law, 10 U. N. H. L. Rev. 1 (2012) 

• The Morton Memo and Prosecutorial Discretion: An Overview, American Immigration Council (July 2011)  

• Reading the Morton Memo: Federal Priorities and Prosecutorial Discretion, American Immigration Council (December 2010)