Book Review: Beyond deportation: The role of prosecutorial discretion in immigration cases

The debate surrounding the deportation of immigrants and family separation has become increasingly polarized among media, politicians, and public figures. Crimmigration ¹ literature often focuses on the individual experiences of immigration enforcement or the consequences of deportation. Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases by Shoba Sivaprasad Wadhia effectively contributes to this discussion by addressing prosecutorial discretion through every stage of the enforcement process, including removal proceedings. The foreword by Leon Wildes opens the dialogue on prosecutorial discretion by telling the story of his client, John Lennon of the Beatles. Fans of the rock band learn more about the famous singer’s deportation battle, while others who are familiar with the name but not the legal backstory receive a fascinating introduction to prosecutorial discretion.

Wadhia defines prosecutorial discretion as

a decision by a government employee or attorney or the immigration agency (as opposed to a judge) to abstain from enforcing the immigration laws against a person or group of persons. In the immigration context, the decision to exercise prosecutorial discretion favorably is pivotal for the individual because such discretion functions as a form of protection from removal.…(p. 1)

Beyond Deportation begins with an introduction to the structure of the immigration process, including many of the changes post-9/11. Wadhia then follows Wildes’s discussion of the Lennon case by detailing the impact of this case on agency transparency and early “guidance” issued by internal memos. This guidance sought to standardize the use of prosecutorial discretion across the immigration agencies, which is an important step. Wadhia then compares prosecutorial discretion between the criminal justice and immigration systems, noting where changes would be feasible for more consistent, efficient, and just implementation. The author then addresses a form of prosecutorial discretion known as deferred action and the potential for its use as a form of relief for individuals with humanitarian circumstances, including children and other select victims of crimes. The discussion on deferred action includes a summary of the events leading up to President Obama’s Deferred Action for Childhood Arrivals (DACA) and the consequences of this policy. DACA temporarily sought to address Congressional inaction on immigration reform but simultaneously made the use of prosecutorial discretion more visible to the public. DACA also provided additional guidance on when to use prosecutorial discretion and how to “apply” for it (in ways previously unavailable). The onslaught of litigation following DACA’s implementation leads to a discussion on the role and reluctance of judicial review regarding immigration policies. The book closes with a critique on transparency issues among immigration agencies, problems with data collection/record-keeping, and areas of potential reform regarding the use of prosecutorial discretion across the immigration agencies.

Beyond Deportation provides a critical analysis of prosecutorial discretion, detailing the benefits, limitations, and potential directions that would both aid select groups of immigrants and ensure efficient enforcement and legal procedures. This type of examination makes the readability a bit complex to criminal justice scholars who may be unfamiliar with immigration laws, the “administrative” nature of immigration courts, and the role of prosecutorial discretion across the enforcement process. Wadhia draws informative parallels between the immigration and criminal justice systems to help readers understand why common misperceptions of immigrant “rights” are considered “benefits” in a legal context. Without a deeper understanding of immigration law and the structure of immigration systems, many scholars will continue to pose policy recommendations that are not feasible in the current structure.

Criminology can draw heavily from Beyond Deportation and similar legal research on aspects of the immigration process. Wadhia’s legal perspective supplements the policy lens of many criminological pieces focusing on immigration but draws on comparisons between the immigration and criminal justice systems in ways that are not frequently undertaken by criminology scholars. Also, this work presents the benefits and detriments of prosecutorial discretion, providing a more nuanced and balanced perspective that is not reliant on emotion-evoking anecdotes but instead focuses on the information available (and withheld) from immigration agencies. The author’s focus on “humanitarian circumstances” highlights the needs of certain immigrant groups to have a systematic, transparent process in which they can seek relief. Additionally, Wadhia emphasizes the need for transparency and Congressional action. DACA took a step forward in providing transparency for those who qualified for deferred action under that program and the process for seeking that relief. However, as others have noted, DACA was a temporary solution to Congress’ lack of action on immigration reform. Under President Trump’s administration, immigration, deferred action, and enforcement priorities are again on the defensive. The recommendations outlined in the final chapter could provide a starting point for policymakers to compromise on reform. ²

In conclusion, the push for transparency and Congressional action are essential for positive immigration reform, which is increasingly difficult given the current political divide. Immigration scholars increasingly require a multidisciplinary understanding of the legal, structural, and social factors that influence criminology to propose feasible and well-informed policy. Therefore, I highly recommended Beyond Deportation to scholars in criminology, Latinx studies, political science, and sociology who have an interest in gaining a deeper understanding of the legal aspects of immigration and the parallels between the immigration and criminal justice systems. Graduate students and scholars with a preliminary knowledge of immigration law and immigration courts would especially benefit from the intersectionality between disciplines and develop an understanding of the complexity of immigration reform within our current structure.