Imagine two immigrants: one, a recent entrant who used a fraudulent passport to gain admission; the other, a lawful permanent resident of 20 years who failed to update her address with the government. The Immigration and Nationality Act (INA) renders both “deportable” for their immigration offenses, despite their distinct immigration violations, and their different statuses and depth of ties to the United States. Their shared fate follows the formal terms of the INA, which specifies one, and only one, penalty for any immigration offense: deportation. As critics have argued, the INA lacks graduated sanctions, sanctions tailored to the severity of the offense or circumstances of the offender.
The INA, however strict, cannot be implemented to the letter. As with criminal law, immigration law renders far more people deportable than enforcement officials could ever deport due to limited resources and humanitarian considerations. With 11 million deportable noncitizens and the capacity to remove roughly 400,000 per year, the immigration bureaucracy inevitably selects a subset of deportable noncitizens for deportation. This tension between the formal terms of the INA and enforcement realities has played out in every administration since the last round of immigration reform in 1996 and, most recently, in legal challenges to President Biden’s immigration agenda.
How bureaucrats decide who stays and who is removed remains poorly understood. But one thing is evident: Immigration law does not, in practice, have only one penalty—the formal terms of the INA notwithstanding.
Examining agency implementation of immigration law, I argue in a recent article—originally published in the Columbia Law Review—that the immigration bureaucracy uses a host of “shadow sanctions” that offer a penalty less than deportation. These sanctions include deferred action (apart from Deferred Action for Childhood Arrivals, or DACA), administrative closure based on low-priority status, and post-order stays of removal that allow noncitizens to remain indefinitely in the U. S., if they check in with Immigration and Customs Enforcement (ICE) periodically. None of these tools resolves the immigrant’s underlying deportability, but they offer forbearance from removal. In my article, I detail how the immigration bureaucracy could use these shadow sanctions to instantiate a more nuanced, proportionate scheme of sanctions. In this post, I explore the specific problems with shadow sanctions described in my article as well as summarize my suggestions for how the immigration bureaucracy can move forward with a few key reforms.
Current Problems With Shadow Sanctions
Deferred action, familiar to most U.S. readers by now, offers work authorization and a temporary reprieve from removal. DACA, President Obama’s signature immigration initiative, is the most famous deferred action policy in recent memory. DACA shields from removal certain immigrants whose parents brought them to the U.S. as children without authorization, but who have subsequently grown up here and have met various criteria. More than 800,000 noncitizens have benefited from DACA. But deferred action has a much longer history and, outside of DACA, the Department of Homeland Security disburses deferred action opaquely. There is no form or established process for filing a request, let alone an explanation for decisions made. The factors leading to a successful request for deferred action remain a mystery, although successful requests often involve serious medical need.
Sometimes, ICE issues a stay of removal coupled with an order of supervision (OSUP) after a final order of removal has been issued. This defers removal, sometimes indefinitely. The application for a stay of removal, Form I-246, indicates that ICE will consider medical need, criminal history and other safety-related factors when deciding whether to grant a stay. But Form I-246 also indicates that the ICE field office receiving the application retains the discretion to deny it for any reason at all. Nothing guarantees consistent standards across ICE field offices, and nothing entitles the applicant to an explanation. Little is known about the scale or scope of this method for shielding removable immigrants.
Most people don’t know that ICE has used OSUP to shield deportable immigrants for humanitarian reasons. Consider the Obama administration’s “Operation Indonesian Surrender.” That program targeted Indonesian Christians whose asylum claims had failed and, as a result, were deportable. Instead of deporting them, the government encouraged them to come forward and identify themselves to ICE in exchange for OSUPs and work authorization. Many ended up living and working in the U.S. for years with the government’s approval, checking in with ICE periodically.
The last shadow sanction I describe in my article is administrative closure for low-priority cases, a shadow sanction that issues not from the Department of Homeland Security but from the Department of Justice’s Executive Office for Immigration Review, home of the immigration courts. During the Obama administration, immigration judges routinely granted administrative closure based on low-priority status to remove a case from the active docket. As with ordinary administrative closure, the act of closing a low-priority case administratively does not produce a final judgment on the merits or provide legal status for the noncitizen in proceedings, but it does stop the proceedings. For many, however, this move means that a removal order may not be issued in the foreseeable future—or perhaps ever. According to the Transactional Records Access Clearinghouse (TRAC), tens of thousands of cases were closed on this basis during the Obama administration. Although the Trump administration sought to eliminate administrative closure in full, that effort ultimately failed, and administrative closure remains a tool for prioritizing cases today.
Each of these shadow sanctions softens the harsh terms of the INA, but they suffer from rule of law deficits. They typically lack clear criteria, notice to prospective applicants and consistency across decision-makers. This creates a zone of arbitrary agency action. Agency bureaucrats make countless hidden judgments that collectively establish a de facto scheme of prioritization. But we don’t know if this scheme privileges medical need, family ties, economic contribution or some other factor—or whether the distribution of sanctions instead depends on which field office has jurisdiction over a noncitizen’s case or which immigration judge is presiding.
Suggestions for Reform
My article argues that the system can better tailor penalties to the appropriate considerations by improving transparency and creating opportunities for agency officials to explain their decisions. Officials can communicate the factors that underlie a grant or denial of a shadow sanction and whether and why they believe forbearance is justified in a specific case. The goal should be to link immigration sanctions to the purposes of the immigration system, whether conceived in terms of family unity, public safety or the nation’s economic well-being. Accordingly, my article calls for applying the traditional tools of administrative law to build immigration law’s “reason-giving infrastructure.”
What might this reason-giving infrastructure look like? For one, the immigration bureaucracy could promulgate rules clarifying the differences across shadow sanctions and the criteria for each. Given deferred action’s traditional ties to serious medical need, the Department of Homeland Security could elaborate and supply alternative criteria, such as family ties or the noncitizen’s status as the primary caregiver for children. The immigration bureaucracy might use OSUP, instead, for long-term residents rendered deportable by an old criminal conviction. Much will depend on understanding more about the sanctions themselves, their attendant benefits and noncitizen outcomes. Empirically, does one sanction provide longer-term relief from removal than another?
Another option is agency guidance, promulgated through a less formal process and lacking “the force of law.” Although the Department of Homeland Security has produced guidance on enforcement priorities, it typically has had trouble convincing line officers to follow it. Critics contend that such guidance has suffered from a lack of precision. More specific, higher-quality guidance could promote consistency across agency personnel and remedy many of the rule of law deficits noted above.
Finally, the immigration bureaucracy might consider creative possibilities, such as a Homeland Security-Justice Department database of redacted decisions with brief explanations for the grant or denial of a shadow sanction. This could generate a body of evolving guidance for line officers and other personnel to use as they consider applications; and where no applications exist for a shadow sanction, agencies should create them.
One might worry that agencies lack the incentives to adopt new substantive standards or procedures on their own. Agencies, however, routinely engage in what scholars have called “agency self-regulation,” whereby an agency limits or restructures its discretion even though no law or other authority requires doing so. For example, individuals or entities who aren’t sure whether a particular product, service or action would violate federal securities law can request a no-action letter from the Securities and Exchange Commission (SEC). In a no-action letter, an SEC attorney advises a regulated party that the agency will not take enforcement action against them. No law requires these letters, but one scholar surmises that the SEC provides them as a tool for policymaking. Similarly, the Food and Drug Administration subjects its guidance to public comment, a process not required by the Administrative Procedure Act. These instances of self-regulation showcase agencies limiting themselves for a variety of reasons, including to better achieve their missions. Depending on how the immigration bureaucracy conceives of its core mission, it too might find it advantageous to create opportunities for official reason-giving.
Reason-giving alone, however, doesn’t guarantee a less harsh scheme of penalties. Line officers can invoke boilerplate reasons, including vague appeals to “public safety,” to rationalize just about any enforcement action. To make progress in immigration sanctions, reason-giving is a point of origin, not the destination. One scholar has called for agency officials to eschew boilerplate reasoning—instead drawing their reasoning from specific facts and evidence. To that end, agencies should explain how enforcement against an individual noncitizen advances the government’s purpose. Does deporting this noncitizen enhance public safety or safeguard important economic interests? If so, how? Building an infrastructure for reason-giving creates a foundation for higher-quality reasoning that requires an agency to link government action to government purpose. Such an approach to agency action is a far cry from the status quo, but it might just be the best hope for implementing a more transparent, proportionate scheme of immigration penalties.