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Maryland Journal of International Law




Md. J. Int'l L.

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Prosecutorial discretion is once again at the forefront of immigration enforcement debates. In June 2022, a federal district court effectively rescinded Executive guidelines for prosecutorial discretion in immigration enforcement. The court struck down these guidelines – longstanding as a means of establishing priorities for the arrest, detention, and removal of noncitizens– on the basis that they conflicted with provisions of the INA. According to the district court, the “core” of the legal dispute centered on “whether the Executive Branch may require its officials to act in a manner that conflicts with a statutory mandate imposed by Congress.” The district court concluded that the Executive Branch overstepped its authority by implementing guidelines for issuing immigration detainers. In July 2022, the U.S. Supreme Court denied to stay the federal district court’s order and granted certiorari on the issue of immigration enforcement guidance.

In this essay, I seek to show that framing the debate as primarily a conflict between the President and Congress elides a core underlying issue: the extent to which domestic policing decisions set the agenda for immigration enforcement. As is now well known, immigration and criminal law are deeply intertwined fields. Criminal law plays a gatekeeping role for immigration enforcement; certain criminal convictions render noncitizens subject to both mandatory detention and mandatory deportation. Yet well before any criminal conviction, domestic police exert a key influence over immigration enforcement policy decisions. With the emergence of universal jailhouse immigration screening—which, for approximately the past decade, has made every custodial criminal arrest a site of immigration screening—changes in domestic policing practices necessarily also affect immigration screening practices. In this symposium essay, I make three points regarding the role of domestic police in immigration enforcement. First, domestic police establish the agenda for immigration enforcement; policing decisions determine who is subject to immigration enforcement in the first place. Second, immigration enforcement decisions, in turn, have a feedback effect on the criminal law enforcement system; they give domestic police and prosecutors more expansive power over civil outcomes like immigration detention. Third, a major consequence of this approach is not to reduce enforcement discretion, but rather to make the exercise of discretion less visible. These decisions, in turn, insulate immigration enforcement decisions from oversight and accountability.

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