Dreams Deferred: Deferred Action, Prosecutorial Discretion, and the Vexing Case(s) of DREAM Act Students

Abstract

In June 2011, with the release of what came to be known as the “Morton Memo,” there were developments in the issue of Deferred Action (DA) and the extent to which President Obama’s Administration would extend a form of prosecutorial discretion to DREAM Act students and others in the country without legal status. The Obama administration undertook a test-case review of pending immigration cases, with an eye toward freezing deportations of unauthorized residents who had no criminal records and then expanding the program of Prosecutorial Discretion nationwide. The plans were to favor the elderly, children who have been in the country more than five years, students who came to the U.S. under the age of 16 and were enrolled in a college degree program, and victims of domestic violence: their pending deportations could be put on hold under the test program, as low priority populations. In the predictable thermodynamics of immigration politics, however, there was an equal and opposite reaction against employing such discretion, particularly for the population of potential DREAM Act enrollees. DA, however advantageous in stopping the clock or in throwing sand into the deportation and removal gears, is not a true or final resolution of undocumented immigration status, and will likely leave many DREAMers unassisted and ineligible for any ultimate change in their legal status, especially if they are not given employment authorization. The resort to discretionary authority rather than the more long-lasting comprehensive immigration statutory reform has led to polarized nativist and Republican political responses, inasmuch as there is no overarching agreement on the metrics of enforcement or adjudication.

This article examines the historic roots of deferred action and other forms of prosecutorial discretion, noting their widespread use by all modern administrations, the political ramifications of the policy’s expansion, and the disappointing early returns from the review and process. Even if it were to extend an inchoate forum of relief, ICE would not ultimately resolve the students’ liminal status, absent employment authorization and other final relief or more permanent measures. And without more accessible comprehensive immigration reform authority to resolve the many unresolvable cases, the Administration will only be able to whittle down a limited number of low priority cases, a number that will likely remain relatively small, even with enormous organizational resources devoted to the review effort. And, perhaps worse, there will be false hopes extended to DREAM Act students, who have languished for a long period with virtually no relief available to them. Their desperate pleas will have been for naught, and their purgatory will be extended in unproductive fashion.

The Appendix catalogs several hundred newspaper stories and web entries on DREAM Act students, an important feature of the public discourse involving these students.

Keywords: DREAM Act, prosecutorial discretion, deferred action, undocumented college students