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Cardozo Law Review


Prosecutorial discretion in immigration enforcement stands at a crossroads. It was the centerpiece of Obama's immigration policy after efforts to pass comprehensive immigration reform failed. Under the Trump administration, it was declared all but dead, replaced by an ethos of maximum enforcement. Biden has promised a return to the status quo ante, but the record of using prosecutorial discretion to accomplish humanitarian goals in immigration enforcement under Obama was, at best, mixed. Moreover, it is unclear whether Biden can depend on the availability of programs such as Deferred Action for Childhood Arrivals (DACA), Obama's signature prosecutorial discretion program. Although the Supreme Court struck down the Trump administration's attempt to end DACA, it did so without deciding whether the program was lawful. Future legal challenges may leave the executive branch with even fewer options for reforming the immigration system without Congressional action. The Biden administration will need to rethink how to use prosecutorial discretion to accomplish its immigration policy goals.

This Article argues that the Obama administration's experience revealed the clear shortcomings of using prosecutorial discretion in lieu of legislative reform to mitigate the harshest consequences of the current immigration system. Though it has, in some circumstances, led to positive individual outcomes, it has failed to provide the kind of systemic relief that was promised, both because of the limitations of prosecutorial discretion in general, and because of special characteristics of the immigration system that make it particularly ill-suited for the widespread use of discretion to accomplish humanitarian goals. Rather than simply reinstating Obama-era discretion policies, future administrations must implement reforms to the immigration system that would allow prosecutorial discretion to work better to advance the stated goal of these policies-injecting some humanity into an other wise inhumane system.

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