The open-borders lobby has made a political decision to cry foul every time the Trump administration arrests or deports a recipient of former president Obama’s Deferred Action for Childhood Arrivals (DACA) program. They charge the government with gross violations of due process, but these charges reveal a profound misunderstanding not only of deferred action but of immigration law in general.
The confusion results from the application of a criminal-law principle — “prosecutorial discretion” — to immigration enforcement, which is civil in nature. In criminal cases, the prosecutor is entitled to determine how and when to enforce the law. This prerogative has no statutory source; it derives from English common law and was intended to reduce political interference in the prosecution of criminals.
The concept of prosecutorial discretion has been borrowed by administrative agencies and applied to civil law as “administrative discretion.” Deferred action is a form of administrative discretion, reflecting the fact that the Department of Homeland Security (DHS) may decide how and when to pursue the removal of a particular alien. As its very name should indicate, it is provisional in nature, the short-term postponement of a specific consequence — in this case, removal from the U.S. — rather than a government promise to forever abstain from taking any immigration action against a person.
Erroneously portrayed in the popular press as an act of commission intended to grant affirmative legal “protection,” deferred action is actually an act of omission that provides no defense that may be pleaded in any court. It is most emphatically not the conferral of any immigration status. Rather, it is simply an acknowledgement that DHS has refrained from acting against a specific individual when it could have. Nothing binds the government to continued inaction. When it chooses, DHS may simply revoke deferred action and remove the alien. The alien is not entitled to any due-process hearing concerning the government’s exercise of discretion, only a removal hearing before the Immigration Court (provided he or she isn’t subject to expedited removal).
President Obama created the illusion of a formal immigration status, and now anti-border advocates are attempting to turn an unlawful program into a permanent boon for illegal aliens.
When exposed to the light, this argument fails miserably. First of all, entrapment is a criminal-law concept that makes it unlawful for the government to actively induce a person to commit a crime. It does not apply to the civil, administrative realm.
And in any case, the government didn’t entice DACA applicants to enter the United States illegally; their parents chose to violate our immigration laws some time ago. Rather, the government made available an option for people to come forward voluntarily for what was clearly explained as a temporary benefit. The USCIS DACA webpage clearly states: “Deferred action is a use of prosecutorial discretion to defer removal action against an individual for a certain period of time. Deferred action does not provide lawful status.” (Emphasis added.)
The Trump administration has been ineffective at countering the faux “deprivation of civil rights” narrative being pushed by open-border groups. However, it should draw a clear line in the sand on the “DREAMer” issue. A judicial declaration that DACA recipients may not be arrested or deported without observing all the procedural safeguards available to defendants in criminal trials would further erode executive and legislative control over the immigration process. Accordingly, President Trump should honor his campaign promise and end DACA immediately. Anything less would allow dubious due-process claims made by illegal aliens to trump the genuine national-security, public-safety, and rule-of-law concerns consistently expressed by the American people.
— Matt O’Brien is the former chief of the National Security Division within the Fraud Detection and National Security Directorate at U.S. Citizenship and Immigration Services. He has also served as assistant chief counsel in U.S. Immigration and Customs Enforcement’s New York district. He is currently the director of research at the Federation for American Immigration Reform (FAIR).