David B. Thronson,
Closing the Gap: DACA, DAPA, and U.S. Compliance with International Human Rights Law,
48 Case W. Res. J. Int'l L.
Available at: http://scholarlycommons.law.case.edu/jil/vol48/iss1/8
Political rhetoric and ongoing litigation that challenge the use of prosecutorial discretion and deferred action in immigration law often prominently feature claims that these initiatives demonstrate a lack of respect for the rule of law. This short essay seeks to highlight gaps between U.S. immigration law and its international human rights obligations and identify ways in which the use of discretion can advance rather than undermine the rule of law. In reconciling the ability of States to control matters of immigration with protections of family integrity, the touchstone in international law is balance. A State's right to expel a non-citizen resident for a legitimate state interest must be balanced against due consideration in deportation proceedings for a deportee's family connections and the hardship the deportation may have on the family, especially children. The non-citizen's right to remain is not absolute, but neither is the State's right to expel. U.S. immigration law's routine failure to provide any opportunity for decision makers to balance family equities against the need for enforcement violates international human rights law's demand for contextualization and nuance in the application of immigration controls. DA CA and DAPA are flawed yet important mechanisms to permit the United States to inject respect for the rule of law into an otherwise rigid immigration system. Where decision makers are able to consider equitable factors in determining whether to proceed with immigration enforcement or exercise discretion, the United States moves a bit closer to compliance with its international human rights law obligations.