Selective Enforcement of the Immigration Laws: Is There Any Possible External Constraint on the Exercise of Prosecutorial Discretion?
I. INTRODUCTION
For a prosecutor, exercising discretion in choosing which cases to prosecute is a necessary part of the job. Selective prosecution of the laws is inevitable. The fact that time and resources are limited necessarily forces a prosecutor to choose to prosecute some cases and not to prosecute others. But when a prosecutor’s decisions about which criminal cases to prosecute are based upon impermissible grounds such as race, religion, or exercise of First Amendment protected rights,1 the Equal Protection Clause is triggered,2 and the prosecutor’s exercise of discretion is constitutionally suspect.3 To protect individuals against such a violation of their rights, a criminal defendant may make an assertion, independent of the merits of the criminal charges against her, that the prosecutor has brought the case for forbidden reasons.4 However, the Supreme Court has intentionally erected a seemingly insurmountable barrier to the successful assertion of such a claim,5 largely because the Court does not want to involve itself in reviewing the exercise of prosecutorial discretion, “a ’special province’ of the Executive.”6
Selective enforcement of the immigration laws, however, is constitutionally different from unconstitutional selective enforcement of the criminal laws. In Reno v. American-Arab Anti-Discrimination Committee,7 the Supreme Court held that an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against her removal.8 This holding effectively foreclosed aliens selected for removal from obtaining a remedy for what seems, on its face, to be a constitutional violation; in American-Arab AntiDiscrimination Committee, the Immigration and Naturalization Service conceded that protected First Amendment activity was the basis for selecting the respondents for adverse immigration action.9
Perhaps a significant reason for the American-Arab Anti-Discrimination Committee holding is that enforcement of the immigration laws stands at the crossroads of the procedural requirements of a normal criminal trial and the Executive’s plenary powers over immigration10 and national security.11 In an immigration removal proceeding, the protections of the Bill of Rights apply,12 but the Executive has an increased level of deference in certain matters that may limit the procedural rights an individual would otherwise have in a full criminal proceeding.13
Nonetheless, the Court’s holding in American-Arab Anti-Discrimination Committee rests on a shaky foundation. Regardless of the Executive’s plenary powers over immigration and national security, the Equal Protection Clause protects all “person[s]”14 from discriminatory enforcement of the laws,15 a substantive guarantee. If the Executive intentionally enforces the law based upon race, ethnicity, or other protected activity, as it admitted doing in American-Arab Anti-Discrimination Committee, then it is violating the substantive rights of individuals.16 The structural nature of the Constitution is such that, when the two are in conflict, the substantive guarantees of the Bill of Rights should trump the Executive’s claims arising from exercise of the plenary power over immigration; but this constitutional norm does not always stand up in the immigration setting where courts have been reluctant to apply constitutional principles to limit the plenary authority of either Congress or the Executive.17 The American-Arab Anti-Discrimination Committee holding takes this deviation one step further, as it now appears as though a constitutional violation may occur without any corresponding remedy.
Two hundred years ago in Marbury v. Madison, the Court stated that where there is a constitutional right violated, there is a remedy.18 In American-Arab Anti-Discrimination Committee, the Court did not hold that intentionally discriminatory enforcement of the immigration laws does not offend the Equal Protection Clause, only that 8 U.S.C. § 1252(g) deprives federal courts of jurisdiction to hear claims on behalf of an alien arising from the Attorney General’s decision to commence proceedings, adjudicate cases, or execute removal orders.19 The Court did not elaborate on why this provision, which effectively denies aliens a remedy for an equal protection violation, passes constitutional muster. It simply held that aliens unlawfully in this country have no right to assert selective enforcement as a defense to their removal proceedings.20
This Note is premised upon the notion that, regardless of an alien’s inability to assert selective enforcement as a defense to her removal, selective enforcement of the immigration laws based on impermissible grounds is nonetheless unconstitutional. The purpose of this Note is twofold. Part II explores whether ethical restrictions can or should be used to deter unconstitutional selective enforcement of the law. Part III suggests an alternative remedy arising under 42 U.S.C. § 1983 for aliens who have been unlawfully detained after their removal can be effected. The Note concludes that a series of successful § 1983 claims could (but is unlikely to) function as an external enforcement mechanism preventing enforcement of the immigration laws in a manner that seems on its face to be both unconstitutional and unethical.