Cooperative Enforcement in Immigration Law
Immigration officials take two approaches to unauthorized immigrants: Either they seek to deport them, or they exercise prosecutorial discretion, allowing certain categories of unauthorized immigrants to remain in the United States without legal status. Neither method is working. The executive lacks the resources to remove more than a small percentage of the unauthorized population each year, and prosecutorial discretion is by definition an impermanent solution that leaves unauthorized immigrants vulnerable to exploitation at both work and home — harming not just them, but also the legal immigrants and U.S. citizens with whom they live and work. This Article suggests a third way. Immigration officials could supplement the current removal-or-forbearance dichotomy with a cooperative-enforcement approach, under which they would assist those unauthorized immigrants who are low priorities for removal to legalize their status. Administrative law scholars have long promoted cooperative enforcement in other fields, describing how administrative agencies have begun to replace the rigid, adversarial, command-and-control regime that dominated the regulatory environment in the 1970s and 1980s with a collaborative approach to rulemaking and enforcement. Just as officials at other federal agencies now work with regulated entities to help them come into compliance with federal law, immigration officials could also employ a combination of outreach and education, flexible interpretation of regulations and statutes, and the liberal exercise of their discretion to assist unauthorized immigrants apply for, and obtain, legal status.