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6 Colum. J. Race & L. 1 (2016)

handle is hein.journals/cjoral6 and id is 1 raw text is: 


COLUMBIA JOURNAL OF RACE AND LAW


           DEMYSTIFYING EMPLOYMENT

 AUTHORIZATION AND PROSECUTORIAL

    DISCRETION IN IMMIGRATION CASES

                            SHOBA SIVAPRASAD WADHIA*


 On November 20, 2014, President Barack Obama announced a series of immigration programs aimed to
 reform the immigration system. Deferred Action for Parents of Americans or Lawful Permanent Residents
 (DAPA) and extended Deferred Action for Childhood Arrivals (DACA) represent two such programs
 announced by the President. Both programs extend deferred action (one form of prosecutorial discretion) to
 qualiiing individuals. Deferred action has been part of the immigration system for more than 50years, and
 has been named e.plitl by  Congress, federal courts, and the agencies responsible for administering
 immigration laws. Additionally, regulations list deferred action as one basis for work authorization. The
 President's deferred action programs offered room for a healthy debate about immigration law andpoligi. The
 debate was intensified by a lawsuit brought by the state of Texas and 25 other states challenging the deferred
 action programs, and a subsequentjudicial opinion enjoining theseprograms. Much of the tension has centered
 on the ability for a deferred action grantee to obtain anoillagy benefits like emplqyment authorization or lawful
presence. This conflict has enabled great distortion about the limits and benefits ofprosecutorial discretion in
immigration law. In this Article, I seek to clarij the relationship between prosecutorial discretion and
emplqyment authorization and describe the historicalprecedentfor allowing quali§fing noncitiZens to app1 for
work authorization based on a prosecutorial discretion grant. I also examine the poligi questions that are
raised by the current legalframework and poligi for work authorization. My methodology for this Article is
to review the primagy and secondagy sources of law forprosecutorial discretion and emplqyment authorization;
anal.Ze a related data set of more than 200,000 work authorization applications processed by the United
States Citizenshp and Immigration Sernices retrieved through the Freedom of Information Act; and begin a
policy discussion on the benefits of enabling prosecutorial discretion beneficiaries to be authorized to work in
the United States. This Article is the first to anaylZe the law and poligy of emplqyment authoriation and
prosecutorial discretion and builds naturally from my body of work developed on the role of immigration
prosecutorial discretion generalyl, and deferred action in particular.

I.       IN TRODUCTION    ............................................................................................  2

II.      UNDERSTANDING THE LAW AND RELATIONSHIP BETWEEN EMPLOYMENT
        AUTHORIZATION AND PROSECUTORIAL DISCRETION ................................. 4

        A .      D eferred A ction ................................................................................. 5

        B.       O rders of Supervision .......................................................................  7

        C .      P arole ...............................................................................................  10

III.     EXAMINING DATA ON EMPLOYMENT AUTHORIZATION APPLICATIONS
         PROCESSED PURSUANT TO A GRANT OF PROSECUTORIAL DISCRETION ....... 11

         A.      Number of Employment Authorization Applications Processed ....... 11

         B.      Employment Authorization Application Decisions by Gender .......... 12


2016

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