It has long been understood that limited government resources are a key reason for why the Executive Branch uses prosecutorial discretion to refrain from arresting, detaining, or deporting a noncitizen or groups of noncitizens. A second theory driving prosecutorial discretion is humanitarian. Noncitizens with specific equities that include economic contributions to the United States, long term residence in the United States, service as a primary breadwinner or caregiver to an American family, or presence in the United States as a survivor of sexual assault are among the reasons the government have used to apply prosecutorial discretion to protect individuals or groups of people. A final reason prosecutorial discretion might persist is as a stop gap to anticipated future legislation. These rationales for prosecutorial discretion are well documented in domestic immigration history, but this article is the first to trace these rationales to the Chinese Exclusion era and reveal what may be the greatest untold story about prosecutorial discretion in immigration law.
This article examines the use of prosecutorial discretion to protect Chinese nationals subject to deportation following a foundational nineteenth century Supreme Court immigration law case known as Fong Yue Ting. This article provides a historical precedent for the protection of a category of people as well as deeper history of prosecutorial discretion in immigration. This article also sharpens the policy argument to protect political activists through prosecutorial discretion and forces consideration for how modern immigration policy should respond to historical exclusions and racialized laws. Finally, this article provides a foundation for policymakers and government to consider a prosecutorial discretion policy for those engaged in civil disobedience; and to study how changes in how racial disparities in immigration enforcement and non-enforcement are measured
Shoba Sivaprasad Wadhia, Discretion and Disobedience in the Chinese Exclusion Era Asian Am. L.J. forthcoming (2021).