This Article examines the use of prosecutorial discretion from its first recorded use in the nineteenth century to protect Chinese subject to deportation, following to its implication in modern day immigration policy. A foundational Supreme Court case, known as Fong Yue Ting, provides a historical precedent for the protection of a category of people as well as a deeper history of prosecutorial discretion in immigration law. 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. This Article centers its analysis of prosecutorial discretion and its use during the Chinese exclusion Era in the nineteenth century and three key theories explaining as to why government officials used it to limit deportations against Chinese migrants. The first theory of prosecutorial discretion is economic. Government officials and scholars have long pointed to government resources as a key reason for why the Executive Branch uses prosecutorial discretion to refrain from arresting, detaining, or deporting a noncitizen or groups of noncitizens because of limited government resources. 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 has 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. As this Article shows, the story of prosecutorial discretion is informed by these rationales, but also steeped with the political power of the Chinese community, foreign relations between the United States and China, and a mass resistance to a facially radical law.
Shoba Sivaprasad Wadhia, Discretion and Disobedience in the Chinese Exclusion Era, 49 Asian Am. L.J. 29 (2022).