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This chapter provides a detailed analysis of “deferred action,” one of the most precious forms of prosecutorial discretion. Once a person is granted deferred action, he or she is eligible to apply for work authorization and remain in the United States in legal limbo. This chapter details how victims of domestic violence, sexual assault, and other crimes have long used deferred action as a tool for protection from deportation. This chapter analyzes thousands of deferred-action cases processed by the immigration agency over a forty-plus-year period. Most of the data examined in this chapter was obtained through the Freedom of Information Act. Finally, given the extent to which deferred action has been applied using specific humanitarian criteria and operated as a benefit to the person who receives it, this chapter considers whether deferred action should be subject to notice and comment rulemaking.

This chapter considers the degree to which the immigration agency (and DHS in particular) has publicized information about its prosecutorial discretion programs. This chapter reveals the author’s quest for data and policy documents on prosecutorial discretion through Freedom of Information Act (FOIA) requests to ICE, CBP, and USCIS and sheds light on the lack of transparency and efficiency that has pervaded these agencies for years. For example, outside the DACA program, USCIS has not created any form or instructions for the public on how to make a request for deferred action. This chapter explains that transparency in prosecutorial discretion matters because it improves the possibility that justice will be served for people in the United States whose roots are in this country. Transparency also promotes other administrative law values like consistency and acceptability to the public.

This chapter provides a detailed analysis of “deferred action,” one of the most precious forms of prosecutorial discretion. Once a person is granted deferred action, he or she is eligible to apply for work authorization and remain in the United States in legal limbo. This chapter details how victims of domestic violence, sexual assault, and other crimes have long used deferred action as a tool for protection from deportation. This chapter analyzes thousands of deferred-action cases processed by the immigration agency over a forty-plus-year period. Most of the data examined in this chapter was obtained through the Freedom of Information Act. Finally, given the extent to which deferred action has been applied using specific humanitarian criteria and operated as a benefit to the person who receives it, this chapter considers whether deferred action should be subject to notice and comment rulemaking.

This chapter provides recommendations for improving prosecutorial discretion in the immigration system. While DHS has dutifully published “priorities” guidance describing the people who should be targeted for enforcement action by the agency, these documents fail to define priorities in a way that captures the whole person. This chapter encourages the agency to look at the whole person when making prosecutorial discretion decisions and to exercise this discretion early in the enforcement process. This chapter also asks DHS to adopt a policy specific to the use and role of Notices to Appear (NTA) and to improve the notification and review process for individuals considered for prosecutorial discretion. This chapter makes specific recommendations for reform of the deferred action program and advocates that DHS publish deferred action as a regulation subject to notice and comment rulemaking. Finally, this chapter summarizes the deferred action programs announced by President Obama in November 2014.

This chapter provides details on a famous case involving prosecutorial discretion-—the deportation case of John Lennon and the efforts undertaken by his attorney, Leon Wildes, to encourage the immigration agency to publish its policies about prosecutorial discretion. The Lennon case is significant because it triggered the publication of the immigration agency’s first guidance on “deferred action” (then called “nonpriority status”) which at the time was published as an “Operations Instruction.” Deferred action is a form of prosecutorial discretion that has been used as a remedy for individuals facing unusual circumstances for many years. This chapter summarizes some of the cases heard by the federal courts about whether the then new “deferred action” guidance functions as an administrative convenience to the government or as a benefit to the individual. This chapter also summarizes the early guidance on prosecutorial discretion issued by the immigration agency.

This chapter considers the degree to which the immigration agency (and DHS in particular) has publicized information about its prosecutorial discretion programs. This chapter reveals the author’s quest for data and policy documents on prosecutorial discretion through Freedom of Information Act (FOIA) requests to ICE, CBP, and USCIS and sheds light on the lack of transparency and efficiency that has pervaded these agencies for years. For example, outside the DACA program, USCIS has not created any form or instructions for the public on how to make a request for deferred action. This chapter explains that transparency in prosecutorial discretion matters because it improves the possibility that justice will be served for people in the United States whose roots are in this country. Transparency also promotes other administrative law values like consistency and acceptability to the public.

This chapter provides recommendations for improving prosecutorial discretion in the immigration system. While DHS has dutifully published “priorities” guidance describing the people who should be targeted for enforcement action by the agency, these documents fail to define priorities in a way that captures the whole person. This chapter encourages the agency to look at the whole person when making prosecutorial discretion decisions and to exercise this discretion early in the enforcement process. This chapter also asks DHS to adopt a policy specific to the use and role of Notices to Appear (NTA) and to improve the notification and review process for individuals considered for prosecutorial discretion. This chapter makes specific recommendations for reform of the deferred action program and advocates that DHS publish deferred action as a regulation subject to notice and comment rulemaking. Finally, this chapter summarizes the deferred action programs announced by President Obama in November 2014.

This chapter provides details on a famous case involving prosecutorial discretion-—the deportation case of John Lennon and the efforts undertaken by his attorney, Leon Wildes, to encourage the immigration agency to publish its policies about prosecutorial discretion. The Lennon case is significant because it triggered the publication of the immigration agency’s first guidance on “deferred action” (then called “nonpriority status”) which at the time was published as an “Operations Instruction.” Deferred action is a form of prosecutorial discretion that has been used as a remedy for individuals facing unusual circumstances for many years. This chapter summarizes some of the cases heard by the federal courts about whether the then new “deferred action” guidance functions as an administrative convenience to the government or as a benefit to the individual. This chapter also summarizes the early guidance on prosecutorial discretion issued by the immigration agency.

This essay traces the continuing impact of negative capability—that familiar if enigmatic form of knowledge extolled by John Keats in an 1817 letter—on post-Freudian psychoanalysis. It examines four important psychoanalytic ideas of the twentieth century: Sigmund Freud’s theory of ‘deferred action’, Marion Milner’s theory of female self-annihilation, Jacques Lacan’s concept of the après coup, and, most famously, Wilfred Bion’s theory of O. The essay discusses how more recent theorists of psychoanalysis, influenced especially by Bion and Lacan, continue to make use of Keats’s concept. It concludes by presenting Milner and Bion as alternative forms of negative psychoanalytic capability, both of which depend on retroactive judgment of the sort that also interested Freud and Lacan.

Chapter 6 describes the efforts of North Carolina’s “Dreamers,” young undocumented people who were part of a national social movement for immigrants’ rights and access to higher education. Dreamers began to mobilize throughout the United States soon after the implementation of local immigration enforcement programs in the mid-2000s and an increase in restrictive state and local policies. The Dreamers’ generation came of age in a society that barred them from attending college, obtaining a driver’s license, applying for jobs with a liveable wage, joining the military, or starting a business. Many of these problems had persisted for decades for immigrants, and Dreamers both engaged in and diverged from a tradition of immigrant advocacy led by Latin Americans and others since the 1980s in North Carolina. Dreamer actions publicly exposed the inequalities and dysfunction in the U.S. immigration and educational system and influenced President Obama to create the “Deferred Action for Childhood Arrivals (DACA) program.

This chapter provides a streamlined account of the laws and policies most relevant to undocumented students in higher education. It begins by first contextualizing the legal discussion on educational institutions within a social justice framework, before describing the legal landscape of the education of undocumented students from K–16 (Kindergarten through College). It explores two specific legal policies that have greatly affected how undocumented students experience higher education: the 1996 Omnibus Immigration Laws and the Deferred Action for Childhood Arrivals (DACA). It then considers future trends of the legal landscape. It proposes that universities have a role to play in paving a just and compassionate path to undocumented students' access and success in higher education, with or without comprehensive immigration reform. The chapter concludes by posing a challenge to universities—how do your (in)actions on this issue define the ideals of a democratic society and an educational institution committed to social justice?

This chapter untangles the tensions leading to, and at times undermining, the use of prosecutorial discretion in immigration enforcement. In response to the mounting immigration crisis and in the absence of comprehensive immigration reform, President Obama enlisted prosecutorial discretion; however, in what we call the limits of discretion, this policy soon too came under fire—with ICE officers charging that the initiative went too far and immigrant advocates charging that the policy did not go far enough. The chapter reviews the legal history leading up to the Morton Memos, which serve as the backbone of prosecutorial discretion for the Obama administration, and ends with an examination of prosecutorial discretion in practice, exploring who is being deported and why. Deferred Action for Childhood Arrivals—DACA—is discussed as an important form of prosecutorial discretion for Dreamers. The chapter contributes to understandings of street-level bureaucrats and the law in action.

From the perspective of immigrant advocates, Deferred Action for Childhood Arrivals (DACA) has been the high point of the Obama administration. By providing protection against the threat of deportation, as well as conferring a range of social and legal benefits upon the 1.7 million young people potentially eligible for “dacamented” status, we discuss the development and implementation of DACA in the context of legislative inaction, including the failure of Congress to enact comprehensive immigration reform or the more limited DREAM Act, and the mobilization of the Dreamer social movement. This chapter addresses why DACA was so necessary by examining the challenges confronting mixed-status families and its impact on child development, early education, and health outcomes, as well as the experiences of the 1.5-generation as they enter adolescence and early adulthood. This chapter concludes with an examination of the structural mechanisms that help and hinder undocumented youth and mixed-status families.

Chapter 3 begins with a tracing of the distinction between traumatic and auxiliary scenes in the cases of Katharina and Lucy R and its evolution into the concept of afterwardsness / deferred action in the case of Emma in the Project (1895). It examines the setting of the Emma case in the argument about the operation of pathological defense in hysterical repression and symbol formation. In particular it focuses on the paradox of a memory that has the capacity to release a sexual affect that the original experience did not have and the defensive repression and symptom formation it provokes. It seeks to extract the logic of afterwardsness from Freud’s assumption of infantile asexuality and indifference to adult seduction. The chapter pursues a contradiction in Freud’s argument between a simultaneous emphasis on a sexual experience that is said to be both premature and deferred. It traces this through the three seduction theory papers of 1896, in which afterwardsness and its companion thesis of overdetermination is both affirmed and put at risk by an aetiological model that privileges a single specific cause, located in early infantile sexual abuse as the underlying precondition for psychopathology.

Freud’s Moses and Monotheism engages in a critical examination of the function of deferred action for the construction of narratives of tradition. This paper explores how Freud’s study illustrates its line of critical inquiry by simultaneously acting out its central contention by the way Freud deals with the carefully controlled presence of Heine, a key source for Freud’s conflicted study of Moses and Jewish tradition.

In his 1921 essay “The Metaphysical Poets,” T. S. Eliot proposed a theory of the “dissociation of sensibility” in seventeenth-century English poetry. This chapter examines his theory as a watershed of the modern experience and links that experience of dissociation to the oedipal victory enacted by Parliament in its violation of the primal taboo against regicide. It argues that Eliot's theory may have been the single most seminal contribution to English literary history of the twentieth century based on its psychoanalytic interpretation of the decapitation of Charles I as a cultural, social, and literary trauma. The chapter also claims that the regicide was widely assimilated to the biblical paradigm of the Fall, thus fusing religious and political discourses. However, it connects regicide with private psychological issues of sexuality and self-consciousness in some of the leading writers of the period, including John Milton and Andrew Marvell. The chapter uses Sigmund Freud's theory of “deferred action” to interpret the “epistemological rupture caused by the decapitation of Charles I.”

Heide Castañeda’s chapter highlights the fact that immigrant groups in the United States are not monolithic, but instead stratified by many chaotic bureaucratic categories. Using three case studies derived from longitudinal research in Texas, this chapter illustrates the unanticipated and contradictory effects of the Affordable Care Act (ACA) by examining how immigration categories influenced eligibility and participation. The ACA explicitly excluded more than 11 million undocumented immigrants from coverage and distinguished between “qualified” and “non-qualified” immigrants among those who were considered “lawfully present.” This chapter illustrates the impacts of these exclusions and inclusions. We see how these distinctions produced ripple effects on U.S. citizen children in mixed-status families. In addition, the exclusion of youth holding deferred action for childhood arrivals (DACA) status—produced through an unusual case of administrative rollback—created a new pattern of formal disenfranchisement, while a loophole allowed some immigrants to qualify for insurance subsidies that U.S. citizens living in the same state could not.