De Facto Immigration Courts

Stephen Lee, UC Irvine School of Law


This article explores one set of criminal law actors who have been quietly accumulating immigration screening power over the last several years-our nation's inferior criminal courts and the prosecutors who rule them. By centering criminal courts, this article hopes to accomplish three things. First, it hopes to show that delegation is no monolith. Unlike other criminal law partners, who must do the Executive's bidding, a state prosecutor's virtual autonomy over charging decisions enable her to effectively dictate whether a particular noncitizen defendant will meet or avoid the fate of permanent banishment, even if doing so contradicts the express wishes of immigration officials. Second, this article assesses criminal courts as institutions of mercy. Because opportunities for mercy have been nearly written out of the immigration code, criminal courts present a tantalizing prospect for noncitizen defendants. Such an inquiry is especially timely in light of the fact that state courts are now beginning to grapple with the aftermath of Padilla v. Kentucky. This article argues that while criminal courts are well-situated to make equitable interventions, the design and practice of criminal law practice constrain the ability of prosecutors and defense lawyers to identify worthy candidates of mercy. Finally, recognizing that many of the screening challenges facing criminal courts is on account of the de facto nature of their screening power, this article offers some thoughts on the way forward for courts should they begin the process of formally embracing their immigration powers.