Publication Date

2026

Journal

Florida Law Review

Abstract

As President Donald Trump began his second term in office, he promised to implement the largest mass deportation program in the history of the United States. With unprecedented increases in immigration enforcement funding secured by his Administration, the infrastructure to carry out these plans is being rapidly expanded. While there are good reasons to be skeptical of President Trump’s grandiose promises, and even better reasons to be concerned about the devastation flowing from such a program, one thing is certain: over the last three decades, we have seen a dramatic expansion of the categories of immigrants who can be subject to deportation, including lawful permanent residents. During this period, the pool of people at risk of deportation has ballooned into the tens of millions. Even if this Administration achieves its unprecedented goal of one million deportations per year, that still leaves the large majority of the fourteen million undocumented immigrants untouched by the Trump Administration’s mass deportation efforts. So this Administration, like every administration before, will have to make choices about whom to target. In a world of limited capacity, even amid historically unprecedented resources, every decision to deport someone is necessarily accompanied by an implicit or explicit decision to deprioritize the deportation of someone else. But who will make those decisions?

Every modern presidential administration has attempted to vest those decisions in high-level, politically accountable policymakers through the issuance of agency-wide enforcement guidelines. Those guidelines identify the categories of people who should be prioritized for deportation as well as those who should not be targeted. However, these prosecutorial discretion guidelines have frequently been ignored by line-level deportation officers and immigration prosecutors. They are the ones who ultimately must make the individual decision whether to pursue deportation in a particular case. The aggregation of those individual decisions creates a de facto policy that has often, but not always, diverged from the course chosen by the immigration agencies’ political leadership.

Whatever one’s views are on the wisdom of any given immigration enforcement policy, the misalignment between agency policy and line-level decisions stands as a significant obstacle to democratic accountability. This Article seeks to help agency leadership understand how to construct enforcement guidelines that more effectively promote alignment between policy and line-level decisions. Toward that end, this Article offers the first longitudinal analysis of the prosecutorial discretion policies of all presidential administrations in the modern era, surveying vast sets of available data to empirically evaluate their efficacy. From this analysis, we identify the key features that can help determine the success or failure of immigration prosecutorial discretion policies. Several proscriptive lessons emerge that will aid future agency leaders seeking not only to implement discretion frameworks that reflect stated priorities but also to ensure that enforcement resources are used in ways that mitigate the risks of unchecked enforcement on the ground.

Volume

78

Issue

1

First Page

87

Last Page

165

Publisher

University of Florida Fredric G. Levin College of Law

Disciplines

Administrative Law | Immigration Law | Law | Law Enforcement and Corrections | President/Executive Department | Public Law and Legal Theory

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