Passed Beyond Our Aid: U.S. Deportation, Integrity, and the Rule of Law

The United States is still in the midst of a massive deportation experiment that is exceptionally sweeping and harsh by virtually any historical or comparative measure. In the last twenty-five years, the number of non-citizen deportations has exceeded 25 million. It is therefore important to think critically about how deportation is really working, especially as to many hundreds of thousands of green-card holders. These individuals have grown up, been fully acculturated, attended school, and raised families in the United States. Upon deportation, they are separated from their families and sent to places where they frequently have few acquaintances, do not speak the language, lack cultural references, and possess bleak job or life prospects. Many are permanently barred from ever returning to the United States, even temporarily, to visit their parents, spouses, or children. Close scrutiny of the system adds up to a powerful indictment of the accuracy, integrity, justice, and fairness of the deportation system. It indicates that many thousands of deportees may reasonably claim that they should still be in the United States, living with their families. The BIA has, however, ruled that “[r]emoved aliens have, by virtue of their departure, literally passed beyond our aid.” That is to say, in this legal limbo, the deportee fundamentally lacks rights. This rigid, formalist approach means that countless mistakes have likely gone undiscovered, let alone rectified. Slowly, some federal courts of appeals have rejected the BIA\u27s approach. The issue will probably have to be decided by the Supreme Court. But considerably stronger action is needed to bring true integrity to the U.S. deportation system. The Post-Deportation Human Rights Project, based at the Center for Human Rights and International Justice at Boston College, is a pilot program designed to address the cruel effects of current U.S. deportation policies. The Project aims to conceptualize an entirely new area of “post-deportation” law by merging the best principles of U.S. constitutional law with accepted aspects of international human rights law. The ultimate aim is to advocate, in collaboration with affected families and communities, for the introduction of proportionality, compassion, and respect for family unity into U.S. deportation laws

Smart(er) Enforcement: Rethinking Removal

Substantial interior immigration enforcement will undoubtedly continue in the United States, whether or not the legislative and executive branches can craft a legalization program. Though some enforcement is undoubtedly necessary, the system’s continuity will also be due in part to inertia. The size of the current enforcement system is stunning, affecting many millions of noncitizens and removing many hundreds of thousands annually. Equally impressive are its costs and its complexity. One recent study aptly described the system as “formidable machinery,” involving a “complex, cross-agency system that is interconnected in an unprecedented fashion.” Spending on immigration enforcement was about $18 billion in FY 2012, and has totaled some$186 billion since 1986. If we add to this an extensive pattern of recent state and local involvement in immigration enforcement, the costs, effects, and tentacle-like reach of the system become truly impressive. Moreover, its political salience is clear, as enforcement is a linchpin of discussions over comprehensive immigration reform. Virtually none of this is likely to change, absent much more dramatic re-structuring than has yet been proposed. It should change, however, as the system needs major recalibration. This is a propitious moment for serious rethinking. This essay is a foray into deep waters. Its main purpose is to sketch and to justify a better framework for interior immigration enforcement. Such a framework should satisfy two major goals. First, it should engage meaningfully with “public order,” operational efficiency, and basic human rights. Put another way, it must be both effective and legitimate. Second, it should govern the major aspects of interior immigration enforcement architecture: prosecutorial discretion, statutory/regulatory structure, adjudicative interpretation, and adjudicative discretion. The essay’s conclusion is that the best way to accomplish this is, first, to dramatically de-emphasize immigration enforcement against long-term legal residents; and second, to take the notions of proportionality and graduated sanctions seriously in structural--rather than in discretionary--ways

Criminalizing the Undocumented: Ironic Boundaries of the Post-September 11th ‘Pale of Law.’

The general hypothesis put forth in this Article is that well-accepted historical matrices are increasingly inadequate to address the complex issues raised by various U.S. government practices in the so-called “war on terrorism.” The Article describes certain stresses that have recently built upon two major legal dichotomies: the citizen/non-citizen and criminal/civil lines. Professor Kanstroom reviews the use of the citizen/non-citizen dichotomies as part of the post-September 11th enforcement regime and considers the increasing convergence between the immigration and criminal justice systems. Professor Kanstroom concludes by suggesting the potential emergence of a disturbing new legal system, which contains the worst features of both legal dichotomies

The Better Part of Valor: The REAL ID Act, Discretion, and the “Rule” of Immigration Law

This article considers the problems raised by a federal law--the “REAL ID Act”--that seeks to preclude judicial review of discretionary immigration law decisions. Discretion, the flexible shock absorber of the administrative state, must be respected by our legal system. However, as Justice Felix Frankfurter once wrote, discretion is, “only to be respected when it is conscious of the traditions which surround it and of the limits which an informed conscience sets to its exercise.” The article suggests that judicial construction of the REAL ID Act will plumb the deep meaning of this qualification. The new law states, essentially, that constitutional claims or “questions of law” are reviewable while discretionary decisions are not. The question thus arises whether the venerable law/discretion dichotomy can withstand this much pressure. Can the law/discretion dichotomy legitimately function as a jurisdictional bar, as the line between the rule of law and unreviewable administrative practice? The article suggests not; for three reasons: 1. The law/discretion line—as a normative and a structural/procedural concept—is theoretically impossible to define with sufficient precision to base a jurisdictional preclusion upon it; 2. Historical legal practice in immigration law (and elsewhere) proves this point empirically; 3. Even if our legal system were able to surmount the first two points, the likely consequences of such a jurisdictional dichotomy would be exceedingly problematic for all concerned: noncitizens, their families, their communities, administrative actors, and federal judges. The necessary consequence of these three points, the article suggests, is that all attempts to create a bright line between law and discretion for jurisdictional purposes will fail, so long as tri-partite government survives. But in the meantime, the REAL ID Act, as it channels virtually all deportation appeals and many other immigration matters to the courts of appeals, will cause great mischief and will likely impede the sort of genuinely fertile judicial/legislative/executive conversation that could lead to a more workable immigration system. Important legal and factual issues will be buried beneath the jargon of discretionary preclusion, struggling to percolate to the courts of appeals. Therefore, the article concludes that either a more sophisticated jurisdictional statute or a more refined theory of discretion is needed

The Right to Deportation Counsel in \u3cem\u3ePadilla v. Kentucky\u3c/em\u3e: The Challenging Construction of the Fifth-and-a-Half Amendment

The U.S. Supreme Court’s pathbreaking decision in Padilla v. Kentucky seems reasonably simple and exact: Sixth Amendment norms were applied to noncitizen Jose Padilla’s claim that his criminal defense counsel was ineffective due to allegedly incorrect advice concerning the risk of deportation. This was a very significant move with virtues of both logic and justice. It will likely prevent many avoidable and wrongful deportations. It may also help some deportees who have been wrongly or unjustly deported in the past. However, the apparent exactness of the case, as a Sixth Amendment decision, raises fundamental constitutional questions. For more than a century, courts have formalistically distinguished between two consequences of criminal convictions: the punishment meted out in criminal courts and deportation. The former is, of course, a criminal sanction, while the latter is said to be civil or, at most, quasi-criminal. This Article suggests that Padilla has implicitly challenged this model with potentially powerful consequences. Padilla cannot be squared with the historical, formalist relegation of deportation to the realm of civil collateral consequences in which there is no clear constitutional right to counsel. This Article thus seeks to elucidate how the Padilla opinion might model a viable constitutional reconciliation between the Court’s historical formalism and its current realism. This model bridges Fifth and Sixth Amendment jurisprudence and limns a new constitutional norm for deportation that we might call the Fifth-and-a-Half Amendment (Amendment V½). It embodies both the flexible due process guarantees of the Fifth Amendment and – at least for certain types of deportation – the more specific protections of the Sixth Amendment. Amendment V½ is certainly not a perfect solution. However, so long as deportation is formalistically understood as civil and nonpunitive while, in reality, being directly tied to the criminal justice system and highly punitive in effect, it is a legitimate and necessary construct