Angela M. Banks, the Normative and Historical Cases for Proportional Deportation

• Jurisdiction: United States,Federal
• Publication year: 2013
• Citation: Vol. 62 No. 5

THE NORMATIVE AND HISTORICAL CASES FOR PROPORTIONAL DEPORTATION

Angela M. Banks*

ABSTRACT

Is citizenship status a legitimate basis for allocating rights in the United States?

In immigration law the right to remain in the United States is significantly tied to citizenship status. Citizens have an absolutely secure right to remain in the United States regardless of their actions. Noncitizens’ right to remain is less secure because they can be deported if convicted of specific criminal offenses. This Article contends that citizenship is not a legitimate basis for allocating the right to remain. This Article offers normative and historical arguments for a right to remain for noncitizens. This right should be granted to members of the society—those with significant connections, commitment, and obligations to the State. Citizenship status is one proxy for identifying members, but it can be both under- and over-inclusive. Numerous green card holders are committed to, have strong connections to, and undertake obligations to the United States. Deporting these individuals for crimes like perjury, receipt of stolen property, or failure to appear in court can be excessively harsh. It can mean depriving “a man and his family of all that makes life worth while [sic].” Deportation should only be utilized when it is a proportionate response to criminal activity.

* Associate Professor, William & Mary School of Law; J.D. Harvard Law School, M.Litt. University of Oxford, B.A. Spelman College. I would like to thank the participants in the 2010 Southeastern Junior Faculty Workshop, 2011 Emerging Immigration Law Scholars Conference, 2011 Law and Society Annual Meeting, 2011 Lutie A. Lytle Writing Workshop, UC Davis School of Law Faculty Workshop, and American University Washington College of Law Faculty Workshop for comments, advice, and discussion. I am also thankful for the comments and discussion provided by Kerry Abrams, Lynda Butler, Lan Cao, Nancy Combs, Jim Dwyer, Kevin Johnson, Dan Kanstroom, Douglas Keller, Ronald Krotoszynski, Stephen Lee, Karla McKanders, Paul Marcus, Eric Muller, Jayesh Rathod, Juliet Stumpf, Rick Su, and David Thronson. Christa Barber, Rosemary Logan, Christina Jacquet, and Amanda Ritucci-Chinni provided excellent research assistance.

INTRODUCTION 1244

1. CRIME-BASED DEPORTATION 1248

2. JUS NEXI AND A RIGHT TO REMAIN 1251

   1. Jus Nexi 1252

      1. The Connection Principle 1252

      2. A Liberty Interest in Remaining 1257

   2. The Historical Case 1260

   3. Devaluing Citizenship? 1264

3. PROPORTIONALITY 1266

   1. The Proportionality Principle 1267

   2. Defining Serious Crime 1268

   3. Impact of Deportation 1272

   4. Protecting Proportionality 1275

4. NEW PERSPECTIVES ON MEMBERSHIP AND PROPORTIONALITY 1278

   1. The Immigrants at Issue 1279

   2. Defining Serious Crime 1280

   3. Impact of Deportation 1291

      1. Congressional Testimony 1291

      2. Social Science Research 1293

   4. New Conclusions 1296

5. THE CITIZENSHIP PROXY 1298

   1. An Imperfect Proxy 1298

   2. Alternatives to the Citizenship Proxy 1303

   3. Implications of Abandoning the Citizenship Proxy 1304

CONCLUSION 1305

INTRODUCTION

Gerardo Antonio Mosquera, Sr. was a green card holder in the United States for twenty-nine years before he was deported to a country where he barely spoke the language.1 At the age of twenty-nine, after residing in the United States for almost twenty years, he sold a $10 bag of marijuana to a paid police informant.2 Gerardo was arrested and he pleaded guilty to the sale and

1. Patrick J. McDonnell, Deportation Shatters Family, L.A. TIMES, Mar. 14, 1998, at B1; see also JOSEPH NEVINS, OPERATION GATEKEEPER AND BEYOND: THE WAR ON “ILLEGALS” AND THE REMAKING OF THE U.S.–

   MEXICO BOUNDARY 180 (2d ed. 2010). Gerardo immigrated to the United States as a lawful permanent resident in 1969 from Colombia. McDonnell, supra. He came to the United States with his mother and five siblings to join his father, who was working as a car dealer. Id.

2. McDonnell, supra note 1.

   transportation of 0.6 grams of marijuana.3 He was sentenced to ninety days in jail, three years’ probation, and a $150 fine.4 Gerardo served his sentence and paid his fine. His crime constituted an aggravated felony under the 1996 reforms to the Immigration and Nationality Act.5 Having an aggravated felony conviction meant that he was deportable and ineligible for discretionary relief.6 No judge heard about Gerardo’s twenty-nine years of lawful residence in the United States, his U.S. citizen children and wife, his employment record, or the hardship that his family would experience if Gerardo were deported.7 There was no relief available to Gerardo, and he was removed from the United States in December 1997.8

   
   

   The outcome of this case would have been very different for someone like a hypothetical Antoinette. She was born in the United States but raised in England since the age of two. Her entire family lives in England and Antoinette has spent no time in the United States since her departure. At the age of twenty-five she decided to pursue graduate studies in the United States. If, after being in the United States for one year, Antoinette sold a $10 bag of marijuana to a paid police informant, she would not be at risk of being removed to England because she is a U.S. citizen. Pursuant to the Fourteenth

   Amendment, her birth in the United States makes her a U.S. citizen.9 She

   would only be subject to a criminal sentence similar to what Gerardo faced: ninety days in jail, three years’ probation, and a $150 fine. Gerardo arguably has stronger connections to the United States, and thus a stronger liberty interest in remaining in the United States than Antoinette. Antoinette however is the one with the right to remain.

   
   

   In this Article I argue that the right to remain should not depend on citizenship status. The right to remain should be granted to members of the society—those with significant connections, commitment, and obligations to the State. Citizenship status is one proxy for identifying members, but it can be

   
   

3. Id.

4. Id.

5. Id.

6. Id.

7. See id. (noting that the revisions subjected noncitizen offenders to deportation regardless of the amount of illicit drugs sold, whereas previous law allowed offenders to demonstrate countervailing factors such as strong U.S. family ties). The family depended on Gerardo’s $300-a-week salary, and they were struggling to survive on his wife Maria’s salary as a school bus driver. See id. Gerardo’s son, Gerardo Anthony Mosquera,

   Jr., went into a deep depression after his father’s deportation and killed himself. Id.

8. Id.

9. U.S. CONST. amend. XIV, § 1.

   both under- and over-inclusive, as demonstrated by Gerardo and Antoinette. Numerous green card holders, like Gerardo, are committed to, have strong connections to, and undertake obligations to the United States.10 Deporting these individuals for crimes like perjury, receipt of stolen property, or failure to appear in court can be excessively harsh.11 It can mean depriving “a man and his family of all that makes life worth while [sic].”12 Deportation should only be utilized when it is a proportionate response to criminal activity. This Article extends my prior work on proportional deportation. I have previously argued that the punitive nature of crime-based deportation can give rise to a substantive due process right to proportionality.13 This Article offers normative and historical arguments for proportionality in crime-based deportation.

   
   

   The use of different proxies, such as length of residence, family connections, or service to local, state, or national communities, can better ensure that green card holders’ liberty interest in remaining in the United States is adequately protected.14 This was the approach utilized in the United

   States’ first comprehensive crime-based deportation regime, and it can be utilized today through complex rule-like directives.15

   
   

10. This Article focuses on the right to remain for green card holders, also referred to as lawful permanent residents (LPRs). I leave for another day whether the analysis for other noncitizens, such as unauthorized migrants, would be the same.

11. See Angela M. Banks, Proportional Deportation, 55 WAYNE L. REV. 1651 (2009) (discussing the need

    for proportionality in deportation); Juliet Stumpf, Fitting Punishment, 66 WASH. & LEE L. REV. 1683, 1685–88 (2009) (same); Michael J. Wishnie, Proportionality: The Struggle for Balance in U.S. Immigration Policy, 72 U. PITT. L. REV. 431 (2011) (same).

12. Harisiades v. Shaughnessy, 342 U.S. 580, 600 (1952) (Douglas, J., dissenting). The deportation of

    such connected residents is also negatively impacting the health, education, and financial security of American families. See JONATHAN BAUM, ROSHA JONES & CATHERINE BARRY, IN THE CHILD’S BEST INTEREST? THE CONSEQUENCES OF LOSING A LAWFUL IMMIGRANT PARENT TO DEPORTATION (2010), available at

    http://www.law.berkeley.edu/files/Human_Rights_report.pdf; AJAY CHAUDRY ET AL., URBAN INST., FACING

    OUR FUTURE: CHILDREN IN THE AFTERMATH OF IMMIGRATION ENFORCEMENT (2010), available at

    http://www.urban.org/UploadedPDF/412020_FacingOurFuture_final.pdf; HUMAN RIGHTS WATCH, FORCED APART: FAMILIES SEPARATED AND IMMIGRANTS HARMED BY UNITED STATES DEPORTATION POLICY 4, 51–52,

    61–63, 69, 82 (2007); Jacqueline Hagan et al., The Effects of U.S. Deportation Policies on Immigrant Families and Communities: Cross-Border Perspectives, 88 N.C. L. REV. 1799 (2010).

13. Banks, supra note 11.

14. In this Article I argue that proxies other than citizenship status should be used to identify residents whose right to remain should be protected. I do not, however, argue that citizens’ right to remain should be subjected to the same proxies. See infra text accompanying notes 337, 339 for additional discussion of limiting

    citizens’ right to remain.

15. See infra Part V.B for a discussion of complex rule-like directives that utilize alternative proxies for connections, commitment, and obligations to a polity.

    Building on the work of citizenship scholars, I contend that citizenship status is an under-inclusive proxy for significant connections, commitment, and obligations to a State.16 Citizenship scholars...