DEPORTATION DEADLINE.

• Author: Kim, Andrew Tae-Hyun

Abstract

Deadlines regulate nearly all facets of life. In U.S. law, deadlines control the timeliness of a claim in the forms of statutes of limitations and common law doctrines such as laches. In nearly all areas of the law, whether involving claims brought by private actors or the government, and in both criminal and civil contexts, an expiration date cuts off a plaintiff's right to assert a claim. No such deadline exists, however, for immigration enforcement actions. The U.S. government can deport immigrants for offenses after decades have passed. As a result, millions of long-term, otherwise law-abiding and productive individuals participating and residing in communities across this nation live under an indefinite threat of deportation for conduct that may have happened decades ago. This Article exposes and examines this procedural anomaly between immigration and non-immigration law, which is yet another aspect of U.S. immigration law that makes it exceptional precisely because of the subject it regulates--noncitizens. In this Article, I frame the argument for nuanced deportation deadlines by drawing on comparative insights from other areas of the law, where statutes of limitations represent the legal norm, and import these insights into the immigration enforcement context. I locate the precedent for a deportation deadline in the early immigration statutes enacted at the turn of the century and in the historical remnants of that approach in the traces of mercy that animate the current immigration statute. Finally, I outline how a statute of limitations could be realized in the deportation context, and, in the process, propose time limitations on deportations as an important strategy for integrating long-term undocumented immigrants into U.S. society.

Table of Contents Introduction I. Immigration Law as Conceptual Outlier A. Substantive Incongruity B. Procedural Incongruity II. Reasons for a Limitations Period in the Law A. Promotion of Repose: Alleviate Hardship to the Defendant B. Costs of Uncertainty 1. To the Individual: Effects of Living in Liminal Status 2. To the System C. Promotion of Plaintiff's Diligence / Punish Delay D. Integrity of the Legal Process / Deterioration of Evidence E. Effect of Prompt Enforcement on Substantive Law III. Support for Time Limits in Immigration Law A. Historical Antecedents B. Time Limits in Current Immigration Law 1. Deportation and Exclusion Grounds 2. Rescission Adjustment of Status 3. Other Forms of Relief from Removal IV. Towards a Statute of Limitations in Immigration Enforcement A. Deportability Due to Unlawful Presence 1. Accrual v. Discovery Rule 2. Continuing Violation Problem B. Deportability After Expiration of Lawful Status 1. Undermining Deterrence C. Deportability After Commission of a Deportable Offense 1. Undermining Discretion Conclusion Introduction

When Jose Didiel Munoz entered the United States unlawfully from Guatemala with his mother, he was only one year old. (1) He had resided in the United States since then. (2) He attended school here. (3) He graduated from high school. (4) He was otherwise law-abiding. (5) In addition to his mother, his family included a step-father, a half-brother, and a half-sister, all living in the United States." He did not know his biological father in Guatemala, nor any other family there. (7) After his eighteenth birthday, he attempted to bring himself into compliance with the law and applied for asylum. (8) On his application, he stated that he wished that his mother would have filed asylum for him earlier but that he finally wanted to "take care of his situation as an undocumented alien." (9)

The immigration authorities denied his asylum application and began deportation proceedings against him for being an "alien present in the United States without having been admitted or paroled." (10) He did not qualify for any available forms of relief, including cancellation of removal relief. Though he was in the United States for at least ten years and possessed good moral character--the first two prerequisites for cancellation relief--the immigration judge concluded that his removal would not result in exceptional and extremely unusual hardship to a U.S. citizen or lawful permanent resident parent, spouse, or child since his mother was not a lawful permanent resident or citizen of the United States. (11) Even though his stepfather was a U.S. citizen, because Jose was eighteen years old at the time that his mother married, his stepfather was not a "parent" within the statutory definition. (12) Thus, the immigration judge ordered his deportation. (13)

Jose's story is not uncommon. Millions of hardworking, tax-paying, otherwise law-abiding long-term residents in the United States live under an indefinite threat of deportation. Immigrants like Jose, who entered without inspection but have since become contributing members of their communities and have spent decades building a life for themselves in the United States, are deportable because their initial entry makes them perpetually unlawfully present. Some immigrants may immigrate lawfully but overstay their visas and become unlawfully present, while others become deportable for the commission of offenses as minor as petty theft. For each of these immigrants, government enforcement can come at any time and in perpetuity because of the lack of a statutory deadline for deportations.

That the federal government has--and should have--the authority to exclude or deport noncitizens from its borders is not legally in question or altogether exceptional. According to the U.S. Supreme Court, Congress's power to exclude or deport noncitizens is inherent in the very notion of a sovereign state. 14 What is exceptional is that the government's legal authority to bring an enforcement claim against an immigrant has no expiration date. There are no time limitations for deportations. In contrast, deadlines exist in almost all areas of law, including actions in contracts, torts, property, criminal law, and administrative law. (15) Deadlines for bringing suit have long been a part of the common law in the form of the laches doctrine that punishes a plaintiffs unreasonable delay. (16) Legislatures routinely pass similar deadlines in the form of statutes of limitations and statutes of repose that specify the time period in which a claim must be brought. If filed even a day beyond the specified time period, otherwise meritorious claims are rejected. Deadlines exist at both the state and federal levels. (17) Deadlines exist in legal systems around the world and are not peculiar to the U.S. legal system. (18) Deadlines can be traced back to the Romans. (19) They have stood the test of time and will likely be with us in the future.

While such time limitations have come to be more commonly associated with, and gained wider acceptance in, actions between private entities, (20) similar deadlines regulate enforcement actions by the government. The vast majority of criminal prosecutions have an expiration date, even for serious felonies. (21) Similar time limitations exist in civil enforcement proceedings, to which immigration enforcements belong. For example, under 28 U.S.C. [section] 2462, the general statute of limitations that governs penalty enforcement actions, the federal government must file suit "within five years from the date when the claim first accrued" unless otherwise specified by Congress. (22) Interpreting this statute in the context of a civil enforcement action brought by the Securities and Exchange Commission against a private party, the U.S. Supreme Court recently constrained that window further by holding that the clock begins to run from the date of the wrongful action, not from the date of discovery. (23) The lack of an end date by which the government must enforce the immigration laws and conclude a deportation action has devastating implications for millions of immigrants who live in perpetual fear without legal status in the United States. They live in liminal legal status and must endure indefinitely the attendant harms that accompany their legal uncertainty.

While scholars like T. Alexander Aleinikoff and Mae Ngai have argued for a statute of limitations for deportations in the popular media, (24) this Article explores the topic in greater depth. Indeed, though scholars have devoted ample attention to the substantive dimensions of deportation law and policy, (25) fewer scholars have focused on this procedural dimension. (26) In this Article, I prioritize this procedural anomaly and its consequences on the lives of undocumented immigrants. In Section I, I place this procedural anomaly in context by examining critical aspects of immigration law that have become unmoored from legal norms. In Section II, drawing on comparative insights from criminal law, tort law, and administrative law, among others, I consider the rationales for time limitations that have been articulated in non-immigration contexts and import them into the immigration deportation context. I conclude that these rationales, including promoting the defendant's repose, reducing the costs of uncertainty, and protecting the integrity of the legal process, apply with equal force to the immigration context. In Section III, I locate the precedent for a deportation deadline in the early immigration statutes enacted at the turn of the century and in the historical remnants of that approach in the traces of mercy that animate the current immigration statute. In Section IV, I outline how a statute of limitations could be realized in the immigration context. I present three real deportation cases involving long-term residents who were deported but could have benefited from the deportation deadline I propose. These three cases, which concern unlawful entry, overstay of a visa, and the commission of a deportable offense, place valid concerns with deportation deadlines in context to allow for a fruitful...