Deporting Families: Legal Matter or Political Question?

• Jurisdiction: United States,Federal
• Publication year: 2010
• Citation: Vol. 27 No. 3

Georgia State University Law Review

Volume 27 j 2

Issue 3 Spring 2011

3-1-2011

Deporting Families: Legal Matter or Political Question?

Angela M. Banks

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Recommended Citation

Banks, Angela M. (2010) "Deporting Families: Legal Matter or Political Question?," Georgia State University Law Review: Vol. 27: Iss. 3, Article 2.

Available at: http://digitalarchive.gsu.edu/gsulr/vol27/iss3/2

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DEPORTING FAMILIES: LEGAL MATTER OR POLITICAL QUESTION?

Angela M. Banks*

Abstract

Last year 245,424 noncitizens were removed from the United States, and courts played virtually no role in ensuring that these decisions did not violate individual substantive rights like freedom of speech, substantive due process, or retroactivity. Had these individuals been deported from a European country, domestic and regional courts would have reviewed the decisions to ensure compatibility with these types of rights. Numerous international law scholars and immigration scholars seek to minimize the gap between the legal processes offered in the United States and Europe for noncitizens challenging deportation orders. Many of these scholars contend that greater recognition of international human rights in U.S. courts would bring U.S. deportation jurisprudence closer to its European counterpart. While appealing, these arguments fail to recognize that the availability of rights is not what distinguishes the European deportation jurisprudence from the American deportation jurisprudence. European courts play a more active role in reviewing deportation decisions than U.S. courts because of institutional cultural norms regarding the State interests at stake in regulating immigration. European adjudicators conceptualize immigration

* Assistant Professor, William and Mary School of Law. Harvard Law School, 2000; M.Litt., University of Oxford, 1998; B.A., Spelman College, 1995. For comments, advice, and discussion I am grateful to the participants at the University of Maryland School of Law faculty workshop, the American Society for International Law New Voices: Issues in the Human Side of International Law panel at the 2009 Annual Meeting, the Law & Society 2009 Annual Meeting, the 2009 Lutie A. Lytle Writing Workshop at Seattle University School of Law, the 2009 Emerging Immigration Law Scholars Workshop at Hofstra Law School, and the William & Mary Law School faculty workshop. I am also thankful for the comments and discussion provided by Rachel Anderson, Jennifer Chacon, Lan Cao, Nancy Combs, Kevin Johnson, Charles Koch, Stephen Lee, Stephen Legomsky, Linda Malone, Hiroshi Motomura, Alemante Selassie, and Jonathan Weinberg. Finally, the following graduate research fellows provided excellent research assistance: Gregory Albert, Fitz Beckwith Collins, Sharon Cordello, Carrie Pixler, and Kevin Weigand.

490 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 27:3

regulation as a legal matter rather than as a political matter as U.S. adjudicators do. This distinction between "immigration regulation is political" and "immigration regulation is legal" leads to different understandings of the judicial role and thus, to drastically different approaches to judicial review.

Deportation jurisprudence provides a useful case for analyzing the relationship between legal rules and institutional culture in protecting individual rights. The literature addressing the domestic enforcement of human rights under-analyzes the role that institutional culture plays in human rights enforcement. This literature tends to focus on the importance of adopting specific laws, an independent judiciary, political will at the highest levels of government, and effective law enforcement personnel. While these are all important factors, institutional culture helps to explain compliance problems when States have the right laws, personnel, and political will. This Article addresses this gap in the literature by exploring the relationship between judicial norms regarding immigration and judicial review of deportation decisions.

Introduction

Last year 245,424 noncitizens were removed from the United States, and courts played virtually no role in ensuring that these decisions conformed to the substantive provisions of the U.S. Constitution.¹ A number of these individuals, like Charlie Castillo, lived the majority of their lives in the United States and considered the United States home. Charlie immigrated to the United States at

1. U.S. Dep't of Homeland Sec., 2008 Yearbook of Immigration Statistics 102 tbl.37 (2009), available at http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2008/ois_yb_2008.pdf [hereinafter 2008 Yearbook]; U.S. Dep't of Homeland Sec., Immigration Enforcement Actions: 2008, at 4 (2009), available at http://www.dhs.gov/xlibrary/assets/statistics/ publications/enforcement_ar_08.pdf [hereinafter Immigration Enforcement Actions: 2008]. This figure reflects the individuals removed through regular removal proceedings. An additional 113,462 individuals were removed in expedited removal proceedings. These proceedings take place at the border and do not involve an immigration judge. See Immigration and Nationality Act (INA), § 235, 8 U.S.C. §

1225 (2006).

2011]

DEPORTING FAMILIES

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the age of one and spent his entire life in the Detroit metro area. He is fifty-four years old and spent thirty-three years working at General

Motors factories and retired with a pension. He married aU.S. citizen and raised three children in a house he purchased in the

suburbs. Charlie was also convicted of growing two marijuana plants in his yard and possessing a quarter-pound of marijuana in his home

ten years ago. Despite the fact that Charlie's entire family resides in the United States, his wife suffers from multiple sclerosis, and he is responsible for supporting his grandchild with autism, Charlie was

deported in October 2009. He had taken his wife to Cancun believing that the environment would be good for her multiple

sclerosis. Upon his return to the United States, immigration officials at the airport became aware of his criminal convictions and Charlie

fines and was allowed to return home to his suburban ranch house.⁹ He thought that he "had paid [his] dues and that [he] was all right."¹⁰ Yet because Charlie's parents brought him to the United States, he was wrong. No court was able to review his case for proportionality or consistency with other fundamental rights principles. Had Charlie's family migrated to Europe instead, his legal process would

have been different and his outcome may have been as well.¹¹

Numerous international law scholars and immigration scholars seek to minimize the gap between the legal processes offered in the United States and Europe for noncitizens challenging deportation

2. Charlie Leduff, Stuck Between Old Charges, Post-9/11 Convictions, The Detroit News, Jan. 14, 2010, at A4, available at 2010 WLNR 770911.

3. Id.

4. Id.

5. Id.

6. Id.

7. Id.

8. Leduff, supra note 2.

9. Id.

10. Id.

11. As used throughout this article Europe and European refer to the following States: Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, and United Kingdom—the twenty-seven Member States of the European Union. See European Union, European Countries, http://europa.eu/abc/european_countries/ index_en.htm.

492 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 27:3

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orders. Many of these scholars contend that greater recognition of international human rights in U.S. courts would bring U.S.

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deportation jurisprudence closer to its European counterpart. While appealing, these arguments fail to recognize that the availability of rights is not what distinguishes the European deportation jurisprudence from the U.S. deportation jurisprudence. European courts play a more active role in reviewing deportation decisions than U.S. courts because of institutional cultural norms regarding the State interests at stake in regulating immigration. European adjudicators conceptualize immigration regulation as a legal matter rather than as a political matter as U.S. adjudicators do. This distinction between "immigration regulation is political" and "immigration regulation is legal" leads to different understandings of the judicial role and thus, to drastically different approaches to judicial review. I contend that this distinction is tied to the different immigration histories, sources of State authority to regulate immigration, and allocations of immigration authority in the United States and Europe. As long as

12. Immigration scholars frequently question the propriety of the U.S. judiciary's deference to the political branches. See, e.g., T. Alexander Aleinikoff, Semblances of Sovereignty: The Constitution, the State, and American Citizenship (2002); Bill O. Hing, Deporting Our Souls: Values, Morality, and Immigration Policy (2006); Kevin R. Johnson, Opening the Floodgates: Why America Needs to Rethink its Borders and Immigration Laws (2007); Gerald L. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law (1996); Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and its Progeny, 100 Harv. L. Rev. 853 (1987); Stephen H. Legomsky, Ten More Years of Plenary Power: Immigration, Congress, and the Courts, 22 Hastings Const. L. Q. 925 (1995) [hereinafter Ten More Years]; Stephen H. Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 Sup. Ct. Rev...