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

Legal Lines in Shifting Sand: Immigration Law and Human Rights in the Wake of September 11th

In March of 2004, a group of legal scholars gathered at Boston College Law School to examine the doctrinal implications of the events of September 11, 2001. They reconsidered the lines drawn between citizens and noncitizens, war and peace, the civil and criminal systems, as well as the U.S. territorial line. Participants responded to the proposition that certain entrenched historical matrices no longer adequately answer the complex questions raised in the “war on terror.” They examined the importance of government disclosure and the public’s right to know; the deportation system’s habeas corpus practices; racial profiling; the convergence of immigration and criminal law since the attacks; judicial review of military detentions at Guantanamo Bay and elsewhere; and noncitizens’ rights in the United States and the European Union. From their insights have emerged an outline for future research and the seeds of a pragmatic legal approach to these increasingly complex questions, all grounded in a deep respect for human rights

Introduction: Law, Torture, and the “Task of the Good Lawyer” – Mukasey Agonistes

Following September 11, 2001, there was a challenge to the role of law as a regulator of military action and executive power. Government lawyers produced legal interpretations designed to authorize, legitimize, and facilitate interrogation tactics widely considered to be illegal. This raises a fundamental question: how should law respond to such flawed interpretation and its consequences, even if the ends might have seemed necessary or just? This Symposium examines deep tensions between competing visions of the rule of law and the role of lawyers. Spurred by a controversy over the selection of then-Attorney General Michael Mukasey as commencement speaker, the goal was to examine such basic and challenging questions. What is the optimal relationship among policy, legal interpretation, and ethics? What ethical norms should guide government lawyers? Attorney General Mukasey agreed to publish his commencement address as part of the Symposium. Participants were asked to read it and, if they wished, to use it as a touchstone for their analyses of the questions it raised

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

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

Deportation in the Shadows of Due Process: The Dangerous Implications of \u3cem\u3eDHS v. Thuraissigiam\u3c/em\u3e

The deportation of many thousands of people who were previously integral members of U.S. society and who have long been part of the social fabric of the United States is-as Beth Caldwell notes-a human rights tragedy of immense proportions that should not be forgotten.\u27 However, an ever-expanding array of fast-track, unreviewable, discretionary immigration enforcement mechanisms raise equally compelling-if distinct-concerns. Even as we attend to how deportation is particularly cruel for people who grew up in the United States, we must not acquiesce in the relegation of recent entrants-or, indeed, recent re-entrants-to a rightless realm of unreviewable arbitrary enforcement. This is especially true for those fleeing from persecution and other severe harms and for unaccompanied minors. The Supreme Court\u27s approval of such mechanisms in Department of Homeland Security v. Thuraissigiam may affect due process, habeas corpus, and the necessity of judicial review of agency action dangerously and corrosively.\u27 Justice Alito, writing for a 5-4 majority, concluded that neither the Suspension Clause 6 nor the Due Process Clause mandate habeas corpus (or any other) judicial review of a summary government denial of an asylum claim brought by a noncitizen on U.S. soil. As Justice Sotomayor poignantly noted in her dissent, the Court held that the Constitution\u27s due process protections do not extend to noncitizens ... , who challenge the procedures used to determine whether they may seek shelter in this country or whether they may be cast to an unknown fate. This precludes any means to ensure the integrity of an expedited removal order and upends settled constitutional law. Moreover, it paves the way toward transforming already summary expedited removal proceedings into arbitrary administrative adjudications. As bleak as this is, Justice Sotomayor may actually have understated the dangers of Thuraissigiam as its ramifications for the future of habeas corpus are also worrisome