In the waning days of the Obama Administration, with Trump’s promised immigration crackdown looming, over one hundred advocacy organizations joined forces to urge President Obama to permanently protect hundreds of thousands of immigrants from deportation by pardoning their breaches of civil immigration law. That pardon never materialized and, as expected, the Trump enforcement regime is sowing terror and devastation in immigrant communities nationwide. While it seems unfathomable that the current President would use his pardon power to mitigate even the most extreme applications of our nation’s immigration laws, there is unfortunately no indication that the harshest aspects of the immigration laws are likely to be revised by the current political branches. Accordingly, future Presidents will likely once again face the questions of how they may use prosecutorial discretion generally, and the pardon power specifically, to address the human toll of such laws. Since the Founding, the pardon power has been used primarily to forgive individual criminal convictions. Thus the broad civil immigration pardon, which Obama declined to issue, would have raised novel questions regarding the appropriate boundaries of the presidential pardon power. Resolution of those previously unexplored questions is necessary to help future Presidents determine whether their pardon power can serve as a safety valve to alleviate the disproportionate penalties that our immigration laws have imposed on longtime members of our communities.
This Article explores the novel concept of a civil immigration pardon. Specifically, it closely examines the language and drafting history of the Pardon Clause, exhaustively reviews early and modern pardon practice and jurisprudence, and considers whether a President could, consistent with the Constitution, use that power to protect some of the largest categories of noncitizens currently at risk of deportation. Ultimately, it argues that the President possesses the constitutional authority to categorically pardon broad classes of immigrants for civil violations of the immigration laws and to thereby provide durable and permanent protections against deportation. As millions of noncitizens and their families face a historically unprecedented wave of deportations and as traditional mechanisms for policymaking continue to fail, the immigration pardon offers an important tool for future Presidents to forgive the civil offenses that result in some of the harshest penalties in our nation’s justice system.
Why not rid the United States of criminal noncitizens and the disorder they cause? Because, scholars urge, immigrants reduce crime rates, deporting noncitizens with criminal convictions costs far more than it is worth, and discarding immigrants when they become inconvenient is wrong. Despite the force of these responses, reform efforts have made little headway. Crime-based deportation appears entrenched. Can it be transformed, rather than modified at the margins?
Transformation is possible, but only if crime-based deportation is reenvisioned as the prerogative of local governments. National transformation, this Article shows, is a dead end. When the problem of immigrant crime is digested at the national level, under the rubric of “the national interest”—where noncitizen interests do not count by definition—there are numerous “rational” reasons why a self- interested citizenry would want to deport noncitizens, even for minor crimes. Additionally, whatever rational reasons exist are exaggerated by the national media, which gives the rare violent crime committed by an immigrant outsized national attention. The danger posed by this distorted media reality was highlighted by Donald Trump throughout his campaign for president. Trump’s establishment of an office to publicize crimes committed by deportable noncitizens will make the problem more acute.
Local governments, by contrast, can be more concrete, flexible, and pragmatic; they are apt to think in terms of residents and community, rather than citizen versus alien. Local residents think about neighbors, classmates, and fellow churchgoers, and the economic and social contributions of noncitizens who run afoul of the law loom larger in the local calculus than the national one. Were local governments granted responsibility for crime-based deportation, the humanity, value, and membership of immigrants who commit crimes would be more likely to enter the conversation about appropriate responses, helping to transform crime-based deportation.
The Obama Administration has historically expanded the availability of deferred action, which provides a reprieve from the threat of deportation and work authorization to certain undocumented immigrants, through the creation of the Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). These programs, as well as legislative efforts to provide a path to citizenship for undocumented immigrants, increasingly seek to exclude suspected gang members. In doing so, they make gang databases managed by state and local law enforcement increasingly relevant to eligibility decisions. These databases, however, lack the procedural safeguards necessary to curb police discretion, which can allow racial stereotypes and biases to influence decisionmaking and lead to the disproportionate inclusion of people of color. This Note argues that the policy rationales underlying procedural due process highlight the inadequacies of these databases as tools for immigration adjudicators. By using them to determine eligibility for immigration benefits, the Department of Homeland Security (DHS) imports the racial bias inherent in the criminal justice system to the immigration system. In order to avoid this result and increase both fairness and accuracy, DHS should bar adjudicators from relying on gang databases.
This article questions the application of Chevron deference in federal court habeas review of statutory immigration detention challenges. Since the enactment of a mandatory detention statute for immigrants facing deportation, the Board of Immigration Appeals—an administrative body within the U.S. Department of Justice—has played an increasingly important role in interpreting the scope of detention for thousands of immigrants each year. Federal courts have long served as an important check against executive detention through habeas review and have declined to accommodate other deference norms in the immigration detention context. Federal courts have nonetheless applied Chevron to immigration detention cases without questioning whether such deference to the agency is appropriate. This article explains why federal courts should reject the application of Chevron when exercising habeas review of statutory immigration detention challenges. This article further explains that federal courts, whether or not fettered by Chevron, should apply interpretive norms that properly account for the important physical liberty interest at stake.
This Article identifies how the current spate of state and local regulation is changing the way elected officials, scholars, courts, and the public think about the constitutional dimensions of immigration law and governmental responsibility for immigration enforcement. Reinvigorating the theoretical possibilities left open by the Supreme Court in its 1875 Chy Lung v. Freeman decision, state and local officials characterize their laws as unavoidable responses to the policy problems they face when they are squeezed between the challenges of unauthorized migration and the federal government’s failure to fix a broken system. In the October 2012 term, in Arizona v. United States, the Court addressed, but did not settle, the difficult empirical, theoretical, and constitutional questions necessitated by these enactments and their attendant justifications. Our empirical investigation, however, discovered that most state and local immigration laws are not organic policy responses to pressing demographic challenges. Instead, such laws are the product of a more nuanced and politicized process in which demographic concerns are neither necessary nor sufficient factors and in which federal inactivity and subfederal activity are related phenomena, fomented by the same actors. This Article focuses on the constitutional and theoretical implications of these processes: It presents an evidence-based theory of state and local policy proliferation; it cautions legal scholars to rethink functionalist accounts for the rise of such laws; and it advises courts to reassess their use of traditional federalism frameworks to evaluate these subfederal enactments.
This Note draws upon immigration law to analyze a new Fourth Amendment regime put forth by criminal law scholars Bernard Harcourt and Tracey Meares. In Randomization and the Fourth Amendment, Harcourt and Meares propose a model for reasonable searches and seizures that dispenses with individualized suspicion in favor of random, checkpoint-like stops. Randomization, the authors contend, will ensure that enforcement is evenhanded and will alleviate burdens that result from discriminatory targeting. This Note explores the possibility of randomization in immigration enforcement, a useful context to test the Harcourt-Meares model because it exemplifies the ills the authors seek to address. Though analysis demonstrates that randomization falls far short of its goals, its failures are instructive. Indeed, the lens of immigration enforcement illuminates essential conditions that must exist in order for randomization to be viable.
The growing centrality of “criminal aliens” to American immigration enforcement is one of the most significant historical shifts in the federal immigration system. However, little is known about how this dramatic restructuring of federal immigration priorities affects local criminal justice systems. Do noncitizens experience the same type of criminal justice as citizens? This Article seeks to answer this question by offering the first empirical study of how local criminal process is organized around immigration enforcement and citizenship status. It accomplishes this task by analyzing the criminal justice systems of the three urban counties that prosecute the highest number of noncitizens: Los Angeles County, California; Harris County, Texas; and Maricopa County, Arizona.
Comparative review of law, procedure, and practice in these three counties reveals that immigration’s interaction with criminal law has a far more powerful impact on local criminal practice than previously understood. Across all three counties, the practical effects of the federal government’s reliance on arrests and convictions in making enforcement decisions are felt at every stage of the criminal process: Immigration status is part of routine booking at local jails, “immigration detainers” impede release on criminal bail, immigration officials encourage criminal prosecutors to secure plea agreements that guarantee removal, and noncitizens are sometimes deported before their criminal cases are completed. Yet, there is surprising variation in how these three counties have structured their criminal practices in light of the consistently deep connections between criminal process and immigration enforcement. As this Article develops, the three jurisdictions have adopted distinct models of noncitizen criminal justice—what I term alienage neutral, illegal-alien punishment, and immigration enforcement. Each model reflects significant agreement across county agencies about the appropriate role of noncitizen status in criminal case adjudication and of local involvement in deportation outcomes. These findings have important implications for the institutional design of both local criminal systems and federal immigration enforcement.
Beginning with this nation’s founding and continuing today, courts and political leaders have grappled with difficult questions as to the proper treatment of aliens— those individuals either living here or interacting with the government, but not bearing the title of “U.S. citizen.” In the annual James Madison Lecture, Judge Karen Nelson Moore explores the protections afforded to aliens by our Constitution, tracing those protections and their limitations across the many disparate legal contexts in which questions regarding aliens’ constitutional rights arise. Although the extent to which aliens possess constitutional rights varies with the closeness of their ties to this country, she explains that this single variable cannot account for the many nuances and tensions in federal jurisprudence relating to aliens’ constitutional rights. Closeness, after all, can be measured across multiple dimensions: immigration status, physical proximity to the United States (or to its borders), lawfulness of presence, and allegiance to the country.
Judge Moore first tackles the complicated meaning of alienage, discussing its conceptual definition separately with respect to the text of the Constitution, immigration law, and national security. She then considers the extent to which the Equal Protection Clause of the Fourteenth Amendment limits the government’s ability to draw distinctions between different classes of aliens. Possible differential treatment among classes of aliens presents complex constitutional questions that remain unresolved, particularly as those questions relate to the treatment of aliens unlawfully present in this country. The rights of this group are the most in flux: These aliens’ unauthorized presence in the country, combined with their close ties to the political community, makes them difficult to fit into existing legal categories.
The criminal procedure rights of aliens under the Fourth, Fifth, and Sixth Amendments are also considered, followed by a discussion of aliens’ due process rights with respect to civil litigation, immigration proceedings, and alien-enemy detention. Judge Moore highlights those areas at the outer reaches of current doctrine—the extraterritorial application of constitutional protections and the extent of executive power to combat terrorism. She articulates themes present in constitutional jurisprudence as it relates to aliens, providing a broad-lens view of this vast and complicated area of law.
Golinski v. U.S. Office of Personnel Management, a district court case challenging the constitutionality of the Defense of Marriage Act, explicitly adopted a novel definition of immutability under the Equal Protection Clause. Now held in abeyance pending the Supreme Court’s decision in United States v. Windsor, Golinski’s discussion of immutability remains relevant because it articulated the rationale behind a number of recent lower court decisions in equal protection jurisprudence that reach beyond the context of sexual orientation. Such decisions turn away from talismanic protection of immutable characteristics determined by birth, and toward the right of all persons to choose fundamental aspects of their identity. They disavow “biological immutability,”—the traditional view of immutability which refers to a characteristic one cannot change, “determined solely by the accident of birth”—and instead rely on asylum law’s definition of immutability: not exclusively a characteristic one cannot change, but also a chosen characteristic that one should not be forced to change because it is fundamental to identity. This Note argues that asylum law’s “fundamental immutability” standard belongs in equal protection jurisprudence because it resolves inconsistencies in traditional equal protection jurisprudence caused by a biological immutability standard and because it harmonizes recent lower court opinions discussing race- and gender-related equal protection in an era of increased multiracial, intersex, and transgender visibility.
The United States immigration detention regime that was reborn in the 1980s is not only unprecedented in scale, but also in rationale. Whereas immigration detention had historically been justified primarily as a means of ensuring immigration compliance, with a secondary purpose of protecting national security, today’s system increasingly functions in collaboration with criminal law enforcement systems to incapacitate allegedly dangerous individuals for the purpose of preventing potential domestic crime. Regardless of the validity of judicial deference when immigration detention truly serves to aid in the removal process, this Note argues that such deference cannot legitimately be extended to the newly ascendant crime control function of immigration detention. At minimum, Due Process requires immigration detention procedural safeguards that are parallel to those in other preventive detention contexts, in which the government bears the burden of individually demonstrating a need for confinement.