The Normative and Historical Cases for Proportional Deportation

ABSTRACTIs 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.INTRODUCTIONGerardo 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 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 1997.8The 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 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. …