Constitutionalizing Immigration Law: The Vital Role of Judicial Discretion in the Removal of Lawful Permanent Residents

Abstract:     
For decades, scholars and advocates criticized the harsh, mandatory nature of the Federal Sentencing Guidelines. They argued that federal district court judges should have discretion to authorize a punishment that fits the facts and circumstances of the crime and the defendant. Similarly, immigration scholars and advocates criticize the harsh laws that categorically remove lawful permanent residents, even after minor crimes, from the United States. In 2005, in United States v. Booker, the Supreme Court “constitutionalized” the Sentencing Guidelines by rendering them advisory, and returning judicial discretion to federal judges.

This Article argues that the similar constitutional, historical, theoretical, societal, and humanitarian policy considerations underlying sentencing and removal support the return of judicial discretion to the removal proceedings of longtime lawful permanent residents. By returning judicial discretion, Congress and the President would “constitutionalize” the deportation process rather than wait for Supreme Court action. The Article concludes with a proposal for legislative reform: “The Longtime Lawful Permanent Residents and Family Unit Relief Act.”

Number of Pages in PDF File: 64

Keywords: immigration, Booker, constitutional, plenary power, Padilla, Arizona, deportation, removal, racism, criminal law, crimmigration, sentencing, immigration judges, lawful permanent residents, aliens, judicial discretion, IIRIRA, Federal Sentencing Guidelines, AEDPA, removal statistics

JEL Classification: I31, J15, J18, J71, J78, K14, K33, K42

Accepted Paper Series