ESTRATEGIA DE CAPACIDAD

Citizens

As I have said before, “I pray that soon the good men and women in

our Congress will ameliorate the plight of families like the [petition-

ers] and give us humane laws that will not cause the disintegration of

such families.”

Judge Harry Pregerson, Memije v. Gonzalez (2007)

The 64th Congress, the original authors of both the first crime-based

grounds of deportability and the provision creating JRAD discretion for

trial judges, recognized the need for the JRAD discretionary provision, to

prevent levying “too harsh” a penalty upon an “unfortunate man” when

considering all the relevant circumstances.

_{Perhaps ironically, the sep-}

aration of an alien from his citizen family was exactly the “harsh” circum-

stance contemplated by lawmakers.

_{Today, hardship to citizen family}

cannot be considered in cases where discretion has been eliminated.

A 2010 report by the University of California found that between 1997

and 2007, the deportation of lawful permanent residents left as many as

100,000 children in the United States without a parent.

_{A similar study}

conducted by Human Rights Watch, analyzing ICE data obtained after a

a misdemeanor arrest for selling marijuana); Stephanie Siek, Germany’s ‘Brown Babies’:

The Difficult Identities of Post-War Black Children of GIs, SPIEGEL ONLINE (Oct. 13,

2009), http://www.spiegel.de/international/germany/0,1518,druck-651989,00.html (discuss- ing adoptee and U.S. military veteran Rudi Richardson deported to Germany following arrests for drug use and petty theft. Adopted in 1955, Richardson was deported in 2003); Rebecca Walsh, Editorial, Meth, Adoption, Deportation, SALT LAKETRIB., July 27, 2008,

http://www.sltrib.com/news/ci_10011361 (discussing adoptee Kairi Shepherd, who is facing deportation to India—where she was adopted at three months old).

284. Vandello, supra note 247, at 771. Judge Vandello writes:

I see cases such as that of a young man who has been in the United States since he was six months old and is now facing deportation to the Philippines, a country he knows virtually nothing about. And there is absolutely no possibility of his remaining in the United States.

Id.

285. Memije v. Gonzales, 481 F.3d 1163, 1165–66 (9th Cir. 2007) (Pregerson, J., dis- senting) (quoting Cabrera-Alvarez v. Gonzales, 423 F.3d 1006, 1015 (9th Cir. 2005)).

286. 53 CONG. REC. 5169 (1916) (statement of Rep. Adolph Sabath).

287. Id.

288. INT’L HUMAN RIGHTS LAW CLINIC, UNIV.OF CAL., BERKELEY, SCH.OF LAW,ET. AL., IN THE CHILD’S BEST INTEREST? THE CONSEQUENCES OF LOSING A LAWFUL IMMI-

two-year Freedom of Information Act (FOIA) battle, found that between

1997 and 2007, 1,012,734 people lost a family member to deportation.

Both studies advocated strongly for a return of judicial discretion, which

would allow the consideration of factors including family members in the

United States and the hardship those persons would face if the alien were

removed. These studies and others contrast the lack of judicial discretion

in cases in which aliens are removed from the United States with the type

of discretion afforded to aliens facing removal from other First-World

countries.

In failing to afford judges the exercise of discretion based on harmful

effects deportation may cause to an alien’s family, the United States

stands somewhat alone. While allowing for the removal of the equivalent

of lawful permanent residents, the European Union requires that mem-

ber states must consider factors including family ties and hardship to fam-

ily members before deporting a resident alien.

_{The European High}

Court of Human Rights has also held that such deportations are only

justified when a threat to public safety or the public interest outweighs

the destructive effect the removal will have on the alien’s family.

_Ca-

nada created its own version of the United States’ 1996 immigration re-

forms in the Immigration and Refugee Protection Act (IRPA), enacted in

GRANT PARENT TO DEPORTATION 4 (March 2010), available at http://www.law.berke-

ley.edu/files/Human_Rights_report.pdf [hereinafter INT’L HUMAN RIGHTS LAW CLINIC].

289. HUMAN RIGHTS WATCH, FORCED APART (BY THE NUMBERS), supra note 224.

290. The Human Rights Watch study also notes that the International Covenant on Civil and Political Rights (ICCPR), ratified by the United States, provides:

“[a]n Alien lawfully in the territory of a State Party to the present covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.”

International Covenant on Civil and Political Rights (ICCPR), adopted Dec. 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, Ratifications and Reservations for the International Covenant on Civil and Political Rights, available at http://treaties.un.org/ Pages/ViewDetails.aspx?src=TREATY&id=322&chapter=4&lang=en art. 13. For a more detailed explanation of ICCPR in the context of American criminal law see Terrence Rog- ers, Using International Human Rights Law to Combat Racial Discrimination in the U.S.

Justice System, 14 SCHOLAR 375 (2011); see also Adam Collicelli, Note, Affording Discre-

tion to Immigration Judges: A Comparison of Removal Proceedings in the United States and Canada, 32 B.C. INT’L & COMP. L. REV. 115, 117 (2009) (contrasting the removal process

of the United States with Canada).

291. Council Directive 2003/109/EC (2003) concerning the status of third-country na- tionals who are long-term residents.

292. Berrehab v. the Netherlands, 138 Eur. Ct. H.R. ¶ 29 (ser.A) (1988); Mehemi v. France, 1997-VI Eur. Ct. H.R. ¶ 31 (1959).

2001.

_{Although IRPA did strip some degree of discretion from Cana-}

dian courts, it still left the reviewing judicial body, the Immigration and

Refugee Board Appeal Division, with the ability to exercise discretion

and prevent removal on “humanitarian and compassionate” grounds, but

only if the court “has decided that the foreign national is a member of the

family class and that their sponsor is a sponsor within the meaning of the

regulations.”

Various solutions have been proposed to bring the position of the

United States more in line with other First-World nations’ immigration

policies on this point. One such suggestion is the Child Citizen Protection

Act (CCPA), which was re-introduced to Congress in January of 2011 to

the 111th Congress as H.R. 250 by author Rep. Jose Serrano (D-NY).

This legislation suggests amending the INA to authorize immigration

judges to exercise discretion in the removal of the alien parent of a citizen

child. At the time of publication, this legislation has not been passed.