Wednesday, April 11, 2012

Exploring “Discretion” and “Proportionality” in Immigration

The concepts of discretion and proportionality are deeply ingrained in the American justice system. When creating and enforcing the law, government officials must constantly evaluate when and where to apply the law, and what constitutes a fair punishment. Yet as states increasingly get into the business of immigration enforcement, and as Congress continues to propose more punitive consequences for immigration violations, the concepts of discretion and proportionality have been lost.

Today, the Immigration Policy Center releases two new papers exploring these two important legal concepts:

Proportionality in Immigration Law: Does the Punishment Fit the Crime in Immigration Court?, by Michael Wishnie, suggests that understanding the use of proportionality in criminal and civil law offers immigration practitioners a new way to challenge the status quo, particularly in cases where the underlying basis for the removal order and the resulting consequences of removal are so disparate. “Proportionality is the notion that the severity of a sanction should not be excessive in relation to the gravity of an offense,” said Michael Wishnie. “The principle is ancient and nearly uncontestable, and its vitality is well established in numerous areas of criminal and civil law, in the United States and abroad. The Constitution does not compel mercy, but it does require proportionality. Principles of proportionality should also find expression in immigration policy, whether implemented at the federal, state, or local level.”

Prosecutorial Discretion in Context: How Discretion is Exercised Throughout Our Immigration System, by Hiroshi Motomura, traces the role of discretion throughout the immigration enforcement process. Understanding this role is important not only in individual cases, but also in how policymakers write regulations and draft laws. Knowing how the enforcement system anticipates and incorporates discretion is key to understanding how our immigration laws work., “Discretion is exercised at many stages of the enforcement process. The discretion that has the most practical significance is the discretion to arrest or stop people, even for non–immigration matters, and then to put them into contact with federal immigration enforcement,” said Hiroshi Motomura. “I’m concerned that state and local police are making more and more of these crucial decisions and that the federal government is allowing this to happen.”


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