Wednesday, September 7, 2022

Immigration Article of the Day: When Time Stands Still: Eliminating Immigration "Death Sentences" by Lori Nessel

Nessel-lori-lg

When Time Stands Still: Eliminating Immigration "Death Sentences" by Lori Nessel, SMU Law Review, Vol. 75, No. 369, 2022

Abstract

The nation prides itself on the notion of rebirth—the ideal that one could leave their past behind and come to the U.S. and seize the opportunities available to advance and re-make oneself. Yet, when it comes to immigration law, neither the passage of time nor a life full of positive equities ameliorates past wrongdoing or allows for future opportunities. In the words of the Senate Subcommittee when Congress permanently removed the statute of limitations for deportation from the Immigration and Nationality Act in 1952, “[i]f the cause for exclusion existed at the time of entry, it is believed that such aliens are just as undesirable at any subsequent time…” Time stands still in significant and detrimental ways throughout our immigration law. An immigrant’s manner of entry into the U.S. can result in a lifetime bar to due process in removal proceedings, and a finding that an immigrant ever filed a “frivolous” asylum application will bar her from any immigration benefit throughout her life, even if she withdrew the application and procured no benefit through it. Detained noncitizens facing removal are routinely denied bond because of criminal charges that have been filed against them, even absent any finding of guilt. This occurs even if the accuser withdraws their complaint; the very fact that criminal charges were brought signifies danger and results in ongoing detention.

In this article, I examine a few of these provisions that result in life-time consequences, as well as the lack of a statute of limitations or laches defense in immigration law. After exploring jurisprudence and legislative history in each of these areas, I analyze the theory behind statutes of limitation and laches defenses in other areas of law to argue for a statute of limitations for deportation proceedings, and for a time-limit on penalties that attach to a single bad act, like filing a frivolous asylum application. I also argue that noncitizens should be entitled to the same presumption of innocence as in the criminal justice system with regards to bond determinations. This article incorporates a broader moral and policy-based argument that after a certain period of time, a noncitizen’s membership in the nation is so well-established and meaningful that deportation, or the denial of immigration benefits based on a past bad act, should no longer be possible.

KJ

https://lawprofessors.typepad.com/immigration/2022/09/immigration-article-of-the-day-when-time-stands-still-eliminating-immigration-death-sentences-by-lor.html

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