The Normative & Historical Cases for Proportional Deportation

Is citizenship status a legitimate basis for allocating rights in the United States? In immigration law the right to remain 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 a normative and historical argument 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].” The right to remain for noncitizens is based on two principles — connection and proportionality. The jus nexi principle provides a basis for identifying members of the polity. Members have a heightened liberty interest in remaining in the United States. Deportation for minor criminal activity is an illegitimate deprivation of the liberty interest to remain in the United States because it is disproportionate. The first comprehensive crime-based deportation regime in the United States was rooted in both the jus nexi principle and proportionality. Reliance on these foundational norms has diminished and must be restored to achieve a more just deportation regime. In order to realize this goal the right to remain cannot depend on citizenship status.