Publication Date

6-2011

Journal

University of Pennsylvania Journal of Constitutional Law

Abstract

Over one hundred years ago, the Supreme Court emphatically declared that deportation proceedings are civil, not criminal, in nature. As a result, none of the nearly 400,000 individuals who were deported last year enjoyed any of the constitutional protections afforded to criminal defendants under the Sixth or Eighth Amendments. Among those 400,000 were numerous detained juveniles and mentally ill individuals who, as a result of the civil designation, were forced to navigate the labyrinth of immigration law alone, without appointed counsel. Others were lawul permanent residents who had pled guilty to minor offenses upon the correct advice of counsel that they could not be deported-only to have Congress, unbound by the criminal prohibition against ex post facto laws, retroactively changed the law and subject them to deportation. The dichotomy between the gravity of the liberty interest at stake in these proceedings-a lifetime of exile from homes and families in the United States-and the relative dearth of procedural protections afforded respondents, has always been intuitively unjust to many. However, over the past twenty years, as immigration and criminal law have become intertwined as never before, the intuitive sense of many has matured into a scholarly movement exploring the criminalization of immigration laie. This movement has taken aim at the incoherence of Leportation's civil designation.

Until recently, there was little reason to think the Supreme Court would wade into the waters of the resurgent debate over the nature of deportation proceedings. In Padilla v. Kentucky, 130 S.Ct. 1473 (2010), however, the Court surprised almost everyone as it went to great length to chrnicle the criminalization of immigration law and ultimately concluded that deportation is "uniquely difficult to classify." The immediate impact of the Padilla decision is the critical recognition that criminal defendants have a right to be advised by their attorneys if a plea they are contemplating will result in deportation. However, I argue, that in time Padilla may come to stand for something much more significant in immigration jurisprudence. When we read Padilla in the context of the Supreme Court s evolving immigration jurisprudence, there is good reason to believe that it is a critical pivot point for the Court. Padilla marks the beginning of a significant reconceptualization of the nature of deportation toward the realization that it is neither truly civil nor criminal. Rather, deportation is different. It is a unique legal animal that lives in the crease between the civil and criminal labels. This Article explores the evolving arch of Supreme Court jurisprudence regarding the quasi-criminal nature of deportation proceedings and articulates a principled mechanism to define the scope of the rights afforded to individuals facing deportation under this new framework.

Volume

13

Issue

5

First Page

1299

Last Page

1362

Publisher

University of Pennsylvania Carey Law School

Disciplines

Immigration Law | Jurisprudence | Law

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