Considering a Statute of Limitations for Deportation

Guest blogger: Carlos Cueva-Alegria, second-year law student, University of San Francisco:

Despite immigration consequences that resemble criminal punishment such as prolonged “detention,” courts have continued to hold that removal is a civil proceeding and not a criminal one. Conceding this point, however, does not mean that we should ignore real problems in spite of the civil label given to immigration. Almost all civil actions have statutes of limitations, and even criminal cases have statute of limitations, so why not immigration?

To begin with, ICE is authorized to use prosecutorial discretion in deciding which cases to pursue. One main reason is an economic one, as ICE realizes that it does not have the resources to pursue every violation equally. ICE realizes that there are major violations, small violations, and that every case is fact specific. For example, ICE has the option to not deport someone even if they have violated a law that technically makes them deportable. Depending on the facts of the case, some non-citizens are not deported by ICE as a matter of discretion. Having a statute of limitations would simply codify existing discretion. This would also force ICE to focus on major violations because it would not have unlimited time to deport those who are low priority.

Aside from the economic reason for prosecutorial discretion, there is also a humane reason. There have been numerous cases of undocumented immigrants who have been deported after living in the United States for many years. While here, life does not stop. This includes establishing roots and having families—including children who are U.S. citizens. According to DHS, between January and June 2011, 46,486 non-citizens with U.S. citizen children were deported (Immigration Enforcement in the United States, The Rise of a Formidable Machinery, p. 135). Separating families should not be regarded as the proper way to enforce immigration laws or to send a message to other undocumented immigrants. This would be like allowing torture as a way to enforce criminal laws in order to send a message to future criminals. Establishing a statute of limitations on deportations would end this inhumane practice.

Opponents might argue that a statute of limitations would only encourage undocumented immigrants to come to the United States in the hopes of escaping detection and benefitting for a statute of limitations. However, many undocumented immigrants do not come here with the hopes or expectations of remaining here permanently. The main motivation for many undocumented immigrants is the prospects of finding a job that pays so much better than what they can find at home that they are willing to take the risk. (Hiroshi Motomura, What Is “Comprehensive Immigration Reform”? Taking the Long View, 63 Arkansas Law Review 225 (2010)) This suggests that undocumented immigrants will continue to arrive if they still believe that they will be able to find employment even for short amount of time. A statute of limitations would only benefit those who have developed strong ties to the community, such as those with US citizen children or small business owners.

The difficulty of a statute of limitations is not the policy reasons behind it, but rather what the time period should be. This time period would need to be balanced with the compelling interest that the government has in enforcing immigration laws. Any number that is chosen will likely result in criticism, but a prospective immigrant married to a U.S. is given a temporary 2 year green card prior to granting of permanent residence. Thus, a 2 year statute of limitations for deportations seems reasonably long enough to allow the government to enforce its immigration laws, and short enough that it would save many undocumented immigrants who have developed strong ties to the community to remain without fear of having those ties ripped away. Once that time limit has passed, some type of legal status should be granted, either temporary green card or a permanent one.

A statute of limitations would only apply to those who have not broken other immigration laws aside from being undocumented. Thus an undocumented immigrant who later becomes documented after the statute of limitations has passed could still be deportable if they violate any laws which make them deportable. There is a limit to the amount of help that this statute of limitations would provide, but it would at the very least improve a situation that currently is dire to many undocumented immigrants. To end the inhumane treatment of deporting non-citizens after years of living in the United States, deportation laws themselves would need to be reformed, Most importantly the laws that treat citizens and non-citizens differently with regards to crimes that now lead to deportation. For a statute of limitations to be truly successful, other laws would need to be reformed as well, but this is a good start. A statute of limitations would not only improve the lives of many undocumented immigrants, it would also improve the lives of the citizens who are impacted the most by their relative’s deportation.

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