Living Under the Sword of Damocles

Guest blogger: Maria Zhurnalova-Juppunov, second-year law student, University of San Francisco:

“You could be a wife and mother to U.S. citizen children, contributing to your community and working to support your family, and they could deport you because of a shoplifting conviction you committed 15 years ago, despite years of rehabilitation in the meantime,” the legal director of the Capital Area Immigrants’ Rights (CAIR) Coalition explained to a family whose member was facing deportation proceedings for a misdemeanor check fraud committed when he was 17. See My Brother Was Almost Deported.

While for most crimes statutes of limitations apply, in the immigration context, removal proceedings may be initiated and completed against noncitizens without regard to how long time has passed since the crime triggering removal was committed and the punishment served. Thus, the possibility of removal constantly may hang over the head of the person and threaten to disrupt her life. I would argue that there is no good reason why a statute of limitation on removability should not be applied in the immigration context and that the reasons why such statutes are applicable to most crimes hold equal sway for removal proceedings.

One of the primary justifications for a statute of limitations barring prosecution for old crimes is the recognized interest of the criminal to repose and to be free to lead a life without the constant threat of prosecution and imposition of criminal punishment. (See Efficient Time Bars: A New Rationale for the Existence of Statutes of Limitations in Criminal Law, 31 J. Legal Stud. 99, 99). Furthermore a statute of limitation furthers the goals of rehabilitation, for without a statute of limitation no matter how exemplary a life a person has led since the commission of the crime, she could still be prosecuted. The same reasons apply in the immigration context.

Deportation proceedings have been defined as not resulting in a criminal punishment but as civil in nature because “[t]he order of deportation is not a punishment for crime,” but rather, “a method of enforcing the return to his own country of an alien who has not complied with the conditions upon the performance of which the government of the nation . . . has determined that his continuing to reside here shall depend.”); Wong Wing v. United States, 163 U.S. 228, 140 (1896). However, this legal distinction between criminal punishment and the civil “penalty” of removal is largely illusory for practical purposes, as Justice Jackson observed in his dissent (“[These] proceedings technically are not criminal; but practically they are for they extend the criminal process of sentencing to include on the same convictions an additional punishment of deportation. Jordan v. De George, 341 U.S. 223, 243 [1951] ([Jackson, J., dissenting]). The total disruption of a person’s life, her separation from family and friends, and banishment to a country where the person has weak or no connections at all is very similar in effect to a punishment. Fong Yue Ting v. United States, 149 U.S. 698, 740 (1893) (Brewer, J., dissenting). The drastic consequences of removal also were more recently recognized in Padilla v. Kentucky, 130 S.Ct. 1473 (2010). Furthermore, the detention accompanying proceedings and the resultant loss of liberty also are typical of punishment, although technically they are incidental to the civil proceedings of removal.

A reasonable statute of limitation is even more justified for removal proceedings triggered by a criminal conviction than it is for criminal proceedings. After all, the person has already been punished for her offense and paid her dues to society. Thus the balance tilts even heavier towards not imposing the additional “civil penalty” of deportation years after criminal justice has already been dispensed and the person has rehabilitated and built a life.

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