Remedies for the wrongly deported: territoriality, finality, and the significance of departure
Originally published in University of Hawaii Law Review, Vol. 33, pp. 139-192, 2011.
In recent years, thousands of longtime legal residents have been deported based on erroneous interpretations of the 1996 amendments to the Immigration and Nationality Act. Their return to the United States is precluded by a pair of Department of Justice regulations barring immigration judges and the Board of Immigration Appeals (BIA) from correcting errors in removal proceedings once a deportee has left the United States. Advocates have begun to take aim at these regulations through litigation and administrative advocacy. This article, the first scholarly work to consider the phenomenon of wrongful deportation and the arguments for and against the “departure bar” on administrative reopening, adds a new dimension to this emerging debate. It argues that repeal or judicial invalidation of the departure bar will not, in itself, provide a meaningful remedy for individuals who have been wrongly deported, as evidenced by recent unpublished decisions in which the BIA has continued to deny relief to deportees even in circuits that have struck down the departure bar. To lay the groundwork for a more comprehensive approach, this Article considers departure from the perspectives of both territoriality and finality, as well as addressing the prudential concerns that the BIA has cited in defense of the departure bar. It draws on a wide range of material within and outside immigration law to argue that neither established doctrine nor prudential concerns justify the Board’s view of departure from the United States as inherently transformative.
University of Hawaii Law Review, Vol. 33, pp. 139-192, 2011.