Excerpted From: Christian Sanchez Leon, The Impact of Insulating Immigration Courts from Judicial Review on America's New Generation of Families, 80 Washington and Lee Law Review 1297 (Summer, 2023} (251 Footnotes) (Full Document)

ChristianSanchezLeonThe United States's rigid and archaic immigration laws have disastrous effects on families across the country and have inspired vivid debates across political divides. Both sides of the political spectrum consider the effect of these laws unfair, especially when those laws strip children from their families. But since the current polarized nature of U.S. politics makes bipartisan cooperation highly unlikely, we must explore other avenues to bring an end to the daily violation of human rights that occurs in our immigration system. Although scholars have proposed major changes to this system, the introduction of more minor changes to particular provisions within the Immigration and Nationality Act (“INA”), especially the ones that create the most evident injustices, is more likely to be successful.

This Note addresses one of the clearest examples of the systematic violations of rights of our immigration system: its treatment of mixed-status immigrant families. A mixed-status family is a family whose members include one or more U.S. citizens or lawful permanent residents and at least one undocumented noncitizen. As of 2020, there were at least 5.5 million U.S. citizens or lawful permanent residents that lived in a mixed-status family, out of which 3.7 million were children that lived with at least one undocumented parent.

Let us explore the injustices mixed-families face in the hands of the U.S. by considering a potential case within the group of 3.7 million children living in mixed-status families. Sara is eight years old and was born in the United States. Sara's mother is a U.S. citizen and Sara's father is an undocumented immigrant. Sara's father works every day to support his family and has never committed a crime. Despite Sara's father's clean record, the U.S. government wanted to deport him. In front of the immigration court, Sara's father raised a non-LPR Cancellation of Removal defense. Although her father met all the requirements under this defense, the court ruled to deport Sara's father after misapplying its own precedent. Sara's father appealed this decision to the Board of Immigration Appeals (“BIA”), which wrongly affirmed the immigration court's decision. After Sara's father went to the federal judiciary to fix this wrong, he encountered an unexpected hurdle. The federal judge refused to interfere with the BIA's decision, reading a jurisdiction-stripping statute too broadly in finding that he lacked jurisdiction to hear the case. At this point, the alleged protections offered by both the immigration system and the federal judiciary have blatantly failed Sara's father. Shortly after, Sara's father was deported back to his country of citizenship. This left Sara and her mother, both U.S. citizens, with two options: preserve their family and follow Sara's father to a foreign country or stay, and live without their father and husband. This Note argues that this scenario clearly violates the right to family unity that, in other contexts, this country has recognized from its foundation. It then proceeds to lay out the jurisprudence framework under which courts can formally recognize the right to family unity as a fundamental right protected by the courts to put a stop to the injustice.

This Note focuses on the defense of cancellation of removal for non-permanent residents under INA § 240A(b)(1) (“non-LPR cancellation of removal”), which is a critical defense to deportation available to certain noncitizens with family in the U.S. Strengthening this defense to deportation would improve the lives of millions of undocumented individuals by decreasing the disruption of the family nucleus.

This Note begins by exploring the problematic structure of our immigration system. It continues by evaluating the insulation of the immigration system from Article III review--noting how this violates parents' basic right to the care, custody, and control of their children. This Note goes on to demonstrate that our current regime does not correctly balance the damage that it does to the integrity of families across the country because it does not advance or protect any national security interest. To stop the current trend, this Note proposes that federal courts should recognize the right to family unity as a fundamental right. This right should be balanced in immigration proceedings in which there are no tangible national security concerns. Alternatively, this Note proposes that circuit courts across the country should limit reviewability to only questions of fact rather than mixed questions of fact and law.

[. . .]

Thirty-eight years ago, Senator Charles E. Grassley drafted and passed the Parental Rights and Responsibilities Act of 1995. In this bill, the Senate found that a “tradition of western civilization recognizes that parents have the responsibility to love, nurture, train, and protect their children.” The Senate explained that, due to the failure of the judiciary to recognize the rights of parents as a fundamental right, parents had “face[d] increasing intrusions into their legitimate decisions and prerogatives by government agencies.” However, the Senate excluded from the text of the statute that, in order for parents to be protected against intrusive governmental forces when nurturing their child, the parents must be U.S. citizens.

We must recognize that the U.S. government believes that undocumented individuals and their families are entitled to fewer protections than U.S. citizens. More flagrantly, our system openly endorses a regime in which U.S. citizen children are given different protections to grow in a cohesive family nucleus depending on the immigration status of their parents. Our courts have the legal tools at their disposal to put a stop to this discriminatory regime. Judicial recognition of the fundamental right to family unity would protect immigrants and their families as they go through immigration proceedings. This is the necessary first step towards a more just immigration system.

J.D. Candidate, May 2024, Washington and Lee University School of Law.