International Law Scholar Examines U.S. Immigration Policies in Light of International Legal Norms

A Q&A with Professor Angela Banks on her work-in-progress, "Sovereignty, Deference, and Deportation: Regulating the Power to Deport in the United States and Europe."

Angela Banks joined the faculty in 2007. She is a graduate of Harvard Law School, where she served on the Harvard Law Review and the Harvard International Law Journal. Prior to law school, Professor Banks studied at the University of Oxford Centre for Socio-Legal Studies as a Marshall Scholar, where she earned a Master of Letters in Sociology. Prior to joining the faculty, Professor Banks was the Reginald F. Lewis Fellow for Law Teaching at Harvard Law School. She has also served as a legal advisor to Judge Gabrielle Kirk McDonald at the Iran-United States Claims Tribunal; an associate at Wilmer, Cutler & Pickering in Washington, DC; and as law clerk for Judge Carlos F. Lucero of the U.S. Court of Appeals for the Tenth Circuit. Professor Banks received her B.A. in sociology, summa cum laude, from Spelman College.

Q: How did you become interested in writing about immigration?

A:  My interest in immigration began when I was living in the Netherlands.  At the time that I moved there, 2002, immigration was a hot topic.  There was a lot of public dialogue about the integration of migrants into Dutch society. Political parties, such as Pim Fortuyn's List, were beginning to call for ending immigration due to these integration concerns.  Months before I arrived in The Hague, the head of this political party, Pim Fortuyn, was assassinated.  While Mr. Fortuyn was murdered by an animal-rights advocate, his death heightened the public discussion of migrant integration.

As I became interested in the issue of migrant integration I began looking for statistics regarding the demographics of the Dutch population.  I was surprised to find that the population was tracked based on country of origin rather than race or ethnicity.   Second and third generation migrants were tracked based on their parents' or grandparents' country of origin. Consequently I became very interested in who was eligible for Dutch citizenship and how this status was granted, the basis upon which individual rights were granted, and what sort of obligations noncitizens had to the Netherlands as a state. These issues led me to some of the questions I have been exploring in this paper.

Q: The basic problem your paper examines is whether or not international human rights principles limit a state's ability to deport noncitizens.  How do international human rights principles impact countries' immigration policies?

A: International law does not regulate immigration directly, except in the area of refugees and asylum.  Outside of that context international legal rules and principles can indirectly limit a state's ability to deport a noncitizen.  For example, both the International Covenant on Civil and Political Rights ("ICCPR") and the European Convention on Human Rights protect an individual's right to family life from state interference.  So if a state party to one of these treaties moves to deport a noncitizen who has family within the country of residence, the question becomes under what conditions can that person be deported without violating their right to family life.  The Human Rights Committee, the body responsible for enforcing the ICCPR, and the European Court of Human Rights use proportionality review to strike the correct balance between the state's interests and the noncitizen's rights.

The situation in the United States is very different.  While the United States has ratified the ICCPR, it is not a self-executing treaty and Congress has not enacted implementing legislation.  Therefore U.S. courts do not review claims alleging a violation of the ICCPR.  Thus individual challenges to deportation decisions based on the ICCPR right to family life are not litigated in U.S. courts. 

However, most of the rights protected within this treaty are protected by the U.S. Constitution.  Yet because of the plenary power doctrine, U.S. courts provide only minimal scrutiny to substantive constitutional challenges to individual deportation decisions.  The standard of review utilized contrasts sharply with that used by the Human Rights Committee and the European Court of Human Rights.  Our system uses discretionary relief from deportation rather than substantive constitutional rights to address family unification concerns.  

A: In the paper I argue that the significant difference between the U.S. and European approaches to judicial monitoring of the state's use of the power to deport is the dominant analytical frame utilized.  

The United States' immigration jurisprudence is rooted in a foreign affairs/national security frame, while the European immigration jurisprudence is based on a public order frame.  The use of these different frames leads the courts to have different understandings of the state interests at stake in regulating immigration, particularly deportation.

The use of a foreign affairs/national security frame emphasizes the connection between these issues and immigration. Based on this understanding of immigration, separation of powers issues arise that support the use of deferential standards of review.  The use of a public order frame does not raise the same sensitive political concerns, which enables the use of standards of review that provide more judicial scrutiny.

A: Our current laws actually do prohibit the entry individuals likely to become a public charge, but you raise a great issue.  I commonly ask students in my immigration law classes the following question: would a U.S. court scrutinize a statute barring Muslims from entering the United States based on an equal protection challenge?  There is a real question as to whether or not a court would provide anything more than deferential review to such a constitutional challenge because rules regarding entry - who can come to the United States - is one area where the Supreme Court has given Congress and the Executive a lot of deference.  

Two interesting cases to watch in this area are American Academy of Religion v. Napolitano and American Sociological Association v. Clinton.  These cases involve scholars who were denied visas for admission to the United States who have raised First Amendment challenges to their exclusion.  The ACLU is arguing that these individuals were denied visas based on their political views.  It will be interesting to see what standards of review the courts apply in these cases.

A: The difference is seen in the role that courts play in monitoring the ways in which the state exercises the power to deport noncitizens.  Within European states, the judiciary plays a very active role by utilizing proportionality review to examine claims that a decision to deport a noncitizen violates a noncitizen's fundamental rights.  The judiciary in the United States plays a much less active role due to its use of deferential standards of review.  The prevalence of a foreign affairs/national security frame versus a public order frame plays a significant role in explaining these different approaches to the role of the judiciary in the regulation of immigration, specifically deportation.

A: I think that non-legal strategies as well as legal strategies are going to play a big role here.  Both foreign affairs and national security have played a prominent role in U.S. immigration jurisprudence for centuries.  At times immigration does implicate foreign affairs or national security, but I would argue this is generally the exception rather than the rule.  At this time in the United States most immigration matters involve issues such as economic activity and family unity.  Yet within both the public discourse on immigration and the immigration jurisprudence, the connection between immigration and national security is overemphasized.  Specific events like 9/11 understandably fuel this perception, yet according to Department of Homeland Security statistics very few deportations are related to national security or related reasons.  This is despite the fact that deporting a noncitizen due to national security concerns is relatively easy to accomplish.

Non-legal strategies will play an important role in expanding the public's understanding of the vast array of state interests involved in regulating immigration.  Such strategies would include writing op-eds discussing the nexus between immigration and issues other than national security, better distribution of government statistics regarding the reasons for actual deportations, or incorporating more information on the ways in which immigration has impacted American society in K-12 education.  Additionally within the legal realm, locating the federal government's authority to regulate immigration in areas other than foreign affairs would provide space for heightened judicial review in certain cases.

A: In President Obama's speech on election night, he spoke about the role of the United States in the international community, noting that our power does not stem from military might but from moral example.  I think the time has come for the judiciary to play a more active role in ensuring that the actions of Congress and the Executive in the area of deportation comport with the U.S. Constitution in addition to our international legal obligations.  The jurisprudence of the European Court of Human Rights and other European states demonstrates that greater judicial scrutiny does not have to come at the expense of national security.