Judicial Review of Disproportionate (or Retaliatory) Deportation
Judicial Review of Disproportionate (or Retaliator y) Deportation
Jason A. Cade 0 1 2
0 University of Georgia School of Law , USA
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2 Jason A. Cade, Judicial Review of Disproportionate (or Retaliatory) Deportation, 75 Wash. & Lee L
Part of the Administrative Law Commons; and the Immigration Law Commons
Judicial Review of Disproportionate
(or Retaliatory) Deportation
Jason A. Cade*
This Article focuses attention on two recent and notable federal
court opinions considering challenges to Trump Administration
deportation decisions. While finding no statutory bar to the
noncitizens? detention and deportation in these cases, the court in
each instance paused to highlight the injustice of the removal
decisions. This Article places the opinions in the context of emerging
immigration enforcement trends, which reflect a growing
indifference to disproportionate treatment as well as enforcement
actions founded on retaliation for the exercise of constitutional
rights. Judicial decisions like the ones considered here serve vital
functions in the cause of immigration law reform even as they
uphold government enforcement decisions. They help motivate
advocates, promote inter-branch dialogue, and provide progress
toward judicial innovation. This Article focuses particular
attention on this steps-on-the-way function, suggesting how the
concerns these courts have expressed may one day soon produce a
greater measure of judicial scrutiny of removal decisions on
* Associate Professor of Law, University of Georgia School of Law. My
gratitude to David Baluarte and the Washington and Lee Law Review for
organizing an outstanding symposium and inviting me to contribute. Thanks to
Heidi Kitrosser, Carrie Rosenbaum, and especially Dan Coenen for helpful
comments on a draft. I am also grateful to Juliet Stumpf, Rachel Rosenbloom,
Michael Kagan, Shoba Sivaprasad Wadhia, and Chris Lasch for their thoughts at
a works-in-progress workshop. Mary Honeychurch and Zack Lindsey provided
invaluable research assistance.
On May 30, 2017, Judge Stephen Reinhardt authored an
opinion denying Andres Maga?a Ortiz?s emergency request that
the Ninth Circuit temporarily block the government from
deporting him to Mexico.1 Even while finding that the court lacked
authority to grant a stay of removal in the case, Judge Reinhardt
penned a scathing five-page opinion explaining why the
government?s decision to deport Mr. Ortiz was ?inhumane? and
?contrary to the values of this nation and its legal system.?2
1. See Ortiz v. Sessions (Ortiz II), 857 F.3d 966, 966?67 (9th Cir. 2017)
(denying Mr. Ortiz?s request for stay of removal).
2. Id. at 968.
In a decision issued on January 29, 2018, Judge Katherine
Forrest of the Southern District of New York likewise found no
statutory irregularities in the Department of Homeland Security?s
decision to detain and enforce a removal order against Ravideth
Ragbir.3 Nevertheless, Judge Forrest granted Mr. Ragbir?s habeas
petition, holding that the Due Process Clause required
Immigration and Customs Enforcement (ICE) to release him so
that he could get his affairs in order and say goodbye to his family
prior to deportation. This result was required, she explained,
because ?this country allowed petitioner to become a part of our
community fabric, allowed him to build a life with and among
us . . . .?4 Additionally, Judge Forrest noted with ?grave concern?
allegations that the government was targeting Ragbir for removal
on the basis of his political advocacy.5 Those concerns are now front
and center in related litigation.6
In this Article, I briefly discuss each of these notable decisions
and then place them in a larger context, explaining their
significance within the Trump Administration?s deportation
regime. Present-day interior immigration enforcement is marked
by two major trends. First, the Department of Homeland Security
(DHS) has abandoned the prior Administration?s priority-driven
enforcement policies and adopted a mass and indiscriminate
approach to enforcement. The result is that the DHS now
endeavors to deport virtually anyone who is deportable, whether
or not the individual can demonstrate the sort of significant
positive equities, or lack of negative ones, that previously helped
3. See Ragbir v. Sessions, 18-cv-236, 2018 WL 623557, at *2
(?The Court agrees that the statutory scheme governing petitioner?s
status is properly read to allow for his removal without further right of contest.?).
4. See id. at *2 (granting Mr. Ragbir?s habeas petition).
5. See id. at *1 n.1 (?The Court also notes with grave concern the argument
that petitioner has been targeted as a result of his speech and political advocacy
on behalf of immigrants? rights and social justice.?).
6. See Ragbir v. Homan, No. 1:18-cv-01159, 2018 WL 3038494
June 19, 2018)
; Immigrant Rights Leader Ravi Ragbir and Community
Organizations File First Amendment Lawsuit Challenging the Targeting of
Immigrant Rights Activists, NAT?L IMMIGR. PROJECT (Feb. 9, 2018),
(last visited Sept. 21, 2018) (?The lawsuit seeks . . . a preliminary and permanent
injunction restraining the government from selectively enforcing immigration
laws against individuals based on protected political speech.?) (on file with the
Washington and Lee Law Review).
stave off removal. Second, though to a less prevalent extent,
current DHS practice suggests a growing pattern of what appears
to be targeted retaliatory action against immigrant activists who
openly express criticism of the Administration?s policies through
protected speech activities.7
Especially against this backdrop, judicial decisions such as
those considered in this Article serve important functions. They
attract media attention and galvanize the efforts of advocates to
fight and seek reform of the Administration?s policies, both on
behalf of particular individuals and more broadly. They also
function as signals to the political branches that policy or rule
changes are needed. Finally, the decisions represent an accretion
of authority toward more substantive proportionality review. As
the judicial pronouncements (and related litigation) considered in
this Article illustrate, the harsh results caused by the
Administration?s policies may well lead judges to engage in a more
searching review of enforcement actions. Courts increasingly will
be confronted with difficult questions about proportionality, due
process, equal protection, and protected speech. This Article
outlines doctrinal developments that may eventually cause courts
to stay excessively harsh but otherwise valid removal orders on
substantive constitutional grounds. A close look at the Court?s
recent jurisprudence in the deportation context reveals increasing
sensitivity to proportionality concerns, lending additional weight
to new challenges based on due process, the First Amendment, or
arbitrary and capricious review. Of particular importance are
hybrid claims, in which the joint force of multiple constitutional
violations may combine to justify judicial intervention in egregious
7. See, e.g., John Burnett, Immigration Advocates Warn ICE Is Retaliating
for Activism, NPR (March 16, 2018, 10:29 AM), https://www.npr.org/2018/03/16/
visited Sept. 9, 2018) (noting that at least ?two dozen cases of immigrant activists
and volunteers who say they have been arrested or face fines for their work?) (on
file with the Washington and Lee Law Review); Undocumented Activist Targeted
by ICE Asks Immigration Judge to Throw Out Case Based on First Amendment,
MIJENTE (Mar. 13, 2018),
https://mijente.net/2018/03/13/undocumented-activisttargeted-by-ice/ (last visited Sept. 9, 2018) (documenting an immigrant activist?s
argument that she is being singled out for deportation by ICE precisely because
of her years of political activity against the agency) (on file with the Washington
and Lee Law Review); see also infra Part II.B (acknowledging Ragvi Ragbir?s
activism as a particularly concerning factor in his proceedings).
The Article proceeds as follows. Part II discusses the judicial
opinions reviewing challenges to DHS?s decisions to remove Andres
Maga?a Ortiz and Ravi Ragbir, as well as related litigation that
grapples with claims of retaliatory enforcement. This examination
places each decision in the larger context of enforcement trends in
the first year of the Trump Administration. Part III explains the
significance of each decision today, including by showing how they
further dialogue with the political branches and galvanize
awareness and advocacy regarding the issues. Finally, Part IV
considers key legal principles that might enable courts to engage
in more substantive proportionality review of removal orders in
II. Two Notable Lower Court Decisions
A. Ortiz v. Sessions: ?Even the ?Good Hombres? Are Not Safe?8
As Judge Reinhardt recounted, Mr. Ortiz entered the United
States without authorization in 1989 at age fifteen.9 Over three
decades, Mr. Ortiz built a life and deep ties in the United States.10
He worked his way up from fruit-picker to owner of a twenty-acre
coffee farm, while also managing operations on 150 additional
acres that support entrepreneurial efforts by others.11 Ortiz
married a U.S. citizen, built a house, and supported three U.S.
citizen children, currently of high school and college age.12 The
eldest daughter attended University of Hawaii, an education
which Mr. Ortiz financed.13 He paid taxes and contributed to
society in other ways, as well.14 For example, as Judge Reinhardt
explained, Ortiz ?has worked with the United States Department
of Agriculture in researching the pests afflicting Hawaii?s coffee
crop, and agreed to let the government use his farm, without
charge, to conduct a five-year study.?15
DHS initiated removal proceedings against Ortiz in 2011,
apparently on the basis of unauthorized entry and presence in the
United States.16 The immigration judge denied Ortiz?s request for
cancellation of removal or voluntary departure and ordered him
removed on December 22, 2011.17 Nevertheless, and
unsurprisingly in light of his circumstances, Ortiz received
successive stays of removal from DHS, which, Judge Reinhardt
noted, were granted to ?allow him to remain with his family and
pursue available routes to legal status.?18 Notably, Mr. Ortiz?s wife
had filed a family-based petition that would allow him to adjust his
status inside the United States to lawful permanent residence as
the immediate family member of a U.S. citizen.19
In March 2017, however, DHS?in keeping with new policies
implemented following President Trump?s inauguration?denied
any further stays of removal.20 Mr. Ortiz filed a habeas petition in
the district court of Hawaii for an emergency nine month stay, but
it was denied.21
13. See id. (?[Ortiz?s] eldest daughter currently attends the University of
Hawaii, and he is paying for her education.?).
14. See id. (?In his time in this country Magana Ortiz has built a house,
started his own company, and paid his taxes.?).
16. See Ortiz v. Sessions (Ortiz I), CIVIL 17-00210 LEK-KJM, 2017 WL
2234176, at *1
(D. Haw. May 22, 2017)
(?DHS initiated removal proceedings
against Magana Ortiz by filing a Notice to Appear (?NTA?) on March 22, 2011
with the Immigration Court in Honolulu.?).
17. See id. (?The Immigration Judge held a merits hearing and, on December
22, 2011, denied Magana Ortiz?s applications for relief . . . .?).
18. Ortiz II, 857 F.3d at 967.
19. See id. (?Magana Ortiz is currently attempting to obtain legal status on
the basis of his wife?s and children?s citizenship, a process that is well underway.
It has been over a year since his wife, Brenda, submitted her application to have
Magana Ortiz deemed her immediate relative.?).
20. See id.
(?[T]he government on March 21, 2017 reversed its position, and
ordered [Ortiz] to report for removal the next month.?)
21. See Ortiz I, 2017 WL 2234176, at *7 (denying Mr. Ortiz?s habeas
On appeal, the Ninth Circuit agreed that the district court
lacked authority to stay the order.22 Nevertheless, it issued a
searing decision condemning DHS?s failure to grant Ortiz a stay
while his wife?s family-based petition was adjudicated. Judge
Reinhardt described the agency?s removal decision as ?contrary to
the values of this nation and its legal system.?23 This approach to
immigration enforcement, he noted, ?diminishes not only our
country but our courts.?24 He added that ?Ortiz and his family are
in truth not the only victims . . . . Among the others are judges
who, forced to participate in such inhumane acts, suffer a loss of
dignity and humanity as well.?25 As I discuss in Part IV, courts
might yet intervene in ?inhumane? deportation decisions on a more
robust basis than Judge Reinhardt acknowledged. For present
purposes, however, Judge Reinhardt?s takeaway was aptly put:
under the Trump Administration ?even the ?good hombres? are not
One telling feature of the opinion is that Judge Reinhardt
explicitly characterized the substantive interests at stake for Ortiz
and his family as ?rights.?27 In addition to the hardship facing
Ortiz, the court emphasized concerns related to family integrity,
including the children?s ?right to be with their father? and Mrs.
Ortiz?s ?right to be with her husband.?28 As the court noted, none
of them speak Spanish or has ever lived in Mexico.29 Judge
Reinhardt also catalogued significant property interests
implicated by Ortiz?s deportation, including removal from his land,
forfeiture of a substantial business, and disruption of his
investment in his eldest daughter?s education.30 According to the
court, the family will no longer be able to occupy their home after
Ortiz is deported.31
On the government?s side of the ledger, Judge Reinhardt
observed that the underlying immigration offenses in Mr. Ortiz?s
case were not grave or recent. His primary immigration offense
was entering the U.S. without inspection nearly twenty years ago,
before a change in law that made unlawful entry a bar to
adjustment of status to lawful permanent residence.32 The court
noted that Ortiz did have at least one, and possibly two, convictions
for driving under the influence.33 But the most recent of these?if
it was in fact a conviction?occurred fourteen years ago.34 In any
event, the court noted, both offenses involved ?at most? a fine with
probation.35 Indeed, the government itself had conceded during the
underlying proceedings that there was no question as to Ortiz?s
good moral character.36
One reasonable way of summing up the court?s opinion would
be to say that Ortiz?s removal raised significant proportionality
concerns. There were substantial rights at stake, and the balance
of interests as articulated by the Ninth Circuit tipped heavily in
favor of Ortiz. His positive, mitigating equities were unusually
30. See id. at 967 (explaining the property Mr. Ortiz risks losing as a result
31. See id. at 968 n. 2 (?The family?s right to occupy their home will terminate
upon Magana Ortiz?s removal.?).
32. See 8 U.S.C. ?1182(a)(6)(A)(i) (2012) (noncitizens who enter the United
States without inspection are inadmissible); 8 U.S.C. ?1255(a) (2012) (noncitizens
who enter without inspection are ineligible for adjustment of status). The general
bar to adjustment of status for persons who entered without inspection is not
applicable for persons who entered before April 1, 1997. See IRA J. KURZBAN,
IMMIGRATION LAW SOURCEBOOK 129 (14th ed.) (collecting authorities); PAUL
VIRTUE, ACTING EXEC. ASSOC. COMM., INS, Additional Guidance for Implementing
Sections 212(a)(6) and 212(a)(9) of the INA, 5-6 HQ IRT 50/51.2, 96 Act 043 (June
33. See Ortiz II, 857 F.3d 966, 967 (9th Cir. 2017) (?Although he apparently
has two convictions for driving under the influence, the latest of them occurred
fourteen years ago, and he has no history of any other crimes.?).
34. See id. at n. 1 (noting some confusion as to whether Mr. Ortiz?s second
DUI resulted in a conviction).
36. See id. (?Indeed, even the government conceded during the immigration
proceedings that there was no question as to Magana Ortiz?s good moral
high in the face of relatively minor and distant negative factors.
His removal would result in clear and substantial hardship.
Indeed, the penalty imposed by removal was even
greater?perhaps far greater?than the court perceived. Recall
that Ortiz?s wife had filed a pending family petition as immediate
relative.37 Because Ortiz entered the United States prior to April
1, 1997, he was eligible to adjust status to lawful permanent
residence on the basis of this petition without having to leave the
country.38 Once deported, however, Ortiz became subject to two
separate penalties that barred him from lawful reentry for ten
years.39 Thus, this was just the sort of case that, common sense
suggests, warranted the agency?s exercise of discretion to stay
B. Ragbir v. Sessions: ?There Are Times When Statutory Schemes
May Tread on Rights that Are Larger, More Fundamental? 40
Ravidath Ragbir, a well-known and highly respected
community leader in New York City, has resided in the United
States for twenty-five years.41 He became a legal permanent
37. See id. (?Magana Ortiz is currently attempting to obtain legal status on
the basis of his wife?s and children?s citizenship, a process that is well
underway. It has been over a year since his wife, Brenda, submitted her
application to have Magana Ortiz deemed her immediate relative.?). Additionally,
Ortiz would shortly become eligible to immediately benefit from a separate
petition that could be filed by his soon to be twenty-one-year-old U.S. citizen child.
See id. (?This August, his eldest daughter, Victoria, will turn 21, and will also be
able to file an application for her father.?).
38. See supra note 32 and accompanying text (explaining why Mr. Ortiz?s
pre-1997 entry date makes him eligible to adjust his residency status despite
unlawful entry and unauthorized presence). Ortiz would still have to reopen the
prior removal order. But with an approved I-130 and good moral character not in
doubt, this typically would be matter of course.
39. See 8 U.S.C. ? 1182(a)(9)(A)(ii)(I) (2012) (placing a ten-year bar on
readmission for any noncitizen ordered removed); 8 U.S.C. ? 1182(a)(9)(B) (2012)
(establishing a ten-year bar on readmission for anyone who accrued at least one
year of unlawful presence before leaving the United States). Cf. State Farm v.
Campbell, 538 U.S. 408, 425 (2008) (holding unconstitutional on due process
grounds civil penalties ?exceeding a single-digit ratio? to the consequences that
are otherwise applicable).
Ragbir v. Sessions, 18-cv-236, 2018 WL 623557, at *2 (S.D.N.Y. Jan. 29,
41. See id. at *1 n.3 (noting that Mr. Ragbir came to the United States in
resident in 1994, but lost that status when he was ordered removed
in 2007 following a conviction for wire fraud activities as a
mortgage loan processor.42 Nevertheless, in light of his long
residence and other mitigating factors, Ragbir was granted
successive stays of removal that authorized him to work and
remain in the United States.43 He is married to a U.S. citizen, has
a child who is a U.S. citizen, and has devoted his life to social
With his last administrative stay of removal scheduled to
expire on January 19, 2018, Mr. Ragbir submitted a renewal
request in November 2017, based in part on a pending motion to
reopen his removal proceedings.45 During a check-in with ICE on
January 11, 2018, however, Ragbir was abruptly detained.46 The
ICE Field Office Director indicated that the stay application had
been denied and that Mr. Ragbir would be promptly deported to
Trinidad and Tobago.47 ICE officers then transported a handcuffed
Ragbir to Newark Airport (interrupted only by a short visit to a
local hospital, after he lost consciousness). He was then flown to
On January 29, 2018, Judge Katherine Forrest of the
Southern District of New York granted Ragbir?s habeas petition
just as DHS was preparing to deport him.49 As in the case of Ortiz
in the Ninth Circuit,50 Judge Forrest found the government?s
actions in Ragbir?s case to be statutorily authorized.51
Nevertheless, she held, the agency?s implementation of the
statutory scheme ?tread on rights that are larger, more
fundamental??indeed, ?rights that define who we are as a
country.?52 Accordingly, she ordered his release so that he could get
his affairs in order and have an opportunity to say goodbye to his
Although Judge Forrest did not engage in an explicit
balancing of interests, she made clear that she was invoking the
liberty and due process norms of the Fifth Amendment, which she
described as constitutional ?North Stars.?54 Citing Mathews v.
Eldridge,55 in which the Supreme Court set forth controlling,
balancing-based procedural due process principles, the judge
observed that ?if due process means anything at all, it means that
we must look at the totality of circumstances and determine
whether we have dealt fairly when we are depriving a person of
the most essential aspects of life, liberty, and family.?56
In this case, the government had long allowed Ragbir to
become ?part of the community fabric? and to ?build a life with and
among us.?57 For years, he had been employed with express
authority, helped support and raise his citizen child with his
citizen spouse, and worked actively to better the local and national
community.58 This, the judge wrote, required the government at
50. See supra Part II.A (explaining that the court in Ortiz found no statutory
deficiencies in the government?s actions).
51. See Ragbir v. Sessions, 18-cv-236, 2018 WL 623557, at *2
(?The Court agrees that the statutory scheme governing petitioner?s
status is properly read to allow for his removal without further right of contest.?).
52. Id. at *2.
53. See id. at *3 (?[T]he Court is convinced that it must grant the petition for
habeas corpus. Constitutional principles of due process and the avoidance of
unnecessary cruelty here allow and provide for an orderly departure. Petitioner
is entitled to the freedom to say goodbye.?).
54. Id. at *2.
55. 424 U.S. 319 (1976).
56. See Ragbir, 2018 WL 623557, at *2 (citing Mathews v. Eldridge, 424 U.S.
319, 334 (1976), for the proposition that ?due process, unlike some legal rules, is
not a technical conception with fixed content . . .; due process is flexible . . . .?).
58. See id. at *1 n.3 (explaining Ragbir?s work as an immigrant rights
least to allow him ?orderly departure when the time came,? marked
by the ?avoidance of unnecessary cruelty.?59 Judge Forrest also
invoked the Eight Amendment?s guarantee that individuals ?not 
be subjected to excessive sanctions.?60 She explained that despite
being nominally non-punitive, the processes and penalties
employed in Ragbir?s case were ?shock[ing]? and ?unusual.?61
Throughout her opinion, Judge Forrest pointed to the gratuitously
cruel nature of the government?s approach to Ragbir?s case.62 In
substance, like Judge Reinhardt, Judge Forrest invoked norms of
proportionality in reviewing the government?s actions. In addition,
by recognizing a constitutionally protected ?right to say goodbye,?
Judge Forrest?s proportionality review went further than the
Ninth Circuit, though she stopped well short of identifying a right
to remain in the face of an otherwise valid removal order.
Finally, although she touched on the point only briefly in a
footnote, Judge Forrest observed ?with grave concern? the
possibility that Ragbir was being ?targeted as a result of his speech
and political advocacy on behalf of immigrants? rights and social
justice.?63 Ragbir has a national reputation for his activism as an
immigrant rights leader.64 Much of this work is service-oriented,
focusing on advocacy and informational programs for immigrants.
59. Id at *2.
62. See id. at *1 (?The wisdom of our Founders is evident in the document
that demands and requires . . . an aversion to acts that are unnecessarily cruel.?);
id. at *2 (?In sum, the Court finds that when this country allowed petitioner to
become a part of our community fabric, . . . it committed itself to avoidance of
unnecessary cruelty . . . .?); id. at *3 (?Here, instead, the process we have
employed has also been unnecessarily cruel.?).
63. Id. at *1, n.1 (citing United States v. Alvarez, 567 U.S. 709, 716 (2012)
for the principle that ?as a general matter, the First Amendment means that
government has no power to restrict expression because of its message, its ideas,
its subject matter, or its content?).
64. See, e.g., Memorandum of Law of Amici Curiae Scholars and Public
Interest Advocates and Organizations in Support of Ravidath Lawrence Ragbir?s
Motion for Declaratory, Injunctive, and Habeas Corpus Relief at 2?4, Ragbir v.
Homan, No. 18-Civ.-1159, 2018 WL 2338792
(S.D.N.Y. Mar. 8, 2018)
Memorandum of Law in Support of Plaintiffs? Motion for a Preliminary Injunction
at 2?3, Ragbir v. Homan, No. 18-Civ.-1159, 2018 WL 2338792
(S.D.N.Y. Mar. 8,
Notably, as Executive Director of the New Sanctuary Coalition of
New York City, he has frequently and publicly challenged aspects
of both the current and the previous Administrations? immigration
policies.65 He has testified before the New York City Council
regarding immigration matters and local leaders have sought his
counsel. In 2017, the New York State Association of Black and
Puerto Rican Legislators awarded Ragbir the Immigrant
Excellence Award, and a South Asian American advocacy group
presented him with the ChangeMaker Award.66 In sum, he is a
highly visible political activist.
This retaliatory-enforcement concern is now front and center
in related litigation before Judge Kevin Castel of the Southern
District of New York, from whom Ragbir and others have sought a
preliminary injunction, primarily on the basis of a First
C. The Larger Context of Immigration Enforcement Under the
DHS?s decisions to remove Ortiz and Ragbir are illustrative of
the larger picture of immigration enforcement in the first eighteen
months of the Trump presidency. Two trends in particular mark
the approach of DHS thus far to interior immigration enforcement.
The first, and most predominant trend, is characterized by mass,
indiscriminate deportation.68 This new policy direction was
65. See Ragbir v. Sessions, 18-cv-236, 2018 WL 623557, at *1 n.3
Jan. 29, 2018)
(?[Ragbir] is the Executive Director of the New Sanctuary Coalition
of New York City, sits on the Steering Committee of the New York State Interfaith
Network for Immigration Reform, and has served as the Chair of the Board of
Families for Freedom.?).
66. See supra notes 64?65 and accompanying text (listing Ragbir?s
67. See Ragbir v. Homan, 1:18-cv-01159, 2018 WL 2338792, at *2
May 23, 2018)
; see also Immigrant Rights Leader Ravi Ragbir and Community
Organizations File First Amendment Lawsuit Challenging the Targeting of
Immigrant Rights Activists, NAT?L IMMIGR. PROJECT (Feb. 9, 2018),
(last visited Sept. 9, 2018) (documenting statement from plaintiff?s counsel
regarding the claim?s First Amendment basis) (on file with the Washington and
Lee Law Review).
68. See Jason A. Cade, Sanctuaries as Equitable Delegation in an Era of
Mass Immigration Enforcement, 113 NW. L. REV. (forthcoming 2018),
initiated within a week of President Trump?s inauguration in a
series of executive orders on immigration enforcement.69 One of
these, entitled Enhancing Public Safety in the Interior of the
United States, explained the Administration?s new enforcement
priorities.70 It directed DHS to prioritize the removal of noncitizens
charged or suspected of any criminal offense, as well as those
subject to final removal orders.71 Another order, entitled Border
Security and Immigration Enforcement Improvements, directed
immigration authorities to detain and remove all ?individuals
apprehended on suspicion of violating Federal or State law,
including Federal immigration law.?72
Shortly thereafter, then-Secretary of Homeland Security John
Kelly issued new agency memoranda that discarded the Obama
Administration?s prosecutorial discretion guidelines.73 Likewise,
ICE Associate Director Matthew Albence directed agency officers
to ?take enforcement action against all removable aliens
encountered in the course of their duties.?74 The executive orders,
together with the implementing agency memoranda, classify
69. See, e.g., Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 30, 2017)
(explaining the Trump Administration?s immigration enforcement policy); see also
Meridith McGraw, A Timeline of Trump?s Immigration Executive Order and Legal
Challenges, ABC NEWS (Jun. 29, 2017, 12:22 PM), https://abcnews.go.com/
ges/story? id=45332741 (last visited Sept. 9, 2018)
(detailing the series of events
surrounding Trump?s 2017 executive orders on immigration)
See id. at 8800
Prioritize for removal . . . aliens who . . . (b) have been charged with
any criminal offense, where such charge has not been resolved; (c) Have
committed acts that constitute a chargeable criminal offense . . . (f) Are
subject to a final order of removal, but who have not complied with
their legal obligation to depart the United States . . . .
Exec. Order No. 13,767, 82 Fed. Reg. 8793 (Jan. 30, 2017).
73. Memorandum from U.S. Dep?t of Homeland Sec. Sec?y John Kelly to U.S.
Customs and Border Protection Acting Comm?r et al., on Enf?t of the Immigration
Laws to Serve the Nat. Interest 2
(Feb. 20, 2017)
(rescinding previous field
guidance and memoranda from the Department of Homeland Security regarding
virtually all removable noncitizens as priorities for enforcement,
regardless of their equities or circumstances. As Secretary Kelly
emphasized, ?If you?re here illegally, you should leave or you
should be deported.?75 ICE Director Thomas Homan sounded the
same theme: ?There?s no population off the table. If you?re in this
country illegally, we?re looking for you and we?re going to
None of this has turned out to be empty posturing or rhetoric.
Almost every day, news outlets publish stories on the Trump
Administration?s immigration enforcement activities. These
reports tell the stories of families torn apart, long-term residents
suddenly detained, and the deportation of persons with extremely
sympathetic circumstances.77 From fiscal year 2016 to fiscal year
2017, immigration arrests of noncitizens without any criminal
histories more than doubled, and the total number of immigration
arrests rose by 42%.78 Especially significant is the toll taken on
noncitizens who have woven themselves into the fabric of our
society. The number of cases pending in immigration court
involving noncitizens who have lived in the United States for many
years?and thus have developed connections making the impact of
deportation more significant?has dramatically increased.79
75. Kery Murakami, Immigrant Deportations Up Sharply Under Trump,
MANKATO FREE PRESS (Aug. 19, 2017), http://www.mankatofreepress.com/news/
local_news/immigrant-deportations-up-sharply-under-trump/article_a2b7b8d3d00b-5839-9f1d-8de5d83b3696.html (last visited Sept. 9, 2018) (on file with the
Washington and Lee Law Review).
76. Adam K. Raymond, Deportations Are Down Under Trump, But Arrests of
Non-Criminal Immigrants Surge, N.Y. MAG. (Dec. 20, 2017),
tion-arrests-surge.html (last visited Sept. 9, 2018) (on file with the Washington
and Lee Law Review).
77. See, e.g., supra note 11 and accompanying text (documenting Magana
78. See IMMIGR. & CUSTOMS ENF?T, U.S. DEP?T OF HOMELAND SEC., FISCAL
YEAR 2017 ICE ENFORCEMENT AND REMOVAL OPERATIONS REPORT 2 (2017) (?[T]he
number of administrative arrests rose from 77,806 to 110,568, a 42 percent
increase.?); see also Aria Bendix, Immigration Arrests Are Up, But Deportation is
Down Under Trump, But Arrests of Non-Criminal Immigrants Surge, N.Y. MAG.
(Dec. 20, 2017)
(reporting on a 150% increase in noncriminal immigration arrests
from Jan. 25. 2017 to April 29, 2017)
79. See, e.g., Immigration Court Cases Now Involve More Long-Time
Residents, TRAC IMMIGR. (Apr. 19, 2018), http://trac.syr.edu/immigration/
reports/508/ (last visited Sept. 9, 2018) (comparing the number of immigration
According to data obtained by TRAC Immigration, of the new
immigration court cases DHS filed in March 2018, for example,
only 10% concerned new arrivals to the United States, while 43%
had arrived two or more years ago.80 By way of contrast, ?the
proportion of individuals who had just arrived in new filings during
the last full month of the Obama Administration (December 2016)
made up 72%, and only 6% had been here at least two years.?81
The other enforcement trend involves apparent retaliation
against those who criticize or do not cooperate with immigration
authorities.82 One aspect of this trend consists of the prioritization
of enforcement resources within so-called ?sanctuary? cities, where
raids and other measures are designed to send a message to the
offending jurisdiction as much as to net deportable noncitizens.83
Another aspect of this development, and the one most pertinent to
this Article, is reflected in DHS?s apparent effort to prioritize the
removal of politically-active noncitizens who speak out against
government policies.84 Ragbir, for instance, alleges that this form
of retaliation drove ICE?s decision to remove him even before the
cases involving new arrivals versus immigrants who had resided in the United
States for at least two years) (on file with the Washington and Lee Law Review).
80. See id. (graphing the percentage of immigration cases involving new
arrivals and immigrants in the United States for at least two years).
81. See id.
(reporting that based on latest recorded entry dates alone, at least
20% of cases filed since March 2018 involved immigrants who had been in the
country for five years or more)
82. See, e.g., Walter Ewing, The Federal Government is Using Immigration
Raids as Retaliation Against California, IMMIGR. IMPACT (Feb. 8, 2018),
http://immigrationimpact.com/2018/02/08/government-immigration-raidscalifornia/ (last visited Sept. 9, 2018) (documenting increased immigration
enforcement raids in response to California?s declaration as a ?sanctuary state?)
(on file with the Washington and Lee Law Review).
83. See id. (?[T]he recent raids were not simply an attempt to enforce federal
immigration laws, but were also an act of retribution against a state government
that dared not to transform its police officers into proxy immigration agents.?).
84. See, e.g., Immigrant Rights Leader Ravi Ragbir and Community
Organizations File First Amendment Lawsuit Challenging the Targeting of
Immigrant Rights Activists, NAT?L IMMIGR. PROJECT (Feb. 9, 2018),
(last visited Sept. 9, 2018) (challenging ICE?s enforcement against Ragbir as
?retaliatory and discriminatory?) (on file with the Washington and Lee Law
expiration of his current period of authorized stay and resolution
of his pending motion to reopen his proceedings.85
Ragbir?s case is by no means the only example of potentially
retaliatory behavior by ICE. News reports suggest that an
ever-growing number of seemingly ?good hombres? may have been
targeted for removal on the basis of First-Amendment-protected
speech. The reports concern the following persons, many of whom
are movement organizers and outspoken critics of the Trump
Daniela Vargas, arrested by ICE when departing an immigrant-rights rally in Jackson, Mississippi (March 2017).86
Arturo Hernando Garcia, an outspoken immigrant rights
activist, detained by ICE in Colorado in April 2017. Supporters
argue that the unexpected arrest is linked to Jeanette
Vizguerra, who had taken refuge in the same church as Mr.
Claudia Rueda, a college student who has protested deportation
policies and engaged in immigration activism, allegedly
arrested by ICE in retaliation for her activism (May 2017).88
85. See id. (?These high profile actions prompted Arnold & Porter and the
New York University Immigrant Rights Clinic to file suit today to challenge
federal immigration officials? retaliatory and discriminatory enforcement of
immigration laws against Mr. Ragbir and other immigrant rights activists on the
basis of their protected political speech.?).
86. See John Burnett, See The 20+ Immigration Activists Arrested Under
Trump, NPR (Mar. 16, 2018),
https://www.npr.org/2018/03/16/591879718/see-the20-immigration-activists-arrested-under-trump (last visited Sept. 9, 2018)
(?Daniela Vargas was leaving a rally in Jackson, Miss., where she had spoken in
favor of undocumented rights. ICE pulled over the car she was riding in and
arrested her because her DACA status had expired.?) (on file with the Washington
and Lee Law Review).
87. See Jesse Paul, Arturo Hernandez Garcia Gets Back to Family, Work
After Deportation Delayed, DENVER POST (May 4, 2017, 6:00 AM),
/05/04/arturo-hernandez-garcia-deportationdelay/ (last updated May 4, 2017, 9:26 AM) (last visited Sept. 9, 2018)
(?Immigrant advocates?and Hernandez Garcia himself?feel the arrest was
possibly fueled by politics under President Donald Trump and potentially the
notoriety of Jeanette Vizguerra, a Mexican woman who has taken sanctuary in
the First Unitarian Society of Denver, the same church that harbored Hernandez
Garcia.?) (on file with the Washington and Lee Law Review).
88. See id. (?Claudia Rueda is an immigration activist and college student
who protested U.S. deportation policies, as well as the arrest of her mother on
drug smuggling charges. Rueda was arrested by immigration agents on May 18,
Siham Byah, arrested late in 2017, allegedly due to her political activism (November 2017).89
Baltazar Aburto Gutierrez, detained in Washington by ICE
after a news report published his criticism of his long-time
partner?s deportation to Mexico. Agents allegedly told
Gutierrez: ?You?re the one from the newspaper.? (December
Jean Montrevil, an immigrant-rights activist and co-leader of the New Sanctuary Coalition of NYC, arrested the same week as Ragbir and deported to Haiti (January 2018).91
Maru Mora-Villalpando, allegedly targeted due to her political speech after ICE officials identified her through an interview she gave to a Seattle newspaper criticizing the agency (February 2018).92
2017, and released 22 days later.?).
89. ?No Warning Whatsoever.? Mother from Nahant Taken into ICE Custody,
WCVB (Nov. 8, 2017),
http://www.wcvb.com/article/no-warning-whatsoevermother-from-nahant-taken-into-ice-custody/13453943 (last updated Nov. 8, 2017,
6:59 PM) (last visited Sept. 9, 2018) (citing her outspoken criticism of the
Moroccan dictatorship) (on file with the Washington and Lee Law Review).
90. See id.
(?ICE agents arrested the Mexican shellfish worker in Ocean
Park, Wash., in December 2017, after he was quoted in a newspaper complaining
about his longtime partner's deportation to Mexico.?)
91. See John Burnett, See The 20+ Immigration Activists Arrested Under
Trump, NPR (March 16, 2018, 10:30 AM), https://www.npr.org/2018/03/16
/591879718/see-the-20-immigration-activists-arrested-under-trump (last visited
Sept. 9, 2018) (?On Jan. 3, Immigration and Customs Enforcement agents
arrested Jean Motrevil, a prominent immigrant rights activist from Haiti who
co-founded the New Sanctuary Coalition.?) (on file with the Washington and Lee
Law Review); Katie Egan, Federal Crackdown on Immigration Activists
Threatens to Chill Free Speech, ACLU (Jan. 30, 2018, 1:00 PM), https://
www.aclu.org/blog/free-speech/rights-protesters/federal-crackdown-immigrationactivists-threatens-chill-free (last visited Sept. 9, 2018) (?In New York, Jean
Montrevil and Ravi Ragbir?both prominent immigrants? rights activists and
leaders of the New Sanctuary Coalition of New York City?were arrested within
a week of each other.?) (on file with the Washington and Lee Law Review).
92. See Gene Johnson, Deportation Document Described Immigrant Activist?s
Protests, AP NEWS (Feb 27, 2018), https://www.apnews.com/ec59e1c1780
146cb9d3b96b669bb0926/Deportation-document-described-immigrant-activist'sprotests (last visited Sept. 9, 2018) (??I?m being put in deportation proceedings
because of my political stance, because of my media presence, because I?ve utilized
my freedom of speech,? the activist, Maru Mora-Villalpando, told reporters . . . .?)
(on file with the Washington and Lee Law Review).
Alejandra Pablos, an anti-Trump activist and a field coordinator for the National Latina Institute for Reproductive Health, held in detention since March 2018.93
Six leaders from the immigrant-advocacy organization Migrant
Justice?Victor Garcia Diaz, Alfredo Alcudia Gamas, Enrique
Balcazar Sanchez, Zully Palacios Rodriguez, Yesenia
Hernandez Ramos, and Esau Peche Ventura?detained and put
into removal proceedings (March 2018).94
And there are others.95
To be sure, it may be difficult, in at least some of these cases,
to parse the Administration?s enforcement motivations. Removal
decisions concerning some of these individuals might simply flow
from the mass deportation project that also ensnared Ortiz and
countless others. Ragbir, for example, has a prior conviction
93. See id. (reporting that although Pablos has lawful permanent residence,
she is potentially deportable on the basis of a past conviction for driving under
[Migrant Justice] in Burlington, Vermont, has had six leaders arrested
over a period of 14 months. All are undocumented. Migrant Justice
advocates for dairy workers in Vermont. The arrested leaders are
Victor Garcia Diaz, Alfredo Alcudia Gamas, Enrique Balcazar Sanchez,
Zully Palacios Rodriguez, Yesenia Hernandez Ramos, and Esau Peche
95. See, e.g., Cora Currier, FBI Pressed Detained Anti-ICE Activist for
Information on Protests, Offering Immigration Help, INTERCEPT (Aug. 7, 2018,
https://theintercept.com/2018/08/07/fbi-pressed-detained-anti-iceactivist-for-information-on-protests-offering-immigration-help/ (last visited Oct.
16, 2018) (reporting on allegations that aspiring filmmaker Sergio Salazar was
stripped of DACA status and targeted for removal solely on the basis of political
activism critical of ICE policies) (on file with the Washington and Lee Law
Review); Myrna Orozco & Noel Andersen, Sanctuary in the Age of Trump,
SANCTUARY NOT DEPORTATION (Jan. 2018)
(?In August 2017, as Araceli Velasquez
prepared to publicly announce she had entered Sanctuary, ICE went to her
husband?s workplace. The agent insisted on seeing and questioning Jorge and his
co-workers, only leaving when the manager insisted that he show a warrant or
; John Bear, Husband of Peruvian Woman Taking Sanctuary at Boulder
Church Detained by ICE, DENVER POST (Jan. 11, 2018, 10:17 PM),
https://www.denverpost.com/2018/01/11/ingrid-encalada-latorre-husbanddetained-immigration-boulder-sanctuary/ (last updated Jan. 12, 2018, 12:14 AM)
(last visited Sept. 9, 2018) (reporting that ICE pulled over and arrested Eliseo
Jurado Fernandez, the husband of Ingrid Encalada Latorre, a Peruvian woman
who has taken sanctuary in a church in Boulder, Colorado) (on file with the
Washington and Lee Law Review).
consideration is whether any part of the sanction is intended to be
punitive.123 Civil sanctions that are solely remedial in nature
would not be subject to proportionality constraints under the
Court?s due process precedents, but if there is a punitive
component to the sanction then proportionality review would be
The Court primarily developed these principles in a series of
cases assessing the appropriateness of hefty punitive damages in
civil tort cases.125 Such damages must be ?both reasonable and
proportionate to the amount of harm to the plaintiff and to the
general damages recovered.?126 In general, the Court has made
clear that where punitive damage sanctions are ?grossly excessive?
in relation to the state?s interests, they reach a level of
arbitrariness that violates the substantive due process required by
the Fifth Amendment.127 In BMW v. Gore,128 the Court set forth
?guideposts? for case-by-case proportionality review of punitive
civil sanctions: (1) the reprehensibility of the offense; (2) the ratio
between the harm caused by the offense and the sanction; and (3) a
comparison between the penalty and other civil or criminal
protection is intrinsically personal. Its violation can be identified only by
assessing the character of the actual sanctions imposed on the individual by the
machinery of the state.?).
123. See id. at 447?48 (comparing remedial and punitive sanctions for double
124. See Banks, supra note 117, at 1656 (?[T]he key question in determining
whether or not a sanction is punishment is not whether it is criminal or civil, but
whether it is remedial or punitive. Punitive measures in both contexts are subject
to constitutional limitations.?); Wishnie, supra note 113, at 425?26 (?[T]he
decisive classification for proportionality review is whether a sanction is remedial
or punitive. If deportation is wholly remedial, without any punitive element, then
proportionality review is not required by the Constitution.?).
125. See, e.g., BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574?85 (1996)
(laying out three ?guideposts? for whether a damage award is excessive and
126. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 426 (2003).
127. BMW of N. Am., Inc., 517 U.S. at 568; see also Pac. Mut. Life Ins. v.
Haslip, 23 U.S. 1, 23 (1991) (noting that a damage award?s gross excessiveness is
an ?important substantive due process concern?).
128. 517 U.S. 559 (1996).
sanctions that could be imposed.129 In State Farm v. Campbell,130
the Court went so far as to set forth a readily administrable
?single-digit ratio? rule of thumb for assessing disproportionality
in this context.131
To be sure, courts might be willing to apply kindred principles
in reviewing removal decisions only if those sanctions qualify as
?punitive? in nature. But in fact, strong reasons support applying
that label in this context. In deportation proceedings, there are
typically two sanctions at issue: the deportation order itself, and
the various statutory bars to reentry that follow from prior
immigration violations. Moreover, with regard to each of these
sanctions, Congress?s underlying intent is rather clear. To begin
with, regarding deportation itself, the sanction of banishment has
long been used to punish both citizens and noncitizens found to
have engaged in unlawful activity.132 While the Court has taken
pains to avoid formally characterizing deportation as a direct
sanction for criminal activity, thereby avoiding the constitutional
requirement of criminal procedure rights,133 its functional use as a
kind of punishment has continued to the present day in the United
States, as illustrated through extensive legislation in the late
twentieth century that expanded the kinds of criminal activity
leading to removal and that narrowed or eliminated discretionary
relief in many cases.134
The Supreme Court in cases both new and old has recognized
deportation as a ?particularly severe ?penalty.??135 In Padilla v.
Kentucky,136 for example, the Court observed that it is ??most
difficult? to divorce the penalty [of deportation] from the
conviction.?137 In Dada v. Mukasey,138 the Court likewise noted ?the
penalties attendant to deportation,? including the re-entry bars.139
Lower courts also have routinely characterized deportation and
reentry bars as penalties.140
Banks and Wishnie have identified further support in the
legislative record for the conclusion that these immigration
sanctions were intended to be punitive.141 Senator William Roth
explained that an intent behind the 1996 amendments was to
make ?more crimes punishable by deportation.?142 Similarly, the
Immigrant Responsibility Act of 1996, Pub. L. No. 104?208, 110 Stat. 3009 (1996).
Both Acts significantly (1) widened crime-related grounds for deportation,
especially through the definitions of so-called ?aggravated felonies,? and (2)
constricted equitable relief for noncitizens deportable on these grounds. See
generally Jason A. Cade, Enforcing Immigration Equity, 84 FORDHAM L. REV. 661
(2015); Daniel Kanstroom, Deportation, Social Control, and Punishment: Some
Thoughts About Why Hard Laws Make Bad Cases, 113 HARV. L. REV. 1889,
1890?91 (2000) (?This situation is the result of some fifteen years of
relatively sustained attention to this issue, which culminated in two
exceptionally harsh laws: the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA).?).
135. Padilla v. Kentucky, 559 U.S. 365, 373 (2010) (quoting Fong Yue Ting v.
United States, 149 U.S. 698, 740 (1893)); Bridges v. Wixon, 326 U.S. 135, 147
(1945) (?As stated by Mr. Justice Brandeis speaking for the Court in Ng Fung Ho
v. White, deportation may result in the loss ?of all that makes life worth living.??)
(internal citation omitted).
136. 559 U.S. 365 (2010).
137. Id. at 366.
138. 554 U.S. 1 (2008).
139. Id. at 11.
See Wishnie, supra note 113, at 434 (collecting cases including Dada).
141. See id. at 433?34 (recounting Chair of the House Judiciary Committee
Hyde?s characterization of immigration sanctions as punitive); Banks, supra note
117, at 1669 (?Not only is deportation in these cases justified as a mechanism for
retribution, deterrence, and incapacitation, historically it has been understood as
punishment, and the legislative history of these particular deportation grounds
indicate a desire to punish.?).
142. Lindsay Macdonald, Why the Rule-of-Law Dictates that the Exclusionary
Rule Should Apply in Full Force to Immigration Proceedings, 69 U. MIAMI L. REV.
291, 304 n.117 (2014) (?According to Senator Roth, for example, IIRIRA expanded
Chair of the House Judiciary Committee, Henry Hyde, explained
that the purpose behind the reentry bars was ?to validate our
immigration laws, and to put some penalty on people who cross
into our country illegally.?143 Other legislators concurred in these
Because removal orders and the statutory bars on lawful
return to the United States are appropriately characterized as
penalties, they implicate substantive due process concerns.
Accordingly, Professor Banks has argued that punitive
enforcement actions against lawful permanent residents should, in
some cases, be deemed unconstitutional for proportionality
reasons. Professor Wishnie expanded on this analysis to
encompass unauthorized noncitizens with compelling equities. No
less important, he has identified a statutory hook for
proportionality review in a provision of the INA requiring
immigration judges to review and enter a judgment of removal,
which he argues must be read to incorporate proportionality
principles to avoid an unconstitutional application of law.145
In sum, Fifth Amendment due process offers an avenue by way
of which claims of disproportionate immigration penalties might
be considered. Applying this doctrine in cases like Ortiz?s might
well have justified more robust judicial intervention.146 In the next
subpart, I add to the mix a quick survey of recent Supreme Court
case law regarding deportation challenges. Because this
jurisprudence has a proportionality-sensitive cast, it offers further
the grounds of deportation ?to include more crimes punishable by deportation.??).
143. Immigration Control and Financial Responsibility Act of 1996: Hearing
of H. Judiciary Comm., 104th Cong. (1995).
144. See, e.g., id. (statement of Rep. Elton Gallegly that ?if we don?t have
penalties for illegal immigration, for heaven?s sakes, how are we ever going to
deal with this issue??); id. (statements of Rep. Howard Berman that the unlawful
presence bars impose ?a very harsh penalty? and that ?[t]here is no doubt a 10
year bar is a penalty?).
145. See Wishnie, supra note 113, at 441?45 (arguing that the canon of
constitutional doubt requires construing 8 U.S.C. ? 1229a(c)(1)(A)?an INA
provision directing that ?[a]t the conclusion of the proceeding the immigration
judge shall decide whether an alien is removable from the United States??to
require proportionality review).
146. See supra Part II.A (explaining why a judicial stay of the removal order
in Ortiz?s case would have avoided a ten-year bar to lawful reentry based on his
U.S. citizen spouse?s family petition).
support for judicial adoption of a proportionality-based due process
restraint on removal orders.
B. Proportionality-Enhancing Developments
Despite the general reluctance of courts to enter the territory
of equity-balancing, it is far from clear that the Court is closed to
the idea of proportionality review in deportation cases. Indeed, in
the last fifteen years, the Court has in substance recognized that
removal of noncitizens with no path to status, or who have a
criminal history, will sometimes be inappropriate on equitable or
humanitarian grounds. More specifically, the Court has issued
many rulings that structure the system so that proportionality
concerns can be weighed at some point in the process, whether by
federal or non-federal actors. This overarching doctrinal theme
may help support the future development of a generalized
constitutional principle of substantive proportionality review.
The survey begins with Arizona v. United States,147 in which
the Court struck down, as preempted by federal law, most of the
challenged portions of Arizona?s omnibus immigration
enforcement bill.148 In so doing, Justice Kennedy?s opinion for the
majority stressed the ?immediate human concerns? raised by
immigration enforcement decisions.149 The Court candidly
acknowledged that ?[r]eturning an alien to his own country may be
deemed inappropriate even where he has committed a removable
offense or fails to meet the criteria for admission.?150 In other
words, removal might be a disproportionate sanction for the
underlying immigration violation. Accordingly, the Court focused
on the need to protect federal choices regarding the use of equitable
discretion from state disruption.151 To be sure, nothing in the
147. 567 U.S. 387 (2012).
148. See id. at 393 (?The United States filed this suit against Arizona, seeking
to enjoin [the omnibus bill] as preempted.?).
149. Id. at 396.
151. See Jason A. Cade, Judging Immigration Equity: Deportation and
Proportionality in the Supreme Court, 50 U.C. DAVIS L. REV. 1029, 1047?49 (2017)
(?In Arizona, however, the Court declined to employ the
states-can-mirror-federal-law reasoning, focusing instead on the need to protect
federal choices regarding prosecutorial discretion from disruption.?).
decision mandates the application of proportionality principles.
Even so, the Court at least acknowledged that a noncitizen?s formal
deportability is not dispositive to the question of whether he or she
should be removed.152
The Court?s Padilla decision also sought to mitigate unfair
deportations by requiring that defense counsel accurately convey
the immigration consequences of a potential conviction to his or
her client.153 Repeatedly emphasizing that deportation is a ?strict
penalty,?154 Justice Stevens?s opinion for the majority explicitly
highlighted how the Court?s ruling would enable and incentivize
defense attorneys to ?plea bargain creatively with the prosecutor
in order to craft a conviction and sentence that reduce the
likelihood of deportation, as by avoiding a conviction for an offense
that automatically triggers the removal consequence.?155 The
Court thus expanded the equitable frame beyond immediate
criminal proceedings to incorporate deportation consequences.
In another series of cases, the Court has required and refined
a ?categorical approach? to determining the immigration
consequences of convictions.156 In general, these cases have
rejected the government?s efforts to interpret criminal deportation
categories expansively, by requiring a strict categorical match
between the elements of the penal offense and the relevant
152. See Arizona v. United States, 567 U.S. 387, 396 (2012) (?Returning an
alien to his own country may be deemed inappropriate even where he has
committed a removable offense or fails to meet the criteria for admission.?
153. See Padilla v. Kentucky, 559 U.S. 356, 371 (2010) (?It is quintessentially
the duty of counsel to provide her client with available advice about an issue like
deportation and the failure to do so ?clearly satisfies the first prong of
the Strickland analysis.??).
154. Id. at 365, 366, 373.
155. Id. at 373.
156. See, e.g., Sessions v. Dimaya, 138 S. Ct. 1204, 1211 (2018) (recognizing
that the ?categorical approach? is used to determine if a conviction ?falls within
the ambit? of the residual clause); Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015)
(?The categorical approach ?has a long pedigree in our Nation?s immigration law.??
(citing Moncrieffe v. Holder, 569 U.S. 184, 191 (2013))); Carachuri-Rosendo v.
Holder, 560 U.S. 563, 577 n.11 (2010) (distinguishing that case from Nijhawan v.
Holder, 557 U.S. 29 (2009), which rejected the categorical approach); Lopez v.
Gonzalez, 549 U.S. 47, 60 (2006) (?In sum, we hold that a state offense constitutes
a ?felony punishable under the Controlled Substances Act? only if it proscribes
conduct punishable as a felony under that federal law.?).
immigration statutory provision.157 These rulings, the Court has
noted, allow noncitizens ?to enter ?safe harbor? guilty pleas? that
preserve possibilities for equitable relief in immigration court or
sometimes avoid immigration sanctions altogether.158 At bottom,
the jurisprudence has created proportionality-enhancing effects by
rejecting overly broad definitions of the criminal-removal
In these and other cases, which I explore in more detail
elsewhere,160 the Court seems to have anticipated that
discretionary choices would help ameliorate the disproportionate
effects of an overbroad and unforgiving legislative scheme. At least
to this extent, a wide body of recent Supreme Court case law has
evinced solicitude for proportionality concerns in deportation
proceedings. The Court thus has recognized that claims to
membership?and membership rights?in the American
community are broader than strictly contemplated by code law,
including for persons with no path to lawful status and persons
with criminal histories.161 Although these precedents do not firmly
establish substantive proportionality review, they lay groundwork
for future expansion. This past is prelude to a future, more
proportionality-conscious judicial approach.
157. See Cade, supra note 151, at 1060?69 (cataloging decisions upholding the
categorical approach and explaining its benefits); Alina Das, The Immigration
Penalties of Criminal Convictions: Resurrecting Categorical Analysis in
Immigration Law, 86 N.Y.U. L. REV. 1669, 1725?27 (2011) (explaining the
?implications of deviating from a Categorical Analysis?).
158. Mellouli v. Lynch, 135 S. Ct. 1980, 1987 (2015) (quoting Jennifer Lee
Koh, The Whole Better Than the Sum: A Case for the Categorical Approach to
Determining the Immigration Consequences of Crime, 26 GEO. IMMIGR. L.J. 257,
159. See Cade, supra note 151, at 1104 (?The categorical approach cases do
mitigate the harshness of the aggravated felony provisions by rejecting broad
interpretations of the criminal removal grounds. In this way, as a practical matter
many of the cases do have a substantive, proportionality-enhancing effect.?).
160. See id. at 1071?81 (discussing the Court?s ?second-look? and arbitrary
161. See id. at 1095?100 (explaining ?the significance of this expansive
conception of which persons have some claim to continued presence that the Court
believes is appropriately evaluated prior to the imposition of banishment?); see,
e.g., Padilla, 559 U.S. at 384?85 (expanding Sixth Amendment rights for
C. Arbitrary Enforcement Review
To the extent the Administration?s removal policies fail to
rationally distinguish between potential targets, another Supreme
Court development in the immigration context may prove to be
increasingly relevant and is worthy of careful assessment:
arbitrary and capricious review.162 In Judulang v. Holder,163 thus
far a little-examined decision issued in 2011, the Court employed
arbitrary and capricious (or ?hard-look?) review to evaluate one
very particularized agency immigration policy.164 The case
concerned INA Section 212(c), which authorized discretionary
relief from crime-based deportation. Although Congress repealed
this waiver in 1996, its protection nonetheless has remained
applicable so long as the relevant conviction predated the repeal.165
Because the waiver provision was located in the INA?s
inadmissibility section, as opposed to the deportation section, the
agency initially applied it only in cases involving persons seeking
entry (or re-entry) to the United States.166 Litigation challenging
the agency?s failure to extend comparable equitable relief to lawful
permanent residents facing deportation resulted in a revised policy
making Section 212(c) available in deportation cases as well, but
only if the operative removal category also had an equivalent or
comparable provision in the INA?s inadmissibility section.167
In due course, this ?comparable grounds? policy was also
challenged in a case that found its way to the Supreme Court. In
that case, the Justices unanimously agreed that the government?s
?comparable grounds? policy resulted in an ?arbitrary and
capricious? restriction on eligibility for equitable relief from
removal for noncitizens charged under any deportation provisions
that did not have inadmissibility equivalents.168 The Court?s
opinion, authored by Justice Kagan, expressed discomfort with an
enforcement approach that failed to weigh noncitizens? ?fitness to
remain in the country.?169 As Justice Kagan explained, the agency?s
comparable grounds approach ?does not rest on any factors
relevant to whether an alien . . . should be deported.?170 This was
problematic because, in the Court?s view, enforcement relief
provisions like Section 212(c) should be tied to a noncitizen?s
equitable merit,171 taking into account ?the alien?s prior offense or
his other attributes and circumstances.?172 To do otherwise would
result in impermissible arbitrariness.173
Notably, the Court highlighted a link between general agency
policies that disregard individuals? equities in this country and
individual prosecutorial enforcement decisions based on those
policies: ?[U]nderneath this layer of arbitrariness lies yet another,
because the outcome of the Board?s comparable-grounds analysis
itself may rest on the happenstance of an immigration official?s
charging decision.?174 Because convictions frequently implicate
more than one deportation category, ICE agents can choose which
of several charges to pursue, some of which might appear only the
in the deportation section of the INA.175 Thus, through
168. See id. at 55, 59?60 (holding that the agency?s comparable grounds policy
violated the Administrative Procedures Act).
169. Id. at 55.
170. Id. at 58 (emphasis added).
171. See id. at 56 (emphasizing that the agency?s comparable grounds
approach to determining eligibility for equitable relief ?has nothing to do with
whether a deportable alien . . . merits the ability to seek a waiver? and in fact ?is
as extraneous to the merits of the case as a coin flip would be?).
172. Id. at 55.
173. See id. at 56 (comparing the process to ?a coin flip?).
174. Id. at 57.
175. See id. at 58 (?And the Government has provided no reason to think that
immigration officials must adhere to any set scheme in deciding what charges to
discretionary charging decisions alone, a front-line official could
intentionally (or arbitrarily) foreclose the possibility of equitable
relief pursuant to Section 212(c) by invoking a removal provision
that lacked a comparable inadmissibility ground.176 The Court
found intolerable the likelihood of injustice created by such an
arbitrariness-laden scheme: ?An alien appearing before one official
may suffer deportation; an identically situated alien appearing
before another may gain the right to stay in the country.?177
?Deportation decisions,? the Court admonished, ?cannot be made a
?sport of chance.??178
All of this may seem a bit far into the weeds of a particular
statutory tangle, but there are two key points for present purposes.
First, the Court in Judulang reviewed the agency?s enforcement
scheme as a product of both agency policy and individual
prosecutorial decisions, in light of the separate ?layer[s] of
arbitrariness? they create.179 This framing could well apply to
other immigration enforcement activities, including those
highlighted in this Article. Second, the Court scrutinized whether
the agency?s approach to enforcement, through both policy and
discretionary enforcement actions, focused sufficiently on the
?merits of the case.?180 Judulang thus broke new ground by
applying ?an independent evaluation of the merits of an
immigration agency?s policy, rather than just a review of the
bring, or that those officials are exercising their charging discretion with ? 212(c)
176. See id. (explaining how an immigration official?s charging decision can
be arbitrary). In Judulang?s case, for example, his conviction for involuntary
manslaughter could be charged as either a ?crime involving moral turpitude?
removal ground or a ?crime of violence? aggravated felony ground, or both. Id. at
52?54. The crime involving moral turpitude has a comparable inadmissibility
ground but the crime of violence aggravated felony does not, so the agency?s
decision to charge him under the latter provision made him ineligible for
discretionary relief. See id. at 52 (?As part of its decision, the BIA considered
whether Judulang could apply for ? 212(c) relief. It held that he could not do so
because the ?crime of violence? deportation ground is not comparable to any
exclusion ground, including the one for crimes involving moral turpitude.?).
177. Id. at 58.
178. Id. at 59 (quoting Di Pasquale v. Karnuth, 158 F.2d 878, 879 (2d Cir.
179. Id. at 57.
180. Id. at 56.
rationality of the process employed in developing that policy.?181
Importantly, the Justices went so far as to find that ?rational
operation of the immigration laws? requires attention to a
noncitizen?s ?fitness to remain in the country,? based on, for
example, that person?s ?prior offense or his other attributes and
circumstances.?182 In other words, the Court suggested that the
agency?s approach to implementation of the statute in the
deportation context must reflect some attempt at normative
Thus, to the extent that the government?s decisions to remove
noncitizens like Ortiz or Ragbir can be traced to general agency
policies that facilitate arbitrary or capricious results in individual
cases?and in both matters the courts seemed to suggest that such
a characterization would be appropriate?Judulang provides both
an independent tool for judicial intervention, as well as additional
support for the application of substantive due process. And while
the Trump Administration?s removal policies may well be
supportable by statutory authority, that fact does not foreclose a
judicial finding of capriciousness. As Jennifer Koh has pointed out,
?the mere fact that an agency?s organic statute permits a particular
practice does not necessarily guarantee that it should clear the
?hard look? threshold.?183 Statutory authorization is a necessary
baseline for agency action, but courts must nevertheless go on to
determine whether the agency?s implementation of that authority
is ?arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.?184 In the deportation context, the Court
explained in Judulang, the agency?s implementation of its
statutory authority must contend with the ?high stakes for an alien
who has long resided in this country? and a normative evaluation
of factors such as his ?fitness to remain in the country.?185
To be sure, Judulang involved a challenge under
Administrative Procedures Act, and did not directly consider a
constitutional due process challenge.186 Nevertheless, the opinion
reveals much about the Justices? thinking with respect to removal
decisions that arbitrarily subject some noncitizens to removal, but
not similarly situated others. This kind of hard-look scrutiny is
also fitting when the government?s policy approaches are
excessively uniform, treating differently-situated persons the
same.187 And these underlying concerns may well influence future
decisions based on new varieties of due process or equal protection
D. Retaliatory Enforcement and the First Amendment
Ragbir and others have alleged that the Trump
Administration is specifically targeting them for enforcement in
retaliation for their criticism of its policies.188 Retaliatory removal
decisions based on protected speech raise distinct proportionality
concerns.189 If enforcement choices in these cases thus function as
sanctions on core political speech, does the First Amendment offer
185. Judulang, 565 U.S. at 55.
186. See id. at 52 (?This case requires us to decide whether the BIA?s policy
for applying ? 212(c) in deportation cases is ?arbitrary [or] capricious? under the
Administrative Procedure Act . . . .?).
187. See supra note 119 and accompanying text (citing sources criticizing
?excessive uniformity? in sanctions).
188. See supra Part II.B (discussing the Ragbir case and Ragbir?s First
189. See, e.g., United States v. Alvarez, 567 U.S. 709, 730 (2012) (Breyer, J.,
concurring) (?Ultimately the Court has had to determine whether the statute
works speech-related harm that is out of proportion to its justifications.?); Michael
Coenen, Of Speech and Sanctions: Toward a Penalty-Sensitive Approach to the
First Amendment, 112 COLUM. L. REV. 991, 999?1002 (2012) (explaining
penaltysensitive free speech adjudication and arguing for its expansion in First
Amendment law); Jackson, supra note 116, at 3105, 3140?41 (discussing
proportionality in constitutional law generally, including First Amendment
any protection? The issue is complex but here I will sketch some
Supreme Court case law to date is inconclusive?and
inconsistent?with respect to First Amendment protections for
noncitizens.190 In a handful of cases, the Court has said that
noncitizens possess First Amendment rights. Bridges v. Wixon,191
for example, ruled that a legal permanent resident residing in the
United States for two decades could not be deported on the basis of
his activities and affiliation with the Communist Party.192 In
rejecting the government?s attempt to deport him pursuant to a
removal category involving persons who advocate the violent
overthrow of the government, the Court broadly stated that,
?Freedom of speech and of press is accorded aliens residing in this
country. So far as this record shows . . . the utterances made by
him were entitled to that protection.?193 Similarly, in a 1953 case
involving the government?s attempt to exclude on security grounds
a lawful permanent resident who was returning from working
abroad, the Court noted that the First Amendment, like the Fifth
Amendment, does not distinguish between citizens and ?resident?
These immigrant-protective precedents concerned lawfully
present noncitizens, however, and case law concerning the First
Amendment rights of unauthorized noncitizens is less settled.195
The fundamental question of when unauthorized noncitizens can
claim the protection of the First Amendment has yet to be
190. See generally Michael Kagan, When Immigrants Speak: The Precarious
Status of Non-Citizen Speech Under the First Amendment, 57 B.C. L. REV. 1237
(2016) (examining problematic areas of First Amendment law affecting
191. 326 U.S. 135 (1945).
192. See id. at 137?38, 157 (reversing the circuit court?s decision to deport
193. Id. at 147?48.
194. See Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n.5 (1953) (?Such
rights include those protected by the First and the Fifth Amendments . . . . None
of these provisions acknowledges any distinction between citizens and resident
aliens. They extend their inalienable privileges to all ?persons? and guard against
any encroachment on those rights by federal or state authority.?).
195. See Kagan, supra note 190, at 1244?53 (exploring cases dealing with the
issue of whether certain Amendments apply to noncitizens). See generally Bluman
v. Fed. Election Comm?n, 565 U.S. 1104 (2012) (affirming, without an opinion, a
statutory ban on donations to candidates by all foreign nationals except LPRs).
definitively determined.196 In United States v.
Verdugo-Urquidez,197 handed down in 1990, Justice Rehnquist?s
plurality opinion stated that ?the people? protected by various
constitutional provisions ?refers to a class of people who are part
of a national community or who have otherwise developed
sufficient connection with this country to be considered part of that
community.?198 The meaning of that statement, as well as its
weight in light of the facts of the case and Justice Kennedy?s key
concurrence, remains contestable.199 Moreover, other Court
precedent makes clear that persons without lawful immigration
status residing in the United States can claim the protection of the
Fourth and Fifth Amendments, which strongly supports a parallel
First Amendment right.200 Nevertheless, the government has
seized on Verdugo-Urquidez to argue that at least some
unauthorized noncitizens lack constitutional protections afforded
to ?the people,? and that claim has made headway with some lower
196. See Kagan, supra note 190, at 1244?53 (exploring the meaning of ?the
people? in Supreme Court decisions).
494 U.S. 259 (1990).
198. Id. at 265 (considering Fourth Amendment claim brought by a Mexican
national whose home abroad in Mexico was searched by DEA agents).
199. See, e.g., Michael Wishnie, Immigrants and the Right to Petition, 78
N.Y.U. L. REV. 667, 681?85 (2003) (demonstrating that the Framers intended ?the
people? to incorporate constitutional protections for non-LPR noncitizens); Cade,
supra note 107, at 187?88 (arguing that Justice Kennedy?s key concurrence in
Verdugo-Urquidez turned on the extraterritoriality of the search rather than the
status of the defendant); United States v. Verdugo-Urquidez, 494 U.S. 259, 278
(1990) (Kennedy, J., concurring) (?If the search had occurred in a residence within
the United States, I have little doubt that the full protections of the Fourth
Amendment would apply.?).
200. See, e.g., Plyler v. Doe, 457 U.S. 202, 205 (1982) (making clear that
undocumented children can bring a constitutional Equal Protection challenge to
a state?s decision to exclude them from public school); Arizona v. United States,
567 U.S. 387, 411?15 (2012) (making clear that undocumented noncitizens can
raise Fourth Amendment challenges to unlawful detention); Yick Wo v. Hopkins,
118 U.S. 356, 369 (1886) (recognizing the constitutional Equal Protection rights
of noncitizens); Wong Wing v. United States, 163 U.S. 228, 237 (1896) (recognizing
that the Constitution?s criminal procedure protections apply to noncitizens); see
also Cade, Policing, supra note 107, at 189 (pointing out that ?eight Justices in
Lopez-Mendoza agreed that the Fourth Amendment protects undocumented
201. See Kagan, supra note 190, at 1245?49 (surveying relevant First
Amendment jurisprudence); D. Carolina N??ez, Inside the Border, Outside the
Furthermore, in Reno v. American-Arab Anti-Discrimination
Committee (AADC)202 the Court proclaimed that ?[a]s a general
matter, and assuredly in the context of claims such as those put
forward in the present case?an alien unlawfully in this country
has no constitutional right to assert selective enforcement as a
defense against his deportation.?203 Despite the first-blush breadth
of this statement, however, there are good reasons not to give it too
much weight in the context of evaluating challenges to retaliatory
enforcement efforts against noncitizens engaging in core political
speech. First, the government in AADC had targeted members of
the Popular Front for the Liberation of Palestine, which was
categorized as an international terrorist organization.204 Thus, the
government?s foreign policy concerns were particularly weighty,
and the activities it targeted seemed to fall outside the protection
of the First Amendment altogether.205
Second, the Court distinguished future cases in which ?the
alleged basis of discrimination is so outrageous that the foregoing
considerations can be overcome.?206 It is unclear whether
Law: Undocumented Immigrants and the Fourth Amendment, 85 S. CAL. L. REV.
85, 96?112 (2011) (surveying parallel developments in Fourth Amendment law).
525 U.S. 471 (1999).
203. Id. at 488.
204. See id. at 473 (?[T]he Popular Front for the Liberation of Palestine
(PFLP), [is] a group that the Government characterizes as an international
terrorist and communist organization.?). For an argument that the government?s
terrorism designations can be highly politicized and problematic, see Gerald
Neuman, Terrorism, Selective Deportation and the First Amendment After Reno
v. AADC, 14 GEO. IMMIGR. L.J. 313, 322?37 (2000) and Susan M. Akram & Kevin
R. Johnson, Race, Civil Rights, and Immigration Law After September 11, 2001:
The Targeting of Arabs and Muslims, 58 N.Y.U. ANN. SURV. AM. L. 295, 317?55
205. See Harisiades v. Shaughnessy, 342 U.S. 580, 591?92 (1952) (declining
to extend First Amendment protections to members of a Communist group);
Neuman, supra note 204, at 313 (?In Part III of the majority opinion, Justice
Scalia stated that the First Amendment does not guarantee a defense of selective
prosecution in deportation proceedings, or at least, that it does not guarantee such
a defense in circumstances like those of the case at bar.?); Kagan, supra note 190,
at 1280 (noting that under current law the PFLP?s ?conduct could constitute the
crime of providing material support to a terrorist organization under the
Anti-Terrorism and Effective Death Penalty Act of 1996?).
206. Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 491 (1999).
While the respondents alleged that ?the INS was selectively enforcing
immigration laws against them in violation of their First and Fifth Amendment
rights,? id. at 474, the Court focused its analysis only on their claim that the
retaliatory enforcement against unauthorized noncitizens
engaging in core, non-violent political speech on subjects of great
public concern would meet this still-undefined ?outrageous?
threshold, thereby rendering invalid an otherwise valid removal
order (or some other remedial action). But since the time that
AADC was handed down, the Court has increasingly recognized
?important constitutional limitations? on the government?s
immigration powers, particularly with respect to the rights of
persons who have already established ties within the United
Although arising in a different context, the Court?s recent
decision in Lozman v. City of Riviera Beach,208 might be relevant
to this inquiry. There, the Court held that claims of government
retaliation on the basis of First Amendment protected activity are
viable even where there has been a valid arrest supported by
probable cause.209 While Lozman involved a civil rights claim
following a criminal arrest, the Court?s analysis may still have
implications for the immigration field. In particular, Justice
Kennedy?s opinion for the majority noted that ?criticisms of public
officials? or other speech petitioning the government for policy
changes are ?high in the hierarchy of First Amendment values.?210
If DHS is acting pursuant to a policy or pattern of retaliatory
animus when it detains and deports outspoken noncitizens like
Ravi Ragbir, a broad reading of Lozman further supports a First
government was discriminating based on First Amendment protected activity,
rather than Equal Protection. Id. at 475, 480, 487?92, 488 n.10.
207. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 695 (2001) (opining that both
executive and legislative immigration ?power is subject to important
constitutional limitations?); Sessions v. Morales-Santana, 137 S. Ct. 1678, 1686
(2017) (holding that statute setting different residency requirements for U.S.
citizen fathers and mothers seeking to transmit birthright citizenship to their
non-marital children born outside the United States violates the Equal Protection
Clause). See generally Cade, supra note 151, at 1049?82 (discussing cases
illustrating the Court?s general evolution towards more protective rulings for
noncitizens inside the United States).
208. 138 S. Ct. 1945 (2018).
209. See id. at 1955 (ruling that Lozman need not prove an absence of
probable cause to proceed with his retaliatory arrest claim against the City).
210. Id. at 1954?55. For historical evidence that the Framers intended the
constitutional right to petition to apply to undocumented noncitizens, see
Wishnie, supra note 199.
Amendment defense notwithstanding the legality of those
At the very least, the Court?s existing doctrine in this area does
not foreclose the retaliatory enforcement claims brought by Ragbir
and others. While there will often be difficulties regarding proof of
motive, where these can be surmounted in particularly outrageous
cases courts may well find the First Amendment prohibits the
government from using deportation to silence its critics. In other
words, the First Amendment provides another vehicle for
assessing claims challenging the proportionality of imposing
removal as retaliation for protected speech activities. And, as I
explain in the next section, such claims are all the more likely to
find a foothold where they connect up with other constitutional
E. Combining Constitutional Concerns
The preceding discussion considered doctrinal developments
that might support more searching proportionality review of
removal decisions pursuant to the APA or constitutional
safeguards provided by substantive due process or the First
Amendment. As I have argued, courts may be able to incorporate
proportionality principles in the removal context through the
independent application of these principles. In this Part, I consider
whether proportionality review might also find footing in cases
that recognize judicially enforceable limitations rooted in a
combination of constitutional protections. An emerging literature
has begun to examine the implications of the Court?s so-called
?hybrid rights? cases,212 which recognize and honor the ?joint
decisional force of two or more constitutional provisions.?213
211. See Lozman v. City of Riviera Beach, 138 S. Ct. 1945, 1951 (2018)
(?Lozman?s claim is that, notwithstanding the presence of probable cause, his
arrest at the city council meeting violated the First Amendment because the
arrest was ordered in retaliation for his earlier, protected speech: his
open-meetings lawsuit and his prior public criticisms of city officials.?).
212. See Dan T. Coenen, Freedom of Speech and the Criminal Law, 97 B.U. L.
REV. 1533, 1595?1601 (2017) (discussing ?hybrid rights? cases).
213. Coenen, supra note 112, at 1070; see also Kerry Abrams & Brandon L.
Garrett, Cumulative Constitutional Rights, 97 B.U. L. REV. 1309, 1310?11 (2017)
(listing examples of causes of action involving more than one constitutional
Obergefell v. Hodges214 illustrates the potential of
hybrid-rights analysis.215 There, the Court held unconstitutional
state laws prohibiting same-sex marriage.216 To reach this
conclusion, the Court identified a number of related but distinct
concerns protected by constitutional due process, including the
right to intimate associations, the right to individual autonomy,
and the protection of children.217 Critically, these concerns were
amplified by equal protection principles triggered by the
discriminatory effect of same-sex marriage bans.218 In Michael
Coenen?s words, ?the Due Process Clause alone might fail to
resolve the question of whether a ban on same-sex marriage is
unconstitutional, but once the Equal Protection Clause is added to
the picture, the question can only come out one way.?219
The Court?s immigration rulings also have sometimes
employed constitutional combination analysis. Plyler v. Doe,220 for
example, raised the question whether states can constitutionally
deny public education to the children of undocumented
noncitizens.221 The combined harms of a law both depriving
children of a right to education and discriminating on the basis of
immigration status (and possibly race) led the Court to invalidate
the law.222 Here too, only the joint force of the Equal Protection and
214. 135 S. Ct. 2584 (2015).
215. See id. at 2602?03 (stating that the Due Process Clause and Equal
Protection Clause ?are connected in a profound way?).
216. See id. at 2607?08 (?It follows that the Court also must hold?and it now
does hold?that there is no lawful basis for a State to refuse to recognize a lawful
same-sex marriage performed in another State on the ground of its same-sex
217. See id. at 2597 (?In addition these [Due Process] liberties extend to
certain personal choices central to individual dignity and autonomy, including
intimate choices that define personal identity and beliefs.?).
218. See id. at 2603 (using bans on interracial marriage as an example).
219. Coenen, supra note 112, at 1079.
220. 457 U.S. 202 (1982).
221. See id. at 205 (?The question presented by these cases is whether,
consistent with the Equal Protection Clause of the Fourteenth Amendment, Texas
may deny to undocumented school-age children the free public education that it
provides to children who are citizens of the United States or legally admitted
222. See id. at 223?24 (explaining that the challenged law did not satisfy the
intermediate level of constitutional scrutiny applied by the Court).
Due Process Clauses facilitated the result.223 Similarly, some
scholars have cast the Court?s ruling in Arizona as based on
The idea that clauses might be combined to advance
proportionality is arguably inherent in U.S. constitutional design
writ large.225 As Vicki Jackson has written:
Proportionality bears a special relationship to government in a
constitutional democracy. For an essential idea of constitutional
democracy is that in confrontations between citizens and
government, government is restrained and avoids oppressive
and arbitrary action. The means to achieve this goal are varied,
but requiring proportionality of action is one way in which the
idea of limited government can be realized.226
The Constitution?s Preamble reflects this democratic commitment
to ?establish justice? as a governing principle.227 To be sure, the
Preamble has never been understood to confer any rights not
specifically granted by the Constitution, but it may provide
interpretive support for the idea of a general (or implied) authority
for some form of constitutional proportionality review, including
through hybrid claims.228
223. Moreover, as Brandon Garrett and Kerry Abrams have argued, had the
Court viewed other immigration cases through the proper intersectional
constitutional lens, the results might have come out differently. See Abrams &
Garrett, supra note 213, at 1324?26 (discussing Fiallo v. Bell, 430 U.S. 787
224. See HIROSHI MOTOMURA, IMMIGRATION OUTSIDE THE LAW 130?42 (2014);
Lucas Guttentag, The Forgotten Equality Norm in Immigration Preemption:
Discrimination, Harassment, and the Civil Rights Act of 1870, 8 DUKE J. CONST.
L. & PUB. POL?Y 1, 4 (2013) (?Courts should revitalize the equality norm in deciding
whether a particular state immigration provision impedes federal interests or
hinders federal goals.?). Arguably, federalism analysis also sometimes
incorporates proportionality norms. See, e.g., City of Boerne v. Flores, 521 U.S.
507, 520 (1997) (?There must be a congruence and proportionality between the
injury to be prevented or remedied and the means adopted to that end.?); Cade,
supra note 151, at 1042?46 (arguing that proportionality norms informed the
Court?s federalism analysis in Arizona).
225. See Jackson, supra note 116, at 3106?09 (discussing scholars tracing
proportionality from Aristotle through the Magna Carta to influence the design
of U.S. constitutional democracy).
226. Id. at 3108?09.
U.S. CONST. pmbl.
228. Cf. Stenberg v. Carhart, 530 U.S. 914, 953 (2000) (Scalia, J., dissenting)
(?[T]he Constitution of the United States [is] designed, among other things, ?to
establish Justice.??); Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 54?55
Some immigration enforcement actions undoubtedly will
implicate multiple constitutional rights, each of which is
independently relevant to the government?s attempt to remove the
noncitizen. Aggregated in particularly egregious cases, these
constitutional concerns might sometimes accumulate sufficient
decisional strength to invalidate removal orders. For example,
noncitizens who have been targeted on racial grounds, and who
also have compelling ties and significant equities may be able to
point to both the Equal Protection and Due Process Clauses of the
Fifth Amendment (as well as, potentially, the Fourth
Amendment). Sometimes other constitutional constraints will be
relevant too, such as retaliation-based First Amendment claims.
At least in cases where the asserted basis for the removal penalty
derives from a criminal conviction, the Cruel and Unusual
Punishment Clause of the Eighth Amendment could be invoked as
well. To the extent these claims arise from arbitrary and capricious
removal policies, the principles articulated in Judulang may also
As these rights accumulate, they may gain sufficient combined
strength to justify invalidation of a deportation order. There may
be situations in which the proportionality protections of the Due
Process Clause or Eighth Amendment alone would not justify a
stay of removal, but, if coupled with government retaliation on the
basis of protected speech or an unlawful seizure, would together
accumulate sufficient weight for judicial intervention.230 Such
relief may be rare, and likely would more typically involve
long-time legal residents or persons with clear pathways to lawful
status. But even in the case of an unauthorized noncitizen, the
appropriateness of hybrid-rights proportionality review may
sometimes be relatively clear, for example where the person is a
DACA recipient who bears little or no culpability in the underlying
immigration offense, knows only this country, and has other strong
(1994) (Stevens, J., concurring) (?[I]t is entirely appropriate for a court to give
controlling weight to the Founders? purpose to ?establish Justice.??).
229. See supra Part IV.C (detailing the Court?s ?hard look? review of an
agency immigration policy).
230. Cf. Arial Porat & Eric A. Posner, Aggregation and Law, 122 YALE L.J. 2,
46?51 (2012) (explaining how government activity implicating multiple
constitutional rights, while individually weak, may nevertheless ?normative[ly]
aggregat[e]? to produce a joint constitutional violation).
favorable factors, but who DHS has nonetheless targeted for
removal on the basis of First Amendment protected protest speech.
Indeed, Judge Forrest?s habeas decision in Ragbir?s case seems
to present a not-quite-articulated cumulative constitutional
analysis. Recall that the Court not only invoked the Due Process
Clause?s protection of liberty and notice requirement, but also
gestured towards the Eighth Amendment?s prohibition against
cruel and unusual punishment (Ragbir?s removal order was
predicated upon a years-prior criminal conviction), and the First
Amendment?s protections of core political speech.231 While these
might independently have failed to generate any form of relief,
Judge Forrest found that together they at least compelled the
government to release him temporarily to return to his family.232
If a court were to more concretely aggregate the government?s
constitutional infringements in a case like Ragbir?s, an even
stronger judicial remedy might well be warranted.
To be sure, the appropriate remedy will depend on the
circumstances of each case and the joint strength of the cumulative
proportionality concerns implicated. In certain cases, for example,
a judicially-imposed delay (rather than outright invalidation) of
the government?s desired action might suffice.233 In Ortiz?s case, for
example, a stay of removal would have allowed time for
adjudication of his wife?s family?s petition, thereby avoiding the
ten-year bar to adjustment of status triggered by his removal from
Much more can be said, but not within the confines of these
pages. For now, I simply flag the possibility that this emerging
hybrid rights jurisprudence might provide a substantial foothold
from which courts can move forward in engaging in at least limited
proportionality review of removal decisions.
Judicial admonishments of the federal government?s
indiscriminate and excessive approach in cases such as Mr. Ortiz?s
231. See Ragbir v. Sessions, No. 18-cv-236, 2018 WL 623557, at *1?3
Jan. 29, 2018)
(addressing multiple constitutional issues).
232. See id. at *3 (granting the petition for habeas corpus).
233. But see 8 U.S.C. ? 1252(f) (2012) (limiting injunctive relief).
II. Two Notable Lower Court Decisions............................. 1431? A. Ortiz v. Sessions: ?Even the 'Good Hombres' Are Not Safe?. ........................................................... 1431? B . Ragbir v. Sessions: ?There Are Times When Statutory Schemes May Tread on Rights that Are Larger , More Fundamental? .................... 1435? C. The Larger Context of Immigration Enforcement Under the Trump Administration .......................... 1439 ?
III. The Significance of the Lower Court Decisions Today............................................................................... 1446 ?
IV. The Significance of the Lower Court Decisions Tomorrow........................................................................ 1449? A . Fifth Amendment Proportionality Review ............. 1451? B . Proportionality-Enhancing Developments ............. 1456? C. Arbitrary Enforcement Review ............................... 1459? D. Retaliatory Enforcement and the First Amendment .............................................................. 1463? E. Combining Constitutional Concerns....................... 1468 ?
V. Conclusion ...................................................................... 1472? 8 . Ortiz II , 857 F.3d at 968 . 9. See id. at 967 (?Magana Ortiz . . . first entered the United States at
15 . . . . [h] is immigration case concluded with a decision to remove Magana Ortiz
because of his 1989 illegal entry into the United States .?). 10 . See id. (detailing Mr. Ortiz's life in the United States) . 11 . See Derek Hawkins, Facing Deportation, Hawaii Coffee Farmer, Father
of Three Returns to Mexico After 28 Years, WASH . POST (July 10 , 2017 ),
deportation-hawaii-coffee-farmer-father-of-three-returns-to-mexico- after- 28-
years/?noredirect=on&utm_term= . d95e48c91d5f (last visited Sept. 9 , 2018 )
and Lee Law Review) . 12 . See Ortiz II , 857 F.3d 966 , 967 ( 9th Cir . 2017 ) (?All of his children, ages
12 , 14 , and 20, were born in this country and are American citizens . . . .?).
1994 ). 42 . See id. at *3 n.11 (noting the reason for the deportation order ). 43 . See id. at *2 n.6 (detailing Mr. Ragbir's numerous stays of removal from
2011 through 2016 ). 44 . See id. at *1 n.2 , n.3 (detailing Mr . Ragbir's personal life) . 45 . See id at *2 n.6 (?[Ragbir's] most recent stay renewal request was filed
on November 16 , 2017 .?). 46 . See id. at *1 (?[O]n January 11 , 2018 , Ravidath Ragbir was suddenly
end . . . .?). 47 . See Amended Declaration of Field Office Dir . Thomas R. Decker at
10- 11 , ? 36 Ragbir v. Homan , 1 : 18 -cv-01159 (S.D.N .Y. Mar. 13 , 2018 ) ECF No.
56- 1 [hereinafter Decker Amended Declaration] (explaining that ?the plan was to
Ragbir's case. See id . at 11, ? 38 ( explaining that Thomas Decker did not meet
with Ragbir on January 11 , 2018 ). 48 . See id. at 11, ?? 37 - 41 . 49 . See Ragbir v. Sessions , 2018 WL 623557, at *3 (granting Ragbir's habeas
60. Id . at * 3 n.10 (quoting Miller v . Alabama , 567 U.S. 460 , 469 ( 2012 ) and
Roper v . Simmons , 543 U.S. 551 , 560 ( 2005 )). 70 . See Exec . Order No. 13 , 768 , 82 Fed. Reg. 8799 ( Jan . 30, 2017 ) (explaining
the Trump Administration's immigration enforcement policy) . 74 . Memorandum from U.S. Dep't of Homeland Sec., Immigration and
Operations Employees 1 (Feb. 21 , 2017 ). 129 . See id. at 575-85 ( laying out three ?guideposts? for whether a damage
award is excessive and punitive) . 130 . 538 U.S. 408 ( 2003 ). 131 . See id. at 410 (?[F] ew awards exceeding a single-digit ratio between
process.?). 132 . See DANIEL KANSTROOM , DEPORTATION NATION : OUTSIDERS IN AMERICAN
HISTORY 39-43 , 74 - 83 ( 2007 ) (describing how convicts historically were
Immigration Law: Asymmetric Incorporation of Criminal Justice Norms , 64
WASH. & LEE L. REV . 469 , 513 ( 2007 ) (?From ancient Rome to eighteenth and
Britain to the American and Australian colonies ). ?) . 133 . Harisiades v. Shaughnessy , 342 U.S. 580 , 594 ( 1952 ) (?Deportation,
than a criminal procedure . ?) . 134 . See generally, e.g., Antiterrorism and Effective Death Penalty Act of
1996, Pub . L. No. 104 - 132 , 110 Stat. 1214 ( 1996 ) ; Illegal Immigration Reform and 162 . See generally 5 U.S.C. ? 706 ( 2 ) ( 2012 ) (providing authority to courts to
Homeland Sec ., 279 F. Supp . 3d 1011 , 1029 (N.D. Cal . 2018 ); Batalla Vidal v .
Nielson , 291 F. Supp . 3d 260 , 269 (E.D.N .Y. 2018 ) ; NAACP v . Trump , 298 F. Supp .
3d 209 , 215 -16 (D.D .C. 2018 ). 163 . 565 U.S. 42 ( 2011 ). 164 . See id. at 45 (? This case concerns the Board of Immigration
immigration laws.?) . 165 . See id. at 48 (recounting how the Court revived Section 212(c ) in INS v.
St. Cyr , 533 U.S. 289 , 326 ( 2001 )). 166 . See id. at 47 (explaining how Section 212(c) applied to aliens seeking
entry or re-entry) . 167 . See id. at 46-50 (explaining the agency's implementation of 212(c) and 181 . Jeffrey D. Stein , Delineating Discretion: How Judulang Limits Executive
Challenges , 27 GEO. IMMIGR. L.J. 35 , 48 ( 2012 ). 182 . Judulang v. Holder , 565 U.S. 42 , 53 - 55 ( 2011 ). 183 . See Jennifer Lee Koh, When Shadow Removals Collide: Searching for
Reinstatement , 96 WASH. U. L. REV. (forthcoming 2018 ) (manuscript at 58)
prior expedited removal orders) . 184 . 5 U.S.C. ? 706 ( 2 ) ( 2012 ) ; see also Animal Legal Def . Fund, Inc., v. Perdue,
872 F.3d 602 , 619 (D.C. Cir . 2017 ) (?[T]he mere fact that a regulatory scheme is
Koh , supra note 183, at 76-79 (discussing relevant case law).