Post-Deportation Human Rights Law: Aspiration, Oxymoron, or Necessity? (Daniel Kanstroom, 3 Stan. J.C.R. & C.L. 195 (2007))

Deportation is a major law enforcement system that looms over the tens of millions of non-citizens who live, study, and work in this country. Since harsh changes to the system were implemented in 1996, millions of non-citizens have been ordered to leave. Tens of thousands are barred by law from ever returning. Those who might have a legal path of return face an arcane system governed by largely unreviewable discretion. Those who discover that they were wrongly deported are confronted with an array of almost insurmountable jurisdictional hurdles to judicial review of their cases. The need to examine the post-deportation system is thus timely and compelling. This article outlines a structured approach to understanding and, one hopes, reforming deportation. First, we must better define the purposes and methods of deportation. Second, we must carefully examine the actual effects of deportation on individuals, families, and communities, domestically and internationally. From these inquiries emerge further legal and normative questions: Where does the rule of law end? Do deportees have any rights to return or even to an orderly process to govern the possibility of return? What role do constitutional and international human rights norms play, if any? Is it contradictory or naïve to speak of the development of a regime of post-deportation human rights law? The basic argument of this article is that it is essential.