Crossing the Final Border: Securing Equal Gender Protection in Immigration Cases
Sudano, Michelle L., The William and Mary Bill of Rights Journal
Power without justice is soon questioned. Justice and power must be brought together, so that whatever is just may be powerful, and whatever is powerful may be just.
- Blaise Pascal1
Consider two men, both Mexican immigrants, both convicted of importing marijuana to the United States and both sentenced as drug offenders. The men are similarly situated in all important regards; the men are the same age, were both born in Mexico, and were brought to the United States when they were very young by a single, unwed parent. Both men were raised in the United States, but neither man formally applied for United States citizenship. The only relevant difference between the men is which parent possesses United States citizenship. In the first case, the offender's mother is a United States citizen; in the second case, the offender's father is a United States citizen. It would seem to most observers that the offenders' parentage should not matter to their sentences as long as both men were convicted of the same crime under the same circumstances. Here however, the stories of the two men diverge. The first offender, whose mother possesses United States citizenship, is sentenced for his crime, serves his time, and is released. The second man, whose father possesses United States citizenship, is sentenced for his crime, reported to immigration authorities, and deported. Though this seems inequitable and arbitrary, it is the current state of immigration law in the United States. The first offender is hypothetical; the second offender is Rueben Flores-Villar.2
Although there was early hope that the Supreme Court would overturn FloresVillar' s deportation order,3 his case continued a tradition of Supreme Court decisions affirming Congress's power to regulate facially discriminatory immigration statutes.4 Courts have been reluctantto interfere with immigration proceedings due to Congress's high level of discretion in international and political matters.5 Though the Court does undeniably owe a high level of deference to Congress's plenary control over matters such as immigration law, this is not an absolute grant of power6 - when Congress passes immigration laws that infringe upon other constitutional protections, the Court should retain the power to intervene.7 The Court's continued inaction could lead to a judicial system that does not use its power to ensure the just outcome in all cases.8
The constitutionality of 8 U.S.C. § 1409,9 the law allowing the disparate outcome described above, has been heard by the Supreme Court three times and the result has always been the same: the Court recognizes that the statute does produce an inequitable outcome for one class of potential United States citizens, but the Court reasons that the justifications for 8 U.S.C. § 1409 are substantially related to the statute's outcomes.10 Additionally, the Court notes the rich and voluminous history of decisions relating to immigration law.11 Existing immigration jurisprudence has created a seemingly insurmountable stare decisis problem that prevents the Court from intervening in Congress's plenary immigration power to overturn 8 U.S.C. § 1409. 12 Numerous journal articles have predicted or advocated for a new judicial interpretation of the statute.13 Though the articles generally make persuasive points, the Court has affirmed and reaffirmed its point despite any logic or social factors to the contrary. 14 The blatant gender discrimination in 8 U.S.C. § 1409 has caused authors to continue to write on the subject, because the outcome seems fundamentally wrong and unfair to so many. This Note attempts to make the argument that cases such as Flores-Villar should be evaluated in accordance with family law principles as opposed to immigration law alone. This, however, creates its own set of problems. Namely, how should courts go about reconciling the traditionally federal issue of immigration law with family law, which has been left solely to the discretion of the states? …