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AftermathDeportation Law and the New American Diaspora$
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Daniel Kanstroom

Print publication date: 2012

Print ISBN-13: 9780199742721

Published to Oxford Scholarship Online: September 2012

DOI: 10.1093/acprof:oso/9780199742721.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 28 November 2021

Reconceptualizing the Law for Deportees: Discretion, Human Rights, and the “Spirit of Fair Play”

Reconceptualizing the Law for Deportees: Discretion, Human Rights, and the “Spirit of Fair Play”

Chapter:
(p.210) 7 Reconceptualizing the Law for Deportees: Discretion, Human Rights, and the “Spirit of Fair Play”
Source:
Aftermath
Author(s):

Daniel Kanstroom

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199742721.003.0007

This chapter considers what the rule of law requires during deportation proceedings and after deportation has taken place? The answer cannot be “whatever the majority wills” or “whatever the executive enforces.” That would countenance government behavior and consequences that we should not accept. And yet the answer also is not, “exactly the same rights as U.S. citizens have” or “infinite, endless, open-ended review.” The best legal solution lies somewhere in between, mediated by moderately flexible ideas of discretion, judicial oversight, and a humane understanding of basic human rights principles, especially those that mandate proportionality and reject arbitrariness whenever state power is brought to bear against people, regardless of their legal status or their location. The chapter analyzes possible building blocks for a re-conceptualized rule of law for deportation., including discretion, an ideal of “fair play” championed by Frances Perkins, and, finally, the model of international human rights law as determined by the Interamerican Commission, the European Court of Human Rights and other bodies.

Keywords:   rule of law, discretion, judicial oversight, proportionality, Frances Perkins, human rights

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