Affording Discretion to Immigration Judges: A Comparison of Removal Proceedings in the United States and Canada

Abstract

In the United States, immigration judges lack the discretion to consider defenses during the removal proceedings of legal, non-citizen residents if they have committed an aggravated felony. American citizen children face the significant risk of lifelong separation from parents, who commit relatively minor crimes, because the definition of an aggravated felony is so broad. Canadian immigration laws, akin to those in a majority of developed countries, grant judges the crucial opportunity to weigh the separation of a parent and citizen child in the removal decision. This Note argues that Congress should follow Canada’s example by passing the proposed Child Citizen Protection Act. Such an equitable approach is necessary to adhere to the Convention on the Rights of the Child. Although the United States is not a party to that Convention, its duty as a signatory may still require it to promote the best interests of citizen children in its immigration courts. Further, the principles governing that Convention may be morphing into an international custom, which would place American removal proceedings directly at odds with binding international law.