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INTRODUCTION
In 1996 Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA),1 which made significant changes to our immigration laws designed to remove noncitizens who have committed criminal offenses and put an end to illegal immigration.2 The measures adopted by IIRIRA, draconian by any standard, include both mandatory deportation (that is, deportation for certain crimes and immigration offenses without any consideration of whether the offense is serious or whether there are other mitigating factors counseling against deportation) and mandatory detention (that is, detention of certain noncitizens without the possibility of release on bond during the time the deportation proceedings are pending, which may be several years). One problem with the measures adopted by IIRIRA is that there is no sense of proportion, no possibility for balancing social and humane factors against the seriousness of the underlying offense. As a result, there have been many cases in which noncitizens have been banished from the United States and their families destroyed without reason. In other contexts where important individual interests are at stake, including associational and family rights, the Constitution requires a balancing of the individual interests against the needs of the government; such a balancing of interests helps to ensure that there is a good reason for the infringement of important individual interests at stake.3 In Europe, such balancing is required as a matter of human rights law.4 Under United States immigration laws, however, such individualized consideration has generally not been required; instead, broad categories of individuals are subject to mandatory detention and deportation.
Although there have been significant cases invalidating certain aspects of IIRIRA, in many respects the injustices caused by IIRIRA are not constrained by constitutional considerations. There is no requirement that deportation must be reasonable, or that the interest of the government in removing a person from the United States must be balanced against fundamental individual rights such as the right of the family to live together. The reason that courts have not been willing to constrain the deportation power within the bounds of reason is due at least in part to the so-called "plenary power" doctrine, according to which immigration matters "are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry...