This Note could be read as another Note addressing Congress’s power to strip jurisdiction from Article III courts. Yet, when this power is exercised in the immigration context, its impact extends far beyond the realm of checks and balances. Instead, this Note is about the insulation of the Board of Immigration Appeals (“BIA”) and its unfettered ability to create, interpret, and adjudicate its own laws. Not allowing courts to review BIA decisions leaves mixed-status families vulnerable to the harsh consequences of inherently arbitrary decisions made by executive officers.

These practices go against the established common law principles of family unity. For nearly a century, our judiciary has emphasized the importance of maintaining the family nucleus and parental autonomy. The courts have explained that it is central to our nation’s history and culture that parents have the right to be present in their child’s upbringing, enacting safeguards such as procedural protections for parents against the intrusion of the State. However, when it comes to mixed-status families, these judicial protections do not extend to immigration proceedings. When a child is born in the United States to undocumented parents, they are forced to decide between complete family separation and the forced removal of a citizen child from the country.

Stripping jurisdiction from courts to hear immigration proceedings of mixed-status families prevents the courts from addressing the violations of the fundamental right to family unity. While Congress does have the power to limit the jurisdiction of Article III courts, Congress cannot withhold judicial relief from people seeking to protect their rights to life, liberty, or property. Judicial recognition of the fundamental right to family unity, in the context of mixed-status families, would be a first step in enabling federal courts to preserve the constitutionality of our immigration system.


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