What Process is Due?: A Return to Core Constitutional Principles in Immigration Reform

Author(s): 
Aarti Kohli
Publication Date: 
February 6, 2013

ACS is pleased to distribute “What Process is Due?: A Return to Core Constitutional Principles in Immigration Reform,” an Issue Brief by Aarti Kohli, former Director of Immigration Policy at the Chief Justice Earl Warren Institute at University of California, Berkeley School of Law.

In the Issue Brief, Kohli asserts that “[t]he major lesson learned from past reforms is that harsh, punitive measures both in criminal and civil immigration law have not deterred unlawful immigration, nor have they made us safer; rather our current laws wreak havoc on families, particularly U.S.-born children who have been left fatherless or motherless.”  

Looking ahead to the possibility of immigration reform, Kohli urges the reinsertion of flexibility into our treatment of noncitizens. Among her recommendations, she suggests replacing our mandatory deportation system with a balancing test by which immigration judges can take into account a number of factors when deciding whether to order deportation of an undocumented immigrant. She also recommends reinstating the procedure by which judges in criminal proceedings can issue a recommendation against deportation given the circumstances of the case.

Kohli concludes: “We are now presented with an opportunity to craft immigration laws that adhere to our values and offer a more balanced approach to crime and deportation.  This is not to say that the government cannot or should not deport individuals who are deemed a threat; rather, that we work towards creating a full, fair and transparent process that reflects our democratic principles.”


“Toward a More Perfect Union: A Progressive Blueprint for the Second Term” is a series of ACS Issue Briefs offering ideas and proposals that we hope the administration will consider in its second term to advance a vision consistent with the progressive themes President Obama raised in his second Inaugural Address. The series should also be useful for those in and outside the ACS network – to help inform and spark discussion and debate on an array of pressing public policy concerns. The series covers a wide range of issue areas, including immigration reform, campaign finance, climate change, criminal justice reform, and judicial nominations. To view the series, click here.