TITLE: INALIENABLE RIGHTS?
UNIVERSAL AND CONSTITUTIONAL CITIZENSHIP PERSPECTIVES ON DUE PROCESS
IN THE DEPORTATION OF CRIMINAL LEGAL PERMANENT RESIDENTS
AUTHOR: CLARA LONG
NOTE: PLEASE DO NOT CITE THIS PAPER.
INALIENABLE RIGHTS?
UNIVERSAL AND CONSTITUTIONAL CITIZENSHIP PERSPECTIVES ON DUE PROCESS
IN THE DEPORTATION OF CRIMINAL LEGAL PERMANENT RESIDENTS
INTRODUCTION............................................................................................................................. 2
THE CITIZENSHIP OF NON-CITIZENS ......................................................................................... 5
‘Hard’ on the Outside ‘Soft’ on the Inside....................................................................................................... 5
The Rights of Universal Personhood ............................................................................................................... 8
‘CRIMMIGRATION’ AND MANDATORY DEPORTATION .......................................................... 10
Deportation Relief Revoked ........................................................................................................................... 10
Aggravated Felony Category Expanded ........................................................................................................ 11
Procedural Protections.................................................................................................................................. 12
UNIVERSALIZING THE RIGHTS OF NON-CITIZEN LPRs IN DEPORTATION: THE RIGHT TO
RAISE EQUITABLE DEFENSES ................................................................................................. 13
Human Rights Claims .................................................................................................................................... 14
Constitutional Law and Discretionary Waivers for Criminal LPRs in Deportation ..................................... 19
CONSTITUTIONALIZING THE RIGHTS OF NON-CITIZEN LPRs IN DEPORTATION: THE
RIGHT TO CRIMINAL PROCEDURAL PROTECTIONS ............................................................. 20
Functional Criminal Proceedings and Constitutional Protections ............................................................... 20
Human Rights Law and Procedural Due Process ......................................................................................... 23
COMPARING CITIZENSHIP CLAIMS: DETERMINACY AND ASPIRATION ............................. 24
1
Introduction
Hugo Armendariz became a legal permanent resident at age eight, after entering
the United States as a toddler. 1 He remained so until March 2005, when he was deported
to Mexico because of a decade-old conviction for possession of cocaine with intent to
distribute.2 Armendariz lived for nearly 30 years in the United States; he is the father,
stepfather, son and husband of U.S. citizens.3 Upon his release from detention in 2000, he
got a job and began making child support payments to support his daughter, Cassandra, in
California.4 He lived free of entanglements with the criminal law for five years after his
release and before his deportation.5
On the basis of Mr. Armendariz’s family ties and the evidence of his
rehabilitation he argued that he should be eligible for a waiver of deportation formerly
available under §212 (c) of the Immigration and Nationality Act.6 However, the Ninth
Circuit Court of Appeals found that Armendariz came under a mandatory deportation
regime established in 1996, denying such relief to those convicted of ‘aggravated
1
Armendariz-Montoya v. Sonchik, 291 F.3d 1116, 1118 (9th Cir. 2002).
Final Observations Regarding the Merits of the Case for Petitioner at 25, Wayne Smith and Hugo
Armendariz v. The United States of America, Case No. 12.561, Inter-American Commission on Human
Rights (Dec. 7, 2006), available at http://www.immigrationpolicy.org/images/File/spotlight/
Merits%20Brief%20-%20Spotlight.pdf [hereinafter Merits Brief].
3
Id.
4
Id. at 28.
5
Id.
6
Armendariz-Montoya, 291 F.3d at 1118; Armendariz’s argument was that a §212 (c) waiver should have
been available to him because the 1996 amendments to the Immigration and Nationality Act had not gone
into effect when the Immigration and Nationalization Service (INS) initiated his deportation. As described
infra, a §212(c) waiver afforded Immigration Judges discretion to grant waivers of deportation to aliens
convicted of ‘aggravated felonies,’ based on equitable considerations such as family ties and personal
reformation.
2
2
felonies.’ 7 Armendariz appealed the ruling to the Supreme Court, but the high court
declined to hear his arguments.
His case lives on, however, before the Inter-American Commission on Human
Rights (the Commission) where Armendariz contends that the legislative framework
established by 1996 amendments to the Immigration and Nationality Act afforded him no
opportunity to argue at the administrative or judicial level that deportation would violate
his fundamental rights.8 This lack of procedural and substantive due process, according
to his lawyers’ brief, violates human rights codified in the American Declaration on the
Rights and Duties of Man – the right to a fair trial, the right to due process of law, the
right to protection against abusive attacks on family life, the right to establish a family
and the right to protection for mothers and children.9
Now pending for two years, his case before the Commission is less an effort by
immigrant rights lawyers facilitate his return than to apply a human rights framework –
affirming the universal rights of citizens and non-citizens – in their struggle to establish
greater procedural and substantive due process protections for non-citizens, and
specifically legal permanent residents in criminal deportation. Armendariz now lives in
Mexico – a country he returned to with little knowledge of Spanish – and says he has no
plans to return to the United States.10
Arguments for due process in the deportation of legal permanent residents (LPRs)
are herein presented and compared: those of liberal citizenship as codified in
7
Armendariz-Montoya 291 F.3d at 1118
Merits Brief at 30.
9
Id.
10
Pablo Bachelet, Deported Ex-convicts Fight to Return to U.S., THE MIAMI HERALD, Oct. 9, 2007, at A1.
8
3
constitutional law and those of universal citizenship as codified in human rights law.11
This comparison engages with theoretical debates concerning the somewhat paradoxical
‘citizenship of non-citizens,’ providing an opportunity for reflection on the bases for
expansion of the rights associated with this ‘citizenship’ from a strategic perspective.12
As suggested above, LPRs in the United States are subject to mandatory deportation
under a severe regime that is functionally intertwined with criminal proceedings. I argue
that a universal conception of citizenship, informed by human rights norms, can
contribute a basis for challenging the substantive aspects of the process afforded to LPRs
in deportation for criminal convictions with regard to the opportunity to present equitable
defenses before deportation. These challenges provide a normative basis for critique
where the scope of judicial review is limited by sovereignty-affirming doctrine of plenary
power. However, since important constitutional protections already extend to noncitizens, an analysis based on constitutional protections – and liberal citizenship – is
useful as it leads to more determinate procedural vision of what process should be due
where deportation becomes functionally integrated into criminal proceedings.13 Rather
than argue for the supremacy of universal over constitutional citizenship rights or viceversa, I contend that the two are – and should be strategically placed – in productive
dialogue.
11
This analysis will deal only sparingly with the specifics of the Armendariz case.
See generally Linda Bosniak, Citizenship Denationalized, 7 Ind. J. of Glob. Legal Studies 451, 452
[hereinafter Citizenship Denationalized]; ALEXANDER ALEINIKOFF, SEMBLANCES OF SOVEREIGNTY: THE
CONSTITUTION, THE STATE, AND AMERICAN CITIZENSHIP 151 (Harvard University Press 2002).
13
Because of space and time constraints this is a stylized comparison that fails to take fully into account
important debates surrounding human rights and constitutional rights in the detention of non-citizens by
limiting the discussion to only some substantive and procedural protections for criminal LPRs in
deportation.
12
4
The Citizenship of Non-Citizens
The word ‘citizenship’ signals a vast constellation of political and social theory,
not all of which will be dealt with here. Broadly speaking, citizenship frameworks
conceive of citizens variously as defined by their cultural or social identity, their public
duties, or their enjoyment of certain rights. 14 For the purposes of this paper, I engage
with a line of thought conceiving of citizens as those who enjoy individual rights.15
‘Hard’ on the Outside ‘Soft’ on the Inside
T.H. Marshall and others who pioneered the concept of citizenship-as-rights were
especially concerned with the problem of “social inequality” and second-class citizenship
within a polity.16 Defining citizens as “full members of a community,” provided
Marshall a basis for critiquing the incomplete extension of the benefits of membership to
some, since the “full and equal enjoyment by individuals of formal recognition and rights
14
There is no scholarly consensus as to the nature of citizenship, or indeed extra-national citizenship. As
Bosniak points out “The nature of citizenship … is a question which is often disputed; there is no general
agreement on a single definition.” See Aristotle, Politics 93 (E. Barker ed., 1946). Citizenship
Denationalized at 452. In this paper, I mean to address what Will Kymlicka and Wayne Norman
distinguish as citizenship-as-rights, as differentiated from citizenship-as-identity, citizenship-as-activity, or
citizenship-as-legal-status. See generally Will Kymlicka and Wayne Norman, Return of the Citizen: A
Survey of Recent Work on Citizenship Theory, 4 Ethics 352 (1994)
15
T.H. Marshall famously articulated this approach in his essay Citizenship and Social Class, in which he
argues citizenship is made up of the progressive realization of rights in the civil, political and social
spheres. See T.H. Marshall, Citizenship and Social Class in THE CITIZENSHIP DEBATES: A READER 93
(Gershon Shafir, ed. 1998) [hereinafter Citizenship and Social Class].
16
See Citizenship and Social Class at 101, 102. Marshall defines citizenship as “a status bestowed on
those who are full members of a community. All who possess the status are equal with respect to the rights
and duties with which the status is endowed.”
5
(however precisely these rights are defined) [are] the necessary condition of
citizenship.”17
This conception vests rights in the individual but, as Linda Bosniak points out,
rests on an implicit liberal assumption: the state is the entity that will guarantee these
rights.18 An obvious inquiry is then whether rights-holders must be formal legal citizens.
A liberal perspective accommodates a negative answer; the use of the term ‘citizen’ in
this context can obscure the fact that liberal theory also supports significant rights for
resident non-citizens, while vindicating denying certain rights to non-citizens.19 The
location of non-citizens with respect to the liberal polity is significant. For Walzer,
states have unlimited rights to exclude incomers, but “once immigrants reside within a
political community and labor there, they must be treated as members of that
community.” 20 Thus liberal theory can support the ‘citizenship’ of non-citizens by
drawing a ‘hard’ boundary, outside of which state action is not controlled by
constitutional limits, around a ‘soft’ interior, inside of which individuals receive
constitutional protections.21
For the purpose of the following analysis, it bears noting that the liberal
perspective’s comfort with both the extension of constitutional rights to resident noncitizens and the denial of rights to non-citizens’ ‘beyond’ the border dovetails smoothly
17
Citizenship Denationalized at 465.
Id.
19
Michael Walzer defines a country as “world of common meanings” which may be guarded an
“admissions policy, to control and sometimes restrain the flow of immigrants.” MICHAEL WALZER,
SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND EQUALITY 39 (1984) [hereinafter SPHERES OF
JUSTICE].
20
LINDA BOSNIAK, THE CITIZEN AND THE ALIEN 41 (2006) [hereinafter CITIZEN & ALIEN]; SPHERES OF
JUSTICE at 26.
21
CITIZEN & ALIEN at 41.
18
6
with the doctrine of plenary power, which immunizes from constitutional scrutiny federal
regulation of immigration and naturalization – because of they are at the center of the
exercise of sovereignty – by “ratcheting down” the level of judicial scrutiny given to
immigration laws.22
At first glance, this seems like a simple scheme, easily administrable by tracing
the bright-line contours of territorial sovereignty. This, however, is not possible because
non-citizens within the state’s territorial boundaries are still subject to some of the ‘hard’
boundary controls. 23 Observers draw attention to the ways in which the ‘border’ follows
resident non-citizens into the ‘soft’ interior by denying them full access to the equal
rights guaranteed therein. 24 With respect to the plenary power doctrine and immigration
policy, the court’s constitutional analysis carves out the ‘soft’ from the ‘hard,’
presumptively disallowing discrimination on the basis of citizenship but upholding
unrestrained power to regulate admission and inclusion in the political community.25
This is evidence, according to some, of liberal citizenship’s attempt to reconcile
its conflicting loyalties to particularism and universalism by way of a strategy of splitting,
“with the conflicting norms assigned to interior and to border, respectively.”26 However,
since the border is also, physically, in the interior (in the bodies of resident noncitizens)
22
Id.
See generally Ayelet Shachar, The Shifting Border of Immigration Regulation, 3 Stan. J. C.R. & C.L. 165
(20070 [hereinafter Shifting Borders]; CITIZEN & ALIEN.
24
Shifting Borders at 166.
25
See Graham v. Richardson, 403 U.S. 365, 372 (1971) (“[C]lassifications based on alienage, like those
based on nationality or race, are inherently suspect and subject to close judicial scrutiny.”); But see
Matthews v. Diaz 426 U.S. 67 (1976) (holding that a federal provision excluding aliens from welfare unless
they resided in the country for five years as lawful permanent residents is subject only to rational basis
scrutiny because its pursuant to Congress’ immigration power); Cabell v. Chavez-Salido (upholding a
California statute excluding aliens from positions as peace officers under rational basis review since the
distinction implicates the state’s definition of its political community).
26
CITIZEN & ALIEN 16.
23
7
this strategy fails; the “separation between the jurisdictional domains is unachievable
[and] citizenship’s contrasting normative impulses remain directly in contention within
liberal democratic national societies”27
The Rights of Universal Personhood
The human rights regime, by contrast, has no inside-outside qualms about
ascribing positive rights to non-citizens.28 Indeed, there is debate over whether
cosmopolitan norms vesting rights in personhood can properly be said to give rise to
‘citizenship’ given that term’s strong connotation of membership. Yet, scholars have
characterized these rights as ‘citizenship’ rights, positing a post-national world in which
individuals emerge as intrinsically valuable from behind the veil of states.29 In this view,
the universal rights of global – cosmopolitan – citizens condition the sovereignty of the
nation-state, even piercing the veil of the state’s ‘plenary’ power to tie the hands of
government intent on the pursuit of immigration control.30 At its limit the cosmopolitan
vision flips sovereign legitimacy on its head; the legitimacy of the nation-state is
grounded on its conformance with international human rights principles rather than
popular sovereignty.31
Critics allege that this is a wholly unrealistic view of the strength of human rights
27
Id.
Human rights norms codified in international law address civil, political and economic rights held by all
persons, regardless of their relationship to any particular state.
29
Yasemin Nuholu Soysal, Changing Parameters of Citizenship and Claims-Making: Organized Islam in
European Public Spheres, 26 Theory & Society 509, 512.
30
YASEMIN NUHOLU SOYSAL, LIMITS OF CITIZENSHIP: MIGRANTS AND POST-NATIONAL MEMBERSHIP IN
EUROPE 136-62 (1994).
31
Id.
28
8
norms that dangerously overstates the human rights regime’s capacity to protect
individuals. 32 It is also criticized as being undemocratic since it ignores the collective
expression of democratic will as exercised in state sovereignty33 and, in turn, erodes the
sovereign power of states, hollowing them out and making them ineffective guarantors of
individual rights while failing to provide an alternative entity to ensure those rights.
In response, champions of human rights recast the nature of human rights regime
as less concerned with the enforcement of individual rights then with the creation of an
international normative language that provides rhetorical legitimacy to rights claimed
under its universal banner.34 Courts are not deaf to universal moral claims; the discursive
aspect of the international legal framework impacts national understandings of
constitutional protections.35 This understanding of universal-rights cosmopolitan
citizenship provides space to affirm the legitimacy and importance of constitutional and
universal rights arguments regarding due process for criminal LPRs in deportation. Some
of the same impulses that animate cosmopolitan citizenship-as-human-rights also animate
liberal citizenship-as-constitutional-rights. The rhetorical power provided by both
frameworks can be used synergistically with regard to due process for criminal LPRs.
32
See David Chandler, Cosmopolitan Citizenship, 51 Pol. Studies 332 (2003).
Id. at 341 (“For cosmopolitan theorists, the ends for which they advocate are privileged above the sphere
of democracy.”)
34
Id.
35
Sarah Cleveland, Our International Constitution, 31 Yale J. Int’l Law 1 (2006)
33
9
‘Crimmigration’ and Mandatory Deportation36
The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) and the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)
(hereinafter ‘the 1996 laws’) ushered in a drastic change in the consequences of criminal
conviction for legal permanent residents.37 Designed to remove criminal noncitizens
from the United States “as soon as possible,” the laws removed a mechanism for
considering LPRs’ family ties, service to their communities, or any other equitable
considerations before enforcing deportation.38 The only consideration is whether an LPR
has been convicted of an ‘aggravated felony,’ a category the 1996 laws also drastically
expanded making immigration law and criminal law of a functional piece.
Deportation Relief Revoked39
Prior to 1996, decision-makers considered the deportation of legal permanent
residents convicted of crimes in a two-step process. The first step was to determine
whether a person was deportable. The second step was to decide whether that person
should be deported based on any evidence of rehabilitation, the potential harm
deportation could cause to family members, and the existence of strong ties in the
36
Professor Juliet Stumpf may have been the first scholar to use this phrase in legal scholarship. Juliet
Stumpf, The Crimmigration Crisis: Immigrants Crime and Sovereign Power, 56 Am. U. L. Rev. 367
(2006-2007)
37
See Nancy Morawetz, Understanding the Impact of the 1996 Deportation Laws and the Limited Scope of
Proposed Reforms, 113 Harv. L. Rev. 1936 (1999-2000).
38
Sen. Jud. Comm. Rep., No. 104-249 at 7, (available at 1996 WL 180026 at 15), 104th Cong, 2d Sess.
(1996).
39
Deportation is technically called ‘removal’ in both the exclusion and deportation contexts. This paper
refers to removal and deportation interchangeably.
10
person’s country of origin.40 Relief under §212 (c) of the INA was granted to half of all
those who applied. 41 As the U.S. Supreme Court observed, in the six-year period
between 1989 and 1995 more than 10,000 noncitizens were granted relief from
deportation for equitable reasons under this section.42
Aggravated Felony Category Expanded
The 1996 laws defined the term ‘aggravated felony’ as the basis for removal in a
flurry of anti-immigrant sentiment.43 Under the amended provisions, an LPR who is
convicted of an “aggravated felony” is subject to mandatory detention and deportation,
with no eligibility for discretionary relief.44 The term ‘aggravated felony’ is defined
extraordinarily broadly under the 1996 laws to include crimes most often defined as
misdemeanors under criminal law. 45 Writing a bad check, shoplifting, or misdemeanor
battery all qualify as grounds for removal and can be characterized as aggravated felonies
40
See Dawn Marie Johnson, The AEDPA and the IIRIRA: Treating Misdemeanors as Felonies for
Immigration Purposes, 27 J. Legis. 477, 481 (2001).
41
Rob A. Justman, The Effects of AEDPA and IIRIRA on Ineffective Assistance of Counsel Claims for
Failure to Advise Alien Defendants of Deportation Consequences of Pleading Guilty to an ‘Aggravated
Felony,’ 2004 Utah L. Rev. 701 (2004) [hereinafter Justman]
42
INS v. St Cyr, 533 U.S. 289, 296 (2001).
43
HUMAN RIGHTS WATCH, FORCED APART 20
44
See 8 U.S.C. §1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated felony at any time after
admission is deportable.”)
45
See 8 U.S.C. § 1101(a)(43); Dawn Marie Johnson, The AEDPA and the IIRIRA: Treating Misdemeanors
as Felonies for Immigration Purposes, 27 J. Legis. 477, 478-79 (2001) [hereinafter Johnson]. Aggravated
felonies for the purposes of immigration law include: theft offenses for which the term of imprisonment
imposed is at least one year, any “crime of violence” for which the term of imprisonment imposed is at
least one year, “drug trafficking” offenses, gambling offenses, helping others to enter the United States
unlawfully, document fraud where the term of imprisonment is at least 18 months, failure to appear for trial
where the underlying offense is punishable by a term of two or more years, and reentry into the United
States after deportation.
11
for immigration purposes.46 Criminal convictions for murder and petty larceny have the
same automatic result: mandatory deportation.47
Procedural Protections
Despite the expansion of the aggravated felony category and the lack of
discretionary relief, non-citizens in deportation still have the right to due process
protections – including a hearing in front of an immigration judge, examine evidence and
receive a written decision. 48 Compared with criminal defendants, however, the rights of
candidates for removal are minimal.49 Moreover, deportees attempting to appeal the
decision of an immigration judge may face incarceration during that appeal – which
could be years in processing.50
Large numbers of non-citizens deported for crimes receive their deportation
orders after appearing in immigration proceedings without an attorney.51 Indeed, over
46
See e.g. United States v. Christopher, 239 F.3d 1191, 1193 (11th Cir. 2001) (holding that the fact that
offense of shoplifting was classified as misdemeanor under state law did not preclude alien's shoplifting
conviction from qualifying as ``aggravated felony'' for purpose of enhanced penalty provisions for offense
of illegal reentry into United States); See Melissa Cook, Banished for Minor Crimes: The Aggravated
Felony Provision of the Immigration and Nationality Act as a Human Rights Violation, 23 Boston College
Third World Law Journal 293, 294 (2003).
47
Justman, supra note 41 at 702.
48
Shaugnessy v. United States ex rel Mezei, 345 U.S. 206, 212 (1953) (“[A]liens who have once passed
through our gates, even illegally, may be expelled only after proceedings conforming to traditional
standards encompassed in due process of law.”)
49
DANIEL KANSTROOM, DEPORTATION NATION 4. (“Suppression of evidence that may have been seized in
violation of the Fourth Amendment will be impossible in most cases. The noncitizen will not be read
“Miranda” rights. Indeed he may not even be advised that he has the right to obtain a lawyer (at his own
expense) until after a government agent has interrogated him. He will never have the right to appointed
counsel. If he believes he has been singled out due to race, religion, or political opinion, he will generally
not be able to raise a “selective prosecution” defense. He will never have the right to a jury trial.”)
(Citations omitted)
50
DEPORTATION NATION 4
51
Karin Brulliard, “Battling Deportation Often a Solitary Journey,” THE WASH. POST, January 8, 2007
12
sixty percent of all respondents in removal proceedings before an immigration judge are
pro se. Among detained respondents, ninety percent are unrepresented.52 As United
Nations human rights report recently noted, immigrants “are also often transferred to
remote detention facilities, which interferes substantially with access to counsel.” 53
Given the functional continuation between the criminal proceeding and the immigration
proceedings many observers argue that they should be regarded as the same proceeding.54
Yet, criminal protections, including the right to appointed counsel, do not apply.
Universalizing the Rights of Non-Citizen LPRs in Deportation: the Right to Raise
Equitable Defenses
Universal rights advocates concede “every state’s rights to set deportation criteria
and procedures” but argue that this does “not allow unfettered discretion to deport all
non-citizens in all circumstances.”55 In this section, I outline rhetorical strategies human
rights law offers to advocates for due process protections for criminal LPRs in
deportation and assess how the European Court of Human Rights weighs the right to
family against states’ sovereign power to expel noncitizens. The European Court of
Human Rights’ jurisprudence on this issue reveals that the state’s interest in deporting
(citing Department of Justice, Executive Office for Immigration Review).
See Christopher Nugent, Towards Balancing a New Immigration and Nationality Act: Enhanced
Immigration Enforcement and Fair, Humane and Cost-Effective Treatment of Aliens, 5 U. Md. L. J. Race,
Religion, Gender & Class 243, n.43 and accompanying text (2005).
53
Report of the Special Rapporteur on the human rights of migrant, Jorge Bustamante, Mission to the
United States of America, Human Rights Council, A/HRC/7/12/Add.2 (March 5, 2008), Paragraph 32.
54
See “Constitutionalizing the Rights of Non-Citizens” infra
55
HUMAN RIGHTS WATCH, FORCED APART 45; See UN Human Rights Committee, General Comment 15
(“It is in principle a matter for the State to decide who it will admit to its territory. However, in certain
circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for
example, when considerations of non-discrimination, prohibition on inhuman treatment and respect for
family life arise.”)
52
13
whomever it wishes however it wishes often prevails, even where human rights of noncitizens are taken into account. However, human rights norm provide a powerful basis
for requiring that states ensure the right to raise equitable defenses to deportation.56
Compared with arguments constitutional law can offer for the right to raise equitable
defenses human rights law provides a more tangible normative hook on which to hang an
objection to the lack of availability of equitable defenses under the 1996 laws.
Human Rights Claims
International human rights claims attacking the framework under which criminal
non-citizens are deported center on deportation’s interference with a fundamental right
(notably, the right to family) or deportation procedures’ inadequate attention to a
fundamental right. The International Covenant on Civil and Political Rights (ICCPR)57
provides that “an alien lawfully in the territory of a State Party to the present Covenant
may be expelled therefrom only in pursuance of a decision reached in accordance with
law” and further that “except where compelling reasons of national security otherwise
require” non-citizens “be allowed to submit the reasons against his expulsion and to have
his case reviewed by, and be represented for the purpose before, the competent authority
or a person or persons especially designated by the competent authority.”58 The United
States is a party to the ICCPR and has entered no reservations on Article 13.
56
HUMAN RIGHTS WATCH, FORCED APART 51
International Covenant on Civil and Political Rights [hereinafter ICCPR], entered into force Mar. 23,
1976, art. 13, art. 17, 999 U.N.T.S. 171, G.A. res. 2200A(XXI), 21 U.N. GAOR Supp. (No.16) at 52, U.N.
Doc. A/6316 (1966), available at http:://www1.umn.edu/humanrts/instree/ b3ccpr.htm.
58
Article 13, ICCPR
57
14
Additionally, the right to family life is well-cemented in human rights law. The
right to family unity is expressed in the Universal Declaration of Human Rights (“the
family is the natural and fundamental group unity of society and is entitled to protection
by society and the State”)59 and the ICCPR (no one shall be “subjected to arbitrary or
unlawful interference with his privacy, family, home or correspondence,” “the family is
the natural and fundamental group unit of society and is entitled to protection by society
and the state,” and all men and women have the right to “marry and to found a family”).60
Article 8 of the European Convention on Human Rights61 establishes an individual’s
fundamental right to “respect for his private and family life.”62 According to the UN
Human Rights Committee the right to family unity includes the right “to live together.” 63
Though it will not be discussed at much length here, the Convention on the Rights
of the Child establishes that domestic legal institutions should act with the “best interests
of the child as a primary concern.”64 The U.S. is a signatory of the CRC, though not a
party, and some have argued that its duties arising under the convention require courts to
59
Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A(III),
U.N. Doc. A/810 at 78 (1948), art. 16(3).
60
ICCPR Art 17(1) , Art 23
61
Some have argued that the Convention is binding as international customary law on the U.S. “based on
its breadth, period of acceptance and the opinions of scholars and judges.” Melissa Cook, Banished for
Minor Crimes: the Aggravated Felony Provision of the Immigration and Nationality Act as a Human
Rights Violation” 23 B.C. Third World L.J 293, 319.
See Cook.
62
Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, art. 8, 213
U.N.T.S. 222, 230. Article 8 states: “1. Everyone has the right to respect for his private and family life, his
home and his correspondence. 2. There shall be no interference by a public authority with the exercise of
this right except such as in accordance with the law and is necessary in a democratic society in the interests
of national security, public safety, or the economic well-being of the country, for the prevention of disorder
or crime, for the protection of health or morals, or for the protection of rights and freedoms of others.”
63
UN Human Rights Committee, “General Comment 19: Protection of the Family, the right to marriage
and equality of the spouses,” art. 23. July 27, 1990.
64
UN Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3, arts. 3,9.
15
weight the separation of a parent and child in deportation proceedings.65
Non-citizens convicted of crimes in signatory countries to the European
Convention have invoked Article 8 to prevent deportation and succeeded in the European
Court of Human Rights.66 In the deportation context, the right to family is
counterbalanced against the state’s right to define immigration laws. The European
Court of Human Rights established this approach to these cases in Boultif v. Switzerland,
a case involving an Algerian man married to a Swiss citizen who was deported for a
criminal assault conviction. The test in Boultif looks first to whether there has been an
interference with family life and if so whether it is permissible under Article 8(2) as “in
the interests of national security, public safety, or the economic well-being of the country,
for the prevention of disorder or crime, for the protection of health or morals, or for the
protection of rights and freedoms of others.” Finally the court asks whether the
interference with family life is “necessary in a democratic society” and weighs eight
factors, including the nature and seriousness of the offense.67 As noted, some applicants
have prevailed under this framework, however many do not. For example, in Uner v. The
Netherlands the court held the Netherlands not in violation of Article 8 though the
65
Adam Colicelli, Affording Discretion to Immigration Judges: A Comparison of Removal Proceedings in
the United States and Canada, 32 B.C. Int’l & Comp. L. Rev. 115 (2009) (arguing that the U.S. Congress
should follow Canada’s example of adherence to the CRC by granting judges the opportunity to weigh the
separation of a parent and citizen child in removal decisions).
66
See, e.g., Boultif v. Switzerland, App. No. 54273/00, 33 Eur. H.R. Rep. 1179, 1184–89 (2001) (Eur. Ct.
H.R.); Dalia v. France, App. N0. 26102/95, 33 Eur. H.R. Rep. 625, 641–46 (1999) (Eur. Ct. H.R.); Mehemi
v. France, App. No. 25017/94, 30 Eur. H.R. Rep. 739, 750–53 (1997) (Eur. Ct. H.R.); Bouchelkia v.
France, App. No. 23078/93, 25 Eur. H.R. Rep. 686, 704–08 (1997) (Eur. Ct. H.R.); Beldjoudi v. France
67
The eight factors are: (1) The nature and seriousness of the offense, (2) The length of the applicant’s stay
in the expelling country, (3) The length of time elapsed since the offense and the applicant’s behavior
during that time, (4) The nationalities of the parties concerned, (5) The applicant’s family situation (length
and “effectiveness” of the marriage), (6) Whether the spouse knew about the offense at the time of entering
into the marriage, (7) Whether there are children, and their ages, and (8) The potential difficulties family
members would face in relocating to the applicant’s home country.
16
applicant had lived in the Netherlands for 25 years since age 12, has a Dutch son and his
whole extended family was in the Netherlands. An impassioned dissent claimed that the
court was placing extra weight on the first of the Boultif factors – the nature and
seriousness of the offense (Uner served time for manslaughter, among other offenses).68
The result in Uner and other cases like it 69 suggest that the right to stay with
one’s family wanes as the severity of the offense, and thus the undesirability of the
noncitizen, increases. Nevertheless, human rights advocates make much of the fact that
61 governments currently allow LPRs to present defenses prior to deportation, two-thirds
of these because they are party to the European Convention of Human Rights.70 A
procedural mechanism that made sure equities like the right to family were taken into
account like the Boultif balancing test would likely negate the deportability of many legal
permanent resident ‘aggravated felons’ under United States immigration law.71
Nonetheless, an extremely limited number of cases have applied these human
rights concepts in the U.S.72 In Beharry v. Ashcroft Judge Weinstein reasoned that
Congress's plenary power over immigration is based on the idea, derived from
international law, that an essential power of sovereign nations is the ability to forbid entry
68
The dissenters disagreed not only with the application of the Boultif factors but with the unequal
application of the ‘punishment’ of deportation to non-citizens as opposed to citizens. “The convention is a
living instrument which must be interpreted in the light of present-day conditions. But we would have
liked to see this dynamic approach to case-law tending towards increased protection for foreign nationals
(even criminals) rather than towards increased penalties which target them specifically.” Boultif v.
Switzerland, App. No. 54273/00, 33 Eur. H.R. Rep. 1179, 1184–89 (2001)
69
See e.g. Case of Joseph Grant v. the United Kingdom App. No. 10606/07 (2009), Case of Onur v. United
Kingdom No. 27319/07 (2009), Case of Kaya v. German No. 31753/02 (2007).
70
See Human Rights Watch, Forced Apart 49-50
71
Melissa Cook, Banished for Minor Crimes: the Aggravated Felony Provision of the Immigration and
Nationality Act as a Human Rights Violation” 23 B.C. Third World L.J 293, 319
72
Beharry v. Ashcroft, 329 F.3d 51 (2d Cir. 2003). (rev’d on procedural grounds) (creating a
“humanitarian” waiver of removal for long-term LPRs convicted of certain crimes whose deportation
would visit hardship on guiltless family members)
17
to foreign nationals. Thus Congress could not hold such expansive power without the
existence of international norms. Given that immigration law is rooted in these norms
(including human rights norms), it must be limited by them. Judge Weinstein construed
the Immigration and Nationality Act under Charming Betsy – the principle that domestic
law should be interpreted where possible not to conflict with international law – to bring
it into line with international law and found that a grant of a humanitarian waiver was
necessary to prevent “arbitrary interference” with Beharry’s family life in violation of the
ICCPR.
Interestingly, Judge Weinstein concluded that Beharry was ineligible for relief
under a “narrow and wooden construction of the INA” 73 but he declined to rule on the
issue of whether the unavailability of discretionary waivers to LPRs in deportation
violated the equal protection clause because a case in his circuit was in the appeals
process on that very issue. Soon after the Beharry decision was published Judge
Weinstein had his answer; the Second Circuit court of appeals held that non-citizen LPRs
were not denied equal protection because of their non-eligibility for a discretionary
waiver based on familial hardship, even though non-LPRs are eligible for discretionary
waivers of deportation.74 The court of appeals saw the differential treatment as rationally
related to “legitimate government purposes.” 75 “Over no conceivable subject,” opined
the court “is the power of Congress more complete than it is over the admission of
73
Beharry 183 F. Supp.2d at 603.
Jankowski-Burczyk v. I.N.S. 291 F.3d 172 (2002).
75
Id. at 179. (“Among other things, Congress could have determined that LPRs violation of American law
represented a greater betrayal or posed a heightened concern of recidivism, therefore calling for harsher
measures under the immigration laws.”) (Quoting Kleindienst v. Mandel, 408 U.S. 753, 766)
74
18
aliens.”76
Constitutional Law and Discretionary Waivers for Criminal LPRs in Deportation
As Jankowski suggests, substantive due process protections for LPRs in
deportation are few because of the insulating effect of the plenary power doctrine.77
However, a commitment to family unity is strongly expressed in constitutional law. The
U.S. Supreme Court has recognized that “the right to live together as a family” is a
fundamental right deserving constitutional protection.78 Notwithstanding this
recognition, a critique of the substantive due process deficiency created by the lack of
discretionary waivers implicates a full frontal attack on the plenary power doctrine.79
This doctrine has not been unassailable with regard to procedures as will be discussed
infra, but constitutional attacks on the lack of discretionary waivers for criminally-
76
Id. at 178.
But see Hiroshi Motomura, The Curious Evolution of Immigration Law: Procedural Surrogates for
Substantive Constitutional Rights, 92 Colum. L. Rev. 1625 (arguing that procedural due process claims for
noncitizens have served in a significant number of cases as a surrogate for the substantive judicial review
that the plenary power doctrine seems to bar).
78
Moore, 431 U.S. at 499, 500 (“a private realm of family life [exists] which the state cannot enter”). See
e.g. Loving v. Virginia, 388 U.S. 1, 7 (1967) (discussing protection of the right to family); Griswold v.
Connecticut, 381 U.S. 479, 485-86 (1965). See Linda Kelly, Preserving the Fundamental Right to Family
Unity: Championing Notions of Social Contract and Community Ties in the Battle of Plenary Power Versus
Aliens Rights. Villanova Law Review. Vol 41 (1996).
79
Robert Pauw, Plenary Power: An Outmoded Doctrine that Should Not Limit IIRIRA Reform, 51 Emory
L.J. 1095 (2002) (arguing that because of the plenary power doctrine, the litigation that has occurred under
IIRIRA has not significantly changed mandatory deportation and detention provisions). It also means
fitting the claim within the limitations imposed on substantive due process itself; it is only applicable to
fundamental rights and liberties that are “deeply rooted in this Nation’s history and tradition.” Moore, 431
U.S. at 503. See Daniel Kanstroom, Deportation, Social Control, and Punishment: Some Thoughts About
Why Hard Laws Make Bad Cases, 113 HARV. L. REV. 1889, 1930 (2000).
77
19
convicted LPRs have been unsuccessful.80
Constitutionalizing the Rights of Non-Citizen LPRs in Deportation: the Right to
Criminal Procedural Protections
Constitutional
law protects the procedural due process rights of LPRs in
deportation. Limitations on these protections rest in part on a high valuation of the
governmental interest in expulsion and in part on an acceptance of the legal fiction that
deportation is a civil, and not criminal, proceeding.81 This section outlines the argument
for a functional understanding of deportation as part of the penal punishment visited on
criminally-convicted LPRs. If courts accept this functional understanding, they can look
to clearly-defined procedural protections afforded to criminal defendants in order to
identify what process is due as a constitutional matter.
Functional Criminal Proceedings and Constitutional Protections
The court recognized procedural due process protections for noncitizens in
deportation over a century ago, 82 but assessment of the constitutionality of deportation
80
Id. at 1126 (arguing that notwithstanding the failure of attempts to defeat the plenary power doctrine in
mandatory deportation cases, there is “no reason for the court to refuse to consider and protect the
constitutional rights of citizens and noncitizens at stake.”).
81
See Robert Pauw, A New Look at Deportation as Punishment: Why at Least Some of the Constitution’s
Criminal Procedure Protections Must Apply, 52 Admin. L. Rev. 305 (2000); Daniel Kanstroom,
Deportation, Social Control and Punishment: Some Thoughts About Why Hard Laws Make Bad Cases, 113
Harv. L. Rev. 1889 (2000).
82
Yamataya v. Fisher, 189 U.S. 86 (1903). Courts have not given these procedural protections much of a
second look where Congress fails to give them much substance. “Whatever the procedure authorized by
Congress is, it is due process as far as an alien denied entry is concerned,” the 1950s Supreme Court held in
the context of what was framed as an exclusion case. United States ex rel. Knauff v. Shaughnessy, 338 U.S.
537, 544 (1950).
20
procedures results from the combination of two important Supreme Court decisions. The
first was Matthews v. Eldridge, which set out the requirements for procedural due
process: courts must weigh the injury of the threatened action, the risk of error through
the procedures used and the probable value of any additional safeguards, and the interests
of the government in efficient adjudication.83 The second was Landon v. Plasencia
which applied those requirements to the immigration context.84 The Plasencia court
expressly recognized the heightened injury deportation represents to LPRs because
presumable LPRs have stronger ties in the United States.85 It also wrapped the
government’s plenary power over immigration matters into the Eldridge balancing test,
essentially constituting a thumb on the scale increasing the governmental interest in
efficient adjudication. A critical assessment of the relative valuation of the Eldridge
factors in deportation proceedings emphasizes enormity of the liberty interest at stake and
the difference increased process (right to appointed counsel for indigent deportees) could
make in avoiding erroneous outcomes.86
The consideration of adequate due process for LPRs under Plasencia and
Eldridge also assumes that deportation is a civil, rather than criminal proceeding. Two
19th century U.S. Supreme Court decisions still control deportation’s categorization as
83
Matthews v. Eldridge, 424 U.S. 319 (1976).
Landon v. Plasencia, 459 U.S. 21 (1982). Maria Plasencia, a legal permanent resident, took a short trip
with her husband to Tijuana, Mexico and then tried to reenter the United States. Immigration officials
attempted to exclude her, alleging she tried to help six noncitizens cross the border illegally. Plasencia
argued her due process rights had been violated because the government inadequately informed her of the
charges against her and the consequences of waiving legal counsel.
85
“Once an alien gains admission to our country and begins to develop ties that go with permanent
residence, his constitutional status changes accordingly.” Plasencia 459 U.S. at 32.
86
See Beth J. Werlin, Renewing the Call: Immigrants’ Right to Appointed Counsel in Deportation
Proceedings, 20 B. C. Third World L. Journal 393 (2000)
84
21
civil proceeding that does not constitute “punishment.”87 However courts have
recognized the need for enhanced proceedings even in civil proceedings where liberty is
at stake.
Observers note the erosion of the bright-line divide between civil proceedings
(which result in purely remedial sanctions) and criminal proceedings (which result in
punishment).88 Relatively recent Supreme Court decisions acknowledge that sanctions
imposed in civil proceedings must be justified by a legitimate remedial government
interest. 89 If they are in fact punitive, they should be subject to constitutional limitations
on the imposition of punishment.90 This reasoning would be analogically similar to that
of In re Gault in which the court held that “juveniles in delinquency proceedings have a
right to notice of changes, to counsel, to confrontation and cross-examination of
witnesses, and to the privilege against self-incrimination”91 though the proceedings are
formally civil. Interestingly, the Gault court did not rely directly on the Sixth
87
Chae Chan Ping v. United States, 130 U.S. 581 (1889); Fong Yue Ting v. United States, 149 U.S. 698,
730 (1893) (“The order of deportation is not a punishment for crime. It is not banishment, in the sense in
which that word is often applied to the expulsion of a citizen from his country by way of punishment. It is
but a method of enforcing the return to his own country of an alien who has not complied with the
conditions upon the performance of which the government of the nation, acting within its constitutional
authority and through the proper departments, has determined that his continuing to reside here shall
depend. He has not, therefore, been deprived of life, liberty or property, without due process of law; and the
provisions of the Constitution, securing the right of trial by jury, and prohibiting unreasonable searches and
seizures, and cruel and unusual punishments, have no application.”).
88
Pauw, supra note 80, at 316; Kanstroom, supra note 80, at 1920.
89
Austin v. United States, 509 U.S. 602, 621 (1993) (civil drug forfeiture should be considered punishment
and thus subject to Eighth Amendment limits); Dep’t of Revenue v. Kurth Ranch, 522 U.S. 767 (1994) (tax
on possession of illegal drugs, assessed after criminal penalty, could be punishment for Double Jeopardy
purposes). But see Kanstroom supra note 80 at 1924-25 (pointing out that the functional approach in Austin
and Kurth Ranch has been rejected where the court has found that “life imprisonment based on a finding of
mental abnormality and future dangerousness, confiscation of property owned by the innocent wife of a
man who used it during the commission of a crime without her knowledge or consent, and permanent
deprivation of the ability to work in a chosen profession” are not punishments.).
90
Pauw, supra note 80.
91
Kanstroom supra note 80 at 1931. In re Gault, 387 U.S. 1 (1967).
22
Amendment, “but the protections applied to criminal cases formed the model for the
court’s determination.”92 One observer predicts that if the court took such an approach to
deportation proceedings “at minimum there would be a constitutional right to counsel and
a proscription of retroactivity.”93
Human Rights Law and Procedural Due Process
As discussed above, human rights law has a deep concern for fair procedure.94
“The right to a hearing in civil and criminal suits is granted in broad terms by the
American Convention, the European Convention, the Universal Declaration, and the
American Declaration to both nationals and aliens alike.95 However, international law
instruments require the right to a hearing “in accordance with local legislation.” 96 In the
context of criminally-convicted LPRs one could easily argue that the procedural
protections of “a hearing in front of an immigration judge where an alien may be
represented at his own expense, may present evidence and examine the evidence
presented against him” are adequate. There is insufficient specificity in the human rights
claims summarized supra to argue, for example, that indigent LPRs should have the right
to a court-appointed lawyer.
92
Id. at 1932.
Id. at 1933. Retroactivity was (and is to some extent) a major focus of litigation surrounding the 1996s
laws since many LPRs were convicted of crimes before the 1996 laws changed the deportation
consequences of criminal convictions.
94
See Article 13 of the ICCPR
95
CARMEN TIBURCIO, THE HUMAN RIGHTS OF ALIENS UNDER INTERNATIONAL COMPARATIVE LAW 255
(Martinus Nijhoff Publishers 2001)
96
Id. at 256.
93
23
Comparing Citizenship Claims: Determinacy and Aspiration
Human rights law is a rhetorical device that pushes the boundaries we draw
between ‘us’ and ‘them’ outward by emphasizing the essential ‘personhood’ value of
individuals. Constitutional law, by contrast, tolerates and endorses distinctions between
individuals on the basis of their formal citizenship status while also engaging with
universal values. This paper has been an attempt to explore the possibilities and limits of
each of these as citizenship frameworks in the limited context of legal permanent resident
noncitizens convicted of ‘aggravated felonies.’
In order to justify the application of procedural due process protections we must
recognize that “the rules of membership and the criminal law effectively occupy the same
terrain” and that the deportation of LPRs convicted of ‘aggravated felonies’ compounds
applicable penalties; “a noncitizen who commits a crime is subject to the same criminal
punishment that would be imposed on any convicted criminal and also to the
immigration penalties the law prescribes.” 97 Having overcome this hurdle, we may
proceed with a forceful and specific claim for more procedural protections. Human rights
claims provide no such specificity and are thus not advanced enough to protect noncitizen
LPRs in deportation in the United States.98
On the other hand, claims for substantive due process under a human rights
framework proceed with no such roadblock. We may argue that simply by being people,
noncitizens have the right to present equitable defenses to deportation and to have those
97
CITIZEN & ALIEN 173 n. 184
See ALEXANDER ALEINIKOFF, SEMBLANCES OF SOVEREIGNTY: THE CONSTITUTION, THE STATE AND
AMERICAN CITIZENSHIP 180.
98
24
claims heard in a fair proceeding. The jurisprudence of the European Court of Human
Rights demonstrates that this may not always mean noncitizens get to stay, but it does at
least ensure consideration of equities.
By contrast, in order to construct a constitutional argument for upsetting the
scheme Congress has laid out for mandatory deportation we must first establish that the
constitution applies by overcoming the “categorical presumption that all laws and
enforcement actions touching on immigration necessarily bear on foreign affairs or
national security.”99
Constitutional claims are limited by the plenary power doctrine and human rights
claim are indeterminate and lack enforcement power, but both have value. Robert Pauw,
one of Armendariz’s attorney’s at the Inter-American Commission for Human Rights
says he recognizes that a favorable ruling “will not be that helpful” in a direct challenge
to the congressionally-enacted rules governing deportation. “Where there is ambiguity,”
however, a favorable ruling from the commission “will support a narrow interpretation”
of those rules.”100 Liberal citizenship and cosmopolitan citizenship are in dialogue.
Under a liberal citizenship model deportation without adequate due process
protections can be framed as an impermissible incursion into the ‘soft’ interior of a liberal
polity. In framing this argument, universal citizenship rights help to provide a critique of
substantive policies and can force us to take on an articulated or unarticulated “normative
nationalism” by providing a rhetorical place to stand.101 It is one thing to claim that
99
Michael Lindsay, Immigration as Invasion: Sovereignty, Security and the Origins of Federal
Immigration Power. Harvard C.R.CL. (forthcoming 2009)
100
Interview with Robert Pauw, notes on file with author (May 7, 2009).
101
CITIZEN & ALIEN 134
25
human rights norms should be enforced and quite another to use human rights norms as a
way of making moral claims about what norms we – as a polity – should enforce. Peter
Nyers calls this “democratic cosmopolitanism.” Those who practice it should “risk their
cosmopolitan (and nationalist) principles” by engaging with the particularism of this legal
framework, “while at the same time defending, (re)-discovering and (re)articulating
located universalisms.”102
102
Peter Nyers, Abject Cosmopolitanism: the politics of protection in the anti-deportation movement. 24
Third World Quarterly 1069 (2003).
26