* (c) 2000 Daniel Kanstroom. Associate Clinical Professor of Law, Boston College Law School; Director, Boston College Immigration and Asylum Project.
1 Hanna Fenichel Pitkin, The Idea of a Constitution, 37 J. Legal Educ. 167, 167 (1987). See generally Hanna Fenichel Pitkin, Wittgenstein And Justice (1972) (elaborating further on this theme).
2 This Dialogue is part of a larger project that critiques the current state of United States deportation law. It is designed to be read in conjunction with two other articles: Daniel Kanstroom, Crying Wolf or a Dying Canary?, 25 N.Y.U. Rev. L. & Soc. Change ___ (forthcoming 2000) [hereinafter Kanstroom, Crying Wolf]; and Daniel Kanstroom, Deportation, Social Control, and Punishment: Some Thoughts About Why Hard Laws Make Bad Cases, 113 Harv. L. Rev. 1889 (2000) [hereinafter Kanstroom, Deportation, Social Control]. These articles have been made possible by support from Deans Aviam Soifer, James Rogers and John Garvey and a grant from Walter D. Wekstein, for which I am most grateful.
3 See statistics cited in Kanstroom, Deportation, Social Control, supra note 2, at 1890 n.2.
4 See id. at 1890–91.
5 See, e.g., Locked Away: Immigration Detainees in Jails in the United States, in Human Rights Watch Report, Sept. 1998.
6 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, 340–43 (2000) (suggesting need to return more discretion to immigration judges to grant waivers from deportation.). See generally Daniel Kanstroom, Surrounding the Hole in the Doughnut: Discretion and Deference in U.S. Immigration Law, 71 Tul. L. Rev. 703 (1997) (analyzing discretion in immigration law and suggesting ways to structure it in the aftermath of 1996 changes to the Immigration and Nationality Act).
7 See Michael Fix & Wendy Zimmerman, Urban Institute, All Under One Roof: Mixed Families in an Era of Reform (last modified June 1999)<http://www.urban.org/immig/ all_under.html>.
8 See Kanstroom, Crying Wolf, supra note 2, at ___.
9 See generally Nancy Morawetz, Understanding the Impact of the 1996 Deportation Laws and the Limited Scope of Proposed Reforms, 113 Harv. L. Rev. 1936, 1950–54 (2000) (discussing the impact of the 1996 immigration laws on families of legal permanent residents convicted of crimes) [hereinafter Morawetz, Understanding the Impact].
10 Deportation for an aggravated felony results in a permanent bar against reentry into the United States. See INA § 212 (a)(9)(A)(ii)(II), 8 U.S.C. § 1182 (a)(9)(A)(ii)(II) (Supp. II 1996).
11 See generally Gerald L. Neuman, Jurisdiction and the Rule of Law after the 1996 Immigration Act, 113 Harv. L. Rev. 1963, 1975–82 (2000) [hereinafter Neuman, Jurisdiction].
12 See United States v. Graham, 169 F.3d 787, 791–93 (3d Cir.) (holding that misdemeanor petty theft with one year maximum sentence under New York law was an “aggravated felony”), cert. denied, __ U.S. __, 120 S. Ct. 116 (1999).
13 See INA § 101(a)(43)(F), 8 U.S.C.§ 1101(a)(43)(F) (Supp. II 1996) (“crime of violence” as an “aggravated felony”).
14 See, e.g., In re Magallanes, Int. Dec. 3341 (B.I.A. Mar. 19, 1998) (holding that Arizona conviction for aggravated driving under the influence of alcohol was a “crime of violence” and therefore an “aggravated felony”).
15 See In re L-G-, Int. Dec. 3254 (B.I.A. Sept. 27, 1995) (employing Davis/Barrett test where state drug offense can qualify as an “aggravated felony” under INA, regardless of state classification of the offense as a felony or misdemeanor, if offense is analogous to a felony under the federal drug statutes); cf. In re K-V-D-, Int. Dec. 3422 (B.I.A. Dec. 10, 1999) (concluding that conviction that was a felony under state law but a misdemeanor under federal law was not an aggravated felony under the INA).
16 See Graham, 169 F.3d at 793.
17 See generally Morawetz, Understanding the Impact, supra note 9, at 1939–41 (discussing term “aggravated felony” under the 1996 immigration laws).
18 See Bernal-Vallejo v. INS, 195 F.3d 56, 63 (1st Cir. 1999); Magallanes-Damian v. INS, 783 F.2d 931, 933 (9th Cir. 1986). Some courts, however, have occasionally recognized a Fifth Amendment right to counsel under very specific circumstances. See, e.g., Rios-Berrios v. INS, 776 F.2d 859, 862 (9th Cir. 1985). For a more complete discussion of this issue, see Pauw, supra note 6, at 309–11.
19 See Kanstroom, Deportation, Social Control, supra note 2, at 1896 n.37.
20 A need exists for an empirical study of this question. In the author’s personal experience of more than fifteen years of practice and training lawyers about immigration consequences, however, the range of concern expressed by defense lawyers about immigration consequences has been very broad. The First Circuit Court of Appeals recently suggested that “[g]ood defense counsel in criminal cases often advise clients about immigration law consequences.” Mattis v. Reno, 212 F.3d 31, 2000 U.S. App. LEXIS 9152, at *25 (1st Cir. May 8, 2000).
21 See, e.g., United States v. Yacoub, 2000 U.S. App. LEXIS 11790, at *3 (7th Cir. May 22, 2000) (describing deportation as collateral consequence of a criminal conviction); United States v. Gonzalez, 202 F.3d 20, 24–28 (1st Cir. 2000) (rejecting the argument that recent amendments to the INA have so altered the relationship between conviction and deportation that revisitation of prior holdings on that relationship is required and barring ineffective assistance claims based on an attorney’s failure to advise his client of the immigration consequences of his client’s plea).
22 See Yacoub, 2000 U.S. App. LEXIS 11790, at *3; Gonzalez, 202 F.3d at 23, 28. An exception to this rule may occur in states such as Massachusetts where judges are required by statute to warn defendants of immigration consequences to pleas. See Mass. Gen. Laws Ann. ch.278, § 29D (West 1998); Commonwealth v. Soto, 727 N.E.2d 811, 812–13 (Mass. 2000)(entering order allowing defendant to withdraw guilty pleas where judge failed to provide full statutory warning during plea colloquy).
23 See INA § 101(a)(48); 8 U.S.C. § 1101(a)(48) (Supp. II 1996) (defining “conviction”).
24 See In re Roldan-Santoyo, Int. Dec. 3377 (B.I.A. Mar. 3, 1999) (holding that under the statutory definition of “conviction” provided at INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), no effect is to be given in immigration proceedings to a state action, which purports to expunge, dismiss, cancel, vacate, discharge, or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state rehabilitative statute).
25 See, e.g., Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 490 (1999) (“Postponing justifiable deportation [in the hope that the alien’s status will change—by, for example, marriage to an American citizen—or simply with the object of extending the alien’s unlawful stay] is often the principal object of resistance to a deportation proceeding, and the additional obstacle of selective-enforcement suits could leave the INS hard pressed to enforce routine status requirements.”).
26 See INA § 236(c), 8 U.S.C.§ 1226(c) (Supp. II 1996) (“Apprehension and detention of aliens”).
27 In fact, if a deportation order cannot be effected once appeals are all concluded, a person may still face years of detention with no right to release. See, e.g., Ho v. Greene, 204 F.3d 1045, 1057–60 (10th Cir. 2000) (concluding that no statutory or constitutional impediment to continuing detention of non-citizens following removal order, even if lawful permanent residents).
28 See Morawetz, Understanding the Impact, supra note 9, at 1947.
29 See Neuman, Jurisdiction, supra note 11, at 1976–82; see also David Cole, Jurisdiction and Liberty: Habeas Corpus and Due Process as Limits on Congress’s Control of Federal Jurisdiction, 86 Geo. L.J. 2481, 2485–89 (1998); Richard H. Fallon, Jr. Applying the Suspension Clause to Immigration Cases, 98 Colum. L. Rev. 1068, 1068+ (1998); Daniel J. Meltzer, Congress, Courts, and Constitutional Remedies, 86 Geo. L.J. 2537, 2565–84 (1998); Gerald L. Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98 Colum. L. Rev. 961, 965–68 (1998).
30 See, e.g., INA § 240A; 8 U.S.C. § 1229b (Supp. II 1996) (“cancellation of removal”).
31 See id. (a)(3).
32 See generally Kanstroom Deportation, Social Control supra note 2.
33 See INA § 262, 8 U.S.C. § 1302 (requiring every alien to register and be fingerprinted if remaining in the U.S. for 30 days or more); 266(a), 8 U.S.C. § 1306(a) (failing to register results in charge of misdemeanor and fine of $1000 and/or six months imprisonment).
34 See INA § 101(a)(13)(c) (prescribing limits on rights of entry by lawful permanent residents); see also 8 C.F.R. § 211.1(b)(1)(A) (stating INS presumption that legal residency is abandoned after one year outside the United States).
35 See U.S. Const. amends. XV, XIX, XXVI. See generally Gerald M. Rosberg, Aliens and Equal Protection: Why Not the Right to Vote?, 75 Mich. L. Rev. 1092 (1977).
36 See, e.g., INA § 237(a)(5), 8 U.S.C. § 1227(a)(5) (prescribing deportation for becoming a “public charge”).
37 See generally Linda S. Bosniak, Membership, Equality, and the Difference that Alienage Makes, 69 N.Y.U. L. Rev. 1047, 1110–15 (1994) (discussing “political function” exception).
38 See, e.g., INA § 201, 8 U.S.C. § 1151 (differentiating system of immigration for relatives of citizens from that for relatives of permanent resident aliens).
39 See generally Developments in the Law—Immigration Policy and the Rights of Aliens, 96 Harv. L. Rev. 1286, 1304 (1983). One commentator asserted:
The new functional style of inquiry that the Court adopted led it to abandon the approach to aliens’ rights that had rested upon the formal categories of “citizen” and “alien.” In place of the formal approach, the Court evolved a model of analysis attuned to the alien’s real participation in society, one recognizing that the alien, as her identification with the community deepened, came increasingly to resemble the citizen. This participation model, reflecting the Court’s new interest in the promotion of substantive fairness in the “private sphere,” accords the alien “a generous and ascending scale of rights as he increases his identity with our society.” The alien enters the United States, finds employment, settles down, and has a family; with each successive step her assimilation into society becomes more complete. The participation model recognizes this process and bases on it the gradual grant of rights to the alien.
See id. (footnotes omitted).
40 Within the past fifteen years, Congress has often addressed the issue of deportation for crime. See, e.g., Pub. L. No.105–141, 111 Stat. 2647 (1997); Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104–132, 110 Stat. 1214 (1996); Immigration and Nationality Technical Corrections Act of 1994, Pub. L. No. 103–416, 108 Stat. 4305 (1994); Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103–322, 108 Stat. 1796 (1994); Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. No. 102–232, 105 Stat. 1733 (1991); Immigration Act of 1990, Pub. L. No. 101–649, 104 Stat. 4978 (1990); Anti-Drug Abuse Act of 1988, Pub. L. No. 100–690, 102 Stat. 4181 (1988); Immigration Reform and Control Act of 1986, Pub. L. No. 99–603, 100 Stat. 3359 (1986); Anti-Drug Abuse Act of 1986, Pub. L. No. 99–570, 100 Stat. 3207 (1986).
41 See, e.g., Riggs v. California, 525 U.S. 1114, 1114 (1999) (denying certiorari in case raising issue whether California “three strikes” law is disproportionate when applied to a misdemeanor conviction); Harmelin v. Michigan, 501 U.S. 957, 1001–09 (1991) (holding that mandatory sentence of life without parole for drug possession did not violate Eighth Amendment); cf. United States v. Bajakajian, 524 U.S. 321, 334–44 (1998) (applying proportionality analysis under Excessive Fines Clause).
42 See, e.g., Solem v. Helm, 463 U.S. 277, 290 (1983) (holding that Eighth Amendment prohibits grossly disproportionate sentences); Furman v. Georgia, 408 U.S. 238, 279–80 (1972) (Brennan, J., concurring) (quoting O’Neil v. Vermont, 144 U.S. 323, 339–40 (1892) (Field, J., dissenting)) (stating that punishment is excessive if length or severity is disproportionate to offense); Trop v. Dulles, 356 U.S. 86, 99 (1958) (reasoning implicitly that proportionality analysis required under Eighth Amendment).
43 See generally Kanstroom, Deportation, Social Control, supra note 2, at 1899–1915.
44 Peter Schuck stated the issue well:
In view of what is inevitably and personally at stake, then, it is undeniable that deportation punishes the alien and punishes her severely. . . . To maintain, as classical immigration law consistently has done, that deportation resembles a sanction like being ejected from a national park rather than that of being banished or sentenced to jail, suggests that something deeply symbolic, not dryly logical, has been at work in the shaping of the doctrine. In condoning the deportation of the alien without the safeguards that government must ordinarily afford before it can impose grave punishment . . . the law affirms the contingent nature of her claims on the community. . . . The government’s obligations to the alien are viewed as resting upon her formal status rather than upon her actual relationship to the society. Since under the classical order the alien’s entry was conceived of as a privilege whose continued enjoyment was conditional upon her compliance with the formal terms that the government prescribed, deportation was simply the revocation of her license, a reversion to the status quo ante. No special procedural safeguards for this reversion were thought to be necessary.
Peter H. Schuck, The Transformation of Immigration Law, 84 COLUM. L. REV. 1, 27 (1984) (footnotes omitted).
45 189 U.S. 86 (1903).
46 424 U.S. 319 (1976).
47 See supra note 18 (discussing right to counsel in deportation hearings).
48 118 U.S. 356, 369, 373–74 (1886) (holding that Chinese noncitizens have rights to equal protection).
49 149 U.S. 698, 707 (1893) (concluding that deportation power was as “absolute and unqualified” as the power to exclude noncitizens from entering the U.S.).
50 See Galvan v. Press, 347 U.S. 522, 531–32 (1954).
51 See Kanstroom, Deportation, Social Control, supra note 2, at 1914–26.
52 For an insightful analysis of this general issue see Pauw, supra note 6, at 330–31.
53 See, e.g., Ma v. Reno, 208 F.3d 815, 821–22 (9th Cir. 2000) (applying strict reading of detention statute).
54 For example, consider a recent series of First Circuit decisions involving the extent to which so-called INA § 212(c) relief remains available. See Mattis, 2000 U.S. App. LEXIS 9152, at *22-*30; Wallace v. Reno, 194 F.3d 279, 285 (1st Cir. 1999); Goncalves v. Reno, 144 F.3d 110, 133–34 (1st Cir. 1998), cert. denied, 526 U.S. 1004 (1999).
55 See Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948) (prescribing strict rule of statutory construction for deportation cases).
56 As Hiroshi Motomura has noted, the disinclination of the Court to revisit substantive due process arguments has led to a “curious evolution” of immigration law. See Hiroshi Motomura, The Curious Evolution of Immigration Law: Procedural Surrogates for Substantive Constitutional Rights, 92 Colum. L. Rev. 1625, 1625 (1992) [hereinafter Motomura, The Curious Evolution]. As part of this evolution, judges, who for a variety of reasons are reluctant to apply some “mainstream constitutional norms” to immigration cases, sometimes use statutory interpretation methods to achieve the same end. See Hiroshi Motomura, Immigration Law after a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545, 547–48, 564 (1990). Also, in some areas of immigration law, procedural due process has occasionally served as a surrogate for substantive constitutional review. See Motomura, The Curious Evolution, supra, at 1627–28.
57 See Kanstroom, Deportation, Social Control, supra note 2, at 1917–20.
58 See 387 U.S. 1, 34–38 (1967); Kanstroom, Deportation, Social Control, supra note 2, at 1927–33. See generally Nancy Morawetz, Rethinking Retroactive Deportation Laws and the Due Process Clause, 73 N.Y.U. L. Rev. 97 (1998); Pauw, supra note 6.
59 See generally Kanstroom, Crying Wolf, supra note 2.
60 3 U.S. (3 Dall.) 386, 390–97 (1798).
61 See Miller v. Florida, 482 U.S. 423, 435–36 (1987) (application of Florida sentencing statute to defendant for crimes committed before statute’s effective date violated the Ex Post Facto Clause); Weaver v. Graham, 450 U.S. 24, 33–36 (1981) (state statute reducing amount of “gain time” deductible from convicted prisoner’s sentence was an unconstitutional ex post facto law as applied to a person whose crime was committed before statute’s enactment); Lindsey v. Washington, 301 U.S. 397, 401–02 (1937) (application of state statute providing that a sentence shall be fixed by court at maximum term and for possible earlier release through parole, which amended statute authorizing maximum and minimum sentences, violated Ex Post Facto Clause as it provided a technical “increase in punishment” because accused were denied possibility of sentence of less than the maximum without tutelage of parole).
62 Miller, 482 U.S. at 430 (citations omitted).
63 See North Carolina v. Alford, 400 U.S. 25, 37–38 (1970) (no constitutional error in accepting a guilty plea containing a protestation of innocence when the defendant intelligently concluded that his interests required entry of a guilty plea and the record before the judge contained strong evidence of actual guilt).
64 See Harold J. Krent, The Puzzling Boundary Between Criminal and Civil Retroactive Lawmaking, 84 Geo. L.J. 2143, 2167 (1996).
65 See Kanstroom, Deportation, Social Control, supra note 2, at 1893.
66 See, e.g., Flemming v. Nestor, 363 U.S. 603, 628–30, 634 n.4 (1960) (Douglas, J., dissenting) (discussing history of concept of punishment in bill of attainder analysis).
67 As Oliver Wendell Holmes, Jr. once stated:
If I were having a philosophical talk with a man I was going to have hanged (or electrocuted) I should say, I don’t doubt that your act was inevitable for you but to make it more avoidable by others we propose to sacrifice you to the common good. You may regard yourself as a soldier dying for your country if you like.
Holmes-Laski Letters 806 (Mark DeWolfe Howe ed., 1953).
68 See Kanstroom, Deportation, Social Control, supra note 2, at 1894 n.20.
69 116 U.S. 616, 633–35 (1886).
70 372 U.S. 144, 164–67, 186 (1963).
71 387 U.S. at 1.
72 490 U.S. 435, 447–49 (1989).
73 See 372 U.S. at 164–67.
74 As Henry Hart once put it so well:
[T]he judges who sit for the time being on the court have no authority to remake by fiat alone the fabric of principle by which future cases are to be decided. They are only the custodians of the law and not the owners of it. The law belongs to the people of the country, and to the hundreds of thousands of lawyers and judges who through the years have struggled, in their behalf, to make it coherent and intelligible and responsive to the people’s sense of justice.
Henry Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1396 (1953).
75 See Bajakajian, 524 U.S. at 334–44.
76 See Kanstroom, Deportation, Social Control, supra note 2, at 1899–1914.
77 See id. at 1914–26.
78 See 490 U.S. at 447–50.
79 Pub. Law No. 104–132, 110 Stat. 1214 (1996) (eliminated INA § 212(c) relief for many types of cases); see also INA § 212(c), 8 U.S.C. § 1182(c) (1994) (repealed in 1996).
80 See Mattis, 2000 U.S. App. LEXIS 9152, at *19.
81 See generally Dan M. Kahan, Social Influence, Social Meaning, and Deterrence, 83 Va. L. Rev. 349 (1997).
82 Oliver Wendell Holmes, Jr., The Common Law 3 (Dover Publications, Inc. 1991) (1881).