[*PG293]BANISHED FOR MINOR CRIMES: THE AGGRAVATED FELONY PROVISION OF THE IMMIGRATION AND NATIONALITY ACT AS A HUMAN RIGHTS VIOLATION

Melissa Cook*

Abstract:  The aggravated felony provision of the U.S. Immigration and Nationality Act was was originally intended to provide for the deportation of non-citizens convicted of very serious crimes. Over the last 15 years, however, the provision has been consistently expanded to include a plethora of minor crimes that are neither aggravated nor felonious. Moreover, Congress has categorically prohibited aggravated felons from applying for discretionary, equitable relief. This Note contends that the sweeping and indiscriminately applied aggravated felony provision violates an individual’s universally recognized right to respect for family and private life. The Note concludes that to comply with international law and treaty obligations, Congress should follow the standards employed by the European Court of Human Rights in deportation cases. Under this approach, a court may overturn a deportation order when the relevant interests of the non-citizen outweigh those of the United States.

The impact of deportation upon the life of an alien is often as great if not greater than the imposition of a criminal sentence. A deported alien may lose his family, his friends and his livelihood forever. Return to his native land may result in poverty, persecution or even death.1

Introduction

Xuan Wilson came to the United States with her mother and her stepfather, a U.S serviceman, when she was four years old.2 She is now thirty-two and has lived in this country for twenty-eight years.3 In 1989 she was convicted of writing a forged check for $19.83.4 Because of [*PG294]this minor infraction, Ms. Wilson will be deported to a country she has not seen for almost three decades and will be permanently barred from returning to the United States5 This situation is only one example of the many severe consequences of current U.S. immigration law.6

Under current law, a lawful permanent resident (LPR)7 of the United States can be banished from the country for an offense as minor as writing a bad check, shop-lifting, or misdemeanor battery.8 An individual like Xuan Wilson will be permanently banned from re-entering the United States based solely on this type of offense.9 It makes no difference whether this person has just arrived in the country or has lived here most of her life.10 There will be no consideration of whether deportation will force her to leave her entire family and return to a country that she scarcely remembers.11 In fact, she may not even have the opportunity to contest the deportation or to ask a court to remedy the situation.12 Finally, she could be punished for a minor offense even if it was committed years before these deportation laws were passed.13

This Note will address the severe and unjust results of laws mandating deportation (now technically called “removal”)14 of immigrants [*PG295]who have been convicted of crimes, regardless of the seriousness of the offense.15 In particular, the Note will consider the inequity of immigration laws that treat lawful permanent residents who commit petty offenses in precisely the same manner as undocumented non-citizens who commit grievous crimes upon entering the country.16 Furthermore, this Note will question whether Congress’s failure to weigh the seriousness of the crime against the effects of deportation violates a fundamental human right, as recognized by the European Convention on Human Rights, the International Covenant on Civil and Political Rights, and customary international law.17

Part I outlines the history of the deportation of criminal non-citizens, focusing on the “aggravated felony” category.18 Part II of the Note contends that deportation of certain individuals convicted of aggravated felonies violates a fundamental human right recognized by the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention), namely the right to respect for private and family life under Article 8.19 Part II will also consider the approach employed by the European Court of Human Rights in cases where criminal non-citizens raise Article 8 to contest deportation.20 Part III contends that the aggravated felony provision is inconsistent with principles of international law and international agree[*PG296]ments and then, employing the reasoning of a recent case and tenets of international law, suggests an alternative approach.21 Finally, the Note concludes that to comply with international law, Congress must amend the Immigration and Nationality Act to include a balancing test that weighs the relevant interests of the non-citizen and the government.22

I.  Deportation of Criminal Non-Citizens and the Aggravated Felony Provision of the Immigration and Nationality Act

Deportation of criminal non-aliens has evolved from state laws created to ward off an influx of exiled foreign criminals in the late eighteenth century to a federal system that banishes individuals for a number of minor crimes. Since the creation of the aggravated felony provision in the Immigration and Nationality Act (INA), Congress has consistently expanded its reach to cover less serious crimes while simultaneously circumscribing discretionary relief.23 The hardship imposed on non-citizens convicted of aggravated felonies, particularly lawful permanent residents, has inspired many critics to oppose these laws as unjust and unnecessarily harsh.24

A.  Deportation Regulations Based on Criminal Activity

During America’s first century as a nation, Congress did little to regulate immigration.25 The few federal immigration laws in existence primarily concerned naturalization and the protection of passengers on international voyages.26 Despite the common misperception of early Americans as welcoming to all immigrants, restrictions on immigration were in fact imposed by the states.27 Not surprisingly, England’s long history of transporting convicts to the colonies inspired passionate protest by the colonists.28 This compelled the colonies to attempt to regulate criminal immigration as early as 1718, although [*PG297]they were not successful until 1787.29 At that time, states began refusing entry to criminals who were exiled from another country, and some states forbade entrance to any individual who had ever been convicted of a crime.30

The federal government, however, did not attempt to control the immigration of criminals until nearly a century later. Congress’s first effort in 1875 was similar to the states’ earliest immigration laws, excluding convicts who had been forced to emigrate from their native country to avoid a prison sentence.31 Congress also passed a law in 1882 banning “idiots,” “lunatics,” convicts, and “persons likely to become public charges” in response to states’ complaints that indigent and unwanted immigrants were consuming tax revenues.32 In 1891 Congress expanded the class of excludable criminal aliens to include those who had committed crimes involving “moral turpitude.”33

Even though Congress had expanded its authority to exclude criminals, a 1908 bill proposed to deport non-citizens convicted of felonies after entering the United States initially failed.34 Opponents argued that such a bill would be applied unfairly, because the definition of a felony varied too widely from state to state and included minor crimes in some states.35 It was not until 1917, nine years later, that proponents gained sufficient support to implement the country’s first deportation policy.36 By 1938 the grounds for deportation included the commission of felonies and crimes involving moral turpitude if committed within five years of entry into the United States.37

Throughout the early twentieth century, these criminal grounds for deportation remained largely unchanged.38 In 1952 Congress [*PG298]passed the Immigration and Nationality Act, which retained the same grounds for deportation, established deportation procedures, and outlined discretionary relief.39 Since Congress passed the INA, crime-related grounds for deportation have expanded steadily.40 Currently, the criminal grounds for deportation include crimes of moral turpitude committed within five years of entry; aggravated felonies; high speed flight from an immigration checkpoint; controlled substance convictions, drug abuse, or addiction; firearms offenses; crimes relating to espionage, sabotage, treason or sedition for which a five-year sentence may be imposed; and crimes of domestic violence, stalking, violation of a protection order, and child abuse.41

Of these categories, the aggravated felony provision encompasses the widest range of crimes.42 The types of crimes that constitute an “aggravated felony” have expanded rapidly since the passage of the Anti-Drug Abuse Act in 1988, resulting in severe consequences for non-citizens, particularly lawful permanent residents.43

B.  The Transformation of the Aggravated Felony Provision of the
Immigration and Nationality Act

One legal scholar, employing Dante’s legendary categorization, asserts that aggravated felons populate the eighth ring of immigration hell.44 The consequences for the commission of the offense are frighteningly harsh—deportation, mandatory detention, expedited removal, and an absence of discretionary relief, to name a few. These crimes, however, need neither be “felonies” nor “aggravated” in the commonly understood sense of the words.45 In fact, many misdemeanors, including shoplifting and simple battery, are considered “aggravated felonies.”46 This section summarizes the growth of this monstrously sweeping provision.

[*PG299]1.  The Early Evolution of the Aggravated Felony Provision

The Anti-Drug Abuse Act of 1988 (ADAA) introduced the “aggravated felony” concept.47 The ADAA made commission of an aggravated felony a deportable offense.48 By enacting the ADAA, Congress sought to prevent the manufacturing, distribution, and use of illegal drugs.49 Congress apparently believed that the provision was an integral part of controlling drug crimes.50 Debates in the House of Representatives suggest a concern over the growing number of drugs and weapons crimes committed by immigrants, as well as a belief that felonious immigrants were evading deportation.51

Under the ADAA, aggravated felonies were limited to serious crimes, such as murder and drug and weapons trafficking.52 An aggravated felony committed any time after entry subjected non-citizens to deportation.53 Furthermore, the ADAA barred aggravated felons from seeking re-admission into the United States for ten years.54

The Act also instituted special deportation procedures for aggravated felons.55 It requires the Immigration and Naturalization Service (INS) to complete deportation proceedings before the non-citizen finishes serving his criminal sentence for the aggravated felony conviction.56 If proceedings are not completed before that time, the Attorney General is instructed to hold the individual in custody until deported.57

An expansion of the aggravated felony provision was buried in the Immigration Act of 1990.58 One small section of the Act [*PG300]significantly altered the aggravated felony provision by expanding its coverage to include more crimes.59 The legislative history of the Immigration Act states that the provision’s purpose was to broaden the list of “serious crimes.”60 These “serious crimes,” however, included lesser drug crimes and crimes of violence61 for which the term of imprisonment was five years; these offenses are far less serious than the crimes denoted in the ADAA.62 The changes were also intended to tighten perceived loopholes in the ADAA that allowed individuals to “escap[e] justice or deportation,” implement expedited deportation proceedings, and limit stays of deportation.63 President George Bush shed further light on the reasons for the changes in his signing statement, writing:

[The aggravated felony expansion] meets several objectives of my Administration’s war on drugs and violent crime . . . [by providing] for the expeditious deportation of aliens who, by their violent criminal acts, forfeit their right to remain in this country. These offenders, comprising nearly a quarter of our federal prison population, jeopardize the safety and well-being of every American resident.64

When Congress passed the Immigration Act in 1990, the number of undocumented non-citizens in prison was six times greater than ten years before, and most of these prisoners had been convicted of drug crimes.65 More than 80% of the undocumented individuals who [*PG301]were imprisoned had been convicted of narcotics violations, compared with approximately 50% of all federal prisoners.66 Given these statistics, supporters of the law cited concerns about increasing levels of crime committed by non-citizens.67 Furthermore, drug control officials argued that the large number of incarcerated criminal aliens had a “tremendously adverse” effect on the nation’s criminal justice system, which was compounded by an “ineffectual deportation system.”68

A few critics, however, pointed to the Act’s potentially harsh effects on lawful permanent residents (a group often ignored when lawmakers focus on undocumented non-citizens).69 LPRs are highly likely to have family members, productive jobs, and established lives in the United States.70 In such cases, deportation is effectively banishment from one’s home nation.71

In addition to broadening the definition of aggravated felony, the Immigration Act raised the bar for re-entry into the United States after a conviction to twenty years72 and made certain aggravated felons ineligible for discretionary relief.73 Before 1990, LPRs convicted of crimes, including aggravated felons, were eligible to apply for an INA section 212(c) waiver of deportation.74 This discretionary provision allowed the Attorney General to consider mitigating factors, such as the individual’s permanent residence status, his length of residence in the United States, and the effect of his deportation on family mem[*PG302]bers.75 Under the Immigration Act, however, aggravated felons imprisoned for five years or more were made ineligible for a § 212(c) waiver of deportation.76 This eliminated the Attorney General’s ability to consider mitigating factors in the case of many aggravated felons.77 In 1991 Congress limited the class even further by withholding waivers from those who committed more than one aggravated felony, regardless of the sentence imposed.78 The harsh consequences of this provision for LPRs with established lives and families in the United States are not difficult to imagine.

For example, Al Correa left Columbia with his family at the age of two and never returned.79 He attended grade school and high school in Brooklyn, went to college in Manhattan, and registered with the draft board at age eighteen.80 Mr. Correa does not speak Spanish.81 He is “totally American” although “technically Columbian” simply because he failed to apply for American citizenship.82 Nevertheless, pursuant to the aggravated felony provision, Mr. Correa faced deportation to Columbia after pleading guilty to a federal charge of cocaine possession with intent to distribute.83

Before this offense, Mr. Correa was employed and had no police record.84 The prosecutor actually requested a minimum sentence, admitting that Mr. Correa was the “smallest of small fry offenders” and simply “in the wrong place at the wrong time.”85 Even the detective who arrested Mr. Correa did not believe that he should be deported for this offense.86 Unfortunately, the government has “virtually no option even in cases like Mr. Correa’s.”87 As a result of this inflexible law, Mr. Correa faced separation from his family, deporta[*PG303]tion to a country that he did not remember and where he could not speak the language, and induction into the Columbian army.88

2.  The Harsh Effects of Anti-Immigrant Sentiment on the Aggravated Felony Provision: The Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act.

Following the enactment of the Immigration Act of 1990, one commentator remarked that “the future is bleak for the aggravated felon and will probably only worsen.”89 This prediction proved true.90 The Antiterrorism and Effective Death Penalty Act (AEDPA) was the first of two major laws Congress passed in 1996 addressing “immigrant” crime,91 although its primary focus was on preventing and punishing terrorism.92 Following the tragic Oklahoma City bombing, where 168 people were killed, most of the American public believed that Middle Eastern terrorists were responsible for the attack.93 The public perception that foreign terrorists were to blame had the potential to intensify anti-immigrant, xenophobic, and isolationist tendencies that were already visible in society. 94

Accordingly, some commentators proposed comprehensive immigration reform to prevent the admission of alien terrorists.95 One journalist suggested that Congress tighten political asylum laws, more [*PG304]effectively deport illegal aliens, and “swiftly exclude” undocumented newcomers by “put[ting] them on the first return flight.”96 Other suggestions were more extreme; one particularly antagonistic radio talk show host proposed closing the borders to immigrants for “ten or twenty years—or maybe even a century.”97 He railed, “Just claim you’re a ‘political refugee’ and you can come in, flop, pick up your food stamps and start plotting to blow up the World Trade Center. Doesn’t matter if your carrying the HIV virus, doesn’t matter if you hate the country.”98

More rational commentators pled with Congress to wait for the horror of the bombing to pass before enacting any new laws, arguing that a “grieving, outraged nation” was in the “wrong frame of mind to consider legislation.”99 Shortly, investigators discovered that Middle Eastern terrorists were not to blame and, in fact, “home-grown” American citizens were responsible for the attack.100 Even so, some analysts pointed out that the immediate suspicion of Middle Eastern terrorists was not “wholly irrational” given that Islamic defendants were on trial at the time for the 1993 World Trade Center bombing and that car bombs were used twice against Americans in Beirut.101

Reflecting these concerns, Congress rushed to pass a law that deterred and punished terrorist acts by the first anniversary of the Oklahoma City bombing.102 The result, AEDPA, was designed to simplify the prosecution of people charged with committing or planning terrorists attacks, limit the number of appeals for death row prisoners, deport more non-citizen criminals, and eliminate discretionary waivers of deportation.103 Under this law, many long-term LPRs who were spouses and parents of American citizens were suddenly subject to deportation for minor crimes and ineligible for discretionary relief.104

[*PG305] Perhaps partly for this reason, the bill was unenthusiastically accepted by some as the “better-than-nothing anti-terrorism bill”105 and roundly criticized by others as a “reactionary” law passed “in a fit of election year folly.”106 President Bill Clinton signed the bill into law, even though he admitted that the legislation made “major, ill-advised changes in our immigration laws having nothing to do with fighting terrorism” and that it eliminated the most basic forms of relief for LPRs.107

Specifically, AEDPA expands the aggravated felony “grab-bag of convictions”108 to include less serious crimes, such as bribery, counterfeiting or mutilating a passport, obstruction of justice, gambling offenses, and transportation for the purposes of prostitution.109 AEDPA also limits discretionary relief for individuals convicted of an aggravated felony.110 Whereas the Immigration Act of 1990 had allowed aggravated felons who spent less than five years in prison to apply for a waiver of deportation, AEDPA explicitly bars any aggravated felon from applying for § 212(c) discretionary relief.111 Thus, before AEDPA, an immigration judge would consider whether deportation imposed an inequitable hardship by weighing factors such as family ties, length of residence, rehabilitation, service in the armed forces, history of employment, community service, and hardship to family members.112 This Act, however, forces a court to ignore these important considerations in the case of all aggravated felons.

Six months after the passage of AEDPA, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which further exacerbates the consequences of an aggravated felony conviction by applying the provision retroactively.113 The passage of IIRIRA reflected anti-immigrant sentiment in America that ran [*PG306]deeper than the fear of terrorism.114 The American public also held non-citizens responsible for the social problems plaguing society, such as high unemployment, drug abuse, crime rates, and the rising cost of social services.115 For example, a Congressional commission reported that the job skills and education of immigrants were declining, that they were taking jobs from Americans, and that they were committing more crimes; newspaper polls established that many Americans shared this view.116 Another study, however, found that the proportion of immigrants with less than eight years of education had in fact fallen, while the proportion with sixteen years or more had risen.117 Furthermore, it showed that many cities with high immigrant populations had lower unemployment rates and lower crime rates than those with smaller immigrant populations.118

The public perception that modern immigrants come to America with their “hands out for welfare checks” further aggravated the anti-immigrant sentiment.119 In fact, however, in 1995 less than 10% of welfare recipients came from immigrant families.120 Americans also believed that early immigrants contributed to the country’s melting pot image, but groundlessly found modern immigrants to be different and less deserving.121 Modern immigrants are of a different ethnic makeup than early immigrants, and perhaps many Americans were and continue to be unsettled by a changing ethnic landscape with which they cannot identify.122 In addition, modern immigrants do not necessarily wish to assimilate into American society as newcomers strove to do in the past.123 Rather, many immigrants choose to retain their distinct culture and language.124

[*PG307] IIRIRA, Congress’s response to this increasing anti-immigrant sentiment, made substantial changes to the aggravated felony provision.125 Not surprisingly, there was little resistance to the proposed law.126 After all, as one legal scholar noted, “disenfranchisement of an unpopular, scapegoat community that does not enjoy suffrage carries no political risk.”127 In its quest to reform immigration law and appease the public, however, Congress failed to make any distinctions between lawful permanent residents convicted of petty crimes and non-citizens suspected of terrorism or drug trafficking.128 Consequently, some critics argued that the already harsh aggravated felony provisions became cruel and indiscriminate.129

Although some serious crimes were added to the aggravated felony definition, IIRIRA’s primary effect is to reduce the sentence required for defining less serious crimes as aggravated felonies.130 The monetary requirements for a conviction of fraud, deceit, or tax evasion are also greatly reduced.131 Most drastically, IIRIRA forbids a convicted aggravated felon from ever returning to the United States.132 Thus, one immigration expert noted that “incredibly, [an LPR] convicted of shoplifting or of having smuggled a sister into the United States may now be separated for life from his or her United States citizen family.”133

IIRIRA also makes it easier to obtain an aggravated felony conviction by redefining the terms “conviction” and “term of imprisonment” in the INA.134 Before the Act, “conviction” was not statutorily defined; rather, most courts applied a definition created by the Board of Immigration Appeals (BIA) in Matter of Ozkok.135 The Ozkok definition [*PG308]often benefited immigrants because a judge could defer adjudication, meaning she could delay her decision and issue some form of probation instead.136 As long as the individual complied with the probationary requirements, no conviction was entered on the record, and the non-citizen was not deportable.137

Congress sought to expand the scope of “conviction” to assure deportation in cases where a judgment of guilt had been suspended, such as in the case of deferred adjudications.138 IIRIRA, therefore, creates a new definition of “conviction.”139 INA section 101(a)(48) states that a conviction occurs for immigration purposes even when the judge defers adjudication, so long as there are sufficient facts to establish guilt and “the judge has ordered some form of punishment, penalty, or restraint on the non-citizen’s liberty to be imposed.”140

This broader meaning of “conviction” exacerbates the effects of the ever-expanding aggravated felony definition, resulting in severe consequences.141 Non-citizens, including lawful permanent residents, need not be convicted (in the usual sense) in order to be deported as a “convicted” aggravated felon.142 In addition, adjudications not treated as convictions by state laws nevertheless fall within IIRIRA’s definition of conviction, producing inconsistencies between state and federal law.143

Furthermore, IIRIRA provides that any reference in the INA to “term of imprisonment” includes any period of time that the sentence [*PG309]is suspended.144 Before this amendment, the INA required a judge to impose a jail term in order for certain crimes to be classified as aggravated felonies.145 Thus, IIRIRA eliminates a judge’s discretion to suspend the sentence in an effort to avoid the deportation consequences of an aggravated felony conviction.146 Some critics contend that changing the meaning of “term of imprisonment” produces inconsistent results and demonstrates a lack of respect for federal and state court discretion.147 Prior to IIRIRA, courts could suspend a sentence in cases where deportation was not justified.148 According to the new terminology, a plea bargain for a one-year suspended sentence for theft results in deportation as an aggravated felon.149 An eleven-month jail term for the same offense, however, is likely to have no immigration consequences.150

In accordance with the historical severity of the consequences of an aggravated felony conviction, IIRIRA also institutes harsh procedural changes.151 Most notably, the law applies retroactively.152 A conviction is considered an “aggravated felony” regardless of whether the conviction was entered before, on, or after the date of IIRIRA’s enactment.153 Critics fiercely opposed this provision, arguing that it was the “mother of all ex post facto laws forbidden by the Constitution.”154 The ex post facto clause in Article I of the United States Constitution, however, only applies to criminal proceedings, and courts have determined that deportation is “a purely civil action” rather than a criminal proceeding.155 The Supreme Court has consistently upheld Congress’s authority to retroactively apply immigration consequences to prior criminal conduct.156

[*PG310] The harsh provisions of the 1996 laws, particularly the retroactive effect of IIRIRA, attracted widespread media attention.157 Reports uncovered that the INS, pursuant to these laws, began deporting LPRs because minor crimes they had committed years before had since become aggravated felonies.158 For example, in 1987, twenty-one year old Alejandro Bontia was convicted of sexual contact with a minor for having sex with his sixteen year-old girlfriend, because her mother was angry about the relationship and reported Mr. Bontia to the police.159 Almost fifteen years later, he faced separation from his wife and child solely because of this “youthful dalliance.”160 Nigerian native Olufolake Olaleye became a permanent resident in 1990, and both of her children were born in the United States.161 She was ordered deported based on a six-year old conviction for shoplifting baby clothes worth $14.99.162

Another procedural change IIRIRA instituted is “expedited removal” of convicted aggravated felons.163 This provision provoked due process concerns, because non-citizens can be deported without ever seeing an immigration judge.164 Furthermore, once a judge issues a removal order, IIRIRA mandates that the individual be detained until he is deported.165 The consequences of this provision are severe. Mandatory detention could require incarceration thousands of miles away from family members while awaiting the results of lengthy and uncertain appeals.166 Moreover, if the non-citizen’s native country refuses to allow his return, the statute’s plain language contemplates perpetual detainment in the United States.167 This provision, like the expedited removal provision, raised due process questions, which the United States Supreme Court finally addressed in Zadvydas v. Davis.168 [*PG311]In that case the Court determined that reasonable time limits for detention must be read into the statute.169

Emma Mendez De Hay’s story illustrates the harsh effects of IIRIRA’s retroactive application and detention provisions. Ms. Mendez De Hay is a thirty-nine year old mother of four who had lived in the United States for twenty years but was detained thousands of miles away from her family and faced deportation for a “stupid mistake.”170 In 1990, Ms. Mendez De Hay’s Spanish-speaking cousin received a phone call at Ms. Mendez De Hay’s home.171 When Ms. Mendez De Hay answered, her cousin asked her to “tell [the caller] I can’t help him today. I’ll help him tomorrow.” 172 Because her cousin did not speak English well, Ms. Mendez De Hay relayed this message to the caller.173

The caller was an undercover narcotics officer, and Ms. Mendez De Hay was subsequently found guilty of using a communication device to facilitate the distribution of cocaine.174 Despite her innocence, she pled guilty in exchange for a promise that she would not be recommended for incarceration and would not be deported.175 Since 1992, she had been a restaurant manager and had planned to prepare for work as a translator.176 In 1996, however, Ms. Mendez De Hay was stopped by the INS while returning from a trip to Italy with her fiancé and was detained immediately on the basis of that guilty plea.177 To make matters worse, she was sent to a Louisiana facility, far away from her family’s home in Washington state.178 She was particularly concerned about being separated from her two youngest children and her mother, who had been hospitalized for complications from heart disease and diabetes.179 After five months of detention, Ms. Mendez De Hay considered giving up and returning to Mexico. She did not want to leave her family, however, and chose to pursue her appeal [*PG312]rather than submit to deportation.180 After a grueling two-year fight to stay in the United States, her deportation order was finally lifted when a United States Supreme Court decision invalidated certain deportation orders.181

In IIRIRA, Congress did not stop at broadening statutory definitions,instituting procedural changes, and applying the law retroactively. Where AEDPA had severely circumscribed routes to relief from deportation, IIRIRA essentially eliminates them.182 The Act completely repeals the § 212(c) waiver of deportation183 and, in its place, institutes cancellation of removal.184 The new provision gives the Attorney General discretion to cancel removal for some non-citizens, relief for which aggravated felons are categorically ineligible.185 Finally, the Act severely limits judicial review of removal orders for aggravated felons.186 In summary, an individual convicted of an aggravated felony is left with essentially no relief—an immigration judge has no authority to consider mitigating factors, and the deportation order is not subject to judicial review.187

Antonio Cesar Chamorro’s situation embodies the distressing effects of repealing the waiver provisions.188 In 1993, Mr. Chamorro completed a three and a half-year sentence for money laundering.189 Mr. Chamorro had been a legal permanent resident since 1972, had [*PG313]married a citizen, and had two sons, both born in the United States.190 After considering these factors, an immigration judge approved a § 212(c) waiver of deportation, and Mr. Chamorro was allowed to return to his family.191 In 1997, however, Mr. Chamorro was suddenly deported to his native Chile after an immigration judge struck down the waiver pursuant to the 1996 laws.192 Mr. Chamorro’s family was forced to declare bankruptcy and decide whether to remain separated from their husband and father or move to Chile.193 Mr. Chamorro’s wife criticized the 1996 law for making her choose between her husband and her country and for “destroying numerous families.”194

In summary, the aggravated felony provision of the INA has undergone a transformation since its inception in 1988. Congress has consistently broadened the provision, primarily by defining less serious crimes as aggravated felonies.195 Changing the statutory definition [*PG314]of “conviction” and “term of imprisonment,” as well as decreasing the minimum term of imprisonment required, further broadens the scope of the provision.196 Moreover, aggravated felons are ineligible for the discretionary relief that previously had allowed judges to consider mitigating factors.197 Finally, the consequences of a removal order have become progressively harsher and now include mandatory detention, limited judicial review, and a permanent bar from returning to the United States.198 In fact, the consequences of an aggravated felony provision are so harsh that, if one applies international human rights standards, it becomes clear that the provision violates a universally recognized fundamental human right.

[*PG315]II.  The European Convention on Human Rights and the Right to Respect for Private or Family Life as a Defense to Deportation

Article 8 of the European Convention on Human Rights (the Convention) establishes an individual’s fundamental right to respect for private and family life.199 Non-nationals200 convicted of crimes in the signatory countries have invoked this right to prevent deportation.201 The European Court of Human Rights, taking into account both the individual’s interest in “respect of his private or family life” and the government’s need to control crime, has found that deportation violates this fundamental right in certain circumstances.202

Non-citizens convicted of aggravated felonies in the United States do not have the benefit of a balancing test like that applied by the European Court. Because Article 8 requires consideration of the competing individual and government interests, the INA’s approach is inconsistent with the protection of the fundamental right to respect for private and family life.203

A.  Article 8 of the Convention: The Right to Respect for
Private and Family Life

The European Convention on Human Rights was implemented in 1950 to encourage collective enforcement of the fundamental human rights recognized by the Universal Declaration of Human Rights in 1948.204 In the past half-century, the enforcement tribunals of the Convention—the European Commission of Human Rights and the European Court of Human Rights (ECHR)—have produced the world’s most extensive body of international human rights jurispru[*PG316]dence.205 Article 8 of the Convention establishes an individual’s right to respect for his private and family life.206 The Article 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.207

Thus, paragraph one of Article 8 acknowledges that each individual possesses this right.208 Paragraph two asserts that no public authority may interfere with the exercise of this right unless the interference is (1) in accordance with the law, (2) necessary in a democratic society, and (3) in the interests of one of the stated aims.209

The ECHR has consistently held that the meaning of both “family life” and “private life” must be construed broadly.210 The ECHR also broadly interprets a contracting state’s duties under Article 8.211 The Article expressly forbids a public authority’s arbitrary interference with this right; rather, it requires that any interference must fall within one of the specified legitimate aims.212

[*PG317] In addition, the ECHR has expressly stated that clauses limiting privacy rights, such as paragraph two of Article 8, must be narrowly interpreted.213 Thus, the court has repeatedly affirmed that paragraph two of Article 8 requires that any intrusion be necessary for promoting the asserted government interest, rather than a mere convenience or preference.214 Furthermore, the ECHR will not allow intrusions that would actually damage democratic values while purporting to promote them.215 This requirement is derived from paragraph two’s assertion that necessity must be considered within the context of a democratic society.216 Considering these two elements together, the ECHR repeatedly explains that in order to be necessary in a democratic society, there must be a “pressing social need” and in particular, the intrusion “must be proportionate to the legitimate aim pursued.”217 Accordingly, the court has refused to allow interference with rights if there is a less intrusive method available.218 Furthermore, the ECHR may still prohibit the alternative method if the attendant privacy invasion outweighs the government’s interest.219

An examination of the ECHR’s approach to deportation orders issued on criminal grounds and contested under Article 8 allows for an interesting comparison between the actions of the court and the aggravated felony provisions of the INA. In such cases, the ECHR first considers whether the non-national actually maintains a family or private life in the deporting country.220 The court, as noted above, interprets the concept of family and private life broadly, so meeting this burden is not difficult.221 Second, the court determines whether the state interfered with the individual’s right to respect for private and [*PG318]family life.222 Applicants facing deportation generally focus on the state’s interference with their family, rather than private, lives.223 In response, the court has consistently found that removing a person from a country where close members of his family are living constitutes an infringement of the right to respect for family life.224

If the court finds that deportation constitutes an interference under Article 8, it considers whether the interference is nevertheless acceptable under paragraph two.225 To satisfy the conditions of paragraph two, the deportation order must be “in accordance with the law,” must pursue one of the specified legitimate aims, and must be “necessary in a democratic society” to achieve the stated aim.226

A state acts “in accordance with the law” as long as it adheres to a specific, recognized law.227 Furthermore, the states can typically establish that deportation of criminals furthers the legitimate aim of preventing disorder or crime.228 Generally, the sole point of contention is whether the individual’s deportation is “necessary in a democratic society” to achieve that aim.229 This inquiry focuses on whether the state has established a “pressing social need” and whether the state’s action is “proportionate to the legitimate aim pursued.”230 In other words, the court considers whether the state has reached a fair balance between the individual’s interest in her right to respect for fam[*PG319]ily or private life and the state’s interest in preventing disorder or crime.231

To determine if this balance has been achieved, the ECHR considers the amount of time a non-national has lived in the deporting state, whether her family resides there, whether she has any ties to another state, her likelihood of successfully re-establishing family life in another state, and the effect of deportation on her family in the deporting state.232 The court also considers the seriousness of the offense and the applicant’s record since the offense was committed.233

Recent cases show that the ECHR is likely to find a violation of Article 8 in situations where the applicant has strong family ties in the deporting state and lacks such ties in his native nation.234 For example, in Mehemi v. France, the court found an Article 8 violation where the applicant had strong ties to France and lacked such ties to his native country of Algeria.235 Mr. Mehemi was actually born in France, but lost citizenship,236 received all of his schooling in France, and lived there until he was deported.237 Furthermore, his wife and children remained in France, and the court found that it would have been difficult for them to make a life in Algeria or in Italy, his wife’s native country, because it would mean a “radical upheaval” for their children.238 In light of these considerations, the court found that even though the applicant’s crime involved a conspiracy to import large quantities of marijuana, deporting him would be too great an interference in his family life.239

Moreover, the court has found a violation of Article 8 where the applicant had weaker family ties in the deporting state than did the applicant in Mehemi.240 In Boultif v. Switzerland, the applicant was recently married to a Swiss national.241 Switzerland refused to renew Mr. [*PG320]Boultif’s residence permit,242 based on a conviction for robbery, damage to property, and physically attacking another individual.243 Finding that the deportation order violated Article 8, the court focused on the effect of Mr. Boultif’s deportation on his Swiss wife, reasoning that she could not be expected to follow her husband to Algeria because she had no ties there besides her mother-in-law and did not speak Arabic.244 In addition, although Mr. Boultif lawfully resided in Italy for three years after being forced to leave Switzerland, the state could not establish that Mr. Boultif and his wife could obtain authorization to live in Italy.245 The court also noted that Mr. Boultif had committed no further offenses since his crime six years before, that he was consistently employed, and that he had the possibility of continuing employment.246 Thus, the court found that the interference was disproportionate to the government’s aim; allowing the applicant to remain in Switzerland presented a relatively limited danger to public order, whereas forbidding him from living there posed a serious impediment to his family life.247

By contrast, if the applicant’s family ties in the deporting country are not very strong and the applicant has also maintained relationships in another country, the court generally finds no violation of Article 8.248 For example, in Dalia v. France, the court found the balance favored the government, even though many of Ms. Dalia’s family members lived in France.249 The court noted that the applicant had lived in Algeria until the age of seventeen or eighteen (without her parents for two of those years), maintained family and social relationships there, and spoke the local language. Therefore, according to the court, “her Algerian nationality is not merely a legal fact but reflects certain social and emotional links.”250 Furthermore, the applicant was convicted of heroin trafficking, which the court found to be [*PG321]a serious offense.251 Given the existence of family and social ties in Algeria and the seriousness of the crime, the court held that the deportation order was not disproportionate to the legitimate aim pursued by the state.252

Likewise, in Bouchelkia v. France, the court found no violation of Article 8.253 There, the court focused on the gravity of the crime, an aggravated rape, and Mr. Bouchelkia’s subsequent convictions for attempting to escape from prison and obstructing a police officer in the execution of his duty.254 Additionally, although he had lived in France since age two and although many of his family members lived there,255 the applicant had close relatives in Algeria and understood the language.256 Thus, the court held that a fair balance was struck between the relevant interests of the applicant and the government and consequently, the decision to deport Mr. Bouchelkia was not disproportionate to the legitimate aims pursued.257

If the balancing test employed by the European Court of Human Rights were applied to assess the deportability of aggravated felons under United States immigration law, the deportation of lawful permanent residents convicted of relatively minor crimes would be forbidden.258 Xuan Wilson would not be forced to return to a long forgotten country because she forged a check for $19.83.259 Al Correa would be permitted to remain with the rest of his family in Brooklyn, his home since age two, rather than struggle to survive in an utterly foreign land.260 Emma Mendez De Hay would not have been detained, separated from her family, or forced to fight a protracted court battle because of a “stupid mistake.”261 Anthony Cesar [*PG322]Chamorro’s waiver of deportation would not have been retroactively revoked, forcing him out of the United States permanently and compelling his family members to choose between him and their country.262 In each of these cases, the European Court almost certainly would find that deporting these individuals is not necessary in a democratic society.263 Deportation poses a grave threat to the family lives of these lawful permanent residents, whereas their relatively minor crimes present a limited danger to public order.264

III.  Applying International Law to Achieve a Fair Balance in Deportation Decisions

The United States is not a party to the European Convention on Human Rights. It is, however, a member of the United Nations, which has adopted the Universal Declaration of Human Rights.265 In fact, the United States played a key role in drafting the Declaration.266 The European Convention was later implemented to encourage enforcement of the Declaration.267 Since that time, the enforcement tribunals of the Convention have produced the most developed body of international human rights jurisprudence.268 Moreover, U.S. court rulings have relied on the Convention, and the cases applying it, as a major source of international rights law.269 Thus, the Convention has become customary international law based upon its breadth, period of acceptance, and the opinions of scholars and judges.270

It is well established that U.S. courts may not ignore the precepts of customary international law.271 Furthermore, customary interna[*PG323]tional law is legally enforceable unless Congress unequivocally supercedes it by statute.272 Thus, if Congress has not specifically stated that customary international law, such as the dictates of the Convention, are superceded, a court should construe a statute to bring it into conformity with international law.273

In addition, the United States ratified the International Covenant on Civil and Political Rights (ICCPR) in 1992.274 One prominent legal scholar noted that, although the customary human rights law of nations already bound the United States, the Covenant provided an “authoritative, textual exposition of protected rights and routinized mechanisms for their enforcement” lacking in customary human rights law.275 The ICCPR requires that a non-citizen be given an opportunity to submit his reasons against deportation and also mandates protection of family life.276 Article 13 of the International Covenant on Civil and Political Rights requires a state to provide an individual with the opportunity to oppose his deportation, absent compelling reasons of national security, stating:

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 shall, except where compelling reasons of national security require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purposes before, the competent authority or a person or persons especially designated by the competent authority.277

Furthermore, the ICCPR assures protection of family rights; Article 17 is very similar to Article 8 of the Convention, stating that “no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation” and that “everyone has the right to the protection of the law against such interference or attacks.”278 Article [*PG324]23(1) likewise emphasizes that “the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”279

Like customary international law, U.S. courts may not ignore treaty obligations and should construe domestic law in compliance with them whenever possible.280 Even though non-self-executing treaties, such as the ICCPR, do not automatically become domestic law, a few courts and commentators have suggested that non-self-executing treaties do have domestic effect as evidence of international law principles and as a tool of statutory construction.281

In a recent unprecedented decision, Judge Weinstein of the Eastern District of New York applied the international legal concepts discussed above to overturn a deportation order pursuant to the aggravated felony provision.282 In Beharry v. Reno, Mr. Beharry was ordered deported as an aggravated felon because he stole $714.00.283 He had been a lawful permanent resident of the United States for twenty years, since age seven, completed school through the eleventh grade in the United States, and was consistently employed after leaving school.284 Mr. Beharry’s mother was also an LPR, and his sister and six-year-old daughter were both United States citizens.285

At the time Mr. Beharry committed his crime, he was not considered an aggravated felon because the provision required a term of imprisonment of five years, and he only served four and a half.286 By the time he was convicted, however, Congress had passed IIRIRA, which requires a sentence of only one year to be considered an aggravated felon.287 In an effort to remain with his family, Mr. Beharry unsuccessfully sought a number of deportation waivers and was denied a hearing by the INS, primarily because the waivers were not available to aggravated felons after the changes made by the 1996 laws.288

[*PG325] Judge Weinstein determined that it was not clear whether the new definition of an aggravated felony applied to Mr. Beharry.289 Relying on sources of international law, he held that Mr. Beharry must be granted a hearing to show the effect that his deportation would have on his family and himself, weighed against the risks of allowing him to remain in the United States.290 Considering the effect of treaties and customary international law on domestic law, Judge Weinstein wrote that “[i]mmigration statutes must be woven into the seamless web of our national and international law.”291

First, Judge Weinstein recognized that non self-executing treaties,292 such as the ICCPR, have been accorded domestic effect in some United States federal courts and are evidence of binding principles of international law.293 In addition, he found it significant that the Senate Committee on Foreign Relations had noted that existing U.S. law generally complied with the ICCPR.294 Thus, he reasoned that deporting Mr. Beharry without giving him an opportunity to present reasons against his deportation violated the ICCPR’s Article 17 guarantee against arbitrary interference with one’s family and the Article 13 right to submit reasons against expulsion.295

Judge Weinstein also relied on principles protecting the right to a hearing before “arbitrary exile,” stated in the Universal Declaration and the protection of the family assured in the Convention on the Rights of the Child (CRC).296 He asserted that both of these instruments have the force of customary international law.297 Although the Declaration is not a treaty, it has become the “accepted general articulation of recognized rights.”298 The CRC, while not yet ratified by the United States, has been ratified by every other organized government in the world and codifies long-standing legal norms assisting and protecting the family.299

[*PG326] Judge Weinstein astutely noted another reason for applying international law to construe immigration statutes by comparing immigration law to admiralty law. He reasoned that the Supreme Court has most frequently addressed the concept of customary international law in admiralty cases, where domestic law is likely to clash with international law.300 Immigration law is likewise founded on concepts of international law; 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 to foreign nationals.301 Thus, Congress would not hold such expansive power without the existence of international norms.302 Given that immigration law is rooted in these norms, Judge Weinstein reasoned that it must likewise be limited by changing international law norms.303 Accordingly, “[i]t is inappropriate to sustain such plenary power based on a 1920 understanding of international law when the 2002 conception is radically different.”304

Judge Weinstein’s dependence on international agreements and customary international law results in a balancing test similar to that applied by the European Court of Human Rights in the deportation cases discussed above.305 It takes into account family relationships that would be seriously impeded by deportation and weighs the relative importance of those factors against the government’s reasons to deport.306 Thus, this approach brings United States immigration law into conformity with international human rights law and incorporates the reasoning of the most prolific human rights tribunal.307

Given that Judge Weinstein’s approach is based on a particular ambiguous provision of the INA, however, this compassionate and reasonable approach is available to only a small subset of individuals—namely, immigrants who committed a crime before that particular [*PG327]crime was deemed an aggravated felony and who would have been otherwise eligible for a discretionary waiver.308 The few courts that have addressed the issue since Beharry have staunchly refused to extend the reasoning to individuals who do not meet this criterion.309 In addition, other jurisdictions are not bound to take a similar, compassionate approach. In fact, one court has already disagreed with Judge Weinstein’s reasoning.310 Thus, the majority of “aggravated felons”—all but those lucky few whose cases depend upon this ambiguous provision and who appear in front of a court willing to take a bold step like Judge Weinstein’s—are still left with essentially no relief.

Conclusion

For lawful permanent residents convicted of aggravated felonies, deportation is perpetual exile.311 Judge Learned Hand noted in one deportation case,

[W]e think it not improper to say that deportation under the circumstances would be deplorable. Whether the relator came here in arms or at the age of ten, he is as much our product as though his mother had borne him on American soil. He knows no other language, no other people, no other habits, than ours; he will be as much a stranger in Poland as any one born of ancestors who immigrated in the seventeenth century. However heinous his crimes, deportation is to him exile, a dreadful punishment, abandoned by the common consent of all civilized peoples.312

Under current immigration law, U.S. lawful permanent residents convicted of minor crimes may be driven from the only home they know—leaving their families, careers, and friends behind.313 Moreover, this is not a temporary situation—once deported, a convicted aggravated felon can never return to the United States.314 These laws are not only cruel, but also wildly inconsistent, meting out the same pun[*PG328]ishment to lawful permanent residents who commit a misdemeanor offense as they do to undocumented non-citizens who enter the country to commit a terrorist act.315

The European Court of Human Rights, a highly esteemed and knowledgeable tribunal, condemns as a human rights violation such arbitrary interference in an individual’s private and family life.316 In the past, United States immigration law did respect a person’s ties to this country and waived deportation when those bonds were strong.317 In 1996, however, that changed, as seemingly misplaced fear and distrust of non-citizens escalated.318

Judge Weinstein’s reasoning in Beharry v. Reno attempts to remedy this violation by complying with international law.319 This approach, however, is limited because it rests on the ambiguity of a particular provision of the INA.320 When the proper interpretation of the statute is clear and unambiguous, courts may simply find it impossible to construe the statute in compliance with international law.321 Therefore, to assure conformity with the fundamental right to respect for private and family life and cease this arbitrary banishment, the INA should be amended to include a balancing test that weighs the relevant interests of the non-citizen and the government.322 Congress could meet this need by re-instituting aggravated felons’ eligibility to apply for waivers of deportation and by providing for judicial review of waiver decisions, which would allow judges to apply a balancing test like that applied by the European court.323

This equitable change would duly recognize a fundamental human right, as well as provide for much needed harmonization of domestic and international law.324 At present, when immigration reforms [*PG329]based on fear and racial intolerance are an integral part of the political agenda, lawmakers and the citizens they represent should be especially aware of three things. First, when immigration laws are passed in the wake of terror and anti-immigrant sentiment, lawful permanent residents are likely to suffer the same fate as the terrorists. Second, the United States has a duty—both legally and morally—to comply with international human rights norms, rather than bend to reactionary political pressures. And finally, lawmakers must realize that Xuan Wilson, Al Correa, Emma Mendez De Hay, and Cesar Chamorro are Americans, even though their passports may say otherwise. What makes an American is not contained within a document, but depends upon an individual’s relationship to this country—the very relationship that is ignored in the face of increasingly draconian immigration laws.

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