* Executive Editor, Boston College Third World Law Journal (2004–2005), Articles Editor, Asian Law Journal (2004–2005). I would like to acknowledge the contributions of those who have assisted me in the research and writing of this Note. Thanks to my editors, Allegra Jones, Audrey Kwak, Michael O’Donnell, Steve Sexton, and David Sterrett for their substantive comments and invaluable suggestions in earlier drafts. Thanks to Professor Daniel Kanstroom and Rhana Ishimoto for suggesting the note topic to me. In addition, I especially thank the entire Boston College Law Library Staff, whom I am indebted to for their help in legal research, and to Jennifer Santos, whom without our conversations explaining the dynamic complexities of U.S. immigration law, I would be forever lost.
1 See Deborah Sontag, In a Homeland Far from Home, N.Y. Times, Nov. 16, 2003, § 6 (Magazine), at 48.
2 See id.
3 See id. at 50.
4 See id.
5 See id.
6See Sontag, supra note 1, at 50.
7 See id.
8 See Memorandum Between the Government and the United States and the Royal Government of Cambodia for the Establishment and Operation of a United States—Cambodia Joint Commission on Repatriation (Mar. 22, 2002), U.S.-Cambodia Cambodian American National Council, available at http://www.cancweb.org/canc/deportation.html [hereinafter Repatriation Agreement]; Sontag, supra note 1, at 52.
9 See Immigration and Nationality Act (INA) §§ 101(a)(43), 237(a)(2)(A)(iii), 8 U.S.C. § 1101(a)(43), 1227(a)(2)(A)(iii) (2000); Sontag, supra note 1, at 50; see also Southeast Asia Resource Action Center’s Discussion on U.S.-Cambodia Deportation Agreement, Talking Points on Cambodian Deportation: Stop Cambodian Deportations, Cambodian American National Council, at http://www.cancweb.org/canc/deportation.html (last visited Sept. 28, 2004) (summarizing the current Cambodian deportation situation) [hereinafter SEARAC discussion].
10 See Sontag, supra note 1, at 48, 50.
11 See id. at 50.
12 See 8 U.S.C. § 1101(a)(20) (defining “lawfully admitted for permanent residence” as “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed”).
13See Anti-Terrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104–132, § 440, 110 Stat. 1214, 1276–79 (1996); Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. No. 104–208, § 321, 110 Stat. 3009–546, 3009–627–28 (1996). For a descriptive history of the aggravated felony provision, see Melissa Cook, Note, 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 (2003).
14 See Terry Coonan, Dolphins Caught in Congressional Fishnets—Immigration Law’s New Aggravated Felons, 12 Geo. Immigr. L.J. 589, 591 (1998); Nancy Morawetz, Understanding the Impact of the 1996 Deportation Laws and the Limited Scope of Proposed Reforms, 113 Harv. L. Rev. 1936, 1939 (2000); Iris Bennett, Note, The Unconstitutionality of Nonuniform Immigration Consequences of “Aggravated Felony” Convictions, 74 N.Y.U. L. Rev. 1696, 1699 (1999); SEARAC discussion, supra note 9. For example, Josue Leocal, a Haitian national, was deported under the aggravated felony provision based on his conviction for DUI with serious bodily injury. See Brief for Petitioner at *3–*4, Leocal v. Ashcroft, 124 S. Ct. 1405 (2004) (No. 03–583), available at 2004 WL 1070031. As of the date of this publication, the issue of whether a DUI with serious bodily injury qualifies as an aggravated felony is currently under review by the U.S. Supreme Court. Id.
15 See Sontag, supra note 1, at 105–06; see also 8 U.S.C. § 1182(h) (barring discretionary relief on compassionate grounds for noncitizens convicted of an aggravated felony); id. § 1252(a)(2)(C) (eliminating judicial review of removal orders for aggravated felons).
16 See 8 U.S.C. § 1101(a)(43).
17 See The Chinese Exclusion Case, 130 U.S. 581, 603–06 (1889); see also Zadvydas v. Davis, 533 U.S. 678, 695 (2001) (acknowledging Congress’ plenary power to create immigration law); Kleindienst v. Mandel, 408 U.S. 753, 765–66 (1972) (expressing that the Court has sustained without exception Congress’ plenary power over immigration law); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953) (recognizing the Court’s long-time approval of the plenary power doctrine).
18 See Bridges v. Wixon, 326 U.S. 135, 164 (1945) (Murphy, J., concurring). The seminal case labeling deportation as a civil rather than a criminal matter is Fong Yue Ting v. United States, which states,
The proceeding . . . is in no proper sense a trial and sentence for a crime or offence. It is simply the ascertainment, by appropriate and lawful means, of the fact whether the conditions exist upon which Congress has enacted that an alien of this class may remain within the country. The order of deportation is not a punishment for crime. It is not a 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.
149 U.S. 698, 730 (1893). Despite efforts to abrogate this archaic principle, courts have continued to uphold it. See, e.g., United States v. Yacoubian, 24 F.3d 1, 10 (9th Cir. 1994) (denying ex post facto challenge to deportation because the provision applies only to criminal laws); Urbina-Mauricio v. INS, 989 F.2d 1085, 1089 n.7 (9th Cir. 1993) (dismissing the double jeopardy argument against deportation because the double jeopardy clause applies only to criminal proceedings); LeTourneur v. INS, 538 F.2d 1368, 1370 (9th Cir. 1976) (ruling that double jeopardy argument was without merit because deportation is not criminal punishment); Chabolla-Delgado v. INS, 384 F.2d 360, 360 (9th Cir. 1967) (finding the Eighth Amendment inapplicable to a deportation proceeding because it is not a criminal proceeding).
19 Bridges, 326 U.S. at 164.
20 Scheidemann v. INS, 83 F.3d 1517, 1527 (3d Cir. 1996) (Sarokin, J., concurring).
21See 8 U.S.C. § 1229.
22 See id. §§ 1101(a)(43), 1227(a)(2)(A)(iii); SEARAC discussion, supra note 9.
23 See infra Part II.
24 See Protocol Relating to the Status of Refugees, entered into force Oct. 4, 1967, art. 1.1, art. 1.2, 606 U.N.T.S. 267, G.A. Res. 2198(XXI), U.N. GAOR, 21st Sess., Supp. No. 16(A/6316) at 164, U.N. Doc. A/6586 (1966), available at http://www.unhchr.ch/html/
menu3/b/o_p_ref.htm (last visited Sept. 28, 2004) [hereinafter Refugee Protocol]; Convention Relating to the Status of Refugees, entered into force April 22, 1954, art. 32, 189 U.N.T.S. 150, G.A. Res. 429(V), U.N. GAOR, 5th Sess., Supp. No. 20(A/1775) at 122 (1950), available at http://www1.umn.edu/humanrts/instree/v1crs.htm (last visited Sept. 28, 2004) [hereinafter Refugee Convention]; Beharry v. Reno, 183 F. Supp. 2d 584, 604 (E.D.N.Y. 2002), rev’d on other grounds, Beharry v. Ashcroft, 324 F.3d 51 (2d Cir. 2003); Maria v. McElroy, 68 F. Supp. 2d 206, 234 (E.D.N.Y. 1999).

25 See Beharry, 183 F. Supp. 2d at 604; Maria, 68 F. Supp. 2d at 234.
26 See 130 U.S. 581 (1889).
27 See 8 U.S.C. §§ 1101(a)(43), 1227(a)(2)(A)(iii); Zadvydas v. Davis, 533 U.S. 678 (2001); Sontag, supra note 1, at 52, 106.
28 See Khmer Institute, Legal Arguments for Cambodians in Deportation Proceedings, at http://www.khmerinstitute.org/articles/art11.html (last visited Sept. 28, 2004) [hereinafter Legal Arguments].
29 See generally Beharry v. Reno, 183 F. Supp. 2d 584 (E.D.N.Y. 2002), rev’d on other grounds, Beharry v. Ashcroft, 324 F.3d 51 (2d Cir. 2003); Maria v. McElroy, 68 F. Supp. 2d 206 (E.D.N.Y. 1999).
30 See Refugee Protocol, supra note 24, at art. 1.1, art. 1.2; Refugee Convention, supra note 24, at art. 32; Beharry, 183 F. Supp. 2d at 604; Maria, 68 F Supp. 2d at 234.
31 See Refugee Protocol, supra note 24, at art. 1.1, art. 1.2; Refugee Convention, supra note 24, at art. 32; Beharry, 183 F. Supp. 2d at 604; Maria, 68 F Supp. 2d at 234; Legal Arguments, supra note 28.
32 See 130 U.S. 581 (1889).
33 See INA §§ 101(a)(43), 237(a)(2)(A)(iii), 8 U.S.C. §§ 1101(a)(43), 1227(a)(2)(A)(iii) (2000).
34 See Sontag, supra note 1, at 50; Legal Arguments, supra note 28.
35See Legal Arguments, supra note 28.
36 See id.; see also Sontag, supra note 1, at 50 (estimating 1,600 Cambodian refugees now deportable under the aggravated felony provision).
37See The Chinese Exclusion Case, 130 U.S. at 599.
38 See id.
39 See id. at 589.
40 See id. at 582.
41 See id.
42 See The Chinese Exclusion Case, 130 U.S. at 582.
43 See id.
44 See id. at 603–04.
45 See id. at 604.
46 See id. at 603–04, 611. The Court went even further to write,
It matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character, or from vast hordes of its people crowding in upon us. . . . If the government . . . considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects.
Id. at 606. However, the Court also opined that Congress was “restricted in their exercise only by the constitution itself and considerations of public policy and justice which control, more or less, the conduct of all civilized nations,” a profound suggestion that Congress’ plenary power was to be bound by the customs which govern all nations. Id. at 604 (emphasis added).
47 See 130 U.S. at 609 (stating that, “[w]hatever license, therefore, Chinese laborers may have obtained, previous to the act . . . to return to the United States after their departure, is held at the will of the government, revocable at any time at its [p]leasure”) (emphasis added).
48See id. at 603–04.
49See id. at 582.
50See id.
51See id.
52 See Sontag, supra note 1, at 106–07.
53 See 149 U.S. 698 (1893).
54 See id. at 698–703.
55 See id. at 699.
56 See Chinese Deportation Act of May 5, 1892, ch. 60, 27 Stat. 25. Applicants for residency certificates were burdened further by the requirement of an affidavit of at least one credible white witness of good character to attest to the fact of residence and lawful status in the United States. See id.
57 See Fong Yue Ting, 149 U.S. at 699.
58 See id. at 732. The Court also found the Equal Protection Clause was inapplicable because the statute involved federal law, not state law. See id. at 725. However, it is important to note that Fong Yue Ting was decided before the Court incorporated the Equal Protection Clause into the Fifth Amendment in Bolling v. Sharpe, 347 U.S. 497 (1954).
59 See Fong Yue Ting, 149 U.S. at 713.
60See id. at 732.
61 See id. at 732; The Chinese Exclusion Case, 130 U.S. 581, 603–04 (1889).
62 See Fong Yue Ting, 149 U.S. at 705 (quoting Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892)) (emphasis added).
63 See The Chinese Exclusion Case, 130 U.S. at 603–04.
64 See Richard L. Prinz, The 1996 Criminal Alien Legislation in 1997: An Overview, in Practice Under IIRAIRA: One Year Later 205, 207 (R. Patrick Murphy ed., 1997).
65See INA § 237(a)(2), 8 U.S.C. § 1227(a)(2) (2000).
66 See id.
67 See id. § 1101(a)(43); Morawetz, supra note 14, at 1939.
68 See Anti-Drug Abuse Act of 1988 (ADAA), Pub. L. No 100–690, § 7342–49, 102 Stat. 4181, 446973 (1988) (codified as amended in scattered sections of 8 U.S.C.).
69 See Cook, supra note 13, at 299. See generally 133 Cong. Rec. H8961 (daily ed. Oct. 22, 1987) (statement of Rep. Smith of Fla.).
70See ADAA § 7342.
71 See, e.g., ADAA § 7347 (requiring that deportation proceedings involving “aggravated felons” be completed, where possible, before release from incarceration); id. § 7343(a) (prohibiting release of “aggravated felons” on bond following release from incarceration); id. § 7347(c) (presumption of deportability for “aggravated felons”); id. § 7343(b) (making “aggravated felons” ineligible for voluntary departure); id. § 7349(a) (prohibiting “aggravated felons” from reapplying for admission for ten years after deportation).
72 See Immigration Act of 1990 (IMMACT), Pub. L. No. 101–649, § 501, 104 Stat. 4978, 5048 (codified as amended at 8 U.S.C. § 1101(a)(43)).
73 See Immigration and Nationality Technical Corrections Act of 1994 (INTCA), Pub. L. No. 103–416, § 222(a), 108 Stat. 4305, 4320–22 (codified as amended at 8 U.S.C. § 1101(a)(43)).
74 See INTCA § 222(a); IMMACT § 501(a)(3).
75 See IMMACT § 501(a)(5), (6).
76 See Coonan, supra note 14, at 597, quoted in Cook, supra note 13, at 303.
77 AEDPA, Pub. L. No 104–132, 110 Stat. 1214 (1996).
78 IIRIRA, Pub. L. No. 104–208, 110 Stat. 3009–546 (1996).
79 See Cook, supra note 13, at 305.
80 See AEDPA § 440(e).
81 See, e.g., id. § 440(e)(8) (including obstruction of justice, perjury and subornation of perjury, bribery of a witness, and failure to appear to answer a felony charge punishable by two or more years).
82 See, e.g., id. § 440(e)(1) (adding transmission of wagering information as an aggravated felony); id. § 440(e)(2) (adding the transportation for purposes of prostitution as an aggravated felony); id. § 440(e)(4) (including falsely making, forging, or counterfeiting, mutilating or altering a passport as an aggravated felony); id. § 440(e)(7) (adding the offenses of improper entry or re-entry and misrepresentation or concealment of facts by one previously deported for an “aggravated felony”).
83 See, e.g., IIRIRA, Pub. L No. 104–208, § 321(a)(1), 110 Stat. 3009–546, 3009–627 (1996) (adding rape and sexual abuse of a minor to the aggravated felony provision).
84 See, e.g., id. § 321(a)(3) (decreasing sentencing threshold of crimes of violence and theft and burglary offenses from five years to one year); id. § 321(a)(4), (10), (11) (lowering from five years to one year the potential term of imprisonment sufficient to make a number of offenses “aggravated felonies,” including RICO offenses; commercial fraud offenses; and obstruction of justice, perjury, subornation of perjury, and bribery of witnesses).
85 See id. § 322(a). A conviction is found as long as:
(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed. . . . Any reference to a term of imprisonment or a sentence . . . is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence.
Id.
86 See Cook, supra note 13, at 303.
87 See AEDPA § 440(a), (d). Before passage of the AEDPA, the aggravated felony provision barred section 212(c) discretionary relief only for those convicted of an aggravated felony and had served a minimum of five years in prison. See INA § 212(c), 8 U.S.C. § 1182(c) (1994) (repealed 1996). Section 212(c) allowed the Attorney General to waive deportation on grounds of humanitarian concerns. See id. With the elimination of the term of imprisonment threshold, the AEDPA effectively barred all lawful permanent residents from applying for relief under section 212(c) of the INA. See AEDPA § 440(d). Section 212(c) discretionary relief was repealed by IIRIRA and replaced by section 212(h), or cancellation of removal. See IIRIRA § 304(a), (b).
88 See id. § 306(a).
89 See id. § 348.
90 See id. § 301(b).
91 See id. § 305(a).
92 See Prinz, supra note 64, at 207.
93 See Sontag, supra note 1, at 106.
94 See Thomas Ginsberg, Refugees Who Do the Crime Do Time, Then Get Sent Back, Phila. Inquirer, Aug. 14, 2002, at B1. Before the signing of the Repatriation Agreement, Cambodia had been one of four countries lacking deportation agreements with the United States. See id. The other countries are: Laos, Vietnam, and Cuba. See id. Currently, steps are being taken by the United States to secure deportation agreements with Laos and Vietnam. See Kermit Pattison, Minnesota: Deportee Pact Ignites Wider Fear, Pioneer Press (St. Paul), Aug. 11, 2002, available at http://www.twincities.com/mld/pioneerpress/3835264.
htm; SEARAC discussion, supra note 9.

95See INA § 241(a)(6), 8 U.S.C. § 1231(a)(6) (2000); see also Sontag, supra note 1, at 52 (describing Many Uch’s indefinite detention prior to Zadvydas v. Davis).
96 Zadvydas v. Davis, 533 U.S. 678 (2001).
97 See App. to Pet. for Cert. at 56a, Zadvydas (No. 00–38).
98 See id.
99 See Zadvydas, 533 U.S. at 685.
100 See 8 U.S.C. § 1231(a)(1)(A) (stating that, “[e]xcept as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days . . . .”).
101 See Ma v. Reno, 208 F.3d 815, 819 (9th Cir. 2000), vacated and remanded sub nom. Zadvydas, 533 U.S. at 702.
102 Section 241(a)(6) of the INA states that any criminal alien “who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period . . . .” 8 U.S.C. § 1231(a)(6).
103 See id.; Zadvydas, 533 U.S. at 685–86.
104 See App. to Pet. for Cert. at 87a–89a, Zadvydas (No. 00–38).
105 See 533 U.S. at 685–86. Ma was ordered released after the panel’s decision. See id. at 686.
106 See id. at 685.
107 See id. at 702.
108 See id. at 690.
109 See id. at 699. But see id. at 706–07 (Kennedy, J., dissenting) (opining the majority’s decision to go beyond the plain meaning of Section 241(a)(6) and therefore disregards Congress’ intent).
110 See Zadvydas, 533 U.S. at 702.
111 See id.
112See App. to Pet. for Cert. at 59a, Zadvydas (No. 00–38). By April 27, 2000, the United States and officials of the Royal Government of Cambodia had signed a joint statement detailing the principles of a repatriation agreement. See Joint Statement Between the Royal Government of Cambodia and the United States Government, Cambodian American National Council, available at http://www.cancweb.org/canc/deportation.html (last visited Sept. 28, 2004).
113 See, e.g., SEARAC discussion, supra note 9 (claiming that the September 11th attacks caused the U.S. government to look more suspiciously on all noncitizens); see also Sontag, supra note 1, at 52 (stating the Bush administration, soon after September 11th, doubled its efforts to negotiate repatriation agreements with Cambodia).
114 See Sontag, supra note 1, at 52.
115 See id.
116 See Repatriation Agreement, supra note 8.
117 See Ginsberg, supra note 94; Pattison, supra note 94; Sontag, supra note 1, at 50; Legal Arguments, supra note 28; SEARAC discussion, supra note 9.
118 See Sontag, supra note 1, at 106.
119 See id. at 50.
120 See id. at 50, 52.
121 See Bill Ong Hing, Deported for Shoplifting?, Wash. Post, Dec. 29, 2002 at B7.
122 See id; Sontag, supra note 1, at 105–06.
123 See Hing, supra note 121, at B7.
124 See id.
125 See id.
126 See id.
127 See id.
128 See Sontag, supra note 1, at 52.
129See id.
130 See id.
131 See id. at 98.
132 Id. at 106–07; Chris McGann, Refugees with a Record Face Shock—Deportation: A New Agreement Paves the Way for the U.S. to Send Many People Back to Cambodia, Seattle Post-Intelligencer, June 14, 2002, at A1, available at http://seattlepi.nwsource.com/lo-cal/
74648_cambodia14.shtml. A conviction is required for a noncitizen to be deported under the aggravated felony provision, which a noncitizen will receive should he or she choose to plea bargain. See INA § 101(a)(48), 8 U.S.C. § 1101(a)(48)(2000).

133 See McGann, supra note 132.
134 See id.
135 See id.
136 See id.
137 See id.
138 See Ginsberg, supra note 94; Seth Mydans, Cambodians Forced from U.S., Caught in Limbo: Convicted Immigrants Back in Country They Know Little About, S.F. Chron., Aug. 11, 2002, at A16.
139 See Mydans, supra note 138. A possible explanation why so many Cambodians have not obtained U.S. citizenship is because they—like many in the Southeast Asian refugee community—have little formal education, remain unaware of their rights and responsibilities under American law, and consequently do not understand the protections that only citizenship could offer them and their refugee children. Cf. Sontag, supra note 1 (explaining the socioeconomic failure of Cambodian refugees in the United States).
140 See Legal Arguments, supra note 28. Advocates include the Khmer Institute, the Immigrant Rights Clinic of NYU School of Law, and the Khmer Freedom Project of CAAAV: Organizing Asian Communities. See id.
141 See INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A) (2000) (classifying a refugee as a person who is unable to return to one’s country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion . . . .).
142 See id. § 1101(a)(20).
143 See id. § 1159(c).
144 See id.
145 See id. § 1101(a)(22).
146 See id. §§ 1101(a)(3), 1227(a) (stating that only aliens are subject to deportation, where an alien is defined as not a citizen or national of the United States).
147 There are two methods by which an individual noncitizen may be admitted under refugee status. See 8 U.S.C. §§ 1157, 1158, 1231(b)(3). Noncitizens overseas may enter the United States under refugee status pursuant to INA § 207. See id. § 1157. Noncitizens already within the United States, however, may adjust their status to a refugee under INA §§ 208 and 241(b)(3). See id. §§ 1158, 1231(b)(3). The INA definition of refugee status imposes no temporal limitation. See id. § 1101(a)(42)(A).
148 See id. § 1159(a).
149 See Government’s Answering Brief at *9, Sun v. Ashcroft, 370 F.3d 932 (9th Cir. 2004) (No. 02–36132), available at 2003 WL 22593676; Legal Arguments, supra note 28.
150 See 8 C.F.R. § 207.9 (2004); Legal Arguments, supra note 28.
151See 8 U.S.C. § 1159(c); Legal Arguments, supra note 28.
152 Legal Arguments, supra note 28.
153 See 8 U.S.C. § 1159; Legal Arguments, supra note 28.
154 8 U.S.C. § 1159.
155See Refugee Protocol, supra note 24; Refugee Convention, supra note 24.
156See Refugee Act of 1980, Pub. L. No. 96–212, 94 Stat. 102 (1980) [hereinafter Refugee Act].
157 See Refugee Convention, supra note 24. By acceding to the Refugee Protocol on Jan. 31, 1967, the United States became subject to the Refugee Convention. See Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 [hereinafter 1967 U.S. Treaty]. The Refugee Protocol requires all signatory nations to comply with the substantive conditions of Articles 2 through 34 of the Refugee Convention as they pertain to “refugees” as defined by Article 1.2 of the Protocol. See Refugee Protocol, supra note 24, at art. 1.1; INS v. Stevic, 467 U.S. 407, 416–17 (1984).
158 See Refugee Protocol, supra note 24, at art. 1.
159See INS v. Cardoza-Fonseca, 480 U.S. 421, 436–37 (1987) (stating that “[i]f one thing is clear from the legislative history of the new definition of ‘refugee’, and indeed the entire 1980 Act, it is that one of Congress’ primary purposes was to bring United States refugee law into conformance with the [Refugee Convention], to which the United States acceded in 1968”); Stevic, 467 U.S. at 416–17.
160 Refugee Convention, supra note 24, at art. 32.
161 See id.; Legal Arguments, supra note 28.
162 See Refugee Convention, supra note 24, at art. 1(C).
163 Id. at art. 1(C)(1)–(4).
164 See id. at art. 1(C)(5)–(6); Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugees Status Under the 1951 Convention and 1967 Protocol Relating to the Status of Refugees ¶ 136 (1992) [hereinafter UNHCR Handbook].
165 See, e.g., In re Bahta, 22 I. & N. Dec. 1381, 1382 n.2 (BIA 2000) (noting that the status of a refugee terminates upon adjustment to LPR status).
166 See, e.g., Cardoza-Fonseca, 480 U.S. at 439 n.22 (1987) (stating that “[t]he Handbook provides significant guidance” in the interpretation of the Convention); U.S. Department of Justice, Immigration and Naturalization Service, The Basic Law Manual: U.S. Law and INS Refugee/Asylum Adjudications 13 (1994) (finding that “[t]he federal courts and the Board frequently cite the [UNHCR Handbook] with approval. Asylum officers and immigration judges may also do so, to the extent that the [UNHCR Handbook] does not conflict with United States laws or regulations”). But see INS v. Aguirre-Aguirre, 526 U.S. 415. 427–28 (1999) (opining that, although the [UNHCR] Handbook may be a useful interpretative aid, it is not binding on the Attorney General, the BIA, or United States courts). Indeed, the Handbook itself disclaims such force, explaining that “the determination of refugee status under the 1951 Convention and the 1967 Protocol . . . is incumbent upon the Contracting State in whose territory the refugee finds himself.” Id. at 427–28 (internal punctuation omitted).
167 See, e.g., Cardoza-Fonseca, 480 U.S. at 439 n.22.
168 See UNHCR Handbook, supra note 164, ¶ 116. The cessation clauses deal with the procedures and criteria by which a person loses refugee status. See id. ¶ 111.
169 See Legal Arguments, supra note 28.
170See Becoming LPR Does Not Terminate Refugee Status, UNHCR Says, 80 No. 11 Interpreter Releases 413, 413 (Mar. 17, 2003).
171 See Petitioner’s Reply to INS Habeas Return and Motion to Dismiss at 14 n.14, Sun v. Coleman (W.D. Wash. 2002) (No. C02–1311Z).
172 UNHCR Handbook, supra note 164, ¶ 136.
173See 8 C.F.R. § 207.9 (2004); Legal Arguments, supra note 28.
174 See INA §§ 101(a)(42), 207(c)(4), 8 U.S.C. §§ 1101(a)(42), 1157(c)(4) (2000); 8 C.F.R. § 207.9; Legal Arguments, supra note 28.
175 See Refugee Act, supra note 156; Refugee Protocol, supra note 24; Refugee Convention, supra note 24; 8 C.F.R. § 207.9; Legal Arguments, supra note 28.
176 See Report and Recommendation at 6, Sun v. Ashcroft (W.D. Wash. 2002) (No. C02–1311Z).
177See INS Habeas Return & Motion to Dismiss at 2, Sun v. Coleman (W.D. Wash. 2002) (No. C02–1311Z); see also 8 U.S.C. §§ 1101(a)(20), 1101(a)(42)(A), 1158(c), 1159(a) (defining the status of refugee and lawful permanent resident (LPR) and procedures to attain such status).
178 See INS Habeas Return & Motion to Dismiss at 2–3, Sun v. Ashcroft (No. C02–1311Z). Later, INS cited a previous theft offense committed by Sun as additional grounds for deportation. See id. at 3.
179See Report and Recommendation at 9, Sun v. Ashcroft (No. C02–1311Z).
180 See id.
181 See id.
182 See id. But see Opening Brief of Petitioner at *13–*14, Sun v. Ashcroft, 370 F.3d 932 (9th Cir. 2004) (No. 02–36132), available at 2003 WL 22593675 (arguing that under the same immigration statutes, particularly 8 C.F.R. § 223.1(b), a permanent resident may also be identified as a refugee).
183 See Report and Recommendation at 9, Sun v. Ashcroft (No. C02–1311Z). The Ninth Circuit Court of Appeals recently issued its opinion in Sun’s matter. See Sun v. Ashcroft, 370 F.3d 932, 941–43 (9th Cir. 2004). It concluded that, pursuant to INA section 242(d), Sun’s failure to raise the Refugee Waiver theory at the administrative INS level, barred him from bringing the argument forth in his habeas petition. See Sun v. Ashcroft, 370 F.3d at 943; see also INA § 242(d), 8 U.S.C. § 1252(d) (2000) (stating that, “[a] court may review a final order of removal only if—(1) the alien has exhausted all administrative remedies available to the alien as of right . . . .”). The court, however, made a poignant observation of the lopsided proportionality of Sun’s punishment for his deportable transgression, but nonetheless concluded that it was not in their province to pass on the wisdom of the INS’s actions, an echo of the precedents established in the Chinese Exclusion Case and Fong Yue Ting v. United States. See Sun v. Ashcroft, 370 F.3d at 944–45.
184 See INA §§ 101(a)(22), 209(a), 8 U.S.C. §§ 1101(a)(22), 1159(a) (2000); Legal Arguments, supra note 28.
185See 8 U.S.C. § 1227(a); Legal Arguments, supra note 28.
186 8 U.S.C. § 1101(a)(3).
187 Id. § 1101(a)(22). As this Note will make clear, the United States maintains a narrow definition of a national, stating that, other than citizens, only persons born on U.S. territories can be classified as nationals. See infra note 189. However, under international law, specifically the Refugee Convention and Refugee Protocol, a refugee may be classified as a U.S. national upon choosing to permanently resettle in the United States. See Refugee Protocol, supra note 24; Refugee Convention, supra note 24; Legal Arguments, supra note 28.
188 Legal Arguments, supra note 28.
189 See, e.g., Hughes v. Ashcroft, 255 F.3d 752, 757 (9th Cir. 2001) (stating that only a few exceptions exist for a person born outside the United States to qualify for “national” status); Oliver v. U.S. Dep’t of Justice, 517 F.2d 426, 427–28 (2d Cir. 1975) (concluding noncitizen did not qualify for national status, regardless of her emotional allegiance to the United States); Cabebe v. Acheson, 183 F.2d 795, 797 (9th Cir. 1950) (opining that U.S. nationality may be acquired through birthplace or by naturalization).
190 Hughes, 255 F.3d at 757. Some jurisdictions have found that a noncitizen could swear permanent allegiance to the United States by completing an application for naturalization. See Lee v. Ashcroft, 216 F. Supp. 2d 51, 58–59 (E.D.N.Y. 2002); Shittu v. Elwood, 204 F. Supp. 2d 876, 880 (E.D. Pa. 2002); Hughes, 255 F.3d at 757; see also United States v. Morin, 80 F.3d 124, 126 (4th Cir. 1996) (finding an application for citizenship to be the most compelling evidence of permanent allegiance to the United States short of citizenship itself). But see Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 971 (9th Cir. 2003) (finding that simply completing application for naturalization did not qualify a noncitizen for U.S. national status). However, the existence of an application for naturalization is not conclusive if contradicted by other evidence showing the applicant’s lack of allegiance. See Shittu, 204 F. Supp. 2d at 880–81. For example, the Eastern District of Pennsylvania refused to extend the status of national to a permanent resident who had applied for naturalization, but was later convicted of intent to distribute heroin and sentenced to thirty-seven months in prison. See id. The court found that the petitioner’s “aggravated felony” conviction sufficiently refuted other evidence of permanent allegiance, stating that the conviction demonstrated that his professed allegiance was no more than a convenient cover for illegal activity. See id.
191 See Oliver, 517 F.2d at 427–28; see also United States v. Sotelo, 109 F.3d 1446, 1448 (9th Cir. 1997) (finding a noncitizen’s subjective belief of allegiance owed to the United States to be an insufficient basis for his national status); Sierra-Reyes v. INS, 585 F.2d 762, 764 (5th Cir. 1978) (finding that a noncitizen’s claim to citizenship based on long U.S. residency and absence of allegiance to any other country were inadequate to confer status of national, where the individual had never filed a petition for naturalization); Carreon-Hernandez v. Levi, 409 F. Supp. 1208, 1210 (D. Minn. 1976), aff’d 543 F.2d 637 (8th Cir. 1976) (finding the petitioner deportable because, although he had lived and worked in the United States for over twenty years, was married to a U.S. citizen, and the parent of a U.S. citizen child, he had never undergone the naturalization process).
192 See Oliver, 517 F.2d at 427–28.
193 See, e.g., id. (finding a noncitizen’s length of residence and “emotional” allegiance to be insufficient to qualify her for national status, and that she consequently swore allegiance to her birth country, albeit owing to neglect rather than intention).
194 See Lee, 216 F. Supp. 2d at 58–59; Shittu, 204 F. Supp. 2d at 880.
195 See Lee, 216 F. Supp. 2d at 58–59.
196 See id. at 53.
197 Id.
198 Id.
199 Id.
200 See Lee, 216 F. Supp. 2d at 57, 58.
201 See id. at 58. However, the Ninth Circuit Court of Appeals was not persuaded by the Eastern District of New York’s opinion, reasoning that Lee focused on the commonsense meaning of allegiance to the United States and failed to consider other clues as to the meaning of national of the United States. See Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 972 (9th Cir. 2003).
202 See Lee, 216 F. Supp. 2d at 58; Refugee Protocol, supra note 24; Refugee Convention, supra note 24; Legal Arguments, supra note 28.
203 See Legal Arguments, supra note 28.
204 See id.
205See 1967 U.S. Treaty, supra note 157; Refugee Convention, supra note 24.
206 See Legal Arguments, supra note 28; Refugee Protocol, supra note 24.
207 See Legal Arguments, supra note 28.
208 Id.
209 See id.
210 See id.
211See id.
212 Legal Arguments, supra note 28.
213 See id.
214 See 216 F. Supp. 2d 51, 58–59 (E.D.N.Y. 2002); Legal Arguments, supra note 28.
215 See INS v. Cardoza-Fonseca, 480 U.S. 421, 436–37 (1987); INS v. Stevic, 467 U.S. 407, 416–17 (1984).
216 See INA § 209(a), 8 U.S.C. § 1159(a) (2000).
217 See In re Bahta, 22 I. & N. Dec. 1381, 1382 n.2 (BIA 2000).
218 See Refugee Protocol, supra note 24; Legal Arguments, supra note 28. One can see that unlike the Refugee Waiver theory, which argues that the refugee retains refugee status, a pleading under the U.S. National theory requires the person to admit that refugee status has been terminated. See Legal Arguments, supra note 28.
219 See id.
220 See 8 U.S.C. § 1101(a)(22) (defining, in part, a “national of the United States” to mean a person who, though not a citizen of the United States, owes permanent allegiance to the United States); Legal Arguments, supra note 28.
221 Legal Arguments, supra note 28.
222 Id.
223 See id.
224See Legal Arguments, supra note 28. Of course, U.S. citizens already possess the status of U.S. nationals. The Ninth Circuit Court of Appeals has agreed with this interpretation. See, e.g., Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 972 (9th Cir. 2003) (maintaining that a U.S. national as defined under the INA is generally either a U.S. citizen or a person born in territories of the United States).
225 See Legal Arguments, supra note 28.
226 See id.; Refugee Protocol, supra note 24; Refugee Convention, supra note 24.
227 See Legal Arguments, supra note 28.
228 See id.
229 See id.
230 See id.
231 See id.
232 See, e.g., Martha F. Davis, International Human Rights and United States Law: Predictions of a Courtwatcher, 64 Alb. L. Rev. 417, 417–20 (2000) (suggesting that the restrictive approach employed by U.S. courts may be ending).
233 See, e.g., Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892) (holding that it is an “accepted maxim of international law, that every sovereign nation has the power . . . to forbid the entrance of foreigners”); The Chinese Exclusion Case, 130 U.S. 581, 604 (1889) (concluding that “the United States, in their relation to foreign countries and their subjects of citizens are one nation, invested with powers which belong to independent nations”).
234 See Ma v. Ashcroft, 257 F.3d 1095, 1114 n.30 (9th Cir. 2001) (stating that “within the domestic legal structure, international law is displaced by a properly enacted statute, provided it be constitutional, even if that statute violates international law”); Alvarez-Mendez v. Stock, 941 F.2d 956, 963 (9th Cir. 1991); United States v. Aguilar, 883 F.2d 662, 679 (9th Cir. 1989) (holding that “[i]n enacting statutes, Congress is not bound by international law; if it chooses to do so, it may legislate contrary to the limits posed by international law”); accord Galo-Garcia v. INS, 86 F.3d 916, 918 (9th Cir. 1996) (finding that since Congress has enacted an extensive legislative scheme for the admission of refugees, customary international law is inapplicable).
235INS v. Aguirre-Aguirre, 526 U.S. 415, 427–28 (1999).
236 Id. (internal punctuation omitted).
237 See Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 966–69 (9th Cir. 2003); Government’s Answering Brief at *16–*19, Sun v. Ashcroft, 370 F.3d 932 (9th Cir. 2004) (No. 02–36132), available at 2003 WL 22593676.
238 See, e.g., Ekiu, 142 U.S. at 659; The Chinese Exclusion Case, 130 U.S. at 604.
239 See Perdomo-Padilla, 333 F.3d at 969–70.
240 See Lee v. Ashcroft, 216 F. Supp. 2d 51, 57–59 (E.D.N.Y. 2002); Shittu v. Elwood, 204 F. Supp. 2d 876, 878–80 (E.D. Pa. 2002); Hughes v Ashcroft, 255 F.3d 752, 757 (9th Cir. 2001).
241 See Lee, 216 F. Supp. 2d at 57–59.
242 See Perdomo-Padilla, 333 F.3d at 969–70; Government’s Answering Brief at *16–*19, Sun v. Ashcroft, 370 F.3d 932 (9th Cir. 2004) (No. 02–36132), available at 2003 WL 22593676.
243See Beharry v. Reno, 183 F. Supp. 2d 584 (E.D.N.Y. 2002), rev’d on other grounds, Beharry v. Ashcroft, 324 F.3d 51 (2d Cir. 2003); Maria v. McElroy, 68 F. Supp. 2d 206 (E.D.N.Y. 1999).
244 See Sonya Starr & Lea Brilmayer, Family Separation as a Violation of International Law, 21 Berkeley J. Int’l L. 213, 259 (2003).
245 68 F. Supp. 2d at 219.
246 See id. at 213.
247 See id.
248See id.
249 See id. at 215.
250 See Maria, 68 F. Supp. 2d at 215. Section 212(h) of the INA allows for a noncitizen to be granted a waiver, on non-drug-related criminal grounds, of exclusion if demonstrated that exclusion “would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son or daughter of such alien.” INA § 212(h), 8 U.S.C. § 1182(h) (2000). Prior to the IIRIRA, noncitizens were granted discretionary humanitarian relief under section 212(c). See 8 U.S.C. § 1182(c) (1994 ed.) (repealed 1996). Although section 212(h) is phrased in terms of exclusion, courts have held that denying eligibility for 212(h) relief in deportation proceedings violates the Equal Protection Clause. See, e.g., Yeung v. INS, 76 F.3d 337, 340–41 (11th Cir. 1995) (stating that the denial of a section 212(c) hearing in deportation proceedings violates the Equal Protection Clause); see also Francis v. INS, 532 F.2d 268, 273 (2d Cir. 1976) (finding the restriction of section 212(c) to exclusion proceedings to be unconstitutional). However, noncitizens deportable under the aggravated felony provision are barred from receiving section 212(h) discretionary relief. See 8 U.S.C. § 1182(h) (2000).
251Maria, 68 F. Supp. 2d at 236.
252 Id. at 234.
253 See id. at 231–33; see also International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 [hereinafter ICCPR]. The United States became a signatory to the ICCPR on September 8, 1992, but under the reservation that the treaty was not to be self-executing. See Maria, 68 F. Supp. 2d at 231; see also 138 Cong. Rec. S4781–01 (daily ed. Apr. 2, 1992).
254 Maria, 68 F. Supp. 2d at 232; see also ICCPR, supra note 253, at art. 17, 23(1).
255 See Maria, 68 F. Supp. 2d at 231–32; see also ICCPR, supra note 253, at art. 7, 17, 23(1).
256 See Maria, 68 F. Supp. 2d at 233–34.
257 See id. at 232–33.
258 See id.
259 Id. at 234.
260 See id. at 236.
261 See Starr & Brilmeyer, supra note 244, at 264.
262 See Maria, 68 F. Supp. 2d at 231. For a description of the avoidance of conflict with international law doctrine, see infra n. 277.
263See id.
264 See id. One can see how the Maria decision seems to carve out an exception to the age-old precedent that changes to U.S. immigration law and policy may be retroactively applied—as first set forth in the Chinese Exclusion Case—by considering the implications of international law on U.S. immigration law. See id.; see also supra text accompanying notes 48–52 (discussing the retroactivity of changes to U.S. immigration law).
265See Beharry v. Reno, 183 F. Supp. 2d 584, 604–05 (E.D.N.Y. 2002), rev’d on other grounds, Beharry v. Ashcroft, 324 F.3d 51 (2d Cir. 2003).
266 See id. at 586–89.
267 Id at 586.
268 See id.
269 Id.
270 Beharry, 183 F. Supp. 2d at 587.
271 See id. at 605.
272 See id. at 595–603.
273 See id. at 596.
274Id.
275 Beharry, 183 F. Supp. 2d at 600.
276See The Paquete Habana, 175 U.S. 677, 700 (1900).
277 See Beharry, 183 F. Supp. 2d at 599 (citing The Paquete Habana, 175 U.S. at 700 and Restatement (Third) of Foreign Relations Law § 115(1)(a) (1987)). The last-in-time rule, or the Paquete Habana principle, allows Congress to override provisions of customary international law. See The Paquete Habana, 175 U.S. at 700. The rule is meant to interact with the Charming Betsy Principle, or the principle that laws are to be read in conformity with international law when possible. See Beharry, 183 F. Supp. 2d at 599; Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). It follows that in order to overrule customary international law, Congress must enact domestic legislation which both postdates the development of a customary international law norm, and which clearly has the intent of repealing that norm. See, e.g., Maria v. McElroy, 68 F. Supp. 2d 206, 231 (E.D.N.Y. 1999) (stating that “Congress can be assumed, in the absence of a statement to the contrary, to be legislating in conformity with international law and to be cognizant of this country’s global leadership position and the need for it to set an example with respect to human rights obligations”); Restatement (Third) of Foreign Relations Law § 115(1)(a) (stating that “[a]n Act of Congress supercedes an earlier rule of international law or a provision of an international agreement as law of the United States if the purpose of the act to supercede the earlier rule or provision is clear or if the act and the earlier rule or provision cannot be fairly reconciled”).
278 Beharry, 183 F. Supp. 2d at 598–99.
279 Id. at 598.
280 Id. at 598–99.
281 See id. at 604.
282See id. at 604–05.
283See Beharry, 183 F. Supp. 2d at 604.
284 Guerra v. Ashcroft, No. CIV.A. 301CV1562H, 2002 WL 1359706, at *3 n.4 (N.D. Tex. June 19, 2002). Guerra was a citizen of Mexico and a lawful permanent resident within the United States. Id. at *1. He is married to an American citizen. Id. In 1998, petitioner pled guilty to a charge of sexual assault of a child under fourteen years of age, an aggravated felony under the INA, and was ordered deported by the INS in 2000. Id. The court ruled that the petitioner’s conviction denied him discretionary relief from deportation under the INA. Id. at *2–3; see also INA § 212(h), 8 U.S.C. § 1182(h) (2000) (“No waiver shall be granted in the case of an alien who has previously been admitted to the United States as an alien legally admitted for permanent residence if . . . since the date of such admission the alien has been convicted of an aggravated felony”).
285 See, e.g., Laura S. Adams, Divergence and the Dynamic Relationship Between Domestic Immigration Law and International Human Rights, 51 Emory L.J. 983, 1000–01 (2002); Starr & Brilmeyer, supra note 244, at 265 (concluding the future of the Beharry argument is uncertain); Cook, supra note 13, at 328 (opining the Beharry argument to be limited in its effect on U.S. immigration); Valerie Neal, Note, Slings and Arrows of Outrageous Fortune: The Deportation of “Aggravated Felons,” 36 Vand. J. Transnat’l L. 1619, 1646 (2003) (concluding that the potential impact of the Beharry rationale is uncertain).
286 See Beharry, 183 F. Supp. 2d at 604–05; Maria v. McElroy, 68 F. Supp. 2d 206, 231 (E.D.N.Y. 1999).
287 See Beharry, 183 F. Supp. 2d at 604–05; Maria, 68 F. Supp. 2d at 231.
288 See Beharry, 183 F. Supp. 2d at 604–05; see also Maria, 68 F. Supp. 2d at 231 (implementing an approach similar to Beharry).
289 See Legal Arguments, supra note 28.
290 See id.
291See id.
292 See id.
293 See Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 967–70 (9th Cir. 2003); Government’s Answering Brief at *16–*19, Sun v. Ashcroft, 370 F.3d 932 (9th Cir. 2004) (No. 02–36132), available at 2003 WL 22593676.
294 See, e.g., Beharry, 183 F. Supp. 2d at 604–05; Maria, 68 F. Supp. 2d at 231.
295 See Beharry, 183 F. Supp. 2d at 604–05; Maria, 68 F. Supp. 2d at 231.
296 See Adams, supra note 285, at 1000–01; Starr & Brilmeyer, supra note 244, at 265; Cook, supra note 13, at 328; Neal, supra note 285 at 1646.
297 Adams, supra note 285, at 1000–01; Neal, supra note 285, at 1646.
298 Adams, supra note 285, at 998.
299 Starr & Brilmeyer, supra note 244, at 265; Neal, supra note 285, at 1646.
300See Adams, supra note 285, at 1000.
301 See id. at 1001.
302 See id. at 996–97.
303 See id. at 997.
304 See Guerra v. Ashcroft, No. CIV.A. 301CV1562H, 2002 WL 1359706, at *3 n.4 (N.D. Tex. June 19, 2002). See generally Alvarez-Garcia v. INS, 234 F. Supp. 2d 283 (S.D.N.Y. 2002) (distinguishing the petitioner’s facts from Beharry); Gonzalez-Polanco v. INS, No. 02 CIV. 2734(AJP), 2002 WL 1796834, at *8 (S.D.N.Y. Aug. 5, 2002) (finding the Beharry decision to be limited to its facts, and therefore not applicable for the petitioner).
305 See Gonzalez-Polanco, 2002 WL 1796834, at *8.
306 See Guerra, 2002 WL 1359706, at *3 n.4.
307 See id.
308 See Beharry v. Ashcroft, 329 F.3d 51, 64 (2d Cir. 2003).
309Id. at 63.
310 Id.
311 See 183 F. Supp. 2d 584, 601–03 (E.D.N.Y. 2002), rev’d on other grounds, Beharry v. Ashcroft, 324 F.3d 51 (2d Cir. 2003).
312 See id. at 601.
313 See id.
314 See id. at 602–03.
315 See, e.g., Fong Yue Ting v. United States, 149 U.S. 698, 705 (1893); The Chinese Exclusion Case, 130 U.S. 581, 603–04 (1889).
316 See Beharry, 183 F. Supp. 2d at 602–03.
317 See, e.g., T. Alexander Aleinikoff, International Law, Sovereignty, and American Constitutionalism: Reflections on the Customary International Law Debate, 98 Am. J. Int’l L. 91, 107 (2004) (predicting a shift in attitude regarding the incorporation of international law into domestic jurisprudence based on recent trends); Ruth Bader Ginsburg, Looking Beyond Our Borders: The Value of a Comparative Perspective in Constitutional Adjudication, 40 Idaho L. Rev. 1, 8–10 (2003)(affirming the Supreme Court’s growing attentiveness to legal developments in other parts of the world); Davis, supra note 232, at 417–20 (announcing that an end to the Court’s restrictive approach to international law is near); accord Brief for Amici Curiae Law Professors in Support of Respondent at 14–20, Rumsfeld v. Padilla, 124 S. Ct. 2711 (2004) (No. 03–1027), available at 2004 WL 792207 (arguing that current and past trends in American jurisprudence demonstrate that international human rights law controls the Court’s analysis in the respondent’s case); Sandra Day O’Connor, Proceedings of the Ninety-Sixth Annual Meeting of the American Society of International Law, 96 Am. Soc’y Int’l L. Proc. 348, 352–53 (2002) (asserting the need for American judges to become aware of their responsibilities to respect the law of nations).
318 Aleinikoff, supra note 317, at 104.
319 See, e.g., Lawrence v. Texas, 123 S. Ct. 2472, 2481, 2483 (2003) (citing to decisions of the European Court of Human Rights); Grutter v. Bollinger, 539 U.S. 306, 342–43 (2003) (Ginsburg, J., concurring) (stating that the majority’s decision “accords with the international understanding of the office of affirmative action”); see also Atkins v. Virginia, 536 U.S. 304, 316 n. 21 (2002) (discussing the consensus of “the world community”).
320 Lawrence, 123 S. Ct. at 2483.
321 See id.
322 Id. (citing Dudgeon v. United Kingdom, 3 Eur. Ct. H.R. 40, 45 (1981)).
323 Ginsburg, supra note 317, at 10; see also Aleinikoff, supra note 317, at 103–04.
324 See Sontag, supra note 1, at 50.
325 See id.
326 See id.
327 See Pattison, supra note 94; SEARAC discussion, supra note 9.
328 See Pattison, supra note 94; SEARAC discussion, supra note 9.
329 See Pattison, supra note 94.