[*PG221]ÉMIGRÉS OF THE KILLING FIELDS: THE DEPORTATION OF CAMBODIAN REFUGEES AS A VIOLATION OF INTERNATIONAL HUMAN RIGHTS

David L. Cheng*

Abstract:  On March 22, 2002, amidst political pressures exerted by the Bush administration, the government of Cambodia was forced into signing a repatriation agreement with the United States that immediately made some 1,600 Cambodian Americans, most of whom were fully acculturated teenagers with virtually no ties to Cambodia, deportable under the Immigration and Nationality Act’s aggravated felony provision. This Note addresses the aggravated felony provision as applied to Cambodian refugees and two legal theories that have been developed in order to prevent their deportation. Based on current trends by federal courts to incorporate international legal norms into American jurisprudence, particularly Beharry v. Reno and Maria v. McElroy, this Note contends that a more serious look at these two legal theories, which rely heavily on international human rights standards, is needed.

Introduction

Loeun Lun does not remember the date he was born during Pol Pot’s genocidal regime in Cambodia; nor does he care to.1 He doesn’t want to remember the period of turmoil and trauma that claimed the lives of over two million Cambodians during the late 1970s. Loeun’s life, from the time he was a bony infant in his mother’s rucksack on a forced march through rural Cambodia, to his aimless teenage life in [*PG222]the crime-ridden housing projects of Tacoma, Washington, has been too chaotic for him to care about such things.2 What does matter to him, however, is his family—his beloved wife, Sarom Loun, and daughters, Emilee and Ashley.3

On March 12, 2002, the INS requested that Loeun report in person to the Seattle immigration office.4 Believing that the visit was for the purposes of his naturalization process, which he had begun two years ago, Loeun agreed and arrived at the office with his family, where he took a number and patiently waited.5 When Loeun’s number was finally called, an immigration officer placed Loeun under arrest as Emilee burst into tears.6 Loeun comforted Emilee and told her “Daddy would be home soon.”7

But Daddy wasn’t ever coming home. On March 22, 2002, amidst pressures exerted by the Bush administration, Cambodian officials signed an agreement with the United States that allowed for the deportation of Cambodian nationals who had previously broken the law in America.8 Under the authority of the Immigration and Nationality Act’s (INA) aggravated felony provision, the agreement immediately made some 1,600 former refugees eligible for deportation, the majority of whom were fully Americanized young men whose Cambodian “homeland” was little more than a fuzzy memory.9 Among those made newly eligible was Loeun Lun; in 1995, he had pled guilty to an assault he committed as a teenager.10 His subsequent reformation, however, meant nothing to the government, and in May 2003, he was hand[*PG223]cuffed, shipped back to Phnom Penh on a government jet, and told that he could never return to the United States.11

Loeun’s experience, albeit foreign to the small and politically powerless Cambodian community, is a disturbingly familiar one to most lawful permanent residents (LPRs)12 subject to the aggravated felony provision of the INA, which has been supplemented by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and Antiterrorism and Effective Death Penalty Act (AEDPA).13 Under current law, a lawful permanent resident of the United States can be deported peremptorily for such trivial offenses as Driving Under the Influence (DUI), shop-lifting, or a misdemeanor battery.14 The law neither considers deportation’s likely adverse impact on the family of someone like Loeun, nor does it show concern about unconditionally exiling the person to a nation that is remembered only from stories and nightmares.15 Furthermore, it does not take into account the possibility that the deportable offense was committed long before these deportation laws came into effect.16 Despite the unfairness of these laws, courts continue to sanction the laws under the plenary power doctrine, an [*PG224]archaic precedent that gives Congress absolute discretion in setting the rules and regulations that govern U.S. immigration law and policy.17

Deportation is often equally, if not more detrimental to the life of a noncitizen than the imposition of a criminal sentence—yet courts have steadfastly regarded immigration proceedings as civil proceedings.18 A deported noncitizen may lose one’s family, friends, and livelihood forever.19 For courts to conclude that it is not punishment for a person to be banished from the country in which one has lived for most of one’s life, to be denied the love and presence of one’s spouse, children and parents, and to be sent to a country to which one has virtually no ties, is to deny reality.20

Although the severe and unjust laws mandating deportation—now termed “removal”21—affect all immigrants who have been convicted of [*PG225]crimes, this Note addresses specifically the impact of the aggravated felony provision on the Cambodian community.22 This Note also presents two current legal theories that rely on international human rights laws, which were developed to prevent the deportation of Cambodian refugees.23 This Note then examines two recent federal court decisions by Judge Jack Weinstein, Beharry v. Reno and Maria v. McElroy, which demonstrate that the immigration laws, as applied to Cambodians refugees, violate international human rights law, specifically the U.N. Convention Relating to the Status of Refugees and the Protocol Relating to the Status of Refugees.24 Therefore, in order for U.S. immigration and refugee law to comport with international human rights law, courts must expand the reasoning in Beharry and Maria and afford stronger consideration to the legal theories posed in this Note.25

Part I provides a historical overview of the roots of injustice in immigration law in America beginning with the Chinese Exclusion Case.26 Part I also explains the development of the aggravated felony provision and how it recently came to apply to Cambodian refugees convicted of certain crimes.27 Part II introduces two legal theories, which rely on international human rights law, developed by advocates in response to the deportation of Cambodians, and explains how courts’ reluctance to follow international legal norms renders them deficient.28 Part III of this Note applies the reasoning of the Maria and Beharry decisions to the international human rights violations implicated in current U.S. [*PG226]immigration policies toward Cambodian Americans.29 Part III contends that the deportation of Cambodian refugees under the Repatriation Agreement violates the Refugee Convention and, furthermore, is inconsistent with current U.S. immigration law under a rationale similar to that employed by Judge Weinstein.30 Therefore, in order to comply with international law regarding the deportation of Cambodian refugees, stronger consideration to these legal theories is warranted.31

I.  The Aggravated Felony Provision of the Immigration and Nationality Act and the Deportation of Cambodian
Criminal Noncitizens

Inequality in U.S. immigration law is as old as the law itself. The precedent set forth in the century-old Chinese Exclusion Case32 has consequently been used to implement policies that are inhospitable to America’s noncitizens—including the aggravated felony provision.33 The deportation of Cambodian criminal noncitizens is, however, a recent development in U.S. immigration law.34 Prior to the Repatriation Agreement, the United States could not deport Cambodians because Cambodia refused to accept them.35 The agreement’s consummation, however, allows the United States to employ the unjust and unnecessarily harsh aggravated felony provision to order the mandatory deportation of a number of Cambodian refugees.36

A.  A Century of Inequity in U.S. Immigration Law and Policy: The Chinese Exclusion Case and the Plenary Power Doctrine

The roots of juridical unfairness in U.S. immigration law began when Congress, fearing that its anti-Chinese immigration laws were too [*PG227]weak, passed the Chinese Exclusion Act of 1888, which made it unlawful for a Chinese laborer who had once entered the United States legally to reenter if that person had left prior to the Act’s passing.37 The Act effectively superceded all conflicting statutes at the time of its passing.38 The question of whether the Chinese Exclusion Act could apply retroactively was challenged in the case of Chae Chan Ping v. United States, more notoriously known as the Chinese Exclusion Case.39 The petitioner, Chae Chan Ping, was a Chinese laborer residing in San Francisco who had departed for China in 1887 with the intention of returning to the United States.40 Before departing, he sought and obtained a certificate of reentry which, under the law existing at the time, would have allowed his return.41 Soon thereafter, Congress passed the Chinese Exclusion Act, which invalidated Chae Chan Ping’s return certificate.42 His attempted reentry led instead to his detention.1 Upon review by the U.S. Supreme Court, the Court stated that, as an independent nation, the United States had the inherent authority to maintain the independence and security of its territories.43 For the Court to restrict that authority would constitute a diminution of that power.44 The Court therefore concluded that, in the exercise of its legislative power, has the complete and unquestionable power to exclude noncitizens from, or prevent their return to, the United States.45 Thus, the Chinese Exclu[*PG228]sion Act applied retroactively and Chae Chan Ping’s certificate of reentry was invalid.46

The Chinese Exclusion Case established the principal precedent that changes in U.S. immigration law and policy may be applied retroactively.47 Chae Chan Ping had intended to return to the United States.48 He had secured a certificate entitling his reentry, and done so according to the law at the time.49 By its ruling, the Court sanctioned Congress’ ability not only to change the law years later, but also to affect the lives and choices of many unsuspecting noncitizens; had Chae Chan Ping known that his certificate would be invalid one year later, it is likely that he would never have left the United States.50 Likewise, had Loeun Lun known in 1995 that changes in the law seven years later would make him deportable, it is likely that Loeun, instead of choosing to plea bargain, would have opted to go to trial to attempt to avoid a conviction.51

While the Chinese Exclusion Case dealt solely with the exclusion of noncitizens, the question of whether Congress’ plenary power extended to their deportation was answered by the Court in Fong Yue Ting v. United States.52 The case joined three similar case that all involved Chinese laborers.53 Each petitioner was charged with violating section 6 of the Chinese Deportation Act of May 5, 1892.54 The provision required all Chinese laborers within the United States to procure a certificate of residency.55 Because the petitioners had failed to procure a certificate, the Act mandated their deportation.56 Upon review, the Court found section 6 to be constitutional.57 It reasoned that, just [*PG229]as Congress had the absolute and unqualified right to exclude noncitizens, it also had the right to deport them.58 Thus, the Court upheld the order to deport the petitioners.59

What is important to note in these two seminal cases is the extent of the Court’s reliance on principles of international law.60 Indeed, the Court supported its proposition in Fong Yue Ting by stating: “It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.”61 This same reliance is found in the Chinese Exclusion Case, where the Court stated that the right to exclude foreigners is an inherent right guaranteed by the law of nations.62

The precedents established by the Chinese Exclusion Case and Fong Yue Ting have endured for over a century, and have justified the implementation of a number of unfair immigration laws, including the derivation and expansion of the aggravated felony provision. What follows is a brief description and history of the provision, tracing its evolution from one paragraph comprising a small number of extremely serious crimes into twenty-one paragraphs enumerating over fifty crimes or general classes of crimes.63

B.  The Development of the Aggravated Felony Provision

In addition to aggravated felonies, a noncitizen is deportable for a number of crimes under the INA.64 These include, for example, crimes of moral turpitude carrying a sentence of one year or more and were committed within five years of entry; controlled substance convictions; certain firearms offenses; and crimes of domestic violence and crimes against children.65 Of these categories, the aggravated felony provision encompasses the widest range of crimes, from [*PG230]serious offenses such as murder, rape, and sexual abuse of a minor, to offenses that do not even constitute felonies under the criminal law, such as shoplifting and simple battery.66

The aggravated felony provision was introduced in the Anti-Drug Abuse Act of 1988 (ADAA), which amended the INA to include aggravated felonies as grounds for deportation.67 The ADAA arose out of fears that increasing numbers of drug and weapons-related crimes were being committed by immigrants who were evading deportation.68 The ADAA limited the use of the aggravated felony provision to serious crimes, such as murder and drug and weapons trafficking.69 Noncitizens deportable under the ADAA aggravated felony provision were additionally subject to expedited removal proceedings.70

The eventual passage of the Immigration Act of 1990 (IMMACT)71 and the Immigration and Nationality Technical Corrections Act of 1994 (INTCA)72 expanded the one-paragraph definition of “aggravated felony.” Under both Acts, a person was deportable for committing offenses such as burglary or theft, which carried a sentence of over five years, money laundering, fraud, and tax evasion.73 IMMACT also broadened the provision to include both federal and state convictions as well as certain convictions under foreign law.74

Following the aggravated felony provision’s expansion under IMMACT and INTCA, one commentator remarked that “the future is bleak for the aggravated felon and will probably only worsen.”75 That [*PG231]comment proved prophetic when, in 1996, Congress passed two new immigration laws: the AEDPA76 and the IIRIRA,77 which not only broadened the reach of the provision, but also attached harsher immigration consequences to those already applicable.78

The AEDPA redefined previously designated “aggravated felonies” to reach more noncitizens.79 It further added to the aggravated felony roster not only serious offenses,80 but also numerous less serious offenses.81 Likewise, the IIRIRA added a number of crimes to the aggravated felony definition.82 The IIRIRA, however, was far less forgiving than the AEDPA, as it decreased the sentencing threshold on a number of offenses to effectively extend the provision’s reach.83 Additionally, the IIRIRA expanded the definition of conviction and the interpretation of “term of imprisonment” and “sentence,” thus increasing the number of noncitizens deportable under the aggravated felony provision.84

[*PG232] The AEDPA and IIRIRA also intensified the consequences of being found to be deportable under the aggravated felony provision.85 For example, the AEDPA barred judicial review of final deportation orders and eliminated the section 212(c) term of imprisonment threshold from the provision.86 Restrictions under the IIRIRA were even more stringent. In addition to adopting AEDPA’s legacy of denying judicial review of deportation orders87 and discretionary relief to aggravated felons,88 all noncitizens deported under the aggravated felony provision were permanently barred from reentering the United States.89 The IIRIRA also imposed strict limitations on the eligibility of “aggravated felons” seeking asylum if their aggregate sentences equaled five years or more.90

In summary, the aggravated felony provision has transformed from a small category limited to the most serious of offenses to a broad and sweeping provision that permits banishment for even the most minor infractions.91 Of course, in 1995, Loeun Lun had no reason to think about such things, because the United States had not signed a repatriation agreement with Cambodia.92 The next section looks at the events which led to the Repatriation Agreement.

C.  Indefinite Detention and the Case of Kim Ho Ma

Before the signing of the Repatriation Agreement, the United States could not deport Cambodian refugees, even under the aggravated felony provision.93 Instead, the INS detained certain foreign [*PG233]criminal nationals who were not deportable indefinitely beyond their criminal sentences, until they could be deported; Cambodian refugees convicted of aggravated felonies fell into this category.94 This process of indefinite detention and the treatment of Cambodian aggravated felons changed after the U.S. Supreme Court decided the case of Zadvydas v. Davis.95

Kim Ho Ma arrived in the United States as a Cambodian refugee in 1985.96 As a teenager, Ma and three other members of a gang known as the Loko Asian Boyz were involved in the killing of another gang member, for which Ma was convicted of manslaughter in 1996.97 After serving two years for his conviction, Ma was released to the INS, who ordered his deportation in light of his conviction of an “aggravated felony.”98 Despite the order, however, the INS could not deport him within the ninety-day statutory period authorized for removal99 because no repatriation agreement existed between the United States and Cambodia.100

Notwithstanding the inability to deport him, Ma remained in indefinite detention pursuant to Section 241(a)(6) of the INA,101 which provides that certain categories of noncitizens who have been ordered removed—namely, criminal noncitizens—may be detained beyond the ninety-day statutory period.102 To justify his continued detention, the INS cited Ma’s violent disposition and his potential to violate the conditions of release, rationalizing these statements by underscoring his former gang membership, the nature of his crime, and his planned [*PG234]participation in a prison hunger strike.103 Upon the imposition of an order of indefinite detention, Ma filed a petition for habeas corpus relief in 1999, where a panel of federal trial judges found that Ma’s detention violated his constitutional rights.104 The Ninth Circuit affirmed the decision; later, the U.S. Supreme Court joined Ma’s case as a companion case to Zadvydas v. Davis.105

The INS’s ability to detain indefinitely Cambodian Americans ended with the Supreme Court’s decision in Zadvydas.106 It held that the INA provision permitting indefinite or permanent detention of a noncitizen raised a serious constitutional threat to substantive due process.107 Subsequently, to avoid constitutional conflict, the Court interpreted the statute to mean that, “once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute.”108 In Ma’s case, the Court found no reasonable likelihood that he would be removed in the foreseeable future, due to the lack of a repatriation agreement between the United States and Cambodia.109 As a result, the Court vacated Ma’s deportation order, and Ma remained free to live in the United States.110

At the time of the Zadvydas decision, the United States was in the process of securing a repatriation agreement with the Cambodian government.111 Immediately following the Supreme Court decision, however, the Bush administration, allegedly driven by anti-immigrant sentiments after September 11th, redoubled its negotiation efforts to pressure reluctant Southeast Asian countries to take back refugees who had committed crimes in America.112 Cambodian officials were reluc[*PG235]tant to sign an agreement allowing the United States to send back what they saw as young men made into criminals by the American way of life.113 Unconfirmed sources noted that the United States threatened to withhold American visas or stand in the way of international loans to Cambodia in order to expedite negotiation proceedings.114

On March 22, 2002, Cambodia capitulated to U.S. pressures and signed an agreement permitting the return of its nationals.115 Many decried this event.116 To the Cambodian-American community, the Repatriation Agreement felt “like an unanticipated punch in the gut.”117 Cambodian Americans felt that American officials could now break up families like the Khmer Rouge had done in Cambodia over twenty-five years ago.118 As of November 2003, sixty-seven of the 1,600 Cambodian Americans deportable under the Repatriation Agreement have been repatriated.119

The real tragedy of the deportation of Cambodian refugees is that the majority of those deported have little or no connection to contemporary Cambodia; everything they know that made their lives worthwhile is in the United States.120 What little knowledge they do have of Cambodia consist of the nightmares or stories of cruelty and starvation under the Khmer Rouge and the “Killing Fields” massacre of more than two million people.121 Many cannot speak Khmer, much less read or write the language.122 Others were born in refugee camps in Thailand, and have never even set foot in Cambodia.123 Still others entered the United States as infants.124 Most have lived in the United States for most of their lives and are products of an American environment.125 Except for lacking U.S. citizenship status, most are best described as simply American.126

[*PG236] In addition to returning to a country with which they have little or no connection, many deportees face incarceration by the Cambodian government.127 Upon the consummation of the repatriation agreement, Prime Minister of Cambodia Hun Sen declared that the government would lock up every returnee indefinitely.128 Although this has not happened, one Cambodian official has stated that the government looks at the deportees with apprehension, seeing them as hardened criminals rather than people of good quality.129 Unsurprisingly, when Loeun and ten other deportees arrived in Phnom Penh, they were immediately taken into custody and locked up in a detention center.130

Had they known about the imminence of a repatriation agreement between the United States and Cambodia, it is likely that many of the Cambodian Americans now facing deportation would have opted for trial rather than a plea bargain.131 One commentator notes, “People are often told, ‘Why don’t you just sign this agreement, they are never going to have [a deportation] agreement with Cambodia—and essentially you will be set free under supervised release.’”132 In effect, the majority of Cambodian Americans facing criminal charges chose plea bargaining over a lengthy legal battle because of the lack of a deportation agreement.133 Sokha Sun, a Cambodian refugee living in Tacoma, Washington, was one of those people.134 Now 25 years old, he currently faces deportation on aggravated felony grounds for a gun possession conviction he had plea-bargained to in 2001.135 It is likely that if a deportation agreement had existed at the time, Sokha would have chosen to go to trial in order to stay in the United States.136

[*PG237] Indeed, these recent events have come as a shock to the 170,000 members of the Cambodian-American community.137 Most members, like Sokha Sun and Loeun Lun, are eligible for U.S. citizenship status, but have neglected to file the necessary paperwork.138 Since the signing of the agreement, however, a number of advocates have begun to take action to counter its effects.

II.  Current Legal Theories for Cambodians in
Deportation Proceedings

In response to the consummation of the Repatriation Agreement, advocates developed two legal theories to attempt to stop the deportation of Cambodians.139 The Refugee Waiver Theory argues that a refugee140 retains refugee status even after adjustment to lawful permanent resident (LPR) status141 pursuant to INA section 209.142 This provision entitles a refugee to waive some of the traditional bars to remaining in the United States, including deportation.2 Second, the U.S. National Theory, a refugee who loses refugee status through adjustment under INA section 209, instead becomes a U.S. national.143 Thus, the former refugee is not an alien, and is thereby ineligible for deportation.144

[*PG238]A.  Refugee Waiver Theory

Under the Refugee Waiver Theory, an individual entering145 the United States as a refugee retains refugee status even after his or her adjustment to LPR status under section 209(a);146 in effect, the individual holds dual status.147 Thus, a refugee’s status does not end unless specifically terminated by the INS as required by law.148 This dual status entitles refugees to waive, pursuant to INA § 209(c), some of the traditional bars to remaining in the United States.149 This waiver, however, is usually applied to refugees adjusting their status for the first time, which is generally done one year after their entry.150 Nevertheless, the language of the INA allows the waiver to be applied to refugees even after adjustment of status.151 INA § 209(c) waivers are granted specifically “for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.”152

International human rights law concerning refugees’ rights supports this contention.153 The Refugee Act of 1980154 was meant to conform United States immigration law to the Refugee Convention,155 with which the United States had earlier agreed to comply by acceding to the Refugee Protocol.156 Additionally, the U.S. Supreme Court recognized that, with the Refugee Act of 1980, Congress intended to [*PG239]realign U.S. refugee law to comport with the terms of the Refugee Convention.157

Article 32 of the Convention declares that “[t]he Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.”158 Thus, absent concerns of national security or public order, a recognized refugee has license to remain in the United States until his refugee status is terminated, regardless of the existence or nature of a criminal record.159 Moreover, the Refugee Convention allows the termination of refugee status in only limited circumstances.160 For instance, an individual may lose refugee status by acquiring a new nationality, or by voluntarily re-establishing residency in the home country where persecution was previously feared.161 Additionally, changes in the country where persecution was feared could lead to termination of refugee status.162

The INS contends that a refugee’s adjustment to LPR status, automatically terminates refugee status.163 U.S. courts interpreting the provisions of U.S. refugee law, however, often afford controlling weight to the interpretation of the Refugee Convention provided by the United Nations High Commissioner for Refugees (UNHCR).164 The [*PG240]UNHCR’s interpretation of the Refugee Convention bars the argument that acquisition of LPR status in the country of asylum terminates a person’s refugee status.165 According to the UNHCR Handbook, “the cessation clauses are negative in character and are exhaustively enumerated. They should therefore be interpreted restrictively, and no other reasons may be adduced by way of an analogy to justify the withdrawal of refugee status.”166 Therefore, once determined, refugee status is maintained and the country of asylum is obligated to protect the refugee.167 In a recent opinion letter, the UNHCR confirmed that an individual’s refugee status does not cease or terminate upon acquisition of LPR status in the asylum country.168

Nor does it necessarily follow that changed conditions in the home country will lead to the cessation of refugee status.169 The UNHCR handbook states:

It is frequently recognized that a person who—or whose family—has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in the view of his past experience, in the mind of the refugee.170

This statement is particularly germane to Loeun Lun and other deportable Cambodian refugees, whose most enduring memories of Cambodia consist of their mothers and aunts being tortured and left to die.

The Refugee Waiver theory contends that under 8 C.F.R. § 207.9, the INS must terminate the status of a refugee before commencing removal proceedings.171 The regulation provides that termination of refugee status necessitates a determination that the person was not in [*PG241]fact a refugee as defined by the INA.172 Consequently, INS efforts to deport a refugee without first terminating his or her refugee status as 8 C.F.R. § 207.9 requires would violate the Refugee Convention and the U.S. immigration laws and regulations which implement the Convention’s dictates.173

Professor Robert Pauw, of the Western District of Washington recently tested this theory in the case of Sun v. Ashcroft.174 The petitioner, Sokha Sun, was a 24-year-old Cambodian citizen who had entered the United States in 1979 as a refugee and had adjusted to LPR status four years later.175 In 2001, immigration officials began deportation proceedings against him because of a conviction for possession of a stolen firearm.176

Among other assertions, Sun argued that, because his status as a refugee had not been terminated as required by 8 C.F.R. § 207.9, his deportation order violated the Refugee Convention.177 The government refuted the argument by claiming that Sun’s status as a refugee terminated when his status was adjusted to that of an LPR.178 Ultimately, the Western District of Washington rejected the theory that a person retains refugee status even after adjusting to LPR status.179 In her decision, Magistrate Judge Monica Benton concluded that current immigration statutes supported the automatic termination of Sun’s refugee status due to his adjustment to LPR status.180 Moreover, Judge Benton noted that because “[b]oth respondents and petitioner concede that [Sun] was a valid refugee at the time of his admission,” 8 [*PG242]C.F.R. § 207.9 did not apply, as the statute only addressed those noncitizens who were “not . . . refugee[s] within the meaning of section 101(a)(42) of the Act at the time of admission.”181

B.  U.S. National Theory

In contrast, the Khmer Institute’s proposed U.S. National Theory remains untested. The theory, asserts that Cambodians who entered the United States as refugees and admitted lawfully for permanent residence under INA § 209(a) are U.S. nationals and thus not deportable.182 Only “aliens” as defined by the INA are subject to deportation from the United States.183 The INA states that an alien is “any person not a citizen or national of the United States.”184 It defines a U.S. national, however, as a “person who, though not a citizen of the United States, owes permanent allegiance to the United States.”185 Therefore, refugees such as Loeun Lun would be undeportable if they show that they became U.S. nationals upon adjusting to LPR status.186

The INS and Department of Justice assert, however, that other than citizens, only individuals born in the U.S. territories can be classified as nationals, and U.S. courts traditionally have agreed.187 [*PG243]They have concluded that, in order for a person born outside the United States to qualify for “national” status, he or she must, at a minimum, demonstrate either birth in a U.S. territory or, in some jurisdictions, apply for U.S. citizenship.188 As interpreted by the courts, the concept of owing allegiance for nationality purposes is narrowly defined and devoid any emotion or human sentiment; long-term residency and a personal claim or belief that one “owes allegiance” are insufficient.189 A person such as Loeun Lun, despite having lived in the United States since childhood, would in all likelihood be disqualified by the courts for national status.190 Instead, he or she would be a national of his or her country of birth, simply as a consequence of neglect rather than deliberate purpose.191

[*PG244] The definition of national, however, is arguably more expansive than the government’s current position. For example, certain individuals deemed nationals have also applied for and been denied citizenship.192 In the Eastern District of New York, the court ruled that a noncitizen born outside the United States and its territories qualified as a U.S. national.193 Yuen Shing Lee was a Hong Kong national who had entered the United States as a child, and had lived in the country as an LPR for nearly thirty years.194 His wife was a U.S. citizen, both of his parents were naturalized citizens, and he had two children.195 He possessed no ties to Hong Kong.196

In 1999, Lee was convicted of mail fraud, a crime the INA defined as an aggravated felony, and the INS initiated deportation proceedings in 2000.197 To defend against his deportation, Lee argued that he not an alien, but a U.S. national, and thus undeportable, as he had not only sworn permanent allegiance to the United States when he filed an application for citizenship in 1998, but had also registered for the Selective Service in 1980.198 The court agreed with Lee’s contention, and held that these two acts were objectively sufficient to demonstrate his allegiance to the United States.199

This rationale could be broadened to apply to refugees who have resettled permanently in the United States.200 In other words, by choosing to adjust to LPR status, a refugee objectively demonstrates permanent allegiance to the United States.201 A combination of U.S. immigration and international human rights law pertaining to refugee status provide support for this theory.202 The United States, having acceded to the Refugee Protocol in 1967, has given legal effect to the Refugee Convention, which governs the status and treatment of refugees.203 [*PG245]Specifically, under the Refugee Protocol, two models of acceptance and treatment of refugees exist that signatories of the Protocol may employ.204

The first grants temporary residency until a refugee reasserts or safely reacquires his or her former nationality.205 Under this model, a person maintains refugee status and the Protocol’s protection until the person either returns voluntarily or re-avails him or herself of the nation’s protections.206 The temporary nature of refugee status could lead to the inference that the refugee continues to swear permanent allegiance to the country of origin.207 Thus, an argument under the first model would be unhelpful to a refugee in Loeun’s situation.208

The second model, which seeks to grant permanent resettlement to refugees, is the core of the U.S. national theory.209 Under this model, refugee status ceases where a refugee has acquired a new nationality and enjoys the protections of the new country.210 Stated otherwise, the refugee’s decision to reside permanently in the country of asylum implies the giving of his or her permanent allegiance to the new country of residence.211 Similar to the objective criteria put forth in Lee v. Ashcroft, a refugee who adjusts to LPR status under the INA has objectively demonstrated allegiance to the United States.212

As aforementioned, precedent and legislative history each support the notion that U.S. immigration law concerning refugees is meant to comport with the Refugee Protocol.213 Current U.S. immigration law requires refugees to adjust their status to that of an LPR after one year of residing in the United States.214 Furthermore, the Board of Immigration Appeals (BIA), which adjudicates immigration matters for the INS, has found that the moment that a refugee makes the adjustment, the refugee loses his status.215 Thus, compliance with the Refugee Protocol, to which the United States is a signatory, indicates that a refugee can be divested of refugee status and the protec[*PG246]tions of the Refugee Protocol only if the refugee either returns to the home country or acquires a new nationality.216

For two reasons, the latter condition could apply to refugees who are adjusting to LPR status under U.S. law.217 First, refugees who permanently resettle in the United States fit the definition of national under INA § 101(a)(22);218 second, any ambiguity in INA § 101(a)(22) must be resolved to grant national status to prevent conflict with the Protocol.219 Consequently, by insisting that refugees lose their status when they adjust, the only way for U.S. law to be consistent with the Protocol is if those refugees who adjust status to LPR become nationals.220

Therefore, consistent with the second model, the United States must grant U.S. national status to refugees who choose permanent resettlement and adjust their status to that of an LPR.221 The INS, however, persists in limiting those eligible for national status to individuals born on U.S. territories.222 By refusing to grant national status to refugees who choose permanent resettlement, the United States refuses to comport with the international obligations to which it has acceded under the Refugee Protocol.223

Essentially, the two legal theories developed to prevent the deportation of Cambodian refugees posit the idea that the United States’ refusal to adhere to the principles advanced by the Refugee Convention and Refugee Protocol contravenes international human rights law.224 Therefore, the deportation of Cambodian refugees violates international human rights.225 As the theories suggest, however, the United States can avoid such conflict by construing U.S. immigra[*PG247]tion law differently.226 Specifically, by focusing on ambiguities within U.S. immigration law, particularly the definition of a U.S. national and the process of refugee status termination, the United States can avoid international human rights violations.227 Avoidance of conflict with international law might then be gained simply by eliminating these ambiguities.228 However persuasive these arguments may be, courts are limited in their implementation of them.

C.  Problems with the Current Theories

Despite their compelling nature, both theories rely in part on the contention that the United States is actually bound by international law with respect to Congress’ plenary power to regulate immigration.229 Yet while it is apparent that the harshness that U.S. immigration law imposes on Cambodian refugees violates the Refugee Convention and Refugee Protocol, United States courts have traditionally been notoriously reluctant to incorporate international norms into their interpretation of domestic laws.230

In fact, courts have held consistently that Congress has the plenary power to regulate matters concerning immigration and is not bound by international law;231 Congress may even legislate contrary to the limits imposed by international law.232 Indeed, the Supreme Court has held that, notwithstanding Congress’ intent to compel compli[*PG248]ance with the Refugee Convention and Protocol by way of the Refugee Act of 1980, the United States is not bound to follow the interpretations of the Refugee Convention provided by international bodies such as the UNHCR.233 As the Supreme Court stated in INS v. Aguirre-Aguirre: “The [UNHCR] Handbook may be a useful interpretive aid, but it is not binding on the Attorney General, the BIA, or United States courts.”234

Also problematic is the fact that, although it has neither defined unequivocally a U.S. national nor determined the process by which refugee status is terminated, Congress did not desire for such exceptions to be carved out of the INA.235 Under the plenary power doctrine, courts defer to Congress in setting U.S. immigration law and policy.236 In Perdomo-Padilla v. Ashcroft, for example, the Ninth Circuit expounded on the INA’s definition of a U.S. national, and found that Congress implicitly intended for the U.S. national status to apply to persons born on territories of the United States.237

Not all circuits follow the Ninth Circuit’s supposition, however, pointing out that the statute’s definition does not, on its face, limit the status to persons born on U.S. territories.238 In Lee v. Ashcroft, the Second Circuit held that a Hong Kong-born noncitizen qualified as a U.S. national, implicitly because Congress did not explicitly express an intention to limit the status to persons born on U.S. territories.239

Nevertheless, implementation of either theory carves out an exception in U.S. immigration law that could provide certain rights to thousands of lawful permanent residents to whom Congress had not intended to advance rights to.240 Cambodian refugee advocates will find it difficult to implement these theories in the face of such resistance and limits. However, the recent federal district court decisions of Beharry and Maria, holding that U.S. courts are legally obligated to [*PG249]follow international legal norms, offer hope and support for the implementation of these legal theories.241

III.  Recent Judicial Developments in the Implementation of International Human Rights on U.S. Immigration

The decisions handed down by Judge Jack Weinstein in Maria v. McElroy and Beharry v. Reno represent a dramatic departure from the longstanding reluctance of courts to incorporate international human rights standards into the interpretation of domestic laws.242 A discussion of the two decisions follows.

A.  The Facts of Maria v. McElroy and Beharry v. Reno

Maria v. McElroy involved a challenge to a BIA decision that held the petitioner deportable under the IIRIRA’s provisions regarding aggravated felons.243 Eddy Maria was a 24-year-old Dominican national who came to the United States at the age of ten as a lawful permanent resident and never resided elsewhere.244 Both his parents and some of his siblings were U.S. citizens.245 In 1996, Maria was convicted of an attempted unarmed robbery in the second degree, making him eligible for deportation under the aggravated felony provision.246 The INS soon began deportation proceedings against him, and in 1997, found Maria deportable under the aggravated felony provision.247 As Maria was ineligible for discretionary relief on the basis of his conviction, he filed a petition for habeas corpus in district court.248

[*PG250] Although the court denied Maria’s request to be declared non-deportable, it found that he was entitled to a section 212(h) humanitarian hearing allowing consideration of his claim to a hardship waiver.249 Specifically, the court concluded that it would violate international law preventing interferences with family life if the INS deported Maria without such a hearing.250 The court gave a particularly detailed analysis of certain provisions of the International Covenant on Civil and Political Rights (ICCPR).251 For example, the court looked at Article 23(1)’s statement that “the family is the natural and fundamental group unit of society and is entitled to protection by society and the State” and Article 17’s establishment of an individual right against arbitrary or unlawful interference with the family.252 The court subsequently held that deportation proceedings that do not take family separation into account violated Articles 23(1) and 17, and further constituted “cruel, inhuman, and degrading treatment” in violation of Article 7 of the ICCPR.253

The court also examined the use of customary international law with respect to deportation proceedings.254 It found that a number of international treaties prohibited arbitrary expulsion and arbitrary interference with family life.255 The court cited to the Universal Declaration of Human Rights, the American Convention on Human Rights, the European Convention for Protection of Human Rights and Fundamental Freedom, the African Charter on Human and Peoples’ Rights, as well as to a number U.S. Supreme Court decisions recognizing a domestic constitutional right to family integrity.256 It held that [*PG251]the denial by the INS of a section 212(h) discretionary relief hearing, which would have allowed for the consideration of the impacts of family separation, made the expulsion and interference with family life “arbitrary” and thus a violation of international law.257 Therefore, the court vacated the deportation decision and ordered that Maria be granted such a hearing.258

Despite vacating the decision, however, the court did not go so far as to invalidate the AEDPA aggravated felony provisions by declaring that they violated international law.259 Instead, Judge Weinstein followed the principle of avoidance of conflict with international law by construing the statute narrowly.260 As such, Maria’s case would not have violated international law. Specifically, the court merely clarified a statutory ambiguity as to whether the redefinition of aggravated felonies applied retroactively to crimes committed before its passage.261 The court determined that in order to avoid a contradiction with international law, the statute was not to be applied retroactively, exempting Maria from its provisions and entitling him to the hardship waiver to which he would have been entitled prior to 1996.262

In Judge Weinstein’s decision in Beharry v. Reno, he again applied the principle of avoidance of conflict and narrowly construed the AEDPA aggravated felony provision.263 This time, however, the offense, but not the conviction, occurred prior to the passage of the AEDPA and IIRIRA.264 Don Beharry, a Trinidad national, was admitted into the United States at the age of seven as a lawful permanent resident.265 He had a six-year-old daughter and a sister, both of whom were U.S. citizens.266 In 1996, Beharry was convicted of second-degree robbery for aiding in the alleged theft of $714 from the cash register of the coffee [*PG252]shop where he worked.267 While in prison, the INS initiated deportation proceedings against him and the BIA held that his aggravated felony conviction rendered him ineligible for hardship waivers.268

Upon review, the court of the Eastern District of New York overturned the decision.269 The court relied on many of the same principles of customary and conventional international law that formed the basis for the Maria holding.270 Additionally, the court found that several provisions of the Convention on the Rights of the Child applied, due to the fact that Beharry had a six-year-old daughter.271 Specifically, the provisions it found applicable were the Preamble’s provision for the “protection and assistance” of the family, Article 3, which provided for the protection of the best interests of the child, and Article 7, which protects the child’s “right to know and be cared for by his or her parents.”272 The court reasoned that although the convention was not ratified by the United States, its prohibitions constituted customary international law because the convention was ratified by every other organized government in the world.273

Despite his findings in the Beharry decision, the difficulty presented to Judge Weinstein was that, under United States domestic law, Congress may statutorily overrule all provisions of international law.274 Where domestic and international law inescapably conflict, the last-in-time rule normally applies.275 Here, however, the court determined [*PG253]that the two competing notions taken together—that Congress may override international law, but that courts must construe statutes to avoid conflicts—“create[d] a principle of clear statement.”276 Thus, “in order to overrule customary international law, Congress must enact domestic legislation which both postdates the development of a customary international legal norm and which clearly has the intent of repealing that norm.”277 The court stated that this was the best principle by which United States law can conform to its international legal obligations.278 The court further supported its opinion by noting that Congress had not explicitly stated the intent to supercede international law with respect to immigration legislation.3 On that basis, Judge Weinstein construed the legislation to be in conformance only if it allowed hardship hearings in cases where family separation may occur and where the underlying crime was committed prior to AEDPA’s enactment that defined the petitioner’s offense as an “aggravated felony.”279 According to the court, this construction of the AEDPA was the “most narrowly targeted way to bring the INA into compliance with international law.”280

Maria and Beharry represent groundbreaking precedents in the realm of immigration and international law; however, some courts have declined to follow the Beharry ruling. For example, in facts similar to the situation in Beharry, the Northern District of Texas found the Beharry court’s reasoning and application of international law, to be unpersuasive.281 Furthermore, while the decisions raised the hopes of many immigration advocates, some commentators view the opinions [*PG254]with skepticism.282 Nevertheless, the underlying rationale of the Maria and Beharry decisions can still be employed to argue against the deportation of Cambodian refugees under the aggravated felony provision.

B.  The Aftermath of Maria and Beharry: Extending the International Human Rights Argument to Cambodian Refugees

By enlarging the international human rights argument posited by Judge Weinstein in Beharry and Maria, further deportation of Cambodian refugees can be prevented.283 This section addresses how the international human rights argument supports implementation of the Khmer Institute’s legal theories preventing deportation, and responds to emerging criticisms of the Beharry decision.

In reaching his decisions in Beharry and Maria, Judge Weinstein implemented a limited approach that clarified a specific ambiguity in the AEDPA’s retroactive effect on the aggravated felony provision.284 Judge Weinstein noted that, since Congress did not express a clear and explicit intent for the INA to override norms of customary international law, the court should construe the statute to comply with international law in order to avoid constitutional concerns.285

Both the Refugee Waiver and the U.S. National theories argue that the United States is violating international law, particularly the Refugee Convention and the Refugee Protocol.286 The theories suggest that U.S. immigration law can avoid violation by interpreting ambiguities within the INA to be in compliance with international law.287

Unlike the Beharry and Maria rationale, the Khmer Institute’s arguments do not aim to resolve ambiguities in the AEDPA’s retroactive effect.288 Instead, the Refugee Waiver and U.S. National theories scrutinize the ambiguous definition of national status and uncertain proce[*PG255]dure for termination of refugee status.289 Congress has not clearly or unequivocally expressed how to interpret the ambiguities the Khmer Institute highlights.290 Additionally, as Judge Weinstein articulated, Congress has not expressed explicitly that the INA was meant to override international legal norms or supercede specific international human rights treaties, and thus has not expressed the clear intention that the INA override the provisions of the Refugee Convention and the Refugee Protocol.291 By extending the rationale of Judge Weinstein’s decisions, courts can apply his limited approach in Maria and Beharry to interpret these ambiguities in the INA to comply with the Refugee Convention and the Refugee Protocol.292

There has, however, been widespread criticism of Judge Weinstein’s approach.293 Advocates of immigration and international law had high hopes that the Maria and Beharry decisions would usher in a new era wherein courts would inject international human rights norms into an area where the United States traditionally has been most reluctant to comply with international law.294 Some commentators, however, view the decisions skeptically, asserting that the international human rights argument will likely be overruled.295 Others have expressed uncertainty as to the impact these decisions will have on future judicial interpretations of the INA and its conflicts with international law.296

One exceptionally potent criticism of Judge Weinstein’s approach notes that a judicial approach to incorporating international legal norms in the immigration context will have only marginal success, and that advocates should be wary of promoting the application of international law obligations to domestic litigation.297 Instead, the commentator suggests that a more enduring approach is needed, and that it may be better to use the political process to integrate international law into U.S. immigration law.298 This proposal avoids the im[*PG256]plicit tension of sovereignty and international human rights law that the Beharry decision clearly creates.299

However, sovereignty is at its height in the U.S. immigration context, and arguably the last area in which the United States will consent to be governed by international human rights rules.300 Therefore, it is highly unlikely that legislative integration of international legal norms into domestic immigration law will occur anytime soon.

Other criticism of Judge Weinstein’s approach has come by way of the judiciary, as courts reject the international human rights argument in similar, yet distinguishable situations from Beharry.301 For example, in Gonzalez-Polanco v. INS, the Southern District of New York refused to apply the Beharry argument to the petitioner because he was an unlawful permanent resident convicted of a controlled substance offense.302 In the cases declining to extend this approach, however, only one court refused to follow Judge Weinstein’s approach by stating disagreement with the approach.303 The disagreement with the Beharry argument, however, was expressed only in dicta and no explanation of its underlying rationale was offered.304

It must be noted that the Second Circuit later reversed Beharry, explicitly because the petitioner had not exhausted the administrative remedies available to him.305 However, the court stated that “[n]othing in our decision to reverse on other grounds . . . should be seen as an endorsement of the district court’s holding that interpretation of the INA in this case is influenced or controlled by international law.”306 Consequently, the Second Circuit agreed that Beharry’s claim of entitlement to a section 212(h) discretionary hearing would not have been worthless.307

In Beharry, Judge Weinstein articulates two policy incentives for courts to incorporate international human rights obligations into [*PG257]their interpretation of U.S. immigration law.308 The first is that the United States, as a moral leader of the world seeking to impose international law norms, loses credibility when it fails to adhere to them itself.309 The opinion suggests that judicial action is appropriate to prevent placing the United States in an embarrassing political situation in which its laws are in violation of international human rights standards.310

Moreover, Judge Weinstein implies that judicial action may be needed to override an archaic precedent, which, for over a century, has allowed Congress to enact immigration legislation that treats citizens and noncitizens unfairly.311 Indeed, the United States and its courts find themselves in an even more awkward situation when it justifies unfair immigration legislation by citing to legal precedent that is itself grounded in international legal norms.312 It is therefore contradictory for courts to conclude that they are not bound by international human rights law in the immigration context.313

In recent years, a number of legal scholars and judges have expressed the opinion that the United States is beginning to rethink its policy on incorporating international legal norms.314 Professor Alexander Aleinikoff highlights the thousands of international agreements to which the United States is a party and, more importantly, conforms to, including multilateral conventions such as the World [*PG258]Trade Organization Agreement and the Framework Convention on Tobacco Control.315

Indeed, international concepts of justice and human rights have recently begun to creep into the dicta of the Supreme Court’s decisions.316 A leading example is Lawrence v. Texas, where the Court declared a Texas statute proscribing intimate, consensual conduct between two adults of the same sex to be unconstitutional.317 The majority justified the petitioners’ right by emphasizing that the right had long been integral to human freedom in many other countries.318 The Court supported its decision by citing the leading 1981 European Court of Human Rights decision, Dudgeon v. United Kingdom, and subsequent decisions of that court affirming the protected right of homosexual adults to engage in intimate, consensual conduct.319 While it may be too soon to accurately predict what these trends portend, at a minimum, they suggest that the United States will continue to confer adequate respect upon the opinions of humankind and the values it shares with the rest of the world.4

Conclusion

Although for many Cambodian Americans like Loeun Lun and Sokha Sun, their deportations come as a shock to them, it is an occurrence with which they should be familiar.320 During the late 1970s, the Khmer Rouge displaced and broke families up, subjected Cambodians to acute persecution, and sent many of them to places they had little or no connection to.321 Now, years later, the United States is doing the same thing.322

Since the creation of the plenary power doctrine more than a century ago, the doctrine has justified a number of unfair U.S. immigration laws, in particular, the broadening of the aggravated felony [*PG259]provision through the AEDPA and IIRIRA. Such matters were of little concern to Cambodian Americans due to the lack of a repatriation agreement. Consequently, refugees like Loeun Lun and Sokha Sun made choices that they probably would not have made had such an agreement existed at the time. However, the recent signing of the Repatriation Agreement allows these cruel laws to be applied to Cambodian Americans. Accordingly, reformed individuals and petty offenders like Loeun and Sokha are among those newly eligible.

Two legal theories presented in this Note rely on international human rights laws and ambiguities within U.S. immigration law to help Cambodians in danger of being deported. Although compelling, the theories are problematic, given that that Congress never intended for exceptions to be drawn out from the ambiguities in immigration law, and that courts are traditionally under no obligation to adhere to international legal standards.

Despite these challenges, there have been two groundbreaking developments from the Eastern District of New York, specifically in Beharry v. Reno and Maria v. McElroy. Judge Weinstein opined that judicial courts are obligated to comply with international law, and that the current interpretation of the aggravated felony provision was in contravention with international human rights standards. Although he did not invalidate the aggravated felony provision, he utilized a remedy that nevertheless construed the ambiguity in the INA to be in compliance with international law.

Judge Weinstein interpreted an ambiguity of the INA so as to obviate conflict with international human rights law. Likewise, the theories discussed in this Note are akin to Judge Weinstein’s approach. Therefore, U.S. courts should consider more seriously the adoption of the theories presented. Although one critic of Judge Weinstein’s approach suggests that injecting international human rights norms into the realm of U.S. immigration law should occur through the legislative process instead, given the strong Congressional resistance to such incorporation, it is unlikely that legislative changes to U.S. immigration law will occur anytime soon. Therefore, judicial action is necessary if international legal norms are to be integrated into the U.S. immigration context.

The deportation of Cambodian refugees has caused a stir not only among members of the Cambodian-American community, but also is causing fear among those in the Laotian- and Vietnamese-[*PG260]American communities.323 The threat of deportation is increasing as the United States actively seeks to secure repatriation agreements with these Southeast Asian nations.324 Many in these communities are now afraid that the harsh deportation provisions will reach them in the near future.325 Therefore, the incorporation of international human rights in the immigration context, exemplified by the Beharry and Maria decisions, offer hope not only to Cambodian refugees like Loeun Lun and Sokha Sun, but also to those who might soon feel the effects of the aggravated felony provision.

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. 6 See 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”). 13 See 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). 21 See 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. 35 See 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). 37 See 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. at 603–04. 44 See id. at 604. 45 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). 46 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). 47 See id. at 603–04. 48 See id. at 582. 49 See id. 50 See id. 51 See Sontag, supra note 1, at 106–07. 52 See 149 U.S. 698 (1893). 53 See id. at 698–703. 54 See id. at 699. 55 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. 56 See Fong Yue Ting, 149 U.S. at 699. 57 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). 58 See Fong Yue Ting, 149 U.S. at 713. 59 See id. at 732. 60 See id. at 732; The Chinese Exclusion Case, 130 U.S. 581, 603–04 (1889). 61 See Fong Yue Ting, 149 U.S. at 705 (quoting Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892)) (emphasis added). 62 See The Chinese Exclusion Case, 130 U.S. at 603–04. 63 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). 64 See INA § 237(a)(2), 8 U.S.C. § 1227(a)(2) (2000). 65 See id. 66 See id. § 1101(a)(43); Morawetz, supra note 14, at 1939. 67 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.). 68 See Cook, supra note 13, at 299. See generally 133 Cong. Rec. H8961 (daily ed. Oct. 22, 1987) (statement of Rep. Smith of Fla.). 69 See ADAA § 7342. 70 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). 71 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)). 72 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)). 73 See INTCA § 222(a); IMMACT § 501(a)(3). 74 See IMMACT § 501(a)(5), (6). 75 See Coonan, supra note 14, at 597, quoted in Cook, supra note 13, at 303. 76 AEDPA, Pub. L. No 104–132, 110 Stat. 1214 (1996). 77 IIRIRA, Pub. L. No. 104–208, 110 Stat. 3009–546 (1996). 78 See Cook, supra note 13, at 305. 79 See AEDPA § 440(e). 80 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). 81 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”). 82 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). 83 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). 84 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. 85 See Cook, supra note 13, at 303. 86 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). 87 See id. § 306(a). 88 See id. § 348. 89 See id. § 301(b). 90 See id. § 305(a). 91 See Prinz, supra note 64, at 207. 92 See Sontag, supra note 1, at 106. 93 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. 94 See 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). 95 Zadvydas v. Davis, 533 U.S. 678 (2001). 96 See App. to Pet. for Cert. at 56a, Zadvydas (No. 00–38). 97 See id. 98 See Zadvydas, 533 U.S. at 685. 99 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 . . . .”). 100 See Ma v. Reno, 208 F.3d 815, 819 (9th Cir. 2000), vacated and remanded sub nom. Zadvydas, 533 U.S. at 702. 101 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). 102 See id.; Zadvydas, 533 U.S. at 685–86. 103 See App. to Pet. for Cert. at 87a–89a, Zadvydas (No. 00–38). 104 See 533 U.S. at 685–86. Ma was ordered released after the panel’s decision. See id. at 686. 105 See id. at 685. 106 See id. at 702. 107 See id. at 690. 108 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). 109 See Zadvydas, 533 U.S. at 702. 110 See id. 111 See 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). 112 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). 113 See Sontag, supra note 1, at 52. 114 See id. 115 See Repatriation Agreement, supra note 8. 116 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. 117 See Sontag, supra note 1, at 106. 118 See id. at 50. 119 See id. at 50, 52. 120 See Bill Ong Hing, Deported for Shoplifting?, Wash. Post, Dec. 29, 2002 at B7. 121 See id; Sontag, supra note 1, at 105–06. 122 See Hing, supra note 121, at B7. 123 See id. 124 See id. 125 See id. 126 See id. 127 See Sontag, supra note 1, at 52. 128 See id. 129 See id. 130 See id. at 98. 131 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). 132 See McGann, supra note 132. 133 See id. 134 See id. 135 See id. 136 See id. 137 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. 138 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). 139 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. 140 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 . . . .). 141 See id. § 1101(a)(20). 142 See id. § 1159(c). 143 See id. § 1101(a)(22). 144 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). 145 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). 146 See id. § 1159(a). 147 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. 148 See 8 C.F.R. § 207.9 (2004); Legal Arguments, supra note 28. 149 See 8 U.S.C. § 1159(c); Legal Arguments, supra note 28. 150 Legal Arguments, supra note 28. 151 See 8 U.S.C. § 1159; Legal Arguments, supra note 28. 152 8 U.S.C. § 1159. 153 See Refugee Protocol, supra note 24; Refugee Convention, supra note 24. 154 See Refugee Act of 1980, Pub. L. No. 96–212, 94 Stat. 102 (1980) [hereinafter Refugee Act]. 155 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). 156 See Refugee Protocol, supra note 24, at art. 1. 157 See 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. 158 Refugee Convention, supra note 24, at art. 32. 159 See id.; Legal Arguments, supra note 28. 160 See Refugee Convention, supra note 24, at art. 1(C). 161 Id. at art. 1(C)(1)–(4). 162 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]. 163 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). 164 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). 165 See, e.g., Cardoza-Fonseca, 480 U.S. at 439 n.22. 166 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. 167 See Legal Arguments, supra note 28. 168 See Becoming LPR Does Not Terminate Refugee Status, UNHCR Says, 80 No. 11 Interpreter Releases 413, 413 (Mar. 17, 2003). 169 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). 170 UNHCR Handbook, supra note 164, ¶ 136. 171 See 8 C.F.R. § 207.9 (2004); Legal Arguments, supra note 28. 172 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. 173 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. 174 See Report and Recommendation at 6, Sun v. Ashcroft (W.D. Wash. 2002) (No. C02–1311Z). 175 See 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). 176 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. 177 See Report and Recommendation at 9, Sun v. Ashcroft (No. C02–1311Z). 178 See id. 179 See id. 180 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). 181 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. 182 See INA §§ 101(a)(22), 209(a), 8 U.S.C. §§ 1101(a)(22), 1159(a) (2000); Legal Arguments, supra note 28. 183 See 8 U.S.C. § 1227(a); Legal Arguments, supra note 28. 184 8 U.S.C. § 1101(a)(3). 185 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. 186 Legal Arguments, supra note 28. 187 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). 188 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. 189 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). 190 See Oliver, 517 F.2d at 427–28. 191 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). 192 See Lee, 216 F. Supp. 2d at 58–59; Shittu, 204 F. Supp. 2d at 880. 193 See Lee, 216 F. Supp. 2d at 58–59. 194 See id. at 53. 195 Id. 196 Id. 197 Id. 198 See Lee, 216 F. Supp. 2d at 57, 58. 199 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). 200 See Lee, 216 F. Supp. 2d at 58; Refugee Protocol, supra note 24; Refugee Convention, supra note 24; Legal Arguments, supra note 28. 201 See Legal Arguments, supra note 28. 202 See id. 203 See 1967 U.S. Treaty, supra note 157; Refugee Convention, supra note 24. 204 See Legal Arguments, supra note 28; Refugee Protocol, supra note 24. 205 See Legal Arguments, supra note 28. 206 Id. 207 See id. 208 See id. 209 See id. 210 Legal Arguments, supra note 28. 211 See id. 212 See 216 F. Supp. 2d 51, 58–59 (E.D.N.Y. 2002); Legal Arguments, supra note 28. 213 See INS v. Cardoza-Fonseca, 480 U.S. 421, 436–37 (1987); INS v. Stevic, 467 U.S. 407, 416–17 (1984). 214 See INA § 209(a), 8 U.S.C. § 1159(a) (2000). 215 See In re Bahta, 22 I. & N. Dec. 1381, 1382 n.2 (BIA 2000). 216 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. 217 See id. 218 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. 219 Legal Arguments, supra note 28. 220 Id. 221 See id. 222 See 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). 223 See Legal Arguments, supra note 28. 224 See id.; Refugee Protocol, supra note 24; Refugee Convention, supra note 24. 225 See Legal Arguments, supra note 28. 226 See id. 227 See id. 228 See id. 229 See id. 230 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). 231 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”). 232 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). 233 INS v. Aguirre-Aguirre, 526 U.S. 415, 427–28 (1999). 234 Id. (internal punctuation omitted). 235 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. 236 See, e.g., Ekiu, 142 U.S. at 659; The Chinese Exclusion Case, 130 U.S. at 604. 237 See Perdomo-Padilla, 333 F.3d at 969–70. 238 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). 239 See Lee, 216 F. Supp. 2d at 57–59. 240 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. 241 See 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). 242 See Sonya Starr & Lea Brilmayer, Family Separation as a Violation of International Law, 21 Berkeley J. Int’l L. 213, 259 (2003). 243 68 F. Supp. 2d at 219. 244 See id. at 213. 245 See id. 246 See id. 247 See id. at 215. 248 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). 249 Maria, 68 F. Supp. 2d at 236. 250 Id. at 234. 251 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). 252 Maria, 68 F. Supp. 2d at 232; see also ICCPR, supra note 253, at art. 17, 23(1). 253 See Maria, 68 F. Supp. 2d at 231–32; see also ICCPR, supra note 253, at art. 7, 17, 23(1). 254 See Maria, 68 F. Supp. 2d at 233–34. 255 See id. at 232–33. 256 See id. 257 Id. at 234. 258 See id. at 236. 259 See Starr & Brilmeyer, supra note 244, at 264. 260 See Maria, 68 F. Supp. 2d at 231. For a description of the avoidance of conflict with international law doctrine, see infra n. 277. 261 See id. 262 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). 263 See 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). 264 See id. at 586–89. 265 Id at 586. 266 See id. 267 Id. 268 Beharry, 183 F. Supp. 2d at 587. 269 See id. at 605. 270 See id. at 595–603. 271 See id. at 596. 272 Id. 273 Beharry, 183 F. Supp. 2d at 600. 274 See The Paquete Habana, 175 U.S. 677, 700 (1900). 275 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”). 276 Beharry, 183 F. Supp. 2d at 598–99. 277 Id. at 598. 278 Id. at 598–99. 279 See id. at 604–05. 280 See Beharry, 183 F. Supp. 2d at 604. 281 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”). 282 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). 283 See Beharry, 183 F. Supp. 2d at 604–05; Maria v. McElroy, 68 F. Supp. 2d 206, 231 (E.D.N.Y. 1999). 284 See Beharry, 183 F. Supp. 2d at 604–05; Maria, 68 F. Supp. 2d at 231. 285 See Beharry, 183 F. Supp. 2d at 604–05; see also Maria, 68 F. Supp. 2d at 231 (implementing an approach similar to Beharry). 286 See Legal Arguments, supra note 28. 287 See id. 288 See id. 289 See id. 290 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. 291 See, e.g., Beharry, 183 F. Supp. 2d at 604–05; Maria, 68 F. Supp. 2d at 231. 292 See Beharry, 183 F. Supp. 2d at 604–05; Maria, 68 F. Supp. 2d at 231. 293 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. 294 Adams, supra note 285, at 1000–01; Neal, supra note 285, at 1646. 295 Adams, supra note 285, at 998. 296 Starr & Brilmeyer, supra note 244, at 265; Neal, supra note 285, at 1646. 297 See Adams, supra note 285, at 1000. 298 See id. at 1001. 299 See id. at 996–97. 300 See id. at 997. 301 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). 302 See Gonzalez-Polanco, 2002 WL 1796834, at *8. 303 See Guerra, 2002 WL 1359706, at *3 n.4. 304 See id. 305 See Beharry v. Ashcroft, 329 F.3d 51, 64 (2d Cir. 2003). 306 Id. at 63. 307 Id. 308 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). 309 See id. at 601. 310 See id. 311 See id. at 602–03. 312 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). 313 See Beharry, 183 F. Supp. 2d at 602–03. 314 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). 315 Aleinikoff, supra note 317, at 104. 316 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”). 317 Lawrence, 123 S. Ct. at 2483. 318 See id. 319 Id. (citing Dudgeon v. United Kingdom, 3 Eur. Ct. H.R. 40, 45 (1981)). 320 See Sontag, supra note 1, at 50. 321 See id. 322 See id. 323 See Pattison, supra note 94; SEARAC discussion, supra note 9. 324 See Pattison, supra note 94; SEARAC discussion, supra note 9. 325 See Pattison, supra note 94. ?? ?? ?? ??