April 15, 2009

IV. US Deportation Law Fails to Protect Human Rights

Human Rights at Stake during Deportations for Criminal Conduct

Deportation, though not technically recognized under US law as a form of punishment, is a coercive exercise of state power that can cause a person to lose her ability to live with close family members in a country she may reasonably view as "home." Most deportees are barred, either for decades or in many cases for the rest of their lives, from ever reentering the United States. A governmental decision to deprive a person of connection to the place she considers home raises serious human rights concerns. Human rights law at a minimum requires that the decision to deport be carefully considered, with all relevant impacts and potential rights violations weighed by an independent decision maker. Unfortunately, the US fails to do this on a daily basis.

Human rights law recognizes that the privilege of living in any country as a non-citizen may be conditional upon obeying that country's laws. Non-citizens facing deportation for crimes have broken the laws of the United States by engaging in criminal conduct, although they are only placed in deportation proceedings after they have finished serving their criminal punishment. Contrary to popular belief, not all have broken the immigration laws of the United States through their presence in the country. In other words, many of these non-citizens are legally present. Human rights law and the US constitution afford the most protection to those non-citizens who were lawfully present in the country before their criminal conduct.

Under international human rights instruments, there is a consistent body of interpretation and precedent that a country may not summarily withdraw the privilege of lawful presence without weighing the harm to the human rights of the non-citizens it allowed to enter. In other words, non-citizens must have a full and fair deportation hearing-one that allows the court to carefully weigh any arguments against a particular non-citizen's deportation, including any rights that might be violated as a result of that deportation.[18] The rights at stake when a legally present non-citizen faces deportation are weighty ones.[19]

First and foremost, at stake for many legally present non-citizens is the fundamental right to live together with close family members, including minor children. The international human right to family unity finds articulation in numerous human rights treaties.[20] The concept is also incorporated in the domestic law of the United States.[21]

In addition, the principle of proportionality is threatened when legally present non-citizens face the permanent consequence of deportation for petty crimes such as shoplifting, possessing stolen property, or simple possession of small amounts of narcotics. The idea that infringements upon rights must be proportional is explicitly included in the domestic law of many countries around the world,including the United States outside of the immigration context.[22] Bodies such as the European Union and the United Nations Human Rights Committee have applied proportionality when analyzing states' decisions to infringe on important rights, including in the context of deportation.The European Union has decided that before deporting a long-term resident alien, states must consider factors such as duration of residence, age, consequences for the deportee and his or her family, and links with the expelling and receiving countries.[23] The Human Rights Committee has explained, in the context of the prohibition of arbitrary interference with family rights, that "[t]he introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances."[24]

Moreover, under human rights law, the state power of deportation should be limited if it infringes upon an individual's right to a private life, which includes his or her ties to the country of immigration (separate and apart from any family ties).[25] Therefore, the non-citizen's ties to the United States should at least be weighed before the decision to deport becomes final. The US Supreme Court stated in Landon v. Plasencia that "once an alien gains admission to our country and begins to develop the ties that go with permanent residence his constitutional status changes accordingly."[26] Despite this accepted constitutional maxim, a non-citizen's ties to the United States, including length of residence, military service, and business, educational, and community contributions and connections that are separate from family relationships, are often not considered under US law when he or she faces deportation because of a criminal conviction.


Finally, human rights law requires that even a person convicted of serious crimes must have a hearing to ensure that deportation will not return that person to a country where his or her life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group, or political opinion. This principle of nonrefoulement places well recognized limits on states' powers to deport refugees. The 1967 Protocol Relating to the Status of Refugees, to which the United States is a party, binds parties to abide by the provisions of the Refugee Convention, including that no state "shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."[27]

Given the imperative of protecting refugees from return to places where they would likely be persecuted, refugee law permits a very narrow exception to nonrefoulement, which only applies in extremely serious cases. Article 33(2) of the Refugee Convention states that nonrefoulement may not be claimed by a refugee "who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country." Procedures must be in place to ensure careful application of this narrow exception.[28]

The determination of a particularly serious crime cannot be merely rhetorical: It requires that the crime in question be distinguished from other crimes. The United Nations High Commissioner for Refugees (UNHCR) has defined such a crime as a "capital crime or a very grave punishable act."[29] Also, to comply with the Refugee Convention, a government must separately assess the danger the individual poses to the community: "A judgment on the potential danger to the community necessarily requires an examination of the circumstances of the refugee as well as the particulars of the specific offence."[30]Unfortunately, US law falls short of these standards, which are binding on the United States because of its ratification of the Refugee Protocol.[31]

When Congress changed deportation laws in the mid-1990s, it broke with international human rights standards in ways never before attempted in the United States.

1996 Immigration Laws Withdrew Human Rights Protections

Not every possible argument against deportation is important enough to call into question the legitimacy of a hearing that denies such arguments' consideration. For example, a non-citizen who for reasons of personal predilection prefers the economic opportunities and climate in one country to another could not legitimately challenge his hearing under human rights law if he was prevented from making this argument as a defense to deportation. However, some defenses implicate very important and fundamental rights that non-citizens should be able to raise in their deportation hearings in the United States, including the right to family unity, proportionality, longstanding ties to a country, and the likelihood of persecution upon return. Since the United States does not allow for a hearing that weighs these concerns, the human right to raise defenses to deportation is undermined.

Prior to implementation of the new 1996 laws in 1997, there were several means by which immigration judges could weigh such factors in hearings before ordering an individual deported from the United States on criminal grounds. Most important among these were the Immigration and Nationality Act (INA) Section 244 waiver of deportation; the INA 212(c) waiver of deportation; and a waiver known as "withholding." Each of these three waivers was narrowed or eliminated in 1996.

First, the 244 waiver allowed deportation to be suspended for non-citizens of good moral character who had been present in the United States for a minimum of seven years, and whose deportation would result in extreme hardship to themselves or to their citizen or lawful permanent resident spouses, parents, or children.[32] It was replaced by Congress in 1996 with the narrower 240A(a) waiver, which is only available to lawful permanent residents who are convicted of a specific category of crimes including "crimes of moral turpitude" (described below). This waiver is only available to people who have resided in the United States for a minimum seven years, and whose rehabilitation since their crimes and whose ties to the United States make their presence in the country in the best interests of the United States. It is also a very difficult waiver to obtain, as illustrated by the Mark Ferguson case (described in Chapter V, subsection "Background on criminal conduct forming basis for deportations"). Moreover, the 240A(a) waiver is not available to anyone convicted of an "aggravated felony"-which despite its name includes crimes that are neither the most serious nor violent, as well as some that are not even felonies. For example, despite the plain meanings of the words "aggravated" and "felony," this category includes some misdemeanor crimes, even though misdemeanors are generally less serious and involve less violence than felonies.

Second, Congress completely eliminated the 212(c) waiver, which previously allowed lawful permanent residents living in the US for at least seven years to seek discretionary relief from deportation by showing that negative factors (such as the seriousness of their crimes) were outweighed by positive ones (such as family ties and evidence of rehabilitation).

Third, amendments to the withholding waiver made it impossible for any non-citizen convicted of an aggravated felony with a minimum five-year sentence to obtain refugee protection from deportation to a country where she would face persecution, which violates the Refugee Convention.

Human rights law requires a fair hearing in which fears of persecution, proportionality, family ties, and other connections to a non-citizen's host country are weighed against that country's interest in deporting him. Unfortunately, with the elimination of several forms of relief in 1996, that is precisely what US immigration law fails to do. Therefore, the United States is far out of step with international human rights standards and the practices of other nations, particularly nations that it considers to be its peers. Many other constitutional democracies require deportation hearings to weigh such defenses to deportation in their domestic practices. In fact, in contrast to the United States, all of the governments in Western Europe (except Luxembourg) offer non-citizens an opportunity to raise family unity, proportionality, ties to a particular country, and/or other human rights concerns prior to deportation.[33]

The ICE data presented in this report allow us to illustrate with stark numbers just how many non-citizens are being deported without the necessary protections of these important rights.

[18]The International Covenant on Civil and Political Rights (ICCPR), which the United States ratified in 1992, states in article 13 (to which the United States has entered no reservations, understandings, or declarations), "An Alien lawfully in the territory of a State Party to the present covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority" (emphasis added). International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976. Ratifications and Reservations for the International Covenant on Civil and Political Rights, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&id=322&chapter=4&lang=en (accessed March 25, 2009). The UN Human Rights Committee, which monitors state compliance with the ICCPR, has interpreted the phrase "lawfully in the territory" to include non-citizens who wish to challenge the validity of the deportation order against them. In addition, the Human Rights Committee has made this clarifying statement: "[I]f the legality of an alien's entry or stay is in dispute, any decision on this point leading to his expulsion or deportation ought to be taken in accordance with article 13…. An alien must be given full facilities for pursuing his remedy against expulsion so that this right will in all the circumstances of his case be an effective one." UN Human Rights Committee, General Comment 15, paras 9 and 10. Similarly, article 8(1) of the American Convention on Human Rights, which the United States signed in 1977, states, "Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law … for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature." American Convention on Human Rights "Pact of San Jose, Costa Rica," art. 8(1), General Information on the Treaty, http://www.oas.org/juridico/english/Sigs/b-32.html (accessed March 25, 2009). Applying this standard, the Inter-American Commission on Human Rights has stated that deportation proceedings require "as broad as possible" an interpretation of due process requirements and include the right to a meaningful defense and to be represented by an attorney. Inter-American Commission on Human Rights – Report No. 49/99 Case 11.610, Loren Laroye Riebe Star, Jorge Alberto Barón Guttlein and Rodolfo Izal Elorz v. Mexico, April 13, 1999, Section 70-1. For a more detailed discussion of the international human rights laws that provide for the legal protections summarized in this footnote, see Human Rights Watch, Forced Apart, pp. 45-81.

[19] For a detailed legal analysis of the human rights laws at issue in this context, see Human Rights Watch, Forced Apart, pp. 45-81.

[20]The Universal Declaration of Human Rights states in article 16(3), "The family is the natural and fundamental group unit of society and is entitled to protection by society and the State," and in article 25(2), "Motherhood and childhood are entitled to special care and assistance." Universal Declaration of Human Rights, adopted December 10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948). The ICCPR states in article 17(1) that no one shall be "subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence," and in article 23 that "[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the state" and that all men and women have the right "to marry and to found a family." The right to found a family includes the right "to live together." UN Human Rights Committee, "Protection of the Family," General Comment 19, the right to marriage and equality of the spouses, art. 23, July 27, 1990. As the international body entrusted with the power to interpret the ICCPR and decide cases brought under its Protocol, the Human Rights Committee has explicitly stated that family unity imposes limits on states' power to deport. Winata v. Australia, Communication No. 930/2000, U.N. Doc. CCPR/C/72/D/930/2000 (2001).

[21]For example,  the US Supreme Court has held that the "right to live together as a family" is an important right deserving constitutional protection, and an "enduring American tradition." Moore v. City of East Cleveland, 431 U.S. 494, 500, 503, n.12 (1977)(plurality). See also Linda Kelly, "Preserving the Fundamental Right to Family Unity: Championing Notions of Social Contract and Community Ties in the Battle of Plenary Power Versus Aliens' Rights," Villanova Law Review, vol. 41, pp. 729-730 (1996)(discussing various non-immigration areas of law in which the Supreme Court has stressed the importance of legal protections for family unity and family life); and Nancy Morawetz, "Symposium: Understanding the Impact of the 1996 Deportation Laws and the Limited Scope of Proposed Reforms," Harvard Law Review, vol. 113, pp. 1950-1951 (2000)(discussing instances of members of Congress and the INS expressing the importance of family in the immigration context).

[22]For example, the United States Supreme Court uses "strict scrutiny" to examine state policies based on race, by balancing the right to be free from discrimination against any compelling governmental interest in the policy under consideration. See, for example, Grutter v. Bollinger, 539 U.S. 306 (2003); Korematsu v. United States, 323 U.S. 214 (1944).

[23]Council of the EU – Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, art. 12.

[24]UN Human Rights Committee, General Comment 16, the right to respect of privacy, family, home and correspondence, and protection of honour and reputation, art. 17, August 4, 1988.

[25]Article 17 of the ICCPR provides that "[n]o one shall be subjected to arbitrary or unlawful interference with his privacy ... home or correspondence…. Everyone has the right to the protection of the law against such interference or attacks." The Human Rights Committee has explained that this "guarantee[s] that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances." UN Human Rights Committee, General Comment 16, para. 4, 1988. Further, the committee has stated that the term "home" "is to be understood to indicate the place where a person resides or carries out his usual occupation." Ibid., para. 5. Therefore, the right to protection against arbitrary interference with privacy and home encompasses those relationships and ties that an immigrant develops with the community outside of her family. For example, the Inter-American Commission has found that the right encompasses "the ability to pursue the development of one's personality and aspirations, determine one's identity, and define one's personal relationships." Maria Eugenia Morales De Sierra v. Guatemala, Session Nº 4/01, Case 11.625 (Jan. 19, 2001), http://www.cidh.org/women/guatemala11.625.htm. English translation at: www.cidh.org/women/guatemala11.625aeng.htm (both accessed March 20, 2009)(emphasis added).

[26]Landon v. Plasencia, 459 U.S. 21, 33 (1982).

[27]Convention relating to the Status of Refugees (Refugee Convention), 189 U.N.T.S. 150, entered into force April 22, 1954, art. 33.

[28] The Refugee Convention and Protocol require that a refugee should be "allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority." Refugee Convention, art. 32(2). UNHCR's Executive Committee has explained that deporting a refugee under article 33(2) "may have very serious consequences for a refugee and his immediate family members … [and therefore should only happen] in exceptional cases and after due consideration of all the circumstances."UNHCR Executive Committee, Conclusion No. 7 (1977). The exceptions to nonrefoulement in article 33(2) were intended to be used only as a "last resort" where "there is no alternative mechanism to protect the community in the country of asylum from an unacceptably high risk of harm."James C. Hathaway, The Rights of Refugees under International Law (Cambridge, UK: Cambridge University Press, 2005), p. 352. Therefore, an individualized determination must occur before deportation in compliance with article 33(2), during which states must weigh two elements: that a refugee has been convicted of a particularly serious crime and that she constitutes a danger to the community.

[29] UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (Geneva: UNHCR, January 1992), para. 155. Note that the requirement that the crime must be a "capital crime or a very grave punishable act" was a description of what constitutes a "'serious' non-political crime" for the purposes of article 1F. The "particularly serious crime" exception in article 33(2) is presumed to require that the individual refugee be even more dangerous in order to fall under this exception. See Sir Elihu Lauterpacht & Daniel Bethlehem, UNHCR, "Opinion: The Scope and Content of the Principle of Non-Refoulement," June 20, 2001, para. 147 ("Article 33(2) indicates a higher threshold than Article 1F … ").

[30] UNHCR, "Nationality Immigration and Asylum Bill 2002: UNHCR comments relating to serious criminals and statutory review," para. 3 (2002); UNHCR, Handbook, p. 157 ("The fact that an applicant convicted of a serious non-political crime has already served his sentence or has been granted a pardon or has benefited from amnesty is also relevant.").

[31] The less protective standard used by the United States is known as "withholding." Withholding states that protection may not be claimed by a refugee who "having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States."8 U.S.C. Section 1231 (b)(3)(B)(ii). A subsequent section states that for purposes of interpreting this clause, "[A]n alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have been convicted of a particularly serious crime. The previous sentence shall not preclude the Attorney General from determining that, notwithstanding the length of sentence imposed, an alien has been convicted of a particularly serious crime."8 U.S.C. Section 1231 (b)(3)(B). As this Section states, in addition to all refugees convicted of aggravated felonies with five year sentences, the Attorney General has statutory authority to send to persecution refugees with sentences of less than five years. In a decision under this statutory authority, the Attorney General has issued the blanket statement that aggravated felonies with sentences of less than five years "presumptively constitute particularly serious crimes," meaning that the non-citizen would have the difficult burden of overcoming the Attorney General's presumption that his or her crime was "particularly serious" in deportation proceedings.In re Y-L, Immigration & Nationality Laws Administrative Decisions, vol. 23, decision 270 (B.I.A. 2002).

[32] 8 U.S.C. Section 1254 (1986).

[33] See Human Rights Watch, Forced Apart, pp. 48-50.