ENFORCING RIGHTS FOR IMMIGRANTS FACING THE ULTIMATE CRIMINAL PENALTY: DEPORTATION.

• Author: Anderson, Kelly L.

1. INTRODUCTION

   In the United States, the death penalty is considered the ultimate punishment for the commission of a crime. (1) A criminal defendant may be eligible for death if convicted of the most heinous type of crime--usually some form of aggravated first-degree murder. (2) Because death is such a severe punishment, the U.S. Supreme Court has outlined a number of constitutional requirements that must be met in order for a state to impose death on any individual convicted of a crime. (3) Thus, there has been extensive litigation on behalf of capital defendants to ensure that the government is complying with those constitutional requirements. (4)

   Though many might agree that the deportation of criminal immigrants is not as severe of a consequence as death, deportation serves as an additional punitive measure for immigrants who have been convicted of certain crimes. (5) Like the threat of death by the state is expected to deter people from committing murder (and perhaps other serious crimes), the threat of deportation is expected to deter immigrants from committing crimes in the United States. (6) However, there is one key difference between the U.S. citizen defendant facing the death penalty and the immigrant defendant facing deportation: U.S. citizens currently have more constitutional protections in the criminal process than immigrants do in the deportation process. (7)

   At least in theory, the constitutional protections provided to criminal defendants allow for fair and impartial determinations of the appropriate consequence for being accused of a criminal act. (8) Once a noncitizen has served their (9) punishment for the commission of an offense that makes them deportable, they face the additional consequence of deportation. (10) Yet, the deportation process guarantees very few constitutional protections compared to the criminal process, even though deportation can be the direct result of the criminal conviction. (11)

   Deportation can often be just as severe of a consequence as the death penalty. Deportation itself can result in death. (12) Deportation breaks up families. (13) It causes many to return to poverty and other unlivable conditions that they were escaping in the first place. (14) Yet due to the lack of constitutional protections that immigrants have in the deportation process, they are not afforded a fair and impartial determination of relief in immigration court. (15)

   As a result, noncitizens are treated unfairly despite the fact that constitutional protections are supposed to apply to them. (16) Moreover, immigrants' rights are violated at every stage of interaction with the U.S. government: from the time that the immigrant makes the decision to leave their home country, to the time that the immigrant is accused of committing a crime, to the time that the immigrant is deported. (17) Many immigrants leave their countries in order to live their vision of an "American Dream," a dream that the United States portrays as plausible for anyone. (18) Yet immigrants are not adequately protected by the freedoms that many of them immigrate to America to enjoy. (19) Even the most arguably dangerous U.S. citizens who commit the most egregious murders are protected by those freedoms, yet a legal immigrant who commits, for example, a burglary as a result of being poor, is not. (20)

   This article focuses on how the criminal justice system and the immigration system may work together to provide constitutional fairness to criminal defendant immigrants, given that deportation is such a severe consequence. Deportation should be considered an ultimate punishment and should be treated with an eye toward the same policy that underlies the constitutionality of the death penalty, rather than treated as "civil" in nature. That is, if an immigrant faces the ultimate punishment of deportation for the commission of a crime, certain constitutional requirements must be met in order for that deportation to be constitutionally sound. Though there are many distinctions between the death penalty and deportation, both severe punishments must always be considered subject to a person's civil liberties under the Constitution. (21)

   This article first discusses the cycle of how immigrants' rights are often violated from before they even decide to migrate until the time they are deported from the United States. This article then touches upon how deportation is an "ultimate punishment," and why governments should therefore act to make the criminal and immigration processes fairer for criminal immigrants. There are three ways in which this article proposes that the government do so. First, this article argues that deportation should not be a consequence for committing crimes at all, but especially not for those who are in the United States with lawful immigration status. (22) Second, the federal and state governments can make the criminal process fairer for immigrants by allowing noncitizens to serve on juries, given that the criminal process can eventually lead to deportation. Finally, if the United States is to continue to deport individuals for committing crimes, then, given that deportation is such a severe punishment, the government should ensure constitutional protections, particularly, the right to a government-appointed counsel if the noncitizen is unable to afford it. This article concludes with how civil impact litigation is likely the proper tool for implementing the aforementioned proposals.

2. VIOLATION AT EVERY STAGE

   1. Displacement

      United States policies often displace people, forcing them into poverty, out of their home countries, and into the United States. (23) Free trade agreements between the United States and other countries are common examples of such policies. (24) One commonly cited example of displacement is how the implementation of the North American Free Trade Agreement ("NAFTA") affected U.S. immigration. (25) NAFTA allows free trade among Canada, the United States, and Mexico. (26) Because of this free trade, highly subsidized corn entered the Mexican market and made corn cheaper to import into Mexico than to grow. (27) This caused millions of Mexican farmers to lose their farms and left many with no choice but to migrate north. (28) Free trade agreements, such as NAFTA, and other policies that have far-reaching and perhaps indirect effects, have led to the deprivation of foreign citizens' rights to prosper in the countries in which they initially live. (29) These policies have caused the displacement of many people who then chose to immigrate to the United States in hopes of finding both social and economic opportunities. (30)

      Another example of a policy that causes immigration is deportation itself. (31) After former President Bill Clinton passed laws that expanded the criminal grounds for deportation, (32) many Central American individuals involved in gangs that started in Los Angeles, California, were deported. (33) These individuals were deported at such a high rate that huge communities of the American-bred gangs started to form in El Salvador and surrounding countries. (34) Because of the poor economic situation in these countries, particularly El Salvador, and because of the violent nature of the gangs, the gangs began to take power. (35) In 2016, the gang problem in El Salvador was so severe that the gangs were considered a de facto government. (36) Even police officers and government officials must follow the gangs' rules, or risk being kidnapped or killed. (37) This gang violence has caused a surge of immigrants fleeing from the violence and gang control in Central America into the United States, where the government does not consistently recognize general forms of gang violence as grounds for granting refugee status or protection. (38)

   2. Entrance

      When a person decides that they want to immigrate to the United States, they have two general options. The "legal" route is to obtain some type of immigrant visa, usually through a family member, spouse, or employer. (39) Another common legal route is applying for refugee status from outside of the United States, or asylum once already in the United States. (40) However, legal immigration is often not possible. (41) If an immigrant does not have family members with legal status, family immigration is not an option unless the immigrant enters into a bona fide marriage with a U.S. citizen or lawful permanent resident ("LPR"). Even so, wait times for visas can be years away. (42) There is also the "illegal" route, which involves either obtaining a non-immigrant visa and over-staying the allotted visa time period, (43) or in the case of bordering countries, crossing the border without U.S. government authorization. (44)

      Immigrants, especially those fleeing from severe poverty or unsafe living conditions, will often do whatever it takes to get to the United States. (45) Central and South American immigrants in particular tend to take outrageous risks in order to cross the northern border of Mexico and into the United States. (46) Before reaching the United States-Mexico border, migrants may be traveling for weeks at a time by hopping trains. (47) As if hopping moving trains was not dangerous enough, gangs, drug traffickers, and anyone willing to take advantage of a traveler's vulnerability, troll the routes, aware of the journey that so many undertake. (48) Travelers on these routes experience rapes, violence, robberies, and countless physical harms. (49) And even when migrants do not make it across the border on the first try, so many of them try a second or a third time. (50) Some, regardless of missing limbs from falling off of a train or being left empty-handed by robbers, never stop trying. (51) For some, trying to get to the United States costs them their lives. (52)

      Immigrants' rights to travel (53) and to be free from persecution (54) are restricted by U.S. law. (55) Their freedom to leave their country is restricted because the United...