The Civil Penalty of Deportation

• Jurisdiction: United States,Federal
• Citation: Vol. 3 No. 2
• Publication year: 2021
• topic: Constitutional Law,Immigration Law,Criminal Law,Civil Procedure

The Civil Penalty of Deportation

Angela Landa ^*

Abstract: The penalty of deportation should be removed as a collateral punishment attached to criminal convictions and returned to its sole use as a civil penalty. This argument will be supported by demonstrating the intertwining of the civil and criminal systems of law occurring in modern cases that are built on the ideas and purposes set forth in foundational cases that designated the penalty of deportation as civil. The intent is to display the happenstance blurred line between the two bodies of law and their connection to deportation and then to present the harms that derive from this unofficial fusing.
If the banishment of an alien from a country into which he has been invited as the asylum most auspicious to his happiness—a country where he may have formed the most tender connections; where he may have invested his entire property, and acquired property of the real and permanent, as well as the movable and temporary, kind; where he enjoys, under the laws, a greater share of the blessings of personal security and personal liberty than he can elsewhere hope for; if, moreover, in the execution of the sentence against him, he is to be exposed, not only to the ordinary dangers of the sea, but to the peculiar casualties incident to a crisis of war and of unusual licentiousness on that element, and possibly to vindictive purposes, which his immigration itself may have provoked—if a banishment of this sort be not a punishment, and among the severest of punishments, it will be difficult to imagine a doom to which the name can be applied. ¹

Introduction

Over the past two decades, immigration reform has been a topic at the forefront of many presidential debates, legislation proposals, and everyday political discussions. The United States spends billions on immigration enforcement every year with a priority focused on national safety and threat avoidance. The penalty of deportation, often imposed as the result of criminal activity, is nonetheless labelled as a civil penalty. This paper argues that the penalty of deportation for a criminal offense should be imposed only after the foreign national is given the same procedural rights as a defendant in a criminal proceeding. This argument will be supported by demonstrating the intertwining of the civil and criminal systems of law occurring in modern cases, which are at odds with the ideas and purposes set forth in

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foundational cases that designated the penalty of deportation as civil. The administrative flaws resulting from this modern-day misapplication of law and lack of procedural safeguards for those in removal proceedings will then be addressed. The intent is to display the blurred line between the two bodies of law in the deportation context and then to present the harms that derive from their unofficial fusing.

The first section lays out the foundation and subsequent development of immigration proceedings and the penalty of deportation, beginning with a synopsis of immigration as a civil matter generally. The remainder of the section focuses specifically on deportation by discussing the differences and similarities between criminal punishments and civil immigration penalties, and the case precedents that established deportation as a civil penalty. ² Two cases in particular demonstrate the failure to apply constitutional procedural safeguards when approaching the penalty of deportation for criminal conduct. The second section discusses administrative issues that have resulted as modern laws have moved further from the intended purposes of deportation. This section then addresses the effect of the "criminalization" on the identity of ethnic Americans. The last section states clearly and succinctly the recommended solution that would begin to mend today's broken and unjust immigration system.

Foundations of Deportation as a Civil Penalty

The development of immigration law in the United States was an unorganized process prompted by a need to establish a legal framework to regulate the admission and exclusion of foreign persons into the country. This section begins with a brief explanation of how immigration law fell into the civil proceedings category. One of the possible consequences of an immigration violation is deportation, and the Supreme Court cemented deportation as a civil penalty in 1893. ³ It is difficult to understand the implications of this designation without knowing the difference between civil penalties and criminal punishments, so this section defines these terms and their differences. The late nineteenth-century cases Fong Yue Ting and Wong Wing, which set the foundation for this distinction, will be analyzed. Next, Padilla v. Kentucky will be discussed to show the Supreme Court's continued inability to divorce civil penalties from criminal punishment. This part concludes with a discussion of the Galvan v. Press and INS v. Lopez-Mendoza cases, which although not foundational in the designation of deportation as a civil penalty, illustrate the current framework of protections that are inaccessible to noncitizens placed in removal proceedings arising out of criminal convictions. These two cases are exemplary for their lack of procedural safeguards in removal hearings, which make up only a portion of the current framework of protections that are inaccessible to noncitizens placed in removal proceedings arising out of criminal convictions.

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Question of Legal Authority

In 1889, the Supreme Court was tasked with an issue that initially placed immigration matters in the realm of civil law. Before the court was the question whether Congressional legislation excluding noncitizens from admission was subservient to a contradictory international treaty. ⁴ In short, the Court held that Congressional legislation took precedence. Immigration matters were decided to be a federal issue and Congress was responsible for matters "regulat[ing] commerce with foreign nations . . . ." Accordingly, this sovereign power within the Constitution was found to supersede treaties with other nations. ⁵ This decision was said to be in the best interest of the state, so that it could protect its citizens regardless of treaties with other countries. ⁶

The designation of congressional authority over immigration law, although seemingly insignificant, would set a precedent for future issues with regard to immigration. Legislation would be deferred to Congress and would not be subject to the "constitutional limitations applicable to congressional acts generally . . . ." ⁷ The Court's 1889 decision not only excluded immigration law from being considered a criminal matter, but would eventually place immigration law within its own specific category of civil law.

Distinguishing Criminal Punishment and Civil Penalty

To explain the difference between a criminal punishment and a civil penalty there must first be an explanation in the difference between criminal law and civil law. Black's Law Dictionary gives a succinct definition. Criminal law is "[t]he body of law defining offenses against the community at large, regulating how suspects are investigated, charged, and tried, and establishing punishments for convicted offenders." ⁸ Civil law is "[t]he law of civil or private rights, as opposed to criminal law or administrative law." ⁹

Criminal law and civil law are separate bodies of law. There are different safeguards given to those charged, different rules the court must abide by, and different types of penalties that may be imposed. Criminal cases are initiated by the government prosecutors on behalf of the state or public against an individual for violating codified laws, whereas civil law governs all other matters and is usually brought between people or institutions. ¹⁰ Occasionally, there are criminal law violations that constitute grounds for a completely separate complaint or charge under civil law that can be brought by another party, including the government.

Black's Law Dictionary gives a further explanation of the two bodies of law by stating that a differentiation can be made by looking at the purpose behind the legal action. Is the action brought to redress or give restitution to wrongs committed, or is it to give a punitive sentence in order to deter future offenses and give retribution? The former describes civil law, and the latter, criminal law.

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The confusion surrounding immigration law and its placement somewhere in between civil and criminal law comes because although deportation is a civil penalty (as will be discussed in the next section), there are crimes that can be committed that will render a noncitizen deportable. ¹¹

Immigration law is codified in the Immigration and Nationality Act (INA), which can be found in the U.S. Code under Title 8. There are several sections worth noting for purposes of deportation and its relationship with civil and criminal laws. First, the law governing "Deportable Aliens" is found in the INA § 237 and divide the classes of deportable persons into several sections, including, among others, (1) "Inadmissible at time of entry or of adjustment of status or violates status" ¹² and (2) "Criminal Offenses." ¹³ Under criminal offenses there are several subsections, but one of utmost importance and impact for deportation purposes is the section "Aggravated felonies," ¹⁴ which are defined within the INA (§ 101(a)(43)) and cover over 30 types of offenses, some of which are as minor as a failure to appear in court or theft and if noncitizens are convicted it will render their legal status to be deportable. ¹⁵ The section covering "Inadmissible Aliens" also includes "Criminal and related grounds." ¹⁶ Additionally, the INA punishes unlawful entry with fines and/or imprisonment (which are criminal in nature), ¹⁷ while also punishing entry into the United States through places other than ports of entry with fines that are civil in nature. ¹⁸ The intermingling of penalties and punishments...