Won Kidane, Procedural Due Process in the Expulsion of Aliens Under International, United States, and European Union Law: a Comparative Analysis

• Publication year: 2010

PROCEDURAL DUE PROCESS IN THE EXPULSION OF ALIENS UNDER INTERNATIONAL, UNITED STATES, AND EUROPEAN UNION LAW: A COMPARATIVE ANALYSIS

Won Kidane*

ABSTRACT

Liberal democracies aspire to respect minimum standards of individual liberty and due process to all. They structurally limit their powers with respect to how they treat all persons—including noncitizens, also known as “aliens.” Nonetheless, the exact scope and nature of the limitations imposed by international and domestic legal regimes for the expulsion of noncitizens still remains uncertain and is in a constant state of evolution in multiple directions. Indeed, a mix of situational progression and regression characterizes these regimes. The proper balance between personal liberty, due process, and equal protection on the one hand—and security, economic and related governmental and other common societal interests on the other, has proven elusive. This Article attempts to identify the minimum international standards that apply to the expulsion of aliens in times of war and peace, and measure these international standards against those that apply in the United States and European Union. By so doing, it intends to highlight the congruity and disjuncture between the international standards and the standards that apply in the United States and European Union, and extricate the best practices that they could learn from each other.

* Associate Professor of Law, Seattle University School of Law.

INTRODUCTION 287

1. THE EXPULSION OF ALIENS IN INTERNATIONAL LAW 292

   1. The Expulsion of Aliens in Times of War in International

      Law 293

   2. The Expulsion of Aliens in Times of Peace in International

      Law 297

2. PROCEDURAL DUE PROCESS IN THE EXPULSION OF ALIENS IN A COMPARATIVE PERSPECTIVE: THE EUROPEAN UNION AND THE UNITED STATES 303

   1. E.U. Expulsion Standards 304

      1. E.U. Citizens 306

      2. Third-Country Nationals 308

      3. E.U. Directives on Common Procedural Standards of Expulsion 308

         1. Standards for the Expulsion of E.U. Citizens 308

         2. Standards for the Expulsion of Third-Country Nationals 312

   2. U.S. Expulsion Standards 319

      1. Procedural Due Process in Context 320

         1. Expedited Removal of Inadmissible Arriving Aliens 320

         2. Expedited Removal of Criminal Aliens 321

         3. Procedures Applicable to the Removal of Alien Terrorists 322

         4. Regular Removal Procedures 323

   3. Comparative Analysis of the E.U. and U.S. Standards in Light

      of the International Standards 325

      1. The Eight Procedural Guarantees as Benchmarks 326

         1. The Right to Receive Notice of the Expulsion Decision 326

         2. The Right to Challenge the Expulsion Decision 327

         3. The Right to a Hearing 328

         4. The Right of Access to Effective Remedies To Challenge the Expulsion Decision Without Discrimination 330

            1. The Right to an Effective Remedy 330

            2. Access to the Remedy 332

            3. Access to the Remedy Without Discrimination 332

         5. The Right to Consular Protection 333

         6. The Right to Counsel 334

         7. The Right to Legal Aid 335

         8. The Right to Interpretation and Translation 336

      2. Variations on the Fundamental Assumptions and Substantive Prescriptions that Affect the Procedures 338

CONCLUSION 343

INTRODUCTION

Under international law and many domestic jurisdictions, the term “alien”1 is commonly used to refer to a person who is not a citizen or a national of the country of his residence.2 The alien-citizen dichotomy is as old as the emergence of the nation-state itself3 and always operates to legitimize exclusion, and, at times, subordination.4 The jurisprudential importance of this distinction is enduring. In the United States, some aliens are not considered part of “We the People” for purposes of certain constitutional rights.5

1. See, e.g., Immigration and Nationality Act (INA) of 1952 § 101(a)(3), 8 U.S.C. § 1101 (2006) [hereinafter INA] (“The term ‘alien’ means any person not a citizen or national of the United States.”).

2. There are other examples of the common usage of “alien” in international sources. See Geneva

   Convention Relative to the Protection of Civilian Persons in Time of War arts. 35, 38, 41, 45, Aug. 12, 1949, 6

   U.S.T. 3516, 75 U.N.T.S. 287 (entered into force August 12, 1949) [hereinafter Geneva Convention IV] (setting forth minimum standards of treatment for “aliens in the territory of a party to the conflict”); see also International Covenant on Civil and Political Rights art. 13, opened for signature Dec. 19, 1966, S. Treaty Doc. 95-20, 999 U.N.T.S. 171 [hereinafter ICCPR] (setting forth minimum standards of treatment of aliens in times of peace). See generally Special Rapporteur on the Expulsion of Aliens, Sixth Rep. on Expulsion of Aliens, Int’l Law Comm’n, U.N. Doc. A/CN.4/625/Add.1 (May 28, 2010) (by Maurice Kamto) [hereinafter Sixth Report on the Expulsion of Aliens] (assessing the state of international law on the expulsion of aliens, mainly in peace time).

3. According to the United States Supreme Court, “Citizenship as a head of jurisdiction and a ground of

   protection was old when Paul invoked it in his appeal to Caesar.” Johnson v. Eisentrager, 339 U.S. 763, 769 (1950).

4. Professor Tayyab Mahmud notes, “The sovereignty impulse locates citizens within firm territorial

   boundaries, constitutes individual and collective identities, privileges a homogenous subjectivity eligible for political recognition, and posits identities of ineligible others.” Tayyab Mahmud, Migration, Identity, & the Colonial Encounter, 76 OR. L. REV. 633, 636–37 (1997).

5. The jurisprudence in this area is complicated but consider the following passage from Justice

   Brennan’s dissenting opinion in United States v. Verdugo-Urquidez:

   
   

   According to the majority, the term “the people” refers to “a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” The Court admits that “the people” extends beyond the citizenry, but leaves the precise contours of its “sufficient connection” test unclear. At one point the majority hints that aliens are protected by the Fourth Amendment only when they come within the United States and develop “substantial connections” with our country. At other junctures, the Court suggests that an alien’s presence in the United States must be voluntary and that the alien must have “accepted some societal obligations.” At yet other points, the majority

   
   

   Similarly, in the European Union,6 “third-country nationals”7 possess rights inferior not only to citizens of the country they find themselves in but also to persons from other E.U. Member States.8

   
   

   implies that respondent would be protected by the Fourth Amendment if the place searched were in the United States.

   United States v. Verdugo-Urquidez, 494 U.S. 259, 282–83 (1990) (Brennan, J., dissenting) (emphasis added) (footnotes omitted) (citations omitted) (quoting Verdugo-Urquidez, 494 U.S. at 265, 271, 273).

   In the United States, a century-old jurisprudence effectively establishes a hierarchy of aliens, but the rights-based alien-citizen/national distinction is evident. For a discussion of the hierarchy, see VICTOR C. ROMERO, ALIENATED: IMMIGRANT RIGHTS, THE CONSTITUTION, AND EQUALITY IN AMERICA 82–84 (2005);

   Won Kidane, The Alienage Spectrum Disorder: The Bill of Rights from Chinese Exclusion to Guantanamo, 20

   BERKELEY LA RAZA L.J. 89, 148–49 (2010); and David A. Martin, Graduated Application of Constitutional Protection for Aliens: The Real Meaning of Zadvydas v Davis, 2001 SUP. CT. REV. 47, 96–97 (2001).

6. The European Union has been in a constant and rapid state of transformation over the last several

   decades. A complex web of treaties, regulations, and directives define its nature, structure, competences, and functioning. The legal instruments which are currently most important are: Consolidated Version of the Treaty on the European Union, Mar. 30, 2010, 2010 O.J. (C83) 13 [hereinafter TEU]; Consolidated Version of the Treaty on the Functioning of the European Union, Mar. 30, 2010, 2010 O.J. (C83) 47 [hereinafter TFEU]; and Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, Dec. 13, 2007, 27 O.J. (C 306) 1 (entered into force Dec. 1, 2009) [hereinafter Treaty of Lisbon]. A comprehensive set of information about all aspects of the European Union’s existence, including the texts of all of the treaties, is available on the official website. EUROPA, http://europa.eu/index_en.htm (last visited Feb. 5, 2013). The most notable regularly updated treatise on this subject is P.S.R.F. MATHIJSEN, A GUIDE TO EUROPEAN UNION LAW AS AMENDED BY THE TREATY OF LISBON (10th ed. 2010) (providing a comprehensive review of current E.U. law).

7. The free movement of persons is one of the fundamental principles of the European Union. Persons

   who are not nationals of an E.U. Member State are called “third-country nationals.” See TFEU art. 79. They do not enjoy the full freedom of movement and are subject to certain sets of regulations. See id. The Treaty of Lisbon has modified the legal basis for the Union’s law-making in the areas of immigration and asylum. EU IMMIGRATION AND ASYLUM LAW: COMMENTARY ON EU REGULATIONS AND DIRECTIVES 1–9 (Kay

   Hailbronner ed., 2010) [hereinafter E.U. IMMIGRATION AND ASYLUM LAW]. This may have some significance in the future, but some basic common rules and regulations are already in effect. The most relevant provisions of the TFEU that apply to third-country nationals are articles 67–89. TFEU arts. 67–89. Entry, residency, and expulsion are also governed by a set of subsidiary sources of regulations and directives. Some notable ones include Council Regulation 539/2001, Annex 1, 2001 O.J. (L 81) 1, 5–6 (EC) (listing the countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement); Council Regulation 562/2006, art. 1, 2006 O.J. (L 105) 1, 3 (EC) (establishing Community Code (Schengen Borders Code) on the rules governing the movement of persons across borders); and Council Directive 2004/83, art. 1, 2004 O.J. (L 304) 12, 14 (EC) [hereinafter E.U. Directive on Minimum Standards...