Any foreign national who is convicted of an "aggravated felony," as that term is defined in the Immigration and Nationality Act, is subject to deportation from the United States. Deportation of so-called "aggravated felons" is in no way contingent upon the particular facts and circumstances in a given case. More troublingly, on the judiciary has no authority to review a deportation order based "aggravated felony" grounds. In the past decade, Congress has expanded the definition of "aggravated felony" to encompass many minor crimes that are neither aggravated nor felonious.
The deportation of foreign nationals on "aggravated felony" grounds is effectively mandatory, and as such does not comport with international human rights principles. A number of treaties and other instruments of international law that have been ratified by the United States are in tension with this deportation scheme. Provisions of these instruments that run contrary to the current regime include a prohibition on arbitrary expulsion, a bar on the return of refugees except where national security and public safety require, an absolute bar on the return of any person who would be subject to torture in her home country, and the recognition of an individual's right not to suffer undue governmental interference with his family and private life. The automatic deportation of foreign nationals convicted of "aggravated felonies" is also at odds with constitutional guarantees of due process.
In order to reconcile the statutory authorization of the removal of foreign nationals for "aggravated felony" convictions with international law, Congress should revise the relevant statutes to require a balancing of public safety concerns against the hardship to the deportee and his resident family members, and Congress should reinstate judicial review of deportation orders based on "aggravated felony" convictions. To preserve genuine rights of due process, the courts must make a fundamental change in their analysis of deportation cases by departing from the traditional characterization of deportation as a non-punitive sanction.
Slings and Arrows of Outrageous Fortune: The Deportation of "Aggravated Felons",
36 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol36/iss5/5