Proportional Deportation

Abstract

Noncitizens who are convicted of certain crimes not only face criminal punishments like prison and fines, but they also face the potential of being deported. Constitutional criminal procedural protections ensure that fines and prison sentences are not excessive or disproportionate. Legal scholars have argued that these provisions should similarly apply to deportation proceedings. This essay offers an alternative basis for a constitutional requirement of proportionality in deportation proceedings — the Fifth Amendment. It is my contention that certain categories of deportation are punitive and not merely remedial, and that punitive deportation should be subject to proportionality review under the Fifth Amendment Due Process Clause.

Deportation often infringes upon an individual’s right to family life or family privacy. Our current deportation regime does not have procedural mechanisms available to prevent excessive or unreasonable deprivations of family life or family privacy. To remedy this situation scholars have called for greater domestic enforcement of the International Covenant for Civil and Political Rights (ICCPR). The body responsible for adjudicating ICCPR claims, the Human Rights Committee, has concluded that deportation must be proportional. States have to balance the individual’s right to family life with the State’s interest in public safety and national security. Recognizing a Fifth Amendment Due Process right to proportional deportation provides a domestic legal basis for achieving the same end. While there is room to debate whether or not specific deportation decisions impermissibly restrain an individual’s right to family life or family privacy, it is clear that both the U.S. Constitution and the ICCPR require that the United States have a procedural mechanism in place for making that determination.

Keywords: immigration, deportation, proportionality, due process, human rights, treaties