of the United States Constitution other than those expressly
reserved for citizens.").
Courts have recognized that a right to privacy is related to
equal protection and due process. This right has been defined as
the "right to be let alone." See Hill v. Colorado,
530 U.S. 703, 716-17, 120 S.Ct. 2480, 2489-90, 147 L.Ed.2d 597, 612 (2000)
(citing Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct.
564, 572, 72 L.Ed. 944, 956 (1928) (Brandeis, J., dissenting)).
At the very least, the right to privacy includes the right to
procreate, see Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct.
1110, 86 L.Ed. 1655 (1942), and the right to marry, see Loving
v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967);
Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618
(1978). These rights cover a person's relationship with his or
her family, including the right to live with one's family and
control one's children without unnecessary government
interference. See, e.g., Santosky v. Kramer, 455 U.S. 745, 102
S.Ct. 1388, 71 L.Ed.2d 599 (1982) (parental right to guide
children's upbringing); Moore v. East Cleveland, 431 U.S. 494,
97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (right of family to live
together); Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999)
(right of families to be free from arbitrary state removal of
children). Forcible separation of a noncitizen legal resident of
this country from his citizen child or spouse implicates this
right to familial integrity. See In Re Sharwline Nicholson, et
al., CV 00-2229, slip op. at 8-9 (E.D.N.Y. Jan. 3, 2002).
The law has been less protective of aliens' rights than of
citizens' rights, although equal protection concepts cannot be
ignored even in immigration cases. "The power to expel or exclude
aliens is a fundamental sovereign attribute exercised by the
government's political departments largely [but not
completely] immune from judicial control." Fiallo v. Bell,
430 U.S. 787, 794, 97 S.Ct. 1473, 1479, 52 L.Ed.2d 50, 56-57 (1977)
(emphasis and addition supplied).
B. Immigration and Naturalization Act
The interpretation of the INA by the I.N.S. is arguably
compatible with the complex statutory scheme. Were it not for its
international implications, a dismissal would arguably be
warranted based on a literal reading of the statutes and caselaw.
A brief statutory analysis follows.
1. Aggravated Felony
The definition of "aggravated felony" is found in INA section
101(a)(43). It includes "a theft offense . . . for which the term
of imprisonment is at least one year."
At the time petitioner's robbery was committed the definition
would not have included his criminal history. Instead of "one
year," the earlier version of the statute covered theft offenses
actually resulting in a term of imprisonment greater than five
years. The maximum petitioner was ordered to serve was
When petitioner pled in November 1996, the one-year definition
was in place and petitioner was thereafter an aggravated felon
under the INA. This was conceded at his immigration hearing.
2. Section 212(c) Relief
Prior to 1996, section 212(c) of the INA allowed immigrants in
petitioner's position an opportunity for a discretionary hearing
where they could urge waiver of deportation on compassionate
grounds. See I.N.S. v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271,
2276-78, 150 L.Ed.2d 347, 358-60 (2001) (history of section
212(c)); Mojica v. Reno, 970 F. Supp. 130 (E.D.N.Y. 1997),
part by Henderson v. I.N.S., 157 F.3d 106 (2d Cir. 1998);
Maria v. McElroy, 68 F. Supp.2d 206, 212 (E.D.N.Y. 1999); Drax
v. Ashcroft, 2001 WL 1464241 (E.D.N.Y. 2001). Section 212(c) was
limited and then eliminated by two statutes adopted in 1996, the
Antiterrorism and Effective Death Penalty Act (AEPDA) and the
Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA) (collectively, the "1996 Acts"). St. Cyr, 121 S.Ct. at
2278. Limiting retroactivity, the Supreme Court has required
section 212(c) hearings for an alien whose conviction predates
the 1996 Acts if the law would have permitted section 212(c)
relief under the statute as it existed at the time of conviction.
Id. at 2293-94.
St. Cyr does not answer the question of what happens where
the crime itself predates the 1996 changes, but the
convictions came after the 1996 acts. Prior to St. Cyr, the
court of appeals for the Second Circuit addressed this issue and
held that the legal changes created by the 1996 Acts, including
the unavailability of section 212(c), apply to petitioners whose
criminal acts predate the statutory change, so long as their
convictions come after the Acts. Domond v. I.N.S., 244 F.3d 81
(2d Cir. 2001). This, it reasoned, was because "it is the
conviction, not the underlying criminal act, that triggers" the
new legal consequences. Id. at 85 (quotation marks omitted).
Domond predates the Supreme Court decision in St. Cyr by a
few months, and that opinion does not mention Domond. Domond's
reasoning that there is no reliance on the state of the
immigration law when committing crimes might be read as
conforming with the holding of St. Cyr, which focused on an
alien's mental state when making a plea bargain, not on the state
of mind when the crime is committed. See St. Cyr, 121 S.Ct. at
2291-93 ("There can be little doubt that, as a general matter,
alien defendants considering whether to enter into a plea
agreement are acutely aware of the immigration consequences of
their actions."). The court of appeals for the Second Circuit
reaffirmed the Domond holding after St. Cyr. See Kuhali v.
Reno, 266 F.3d 93, 112 (2d Cir. 2001) (citing both St. Cyr and
Domond and holding that retroactive redefinition of an
aggravated felony does not violate due process or the rule
against ex post facto changes in criminal law).
Neither St. Cyr, Kuhali nor Domond ruled on the
international law questions presented in the instant case and
described in detail below. See infra Parts III.C, D, and E, and
IV. These questions were not briefed in Kuhali and Domond. In
a subsequent important immigration case, the Supreme Court was
presented with arguments invoking international law, but did not
find it necessary to address them, although they had been
addressed by the court of appeals. Compare Zadvydas, 121 S.Ct.
2491, 2491 (Breyer, J., majority opinion) (unnecessary to
consider arguments in Brief of Lawyers Committee for Human Rights
on international law in reaching holding that aliens cannot be
detained indefinitely) and Zadvydas, id. at 2507, 2515
(Kennedy, J., dissenting) (passing mention of "international
views on detention") with Ma v. Ashcroft, 257 F.3d 1095,
1114-15 (9th Cir. 2001) (discussing international law and the
rule of Charming Betsy, 6 U.S. (2 Cranch) 64, 118, 2 L.Ed. 208
(1804), that statutes be construed in accordance with
international law), aff'd on other grounds by Zadvydas, supra.
The ninth circuit in Ma considered briefs from Human Rights
Watch and Lawyers Committee for Human Rights in applying
international law and statutory construction principles. See
2000 WL 1881913 (Brief of Lawyers Committee for Human Rights);
2000 WL 1890982 (Brief of Human Rights Watch et al.). The Supreme
not to consider these issues in Zadvydas can be construed as
recognition that it was unnecessary to do so given the facts of
the case. The matter is open in that court in a case such as the
one before us.
Domond and Kuhali could well have gone the other way, even
without the requirements of international law. The court of
appeals' argument in Domond that "It would border on the absurd
to argue that these aliens might have decided not to commit drug
crimes . . . had they known that . . . they could not ask for a
discretionary waiver of deportation," Domond, 244 F.3d at 84,
might be viewed by some as missing the mark. Most criminal or
civil penalties do not deter drug or other crimes. Nevertheless,
the principle of nulla poena sine lege (there can be no
punishment without law) is central to our legal system. This
principle has a long history:
The principle that a person can be found guilty of a
crime and punished for his acts only if the state
beforehand has made the commission of those acts a
crime and has authorized punishment to be imposed
upon proof that a person has in fact committed those
acts is at the heart of the "rule of law"
characteristic of Anglo-American jurisprudence. . . .
The history of this principle has been traced to
Greek and Roman legal systems. This principle also
figured prominently in the development of the English
common law from a decisional to a statutory system of
U.S. v. Walker, 514 F. Supp. 294, 316 & n. 20 (D.La. 1981).
"Nulla poena sine lege is not only an ancient maxim; it is a
requisite of due process." U.S. v. Bodiford, 753 F.2d 380, 382
(5th Cir. 1985). A corollary is that the applicable punishment
for a crime can not be increased after the crime was committed.
See, e.g., Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67
L.Ed.2d 17 (1981); Dobbert v. Florida, 432 U.S. 282, 97 S.Ct.
2290, 53 L.Ed.2d 344 (1977); Marks v. United States,
430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977); Bouie v. City of
Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964).
In Kuhali the court of appeals rejected the ex post facto
argument on the ground that "Deportation is a civil, not a
criminal proceeding." 266 F.3d at 112; see also Zadvydas, 121
S.Ct. at 2499 (assuming for the sake of argument in that case,
where the court found for the alien, that immigration proceedings
"are nonpunitive in purpose and effect"). Characterizing a
serious penalty as civil rather than criminal does not reduce its
sting or make it any less punitive. However bottled, poison is
toxic. An alternative of exile was, we should recall, rejected by
Socrates in favor of hemlock. Plato, Apology 38-39, Crito 44,
50-54, Phaedo 117; Plato, Complete Works 38 (John M. Cooper ed.,
1997) ("Did justice really require that Socrates stay to accept
his death?"). The Supreme Court has recognized on more than one
occasion that "deportation may result in the loss `of all that
makes life worth living'." Bridges v. Wixon, 326 U.S. 135, 147,
65 S.Ct. 1443, 1449, 89 L.Ed. 2103, 2112 (1945), citing Ng Fung
Ho v. White, 259 U.S. 276, 284, 42 S.Ct. 492, 495, 66 L.Ed. 938,
943 (1922). The Bridges court declared that:
The impact of deportation upon the life of an alien
is often as great if not greater than the imposition
of a criminal sentence. A deported alien may lose his
family, his friends and his livelihood forever,
Return to his native land may result in poverty,
persecution and even death.
Bridges, 326 U.S. at 164, 65 S.Ct. 1443. It defies common
experience to characterize deportation of an alien such as
petitioner as anything other than punishment for his crimes.
Viewed from the perspective of the international law reviewed
in this memorandum beginning with Charming Betsy, the
rationales of Domond and Kuhali fail to account for the full
necessary interpretive statutory background. Immigration statutes
must be woven into the seamless web of our national and
international law. See infra Parts III.C and D.
Some earlier judicial decisions, now recognized as unworthy of
our current society, declined to extend constitutional protection
to aliens on the ground that deportation is not "punishment."
See, e.g., Harisiades v. Shaughnessy, 342 U.S. 580, 594, 72
S.Ct. 512, 96 L.Ed. 586 (1952) (cited in Kuhali, 266 F.3d at
112) (aliens may be expelled for speech without infringing on
first amendment); Shaughnessy v. United States ex rel. Mezei,
345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953) (indefinite
detention of aliens does not violate due process); United States
ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94
L.Ed. 317 (1950) ("Whatever the procedure authorized by Congress
is, it is due process as far as an alien denied entry is
concerned."). This line has been vigorously criticized. See,
e.g., Henry M. Hart, Jr., The Power of Congress to Limit the
Jurisdiction of the Federal Courts: An Exercise in Dialectic, 66
Harv. L.Rev. 1362, 1389-96 (1953) (criticizing Knauff and
Mezei); Peter Schuck, Citizens, Strangers, and In-Betweens 32
(1998) (Knauff and Mezei rank among "the most deplorable
government conduct toward both aliens and American citizens ever
recorded in the annals of the Supreme Court"); Gerald M. Neuman,
Strangers to the Constitution 119-36, 188-89 (1997) (criticizing
the lack of constitutional protection for aliens).
Such anti-immigrant cases have their roots in earlier, now
much-maligned decisions such as Chae Chan Ping v. United
States, 130 U.S. 581, 9 S.Ct. 623, 32 L.Ed. 1068 (1889), often
titled the "Chinese Exclusion Case," which were openly racist and
xenophobic in nature. See generally Neuman, supra, at 19-40,
119-25 (history of early immigration law including explicit
race-based exclusion). The Supreme Court has recently taken a
divergent path recognizing the due process rights of all people,
including aliens. See, e.g., Zadvydas, 121 S.Ct. at 2499-2500
(all aliens are entitled to due process; no indefinite
incarceration of aliens who cannot be deported); St. Cyr, 121
S.Ct. at 2291-93 (right to hearing). Domond and Kuhali should
be reconsidered as the courts interpret and develop the Supreme
Court's more recent immigration rulings and the requirements of
3. Asylum Under Section 208
Section 208 of the Immigration and Naturalization Act allows
aliens present in the United States to apply for asylum if they
meet certain conditions. Aggravated felons may not apply for
asylum under section 208. INA § 208(b)(2)(A)(ii), §
4. Withholding of Deportation Under Section 243(h)
Pre-1996 section 243(h) allowed relief to aliens who had not
committed a "particularly serious crime" and were members of a
protected class. The section reads in relevant part:
(h) Withholding of deportation or return
(1) The Attorney General shall not deport any alien
to a country if the Attorney General determines
that such alien's life or freedom would be
threatened in such country on account of race,
religion, nationality, membership in a particular
social group, or political opinion.
(2) Paragraph (1) shall not apply to any alien if
the Attorney General determines that —
(B) the alien, having been convicted by a final
judgment of a particularly serious crime,
constitutes a danger to the community of the
For purposes of subparagraph (B), an alien who has
been convicted of an aggravated felony shall be
considered to have committed a particularly serious
(Emphasis added). When petitioner committed his operative crime,
an aggravated felony with a sentence of over five years was
considered a "particularly serious crime." Matter of Q-T-M-T,
Interim Decision 3300 (BIA 1996). For aggravated felonies with a
sentence of under five years, there was a rebuttable presumption
that the offense was a "particularly serious crime." Id.
Several factors were considered in deciding if the presumption
had been rebutted, including the nature of the offense and
whether any force was used. Matter of Frentescu, 18 I. & N.
Dec. 2214 (BIA 1982).