General Practice, Solo & Small Firm DivisionMagazine

Volume 17, Number 6
September 2000



By Robert Pauw

From earliest times, immigration proceedings have been regarded as civil, as opposed to criminal, proceedings. Deportation is not punishment, it is just the removal of aliens who present a threat to the well being of our community. Thus, courts have held that the constitutional safeguards that apply in criminal prosecutions do not apply in deportation proceedings. A non-United States citizen can be deported with little or no regard to the fact that he or she supports a U.S. citizen family, makes significant contributions to the community, and does not present a threat to the well being of anyone. Furthermore, it has been held that an alien married to a United States citizen has no constitutional right to live in the United States with his or her family. It is the policy of deporting people for minor criminal offenses, without regard to the important family rights at stake and the benefits the person provides to the community, that makes deportation look more like punishment than the mere removal of undesirable aliens who do not fit into our community.The Concept of Punishment: Remedial v. Punitive. In several decisions issued during the past decade, the Supreme Court has recognized that punishment can be imposed not only in criminal proceedings but also in civil proceedings. The framework adopted depends on a distinction between "remedial measures" and "punishment." This distinction turns on the justification given for the action. A remedial measure is a sanction imposed in order to compensate a party who has been injured or in order to protect members of the public from actions that are likely to be harmful.

Punishment, on the other hand, is a sanction that can be imposed without intent to compensate a victim and without consideration of whether the individual is likely to reoffend. The sanction is imposed because the person has done something wrong. Sometimes measures characterized as remedial lose touch with the remedial justification. When this happens, the sanction must be regarded as punishment, and at that point the constitutional safeguards protecting against arbitrary and excessive penalties must come into play.Remedial Purposes of Deportation. Traditionally, the remedial purpose of the immigration laws is primarily to exclude or remove from the country those individuals whose presence is harmful. The nonpunitive goals of immigration law include excluding individuals who present a threat or danger to our community. The statute attempts to accomplish this nonpunitive goal by excluding the following categories of noncitizens: aliens who present a public health risk; aliens who are likely to become public charges; aliens who are likely to engage in terrorist activities; and aliens whose presence creates foreign policy problems. Further, there is a remedial purpose in protecting the integrity of the immigration system. Thus, those individuals without proper documents and those who are attempting to enter the United States under false pretenses can be excluded or removed for remedial purposes, even if they are otherwise desirable as residents.

Nevertheless, even if there is a viable sense in which deportation can be regarded as nonpunitive, that does not mean that deportation is always nonpunitive. There are many circumstances in which deportation must be regarded as punishment because the sanction cannot be justified in terms of its remedial purposes. Difficulties arise in those situations in which no waivers are available and in which the application of the exclusionary provision becomes divorced from any remedial justification. These difficulties often arise because of the application of criminal grounds of exclusion and deportation. In many cases, when the exclusionary provisions are applied, they destroy families and remove individuals who are making real and important contributions to our communities. The exclusionary grounds of removal, especially those that mandate permanent banishment from the United States, have lost touch with reality and cannot be justified in terms of their remedial purposes. Effects of Deportation as Punishment. The fact that deportation constitutes punishment in some cases means that in these instances, deportation must be subject to constitutional provisions limiting the government’s power to punish. The punitive nature of deportation may occur because the statutory framework itself is punitive, or because the statutory provision is punitive as applied.

There are two significant consequences that follow in situations where the statutory framework is inherently penal. First, when a person is being punished under such a provision, additional procedural safeguards are called for. At a minimum, the punishment to be imposed must be limited by Eighth Amendment considerations and by the ex post facto clause. In the deportation context when the statutory framework is itself penal, the appointment of counsel should be provided, just as in criminal proceedings. It is not fundamentally fair to punish a person by permanently banishing him from his home unless he has the assistance of counsel in the proceedings.

Second, if the statutory framework for deportation is to be civil and not penal, then the provisions that mandate deportation without consideration of the underlying remedial purposes must be modified. A person subject to deportation on the basis of an alleged prior offense must be able to apply for a waiver of deportation, and upon a showing that the remedial purposes of the statute will not be served by deportation, should be allowed to remain in the United States. Moreover, if the statute is to be remedial, it should not provide for permanent banishment. Banishment is appropriate only as long as it is justified by the threat that the person poses to the safety or welfare of the United States. Once the threat is no longer present there is no longer a remedial interest in excluding the person and she should be allowed to enter the United States if she has a basis for doing so. Barring the individual from entering the United States beyond that time constitutes punishment.

Even a statute that is completely civil in nature can be punitive as applied in an individual case. In these circumstances, the sanction should not be imposed if the punishment suffered by the individual is excessive under the Eighth Amendment. A proportionality analysis helps to ensure that deportation does not run afoul of the Eight Amendment; under this analysis, the judge balances the adverse factors evidencing an alien’s undesirability as a permanent resident with the social and humane considerations presented in his or her behalf. In any balancing of the equities in a person’s favor against his or her undesirability as a resident of the United States, the fundamental rights of family unity must be given significant weight. Under the Eighth Amendment proportionality analysis, where a person has immediate U.S. citizen or lawful permanent resident family members, banishment will ordinarily be unconstitutionally disproportionate unless there is a compelling governmental interest in removing the person. It is only if deportation is not excessive under this type of analysis that we can say that deportation as applied in an individual case is not punishment.

Robert Pauw is a partner of Gibbs Houston Pauw in Seattle, Washington, and adjunct professor of law at Seattle University School of Law.

This article is an abridged and edited version of one that originally appeared on page 305 of Administrative Law Review, Winter 2000 (52:1).

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