Academic journal article Vanderbilt Law Review

Expedited Injustice: The Problems regarding the Current Law of Expedited Removal of Aggravated Felons

Academic journal article Vanderbilt Law Review

Expedited Injustice: The Problems regarding the Current Law of Expedited Removal of Aggravated Felons

Article excerpt

I. INTRODUCTION

Haroon Rashid has experienced a recent string of very bad luck. Following the attacks of September 11, 2001, he and his family, like many Americans of the Islamic faith, felt persecuted by their neighbors, despite having had nothing to do with the terrorist attacks on the World Trade Center and the Pentagon.1 Mr. Rashid felt intimidated by people following him and calling his home to accuse him of complicity in the September 11 attacks.2 After weeks of harassment, Mr. Rashid's family contacted the police.3 Unfortunately for Mr. Rashid, however, he shared a name with a suspected terrorist.4 Thus, instead of addressing Rashid's concerns, the U.S. government began to suspect him as well.5 Then, on April 17, 2003, Rashid was involved in a physical confrontation with some of the same local troublemakers who had been harassing his family during the previous two years.6 He claimed self-defense, but the prosecutor disagreed and charged him with third-degree assault, a misdemeanor,7 for which he was sentenced to 401 days in prison, most of which was suspended.8 Despite his relatively minor offense (he served well under one year in jail), the crime constituted an aggravated felony under federal immigration law. This meant that the government could deport Mr. Rashid without the procedural safeguards normally available to those facing deportation through a process known as expedited removal.9 The government wanted to separate Mr. Rashid from his home and family even though the law appeared unjustly applied in his case.10 Mr. Rashid had done nothing but share the name of a noted terrorist, yet the government singled him out for persecution under an overly broad immigration law.11

Deportation is one of the most serious penalties that any system of justice can administer.12 Expedited removals, however, appear less like punishments and more like actions to deport dangerous aggravated felons quickly for public safety concerns.13 Nevertheless, immeasurable punitive consequences accompany deportation as a matter of course. Like Mr. Rashid, deported immigrants face the loss of their adopted homeland and potential separation from their families and loved ones. They often return to a country where they do not have relatives, friends, or a place to stay. In many cases, they do not even speak the language. Thus, the government should exercise extreme caution in crafting the laws that regulate this harsh punishment. In practice, however, the government has been haphazard and oblivious to such concerns when it comes to those immigrants convicted of aggravated felonies.14

An alien convicted of an offense defined as an aggravated felony is not entitled to procedural safeguards like appeals, judicial discretion, and asylum, which may prolong or forestall her deportation; instead, she is subject to expedited removal from the United States with no possibility of reentry.15 The concept of the aggravated felony in U.S. immigration law was designed to provide as few barriers as possible to the removal of dangerous aliens and thereby make the system run more efficiently.16 The definition of "aggravated felony," however, has evolved since Congress enacted the statute in 1988. Then, the term only encompassed the most serious crimes, such as murder and drug trafficking.17 In the years that followed, Congress added other crimes to the list, including paradigmatic examples of aggravated felonies such as theft, burglary, possession of child pornography, and "crimes of violence."18 Congressional reforms have continued to expand the list of aggravated reforms to the point where today many of these offenses would not even be considered "aggravated" by most people. Indeed, some of them are not even felonies.19 Some jurisdictions even have incorporated minor offenses, such as possessing small amounts of drugs and shoplifting, into the aggravated felony definition.20 This expansion does not comport with the original goals of expedited removal. …

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