Day 266: No Human Being Is Illegal

Photo by Aarón Blanco Tejedor on Unsplash

Yesterday afternoon I walked Immigration Clinic students through the incredibly technical process of analyzing the immigration consequences of criminal convictions. If you want to get a sense of how technical this doctrine is, here is a “quick” checklist prepared for criminal defense attorneys.

The process is so complicated that most criminal defense attorneys are scarcely aware of it, let alone capable of doing it — and yet the Supreme Court has said that failure to competently advise a criminal defendant of the immigration consequences of a plea constitutes ineffective assistance of counsel in violation of the client’s constitutional rights. As the noncitizen population of West Virginia increases, the law demands that we have lawyers capable of providing this service — or we’ll simply have courts overturning convictions as unconstitutional

After the class exercise, I asked the students for their reactions to the doctrine. One student asked, “Why does it have to be this complicated? There has to be a better way.”

We talked about the history: The immigration services of the government were once in the Department of Labor, because immigration was a source of labor in the early twentieth century. It got moved to the Department of Justice in 1940 so that immigration agents could cooperate with FBI agents to find and deport Nazi spies. (It turned out there weren’t any.)

Then in 1996, during the “War on Crime,” Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act, which added a bunch of criminal grounds that could get a person on a fast track out of the country. We’re not just talking about extreme violent crimes or major drug trafficking. Even things like shoplifting can qualify as a “crime involving moral turpitude,” and hence a removable offense. Since then, these laws have proliferated.

“And now they call people ‘illegals,’” one student said.

I asked the students whether they thought crimes should trigger deportation, or whether crime and immigration could be treated completely separately, or something in between. Someone raised the notion of a government deporting its own citizens — which led to an interesting discussion about the punishment of banishment and the contemporary international law implications of the government of Nicaragua denationalizing civic dissenters.

I recently learned the origins of the phrase “No human is illegal.” It is attributed to Nobel Laureate and Holocaust survivor Elie Wiesel in 1988 — “Kein Mensch ist illegal.”