Constitutional Provisions Worth Knowing If You Fear Being Removed (PART TWO)

The Constitution plays a significant role in US immigration. In the context of the government’s attempt to deport or remove a noncitizen from the US, many of the constitution’s provisions come into play. In this two-part blog post, we’ll look at a few of the clauses of the constitution that play a role in removal proceedings, a few tools that attorneys may sometimes use to prevent a noncitizen’s removal.

Here, in Part Two, we will look at equal protection, the naturalization clause, and the ex post facto clause. (In Part One, we looked at procedural due process and substantive due process.)

Equal Protection

While the equal protection clause of the Fourteenth Amendment applies only to the states, courts have interpreted the Fifth Amendment’s due process clause to bar arbitrary discrimination by the federal government. And, a court may find that certain irrational distinctions between similarly situated noncitizens made by the federal immigration laws, or how the federal government applies these laws, are unconstitutional. See, e.g., Dillingham v. INS, 267 F.3d 996 (9th Cir. 2001) (distinction between similarly situated individuals concerning whether their expunged drug dispositions constitute convictions for immigration purposes struck down as irrational); Yeung v. INS, 76 F.3d 337 (11th Cir. 1995) (distinction between similarly situated individuals concerning 212(h) waiver relief eligibility struck down as irrational).

Naturalization Clause

When a noncitizen in one state is subject to more adverse immigration consequences than a noncitizen in another state for a similar offense only because of varying state criminal law standards and definitions, the noncitizen may argue that the disparate treatment violates the Constitution’s naturalization clause, which requires a “uniform Rule” of naturalization. Also, the noncitizen might argue that the government has violated his or her rights to equal protection of the law.

Ex Post Facto Clause

Although the courts have rejected challenges to retroactive deportation laws under the ex post facto clause on the basis that the clause only applies to criminal punishment, the now often mandatory imposition of the “civil” penalty of removal upon conviction suggests that it may be worth “preserving” an ex post facto claim in the hope that the courts will revisit the issue.

An argument relying on constitutional provisions may be what rescues a noncitizen from deportation. These provisions are often overlooked as tools to do that.