ABSTRACT
Deportation as a consequence of a criminal conviction has become an important tool in the War on Terror. The Department of Homeland Security (DHS) has elevated apprehension and deportation of so-called “criminal aliens” to a high priority in its mission to flush out and expel from the United States foreigners with links to terrorist organizations. Yet the aggressive expulsion of non-citizen criminal offenders hardly seems intuitive as a key component of counter-terrorism. Particularly when expulsion is rarely based upon convictions even remotely related to terrorist activity. 1 Indeed the prioritizing of criminal alien removal did not come about solely in response to the horrific attacks that occurred on 9/11,2001. Congress did not invent the collateral penalty of deportation after the attacks, as the first line of defense against terrorism. 2 As mentioned in Chapter 1, immigration legislation passed years before the attacks increasingly imposed deportation upon non-U.S. citizens with criminal records as the immigration system adopted the criminal justice system's severe treatment of drug offenders and the poor. As the criminal justice system created punishments that “got tough” on all convicted felons—particularly drug offenders—immigration law adopted harsh consequences for those convicted offenders who were not U.S. citizens. Under immigration reforms enacted in 1996, these so-called criminal aliens could be detained and deported (many retroactively), and denied relief from detention and deportation based upon individual mitigating circumstances. And because these harsh measures were characterized by courts as regulatory, rather than punitive, constitutionally mandated criminal procedures did not apply.
