Safe Havens

Immigrants should receive the benefit of all reasonable doubts, both of fact and law, as to whether the government has satisfactorily shown them to be deportable, because of their status as immigrants and the drastic, penal consequences of deportation.

            The United States Supreme Court has reaffirmed this core principle of immigration law in Leocal v. Ashcroft, [69] in which it unanimously concluded that a Florida conviction of driving under the influence causing serious bodily injury,[70]  did not constitute an aggravated felony as a crime of violence,[71] for purposes of triggering deportation, since the offense did not have a mens rea requirement in excess of strict liability or negligence, sufficient to meet the statutory requirement of use of force in the commission of the offense under 18 U.S.C. § 16(a) or (b).  The Court, citing United States v. Thompson/Center Arms Co.,[72] applied the criminal rule of lenity, that all reasonable doubts favor the defendant, in the immigration context, to the extent that a court handling an immigration case must interpret a criminal statute.[73]  This decision unanimously reaffirmed the rule of lenity as applied to interpretation of immigration deportation statutes.

            Mr. Justice Douglas, speaking for a unanimous court in reversing a decision of the Court of Appeals for the Ninth Circuit, in another deportation case, said:

We resolve the doubts in favor of that construction because deportation is a drastic measure and at times the equivalent of banishment or exile, Delgadillo v. Carmichael, 332 U.S. 388, 68 S.Ct. 10 (92 L.Ed. 17).  It is the forfeiture for misconduct of a residence in this country.  Such a forfeiture is a penalty.  To construe this statutory provision less generously to the alien might find support in logic.  But since the stakes are considerable for the individual, we will not assume that Congress meant to trench on his freedom beyond that which is required by the narrowest of several possible meanings of the words used.[74]

Reiterating this principle, Chief Justice Warren has written, “Although not penal in character, deportation statutes as a practical matter may inflict ‘the equivalent of banishment or exile,’ . . . and should be strictly construed.”[75]  The Court of Appeal for the Ninth Circuit expressed awareness of this principle in Garcia‑Gonzales, saying, “We are aware, too, that matters of doubt should be resolved in favor of the alien in deportation proceedings, because of the severity of the remedy invoked.”[76]

[69] Leocal v. Ashcroft, ___ U.S. ___, 125 S.Ct. 377, 73 USLW 4001 (November 9, 2004).

[70] Florida Stats. Ann. § 316.193(3)(c).

[71] INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F).

[72] United States v. Thompson/Center Arms Co., 504 U.S. 505, 517-518 (1992) (applying rule of lenity to a tax statute, in a civil setting, where the statute had criminal applications and thus had to be interpreted consistently with its criminal applications).

[73] Id., at 384 n. 8. 

[74] Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376 (1948).

[75] Barder v. Gonzales, 347 U.S. 637, 642, 74 S.Ct. 822, 825 (1954).

[76] Garcia‑Gonzales  v. INS, 344 F.2d 804 (9th Cir. 1965).