How can this be in modern day America?
Mr. Enwonwu is an immigrant alien.
. . . Congress does not much care about immigrant aliens, even those who, after endangering themselves assisting our law enforcement efforts to stem the international drug trade, are deported into the hands of the very drug traders upon whom they have informed. Does this shock your conscience as an American? If so, read on and dispassionately judge for yourself:
In 1986, Frank Igwebuike Enwonwu accepted an offer from a Nigerian military official to smuggle five ounces of heroin into the United States in exchange for $5000. U.S. Customs officials stopped and searched Enwonwu on his arrival at Logan International Airport in Boston and discovered the heroin concealed inside his body. Drug Enforcement Agency (“DEA”) agents promised Enwonwu that he could avoid prosecution and receive their protection if he helped the DEA find the intended recipients of the heroin. Enwonwu agreed, and his efforts enabled the DEA to arrest three individuals who were awaiting the delivery of the drugs. His testimony before a grand jury also helped federal prosecutors indict two of the individuals. After the arrests, the DEA informed Enwonwu that his life was in danger because the people he betrayed were part of a large, violent drug-trafficking cartel.
At first, the DEA helped Enwonwu adjust to life in the United States by assisting him in obtaining a work authorization form. For eighteen years, Enwonwu worked as a taxi driver and later a nursing assistant in the Boston area; however, Enwonwu’s legal status in the United States was never formalized. 10 Meanwhile, Congress amended the Immigration and Nationality Act to retroactively make any alien convicted of a past drug-related offense removable from the United States.Enwonwu later obtained his realtor’s license and, in 2004, he visited the Bureau of Customs and Immigration Services office to seek the necessary employment authorization to begin a job as a real estate agent. Enwonwu later obtained his realtor’s license, and in addition, in 2004, he visited the Bureau of Customs and Immigration Services office to seek the necessary employment authorization to begin a new job. Officials arrested and detained Enwonwu when he identified himself at the office,
and the federal government initiated deportation proceedings against him.
After exhausting his administrative remedies, Enwonwu filed a petition for habeas corpus. He claimed that the deportation violated his substantive due process rights based on the “state-created danger theory.” Under the state-created danger theory, the government may assume a constitutional duty, based on the Due Process Clause, to protect an individual from private harm when the government creates or enhances the threat of harm to the individual. The district court found that the government’s combined acts of inducing Enwonwu’s cooperation and affirmatively attempting to deport him, where he would be readily accessible to those who wished to harm him, violated Enwonwu’s substantive due process rights.
The First Circuit reversed the district court’s ruling. The First Circuit held that entertaining a state-created danger claim, as a means of relief from deportation proceedings, would intrude on the constitutional powers assigned to Congress and the executive. It would mark an “impermissible effort to shift to the judiciary the power to expel or retain aliens,” which is “a power the Constitution has assigned to the political branches.” As a result, the First Circuit held that “an alien has no constitutional substantive due process right not to be removed from the United States.”
This Comment addresses the claims of a group of aliens, like Enwonwu, who faced deportation proceedings after working as government informants. Like Enwonwu, a number of aliens have asserted that the deportation proceedings violate their Fifth Amendment due process rights under the state-created danger theory. Simply explained, the state-created danger theory imposes an affirmative obligation on the government to protect individuals from private harm when the government has placed the individuals in a position of danger. The aliens maintained that the government placed them in a state-created danger when it solicited their help in prosecuting members of international drug cartels. The subsequent deportation would violate the aliens’ life and liberty interests because they would face an imminent risk of death or torture when returning to their native countries.
This Comment examines the viability of the state-created danger theory in the context of deportation proceedings. Historically, Congress and the executive have exercised plenary or unchecked power to regulate immigration. Part II.A examines the development of the state-created danger theory in the U.S. courts of appeals. Part II.B describes the cases in which aliens have invoked the state-created danger theory in deportation proceedings. In Parts II.C and II.D, this Comment examines Congress’s and the executive’s plenary power over immigration law and policy. Finally, in Part III, this Comment argues that the plenary power doctrine should be abandoned and that state-created danger claims should be recognized in deportation proceedings. Furthermore, this Comment proposes a test for evaluating state-created danger claims in the context of deportation proceedings.