The Forgotten Deported: A Declaration on the Rights of Expelled and Deported Persons

Abstract

This article considers a “Declaration on the Rights of Expelled and Deported Persons.” Drafted by the authors with significant input from a wide array of scholars, activists, judges, and others, this Declaration, re-printed in Appendix A, responds to what has become in recent years a major worldwide phenomenon: The deportation (also known as removal or expulsion) of large numbers of noncitizens. Our aim, first, is to describe that phenomenon and to illustrate some of its most troubling features. We then survey existing legal structures and mechanisms that seek to protect some of the rights of the deported, both during and after removal. Our focus is primarily in the United States and Europe, though we also consider aspects of international human rights law and certain protections in the Inter-American system. Though important steps have been made in such protective regimes, especially in the European Union, we conclude that major gaps remain and that a conceptualization of the deported as a definable legal class with specific, cognizable rights is neither impossible nor oxymoronic. It is thinkable, necessary, and may be the best way to respond to an array of problems that have too often escaped the attention they deserve.