Immigration Article of the Day: Deportation as Torture by Anja Bossow

Deportation as Torture by Anja Bossow, NYU Journal of International Law and Politics (forthcoming)

Abstract

Deportation is a practice that is currently only lightly regulated under international human rights law. The only and importantly only conditional defenses an individual possesses against deportation is the threat of torture or cruel, inhuman, and degrading treatment by the receiving state, or a breach of procedural norms in the making of the deportation decision. This approach to regulating deportation has served to erase the suffering that characterizes the act of deportation itself; a suffering that amounts to “the loss of all that makes life worth living.” The failure of human rights law to render this suffering legally legible is concerning both in practice, given the sheer scale of those living in a state of deportability, and as a matter of theory, considering human rights law’s normative grounding in human dignity. Being thus committed to protecting all individuals equally vis-à-vis abusive exercises of sovereign power, human rights law’s silence on deportation’s violence betrays its normative point and purpose within the international system of legality, all while rendering the vision of a more humane international legal order that drove its creation a violent fiction. In an effort to address this problem, this Article analyzes the nature of deportation’s suffering through the lens of the norm against torture and cruel, inhuman and degrading treatment. By demonstrating that the deportation of long-term residents inflicts a form of psychological torture that is inflicted for the purposes of punishment and discrimination, the Article proposes a new substantive limit on the state’s right to exclude which takes seriously the human dignity of deportees.

KJ