State-Created Danger Doctrine Needed In Immigration Court To Protect Informants

Denise Lavoie of the Associated Press wrote an article on January 21, 2008 titled "Ex-informant fears torture if deported" that highlights the case of Frank Enwonwu and the need for courts to protect informants who have helped the United States against criminals.

Mr. Enwonwu was caught smuggling five ounces of heroin into the United States from Nigeria and then worked with the United States government to be an informand and help them prosecute drug-related crimes. Because of his cooperation, his life is in danger if the United States deports him to Nigeria -- where criminals are waiting to murder Mr. Enwonwu for cooperating with the United States.

ICE is not really disputing how Mr. Enwonwu gave critical assistance to help the DEA catch three drug dealers. ICE is also not really disputing that Mr. Enwonwu would probably be murdered in Nigeria and that is only because the United States successfully convinced him to help fight drug dealing.

ICE has so far successfully argued to the courts that although the state-created danger doctrine is well-established as a Constitutional due process protection if the government acts in a shocking manner to put someone's life at risk, that doctrine somehow should not prevent the United States from deporting someone, even if the deportation would be a shocking action that puts people's lives at risk due to actions they took with the United States government's cooperation.

Meetali Jain at the American University Washington College of Law International Human Rights Law Clinic is quoted as arguing that the United States has a legal obligation to protect Mr. Enwonwu in that type of situation. The First Circuit, though, has disagreed so far.

There are two cases arising out of New Jersey immigration court that raise the same issue -- assuming that the US acts in a shocking manner to put someone's life in danger by deporting them to a country where criminals are waiting to murder them, can a court ever stop a deportation to uphold Constitutional rights? In a case in 2005, the Third Circuit (which covers appeals from New Jersey immigration courts) ruled that it did not believe it could ever stop a deportation even if the government acted in a shocking manner that violated the state-created danger doctrine.

There are now two pending appeals with the Third Circuit urging them either to overturn their 2005 decision as not well-founded or to reach a different conclusion because more recently (after their 2005 decision), Congress ratified the UN Convention against Transnational Organized Crime and in doing so, seemed to emphasize the need to protect informants who help the US government convict members of transnational organized crime.