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A Deportation Nation’s Disgrace

by daniel kantsroom

Deportation Nation Book coverThe history of the United States is often told as a parable about the virtues of open immigration. From Thomas Paine’s ringing call in 1776 to “prepare in time an asylum for mankind” to Jefferson’s 1801 plaintive question, “shall oppressed humanity find no asylum on this globe?” the ideal has endured and thrived.

This open immigration ideal has powerful inherent attractions—linked as it is to truths that many consider “self-evident.” But the core of our national mythology is being tested. We are in the midst of a large-scale, extremely harsh, decade-long deportation episode that is an embarrassingly poor substitute for comprehensive immigration policy.

A typical story: I received a plea for help from a tearful mother, a US citizen. She told me that her son, born in Panama, had lived in Boston since the age of four and had grown to adulthood here. He thought he was a US citizen, but he was mistaken. She said he was beginning his second tortuous week in solitary confinement: twenty- three hours a day in a New Hampshire jail as he awaited deportation. On the advice of his lawyer, he had pled guilty to a minor crime and received a mild “suspended sentence”—in effect, probation. Although it was not a basis for deportation at the time of the plea, his offense was now retroactively deemed an “aggravated felony.” The young man faced deportation and lifetime banishment. “How can this be true in America?” his mother asked.

The full answer is not simple. First, we must consider that the deportation system controls all non-citizens, not only the estimated 12 million undocumented who live among us. It applies to tourists, students, refugees, and legal permanent residents. In effect, it governs tens of millions of people and their families. According to government statistics, from 2000 through 2005, the total number of “deportable aliens” caught within the United States and expelled was more than 6.5 million people.

What are the rights of deportees? In a word, minimal. Suppression of evidence seized in violation of the Fourth Amendment will be virtually impossible in most cases. Selective deportation because of political opinions or affiliations is permissible. Deportees are not read Miranda rights. They never have the right to appointed counsel. They never have the right to a jury trial. Many face mandatory detention—no right to bail. And in many cases, there is no judicial review at all of agency decisions.

How should we understand deportation? To be sure, it is a part of our immigration control system, though it has worked remarkably poorly. But it is also a powerful tool of discretionary social control that lives in a peculiar equipoise with our society’s openness to legal immigration, our general protections for the rights of non-citizens, and our grant of birthright citizenship to virtually all born on US soil. Deportation laws that apply, often without time limit and retroactively, are not directly connected to the admission process at all. They raise deep problems of legal legitimacy. As James Madison put it, “It can not be a true inference, that because the admission of an alien is a favor, the favor may be revoked at pleasure.”

The current deportation system is best understood within a long historical frame. It has grown incrementally and reactively. Its direct roots lie in the exclusion and then the removal of Chinese workers from the United States, an early twentieth century “war on crime,” the Palmer Raids, and the McCarthy era. Harsh modern laws were legitimated by the 1892 Supreme Court case of Fong Yue Ting, who was deported due to his inability to find the “credible white witness” required by law.

But the deeper history long preceded late-nineteenth century anti-Chinese hysteria. It extends back to the legitimating theories of the brutal removal of Native-American Indians from their lands, fugitive slave laws, “colonization” plans for freed slaves, Federalist enforcement of the Alien and Sedition Acts, and colonial “warning out” practices. We can gain important insights about the nature of deportation—especially its racialized aspects—from such apparently disparate systems. They all involved the application of majoritarian power—through legal structures and with the use of force— against particular people to compel their removal from one place to another. They have built one upon the other in doctrinally traceable ways to form our current system.

Deportation, in sum, is now—and has always been—about much more than border control. It implicates belonging, cleansing, and scapegoating, as the very term “illegal alien” demonstrates. Given its size, its consequences, and its trends, this system deserves considerably more thought.