A Deportation Nation’s Disgrace
by daniel kantsroom
The 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
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
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
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.