Note: What follows is an expanded version of an op-ed authored by HMA Law Firm attorney Hassan Ahmad on September 7, 2016. See the op-ed at The Hill:
No, immigration hasn’t really been the central talking point in this election. While there are cries for immigration reform and chants against illegal immigration, the flash point isn’t immigration, it’s deportation. Think about how different the discourse would be if we were arguing about how to let people in instead of only how to keep – and kick – them out.
Nearly seventy years ago, the Supreme Court described deportation as “a drastic punishment, and at times equivalent to banishment or exile.” Finding the stakes to be high, it refused to read laws resulting in deportation broadly.
Since then, Congress responded by passing broad deportation laws, and continued to expand them. People who have lawfully lived in the US for nearly their entire lives are deported for minor infractions to countries they never knew. Others who flee persecution are deported to their deaths. Sometimes even US citizens or immigrant veterans who fought for this country are swept up in the deportation machine. We are a country that incarcerates children in for-profit jails. Judges lost the power to stop deportation in sympathetic cases. The immigration law now creates perverse incentives for undocumented people to remain in the United States even if they want to leave and come back legally. The enforcement-first approach has been failing for decades, and its primary weapon is the Grim Reaper of immigration law: deportation. And still they come.
What the law used to recognize as strong medicine is now available over the counter. It is used by policymakers, politicians, and self-styled commentators. Don’t like what someone says? Deport them! Don’t like a religion? Deport it! Don’t like a candidate? “Maybe they’ll deport her.” How many civilizations have fallen after they fractured over such disagreements?
It’s time to rethink deportation as a panacea – or even a prerequisite – toward fixing our immigration system.
For all the talk, deportation is not well understood. In his immigration speech in Phoenix, Arizona (which was really a deportation speech) Donald Trump boomed, “They’re gone,” referring to what he says are 2 million “criminal aliens.” In those two words, Trump unwittingly shed light on three misconceptions about deportation. One, that it’s automatic. Two, that it’s easy. Three, that it’s permanent.
Deportation is not automatic. Due process does – and has always – applied to all people within the United States, even if the exact process due may vary. The line between legal and illegal immigration status is not as black and white as the current discourse assumes, and so there must be a legal process to determine who gets deported. Many American citizens were once undocumented, or at least subject to deportation. Many documented immigrants may lose their status, only to find another way to regain it. Others are ordered removed, but are granted limited relief – limbo status that does not result in physical removal. Others may win asylum or cancellation of removal.
Removal proceedings require identification, apprehension and sometimes detention, often for lengthy periods of time while hearings (and possibly appeals) conclude. Even for those with unchallenged final orders of deportation, the actual process of removal from the United States requires obtaining travel documents from the home country – if the home country will accept their citizen back. Given the numbers, it is not as easy as saying “They’re gone.” That so many get deported is more a comment on the due process they (didn’t) receive rather than actual ineligibility to stay – would it be a stretch to say the deportation machine survives on a lack of due process? Any expansion of deportation necessarily involves loss of due process.
Moreover, deportation is not necessarily permanent. Those who are deported from their lives and families will fight tooth and nail to come back. Penalties for unlawful re-entry are stiff, but people who are desperate will still come. It was the deportation of Central American gang members in the 1980’s that caused their transnational growth, leading to the virtual collapse of three countries, which in turn has created a humanitarian crisis on our southern border. And the heavy-handed enforcement-only rhetoric only risks providing fodder for those who openly express criminal intent against the United States. It’s also hugely expensive – and one must ask, for what purpose? Is there no other way to promote respect for the rule of law?
The human cost of deportation is immense. Today there are thousands of US citizen children who can’t be sure their parents will be there when they get home from school. Family ties are broken for life. Our prisons are bursting at the seams and yet we allow powerful companies to line their pockets with our tax dollars to detain even more.
Obviously, any country has the right to expel undesirable people. But why has deportation become the instant and only go-to cure not only for illegal immigration, but for any perceived social ill? When it’s used like so much candy, the side effects become worse than the illness. And when it’s not used as directed, it can create more of the problem it purported to solve. Is it wise to have such a broad deportation policy? Why is it always the first – and only – bottle in the cabinet?
Permanent deportation is rarely the solution. When the law broken (unlawful entry) is a Class I misdemeanor, and immigration laws are criminalized, then the punishment should fit the crime. And deportation is severe punishment. Since actual legislated immigration reform is proving elusive, we must use existing laws in a smarter way.
For example, allowing immigrants to apply for advance parole to allow them to leave the United States without tripping the 10-year bar to re-entry. Expanding the use of work permits and parole in place – for both undocumented and documented immigrants. Assessing an unlawful presence penalty to be filed with any such request along with payment of any back taxes. Expanding the use of administrative closure to reduce backlogs in immigration court. Deferred action to bridge the gap for people stuck in lengthy backlogs. There are many options short of deportation – a targeted prescription plan that would allow immigrants to contribute while fostering respect for the rule of law.
It’s time to stop relying on deportation as a panacea.