Wednesday, December 5, 2012
If immigration law is a political tinderbox and doctrinal mess, then deportation law is the clearly demarcated salve: at some point, the problem literally disappears beyond our borders. In his latest book, Aftermath: Deportation Law and the New American Diaspora, Boston College law professor Daniel Kanstroom tries to complicate our understanding of the “problem” that immigration law targets by chronicling deportation law’s increasing use as an adjunct of criminal law enforcement, attacking the federal government’s myopia regarding deportation’s social consequences, and challenges policymakers and advocates to reimagine the role of fairness and rationality in deciding who gets to remain in the United States and who is forced to leave.
The nation’s deportation regime, Kanstroom explains, is “massive” (ix): well over 300,000 people removed each of the last several years, another 700,000 or so returned informally, and a $17 billion immigration policing budget (12, 30-31). All of this naturally results in severe consequences for the people subjected to deportation and their families. Kanstroom poignantly tells the stories of individuals whose homes have been raided by immigration officials, people who have suffered abuse while in immigration prisons, United States citizens wrongly deported, and children torn from their parents.
Where Aftermath truly shines, though, is in Kanstroom’s ability to segue from his awareness of the human impact of immigration policy into a prolonged analysis of immigration law’s irrationalities and fault lines. “[D]eportation,” he writes, “has historically worked as a powerful and efficient government tool of discretionary social control and a key component of the national security state” (29). While deportation law’s target du jour has changed over the course of the nation’s history, today there is little doubt about its focus: noncitizens caught up in the criminal justice system (37).
But deportation as a solution to our own crime problems is wrongheaded. First, the underlying presumption that immigrants are prone to commit more crime than United States citizens is flatly contradicted by reams of evidence (85-89). In fact, immigrants commit less crime and are imprisoned at lower rates than United States citizens. If anything, we ought to be concerned about the fact that immigrants and their children become more involved in crime as they become more embedded in United States culture. This, Kanstroom suggests, is the true “Americanization” problem that should concern policymakers (87).
Second, Kanstroom powerfully argues that relying on deportation as a crime-control strategy is nonsensical. It may be easy to think of deportees as “someone else’s responsibility” once they leave the United States, but that type of social policy shortsightedness ignores on-the-ground realities (16-17). Flooding impoverished nations with individuals who frequently lack any meaningful ties to their country of citizenship creates a security and economic mess that affects people there and here (152-54).
No better example exists than the Mara Salvatrucha (MS-13), one of today’s largest and most violent gangs. MS-13 began in Los Angeles, made its way to El Salvador when many of its members were deported, then proceeded to destabilize Central American communities (153-54). Today, MS-13 is a thriving transnational operation—its affiliates are in 42 states, Washington, D.C., and México—that the FBI views as so problematic it has launched an international task force specifically targeting it and its leading counterpart Mara 18.
Furthermore, Kanstroom argues that the United States retains a normative interest in what happens to deportees because they are frequently subjected to repressive policies. In El Salvador, Kanstroom writes, “deportees have become scapegoats for worsening crime and other societal problems.” (149). Meanwhile, in Haiti deportees are imprisoned in disease-ridden jails where dying is a very real possibility (147-48). All without much care for whether these individuals are actually dangerous (149).
Kanstroom goes beyond deploring this treatment abroad. Writing with the insight available only to someone with his extensive advocacy history, he draws a clear line between these conditions and the United States’ treatment of individuals facing removal. Our immigration policing apparatus relies increasingly heavily on the federal government’s criminal prosecution power. Rather than view immigrants as individuals coming in search of a better life, today’s dominant immigration law enforcement narrative paints them as dangerous criminals. Immigration raids “tend to be large militaristic exercises that often seem disproportionate to the threat posed by the often terrified workers,” he explains (56), and enterprising federal prosecutors “bec[o]me engaged in the [deportation] enterprise with great energy and enthusiasm” (57), taking legal positions that federal judges have described as “inexplicable” and “disappointing, even shocking” (97).
All the while, 400,000 people cycle through immigration prisons annually--429,000 in fiscal year 2011 alone--where sexual abuse is rampant, deaths more common than they should be, and into which detainees seem to disappear: lawyers and family members, he recounts, are frequently unable to find out where a detainee is held (90-93). Not surprisingly, many individuals give up their fight to remain in the United States not because they lack a plausible argument to stay, but because they cannot bear the indignities of immigration imprisonment (94).
Once outside the United States they become devoid of legal remedies. Even individuals deported on a basis that was later deemed erroneous lack the power to return. The Board of Immigration Appeals steadfastly maintains that its jurisdiction ends where the rest of the world begins—at the country’s territorial boundaries. Such a position, Kanstroom argues, is historically inconsistent and doctrinally troubling: “Should the place where such a claimant happens to stand completely govern the resolution of powerful rights claims? The answer,” he adds, “has long been no” (172). Tax law, for example, reaches United States nationals living abroad, as do the prohibition against treason and military draft registration requirements (169).
All of these support his argument that, in some instances, noncitizens should be able to raise claims from abroad. None, however, is as surprising as his reliance on the legal history of slavery and, in particular, the Dred Scott case. Chief Justice Taney’s “constitutional method,” Kanstroom argues, is potentially useful to deportees: “Taney ironically relied on what might now be considered a rather protective and progressive idea: that the Constitution applied outside the existing states of the Union” (172-73). Taney’s specific application, protecting slavery, “has rightly been definitively repudiated,” he adds, but his understanding of the Constitution as reaching beyond the United States’ borders may help deportees make the claim that they too deserve to have their day in court (173).
Whether or not a particular person is allowed to enter or remain in the United States is a different and equally complicated question. Rather than rely on the misguided rhetoric of immigrant criminality or the one-size-fits-all fixation with territoriality, Kanstroom suggests a mix of “moderately flexible ideas of discretion, judicial oversight, and a humane understanding of basic human rights principles, especially those that mandate proportionality and reject arbitrariness whenever state power is brought to bear against people, regardless of their legal status or their location” (211).
There is nothing radical in these words. He does not propose a wholesale revamping of the rule of law or the end of the nation-state and its sovereign prerogatives. Instead, he merely proposes that deportation law join the family of law governed by principles of equity and the promotion of human dignity, and that unravels under the watchful eyes of the courts. Sadly, deportation law is so far afield, as Kanstroom distressingly exposes, that if these reforms were to occur we would experience a legal upheaval. Until that happens, those of us with much to learn about our nation’s deportation apparatus will do well to continue to rely on his insight and experience to disentangle the complexities of deportation law and shed light on its human impact.
César Cuauhtémoc García Hernández is an assistant professor at Capital University Law School and publisher of crImmigration.com, a blog about the convergence of criminal law and immigration law, which was ranked among the 100 best law blogs of 2012 by the ABA Journal. Take a minute to vote for crImmigration.com as your favorite source of legal information by going to the ABA Journal's web site and finding crImmigration.com listed in the "niche" category. A version of this article appears on crImmigration.com.