NEW YORK TIMES (Opinion)
By Daniel Kanstroom
August 30, 2012
It would have taken a hard heart not to be moved this month as tens of thousands of “Dreamers” — young undocumented immigrants who were brought to this country as children — emerged from the shadows to apply for temporary work permits and deportation deferrals under a new policy by the Obama administration that has delighted immigrant advocates and enraged conservatives.
Though generous and humane, the policy represents only one side of the deportation story. Barack Obama has presided over a record increase in the number of removals, in many cases on legal grounds that offend our basic notions of fairness. These injustices predate him; they started in 1996, when immigration policy was changed in a draconian fashion so that noncitizens — including permanent legal residents — became vulnerable to deportation even for minor crimes committed years ago, with little regard for procedural rights or judicial discretion.
Consider Marco Merino-Fernandez, a 35-year-old client of a clinic at the law school where I teach. He was brought from Chile to the United States legally, when he was 5 months old, but like many legal permanent residents, he never became a citizen. He speaks English fluently and got a G.E.D. in Florida. Returning from a vacation abroad, in 2006, he presented his green card to immigration agents, who discovered that Mr. Merino-Fernandez, more than a decade earlier, had been convicted of two misdemeanors for drug possession, small amounts of marijuana and LSD.
He was detained for months. After a brief hearing, a judge ruled that he was “an aggravated felon” and ordered him deported to Chile, where he had not been since infancy and where only a few relatives remained. After arriving in Chile, in 2007, Mr. Merino-Fernandez learned that his mother had died in Florida; he wasn’t able to return for her funeral.
Before 1996, deportation was a comparatively small enterprise, with safeguards that allowed judges to exercise compassion and recognize rehabilitation. Since then, one of history’s most open societies has developed a huge, costly, harsh and often arbitrary system of expulsion. Between 2001 and 2010, more than one million people were deported from the United States because of post-entry criminal conduct.
These homesick exiles can be found around the world. In the Azores, off the coast of Portugal, are New Englanders who sport Red Sox caps and speak English with thick Boston accents. Most know no Portuguese. “Honestly, it stinks,” one of them told me. Other men teared up as they recalled their families in the United States.
New Yorkers abound in the Dominican Republic, where the United States has sent around 30,000 deportees. Their distinct dress, walk and language mark them as outcasts, the social scientists David C. Brotherton and Luis Barrios found in a book published last year.
In a study of Latin American deportees who had lived for long periods in the United States (on average, 14 years), the sociologists M. Kathleen Dingeman and Rubén G. Rumbaut found that deportees who had emigrated as children suffered the most. Deportees to El Salvador (a country many had fled during the civil war of the 1980s) encountered discrimination because of their accents, style of dress and California gang-themed tattoos.
In 2004, a New Yorker, Calvin James, 45, was separated from his partner and their young son and deported to Jamaica, where he hadn’t lived since he was 12, because of past convictions for selling drugs. As the journalist Julianne Ong Hing described it, the local police asked Mr. James standard questions — “Do you have family you will be contacting? What address will you be staying at?” — but Mr. James had no one to call. He landed in Spanish Town, a crime-ridden community he described as “a battle zone,” before eventually finding low-paying work.
Hundreds of Cambodian youths whose families survived the Khmer Rouge’s killing fields have been deported to a land about which they had heard nothing but horror stories. The documentary “Sentenced Home” tells of Loeun Lun, who was brought to the United States at age 6. He served 11 months in jail for having fired a gun in a shopping mall (no one was hurt) when he was 19, but he turned his life around. Even so, he was deported in 2003, at the age of 27.
Deportation can be inhumane, even life-threatening. In 2000, the Haitian government imposed mandatory, indefinite detention on criminal deportees arriving from the United States. In Haitian prisons, deportees have suffered from a lack of basic hygiene, nutrition and health care, and from outbreaks of diseases like beriberi and cholera.
This vast experiment in deportation hasn’t deterred undocumented immigration, which increased steadily from 2000 to 2007. Nor has it substantially reduced serious crime rates; a 2007 study found that American-born men between 18 and 39 were five times more likely than foreign-born men to be imprisoned. What it has done is forcibly separate hundreds of thousands of families — an especially harsh fate for children or elderly parents left behind in America.
“Well, that’s tough,” some say, “but they broke the law — period.” Laws have certainly been broken. But law is not a one-size-fits-all enterprise. Discretion, as the jurist Felix Frankfurter noted, makes law enforcement more humane and more efficient.
To be sure, some deportees have been convicted of serious crimes. But most are guilty of drug offenses, or misdemeanors like petty larceny, simple assault, drunken driving. Lifetime banishment is an inhumane and disproportionately harsh sentence, particularly for nonviolent drug offenses and crimes committed when the offenders were minors.
What vision of law justifies the deportation of those who have grown up, attended school and raised families in the United States? What purpose is served by permanently barring them from returning home, even for family visits?
In a 2010 decision, Padilla v. Kentucky, the Supreme Court recognized that many criminal defense lawyers had a poor understanding of immigration law and that if they advised clients about deportation at all, they often gave bad advice. As a result, many people have agreed to guilty pleas that unnecessarily resulted in deportation. But the Board of Immigration Appeals has held that once they are deported, their cases cannot be reopened. The rule of law, it seems, ends at the border.
Though most experts agree that we need visa reform, better border control and a large-scale legalization program for those already here, no comprehensive legislation has passed. The plight of the deportees is even further down on the legislative agenda, if it is there at all. And so the deportations go on.
Daniel Kanstroom, a professor of law at Boston College, is the author, most recently, of “Aftermath: Deportation Law and the New American Diaspora.”