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Saturday, April 26, 2014

Deportation: Crime, Punishment and Proportionality

Le droit et la loi, telles sont les deux forces ; de leur accord naît l’ordre, de leur antagonisme naissent les catastrophes. Le droit parle et commande du sommet des vérités, la loi réplique du fond des réalités ; le droit se meut dans le juste, la loi se meut dans le possible ; le droit est divin, la loi est terrestre. Ainsi, la liberté, c’est le droit ; la société, c’est la loi.
Victor Hugo

"It's the law," some like to say and yet that is not the last word.  It can never be the last word because laws are made by "crooked timber" - humanity in all its glorious diversity which is always imperfect.  We are not gods, nor are we animals - we are something in between and in this earthly realm we do terrible things to each other - perfectly legal things that are nonetheless morally dubious.

Deportation is part of the nation-state toolkit.  In another era its close cousin was "exile".  Entire countries were founded, at least in part, because exile was used to punish the undesirable whether they were subjects or citizens.  Today it is very hard to exile a citizen of a democratic nation-state.  International law is clear:  if you are a citizen you have the right to enter and remain in a state of citizenship.  It doesn't always work that way because nation-states can be very clever in finding ways around the pesky problems of citizens and their rights.   Citizens can be made and unmade, for example, as is happening right now in the UK.  Or, citizens living outside the national territory can see their rights eroded by legislation that simply bypasses the issues of citizenship and the rights it confers, and instead creates a class of second-rate citizens who can be discriminated against, prevented from entering the national territory, or even killed outright without due process (US). 

Deportation, however, is a little different.  It is forced exile but it is applied (in theory) only to those who are not citizens.  The criteria for deciding who is deportable and who isn't varies from country to country with some places and regions offering protection against it - usually based on length of residency, family and other ties.  Nonetheless, it is always there as a possibility if you live in a foreign land. 

I think I can safely say that it is one of the worst possible things that could happen to any migrant, especially those of us who have lived a very long time in a country and have businesses, families and all sorts of emotional ties.  Wherever a migrant lives, until he or she can legally apply for citizenship, he lives a precarious existence since the right to abide here or there depends on so many factors that are completely outside of their control. Without the right to vote and where agitation on their part or participation in national political life tends the rile the established citizenry who hold migrants' lives, jobs and families in their hands.  

The power that the native citizens hold over the migrants in their midst is a terrible one and should never be forgotten.  It is, I am coming to believe, very much like the power hereditary aristocracies used to exercise over subjects with the tyrants here being the hereditary citizens of these democracies.

That power becomes crystal clear when migrants come up against a nation's deportation machine.  A couple of weeks ago I read Daniel Kanstroom's Aftermath: Deportation Law and the New American Diaspora and have been thinking about it ever since.   Kanstroom is not a proponent of open borders or "the abolition of the nation-state, or against all immigration enforcement."  He even sees some utility in the deportation process.  What he is against is what he sees as the abuses in the American deportation system.  Reform is his goal and he thinks this would best be accomplished by a return to a "relatively seldom-used and legally nuanced, flexible process..." that he says was the status quo before 1996. 

So what is this system that Kanstroom think can and should be reformed?  If deportation is a legitimate tool  what exactly is his issue with how the United States of America does deportation in the early part of the 21st century?

The deportation system that exists today in the United States is unprecedented, he says, in its scope and application.  Two laws passed in the mid-1990's are responsible for the change:  AEDPA (Antiterrorism and Effective Death Penalty Act) and the IIRIRA (Illegal Immigration Reform and Immigrant Responsibility Act).  Kanstroom says:
"Among other features, the 1996 laws (retroactively) expanded many grounds for exclusion and deportation, created mandatory detention for many noncitizens, invented new "fast-track" deportation systems;  eliminated judicial review of certain types of deportation (removal) orders;  discarded some and limited other discretionary "waivers" of deportability; and vastly increased possible state and local law collaboration.  As a direct result of these laws, hundreds of thousands of people have been excluded and deported from the United States who would have been allowed to become legal permanent residents and (probably) naturalized citizens under prior laws."
In other words these laws took a lot of the discretion and common sense out of the process, made people who were convicted in the past of minor crimes committed in their youth suddenly deportable, and took away most of the means they had of pleading their cases. Among the people who have been cast out one doesn't have to look far to find ones that are just plain wrong and where the consequences have been catastrophic for the migrants and their American families:  Families with young children who are US citizens, US military veterans or their spouses, or even those with convictions for non-violent offenses committed as far back as 20 years ago.   Apparently even  "moral turpitude" can be brought into play here.  

Barack Obama once said "we cannot - and should not - deport 12 million people."  Too late - looks like the US already has. Kanstroom says that from 2001 to 2010 there were 2,794,946 forcibly removed and 9,378,880 "returns." "As I write this book," he says, "U.S. federal deportation authorities will incarcerate more than 29,000 noncitizens on any given day..."

With that broad a brush and that many people one can almost guarantee that there will be more than just a few mistakes.   This is the law used as a blind  blunt instrument. But to what purpose?  Kanstroom gives two - the first of which is obvious and the second which is clear to migrants but perhaps is less so to citizens.  

Harsher immigration laws and the new deportation system were designed to appease native citizens' concerns about border control, undocumented people, and terrorism.  Americans (post- Oklahoma City/Twin Towers/911) don't feel safe and they want something done about it.

Has it worked so far?   Are Americans safer because 13 million people have disappeared from the national territory?

Out of sight, out of mind, right?  Not so fast.  One of the best parts of Kanstroom's book is where he talks about the deportees and what has happened to them.  These people didn't simply vanish into thin air once they were forced to leave the US - they had to go somewhere and they did and some of those places are not too far from the US.  Kanstroom makes the excellent point that these 13+ million people represent today another kind of American diaspora - people who have an American identity (years of residence in the US, fluent English and the like) but who are nevertheless permanently out and can't come back because they don't have (or couldn't get) citizenship.  I cannot speak for them but if I extrapolate from my own experience I would not be surprised to find that they have a great and terrible anger against the country that cast them out. 

The other purpose of this deportation system is social control.  A migrant who lives in a country where he believes that he can be deported at any time for the most trivial of offenses (past or present) is living in a state of perpetual fear.  One step out of line and he or she could lose everything.  Interestingly enough, the nature of the US deportations (the irrelevance of military or community service, learning the local language/customs and adherence to national principles) demonstrate that it is rather futile to try to integrate or to serve the nation since none of these things count in one's favor should the authorities decide that one is a candidate for deportation.  Even the acquisition of citizenship becomes problematic if the reason for one's application is purely defensive and not because one has a sincere attachment to the country itself.

Kanstroom's solutions to the obvious injustices of the deportation are to reform it by bringing back discretion - a closer examination of these cases and a weighing all the factors for and against.  Military service, length of residency, and family ties should count, he says, because these are life stories to which attention should be paid." I could not agree more.  If there is to be a reckoning for past or present behaviour then it should be proportional to the crime and there are all to many cases where it clearly isn't.  Kanstroom reports that 2/3 (77%) of the deportees to date were deported for a non-violent crime.  Deportation under those circumstances  defies the principle of proportionality - the punishment simply does not fit the crime.  

European law by the way does require that proportionality and a showing that there was balance between the law and order requirements of the state and the deportees general conduct, length of stay and the nature of the crime.  That does not mean that people are not ever deported.  My host country, France, does so with some regularity.  (Interesting that they use the word expulsion and not déportation.)  

 But I would go one step farther here and say that in most circumstances deportation should simply be prohibited.  There should never be a question about or a proceeding against, for example, someone who was brought to a country as a child.  Same for long-term residents - there should be a point where residency, ties and perhaps integration confer complete protection against deportation/exile.  

Where to draw the line here?  Honestly I don't know.  But just for fun, let's try a little thought experiment.

1.  Think of all the reasons - all the nefarious acts - that you believe justify deportation of immigrants.

2.  Then explain why is it OK to deport a migrant but it is not OK to exile a citizen for the same offenses.

3.  Bonus question:  Would it make a difference if the migrant was in the country legally or illegally?  Why?


P. Moore said...

Very thought provoking. When you posed the question "Then explain why is it OK to deport a migrant but it is not OK to exile a citizen for the same offenses.", something else occurred to me. Say citizens are jailed for those offenses, but migrants are deported. Now if migrants were given equal treatment, where on earth will the US put those extra 2+ Million prisoners? I guess if one saw a policy change in that direction, one should immediately invest in one of those private prison companies that are so happy to charge big fees to governments to incarcerate the so called 'guilty'.

Victoria FERAUGE said...

@P. Moore - One interesting answer I found in a book I've been reading is the idea the "positive discrimination" toward citizens is necessary in a democracy. Thre must be a reward for being a citizen (as opposed to a resident) and so, by extension, someone else must be discrimination against - the foreigner.

Good point about the prison system. I think that if a crime is involved then the migrants must do their time and then they can be deported. But many of the cases are about past offenses for chich the immigrant already paid the fine or did the time. Some crimes can only be committed by immigrants like overstaying a visa. I knew folks like that in the US including one lovely French girl I knew in my youth. :-)

Anonymous said...

> I think that if a crime is involved then the migrants must do their time and then they can be deported.

So you don't think doing their time is being punished enough?
Take the Kawashima case for example:

They underreported their business income in 1991. The Internal Revenue Service hit them with $245,000 in taxes and penalties.
and the husband was given a four-month prison sentence.
Yet, they're being deported 10 years later. I think that's pretty harsh, especially after having paid what they owed and served prison time.

Similar to this case, Salvatore Purpura just avoided deportation due to a sensible judge.
But how many are there like that?

And Joel Arguelles apparently got deported for a tax owed that was less than $10k.

Note the advice from the lawyer:
"For green card holders, the voluntary disclosure is the safest solution. While it is a confession to a crime, so far, the IRS has not contacted the immigration service."

Victoria FERAUGE said...

@Anonymous, Sorry, I wasn't clear. I'm not saying I think someone should be deported after serving time for a crime. What I meant to say was I think the US justice system works that way. The immigrants does his time and then gets ejected. In short, they can do it - not they should do it.

And thank you for the cases and the links. The FBAR/CBT problem is for me a perfect example of these laws as social control. Two groups (immigrants in the US and US citizens outside the US) most of whom do not know that they must file FBARs/tax returns on WORLDWIDE income and the US government is not exactly falling over itself to inform them.

That means the US gov has something on all these folks and can choose (or not) to enforce it if someone becomes a problem.

Why do I think this? When I was in Washington I asked this question, "Why don't you put in every passport and with every Green Card a little note that explains that he/she has a reporting obligation and should go to this website for more info about FBARs (fincen 114 now) and about including income earned outside the US on the tax returns."

Something a little more infomative than that BS note that's in US passports right now that is so vague as to be useless.

And when I asked they just looked uncomfortable.

Says it all, doesn't it? :-)

Anonymous said...

I guess I am naïve. I don't understand why they looked uncomfortable when you made the suggestion about letting people know of their responsibilities. An explicit not when you get your Green Card or US passport would do. That would be the right thing to do. Do they want to keep the "leverage" over these people and have something they can go after if needed? That is purely disgusting. But that is also the purpose of a surveillance state. Were they somewhat admitting that is what the US has become?

Anonymous said...

As you mention, immigrants are not the only ones to blame for not knowing about FBAR. I gave an earful to my consulate and immigration lawyer about it. I told both that they were not doing their jobs right and they were part of the problem.
I told the consulate to expect huge problems in a couple of years due to the signature of their treasonous IGA.
I didn't make friends.
The lawyer told me she wasn't interesting in doing further business with me.
Mopsick keeps talking about future lawsuits against the IRS for their over the board FBAR enforcement. Honestly, I don't know if people could also turn against their immigration lawyers.
The only problem is that those lawsuits are expensive. It's not right to make little people pay for it. Just like it's not right to ask minnows to pay for the Canadian Charter Challenge. It's just not right. That disgusts me. I wonder how Canadian politicians who voted for it can live with it.

I want to hope that the challenge succeeds and they can raise the money. While I am confident they have a good case, I don't know if they'll be able to raise the money needed. It took 3 weeks to raise 17k. For the legal action they're considering, they likely need a couple millions if not more. They will need HUGE media exposure to raise the money needed. The kind of exposure they need is also very expensive.
Most of the American Expats associations try to work politically, but I wonder at some point if they could use their email database to share what's going on in Canada - with appropriate links :-)
That would not be politically correct, but it seems, based on your last report that political solutions are not within reach, and at some point, the fight needs to get a little messy.