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?