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Product Details
| ISBN-13: | 9781478004523 |
|---|---|
| Publisher: | Duke University Press |
| Publication date: | 02/28/2019 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 248 |
| Sales rank: | 831,650 |
| File size: | 1 MB |
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CHAPTER 1
ONE IN THE SHADOW OF DUE PROCESS
In the exercise of its broad power over immigration and naturalization, Congress regularly makes rules that would be unacceptable if applied to citizens.
— Fiallo v. Bell (1977)
The first time she was deported, Gina was apprehended after a traffic stop. She was taken to jail and deported without setting foot in court, even though she had been a lawful permanent resident for over twenty years. Normally, a lawful permanent resident would be entitled to a court hearing to determine her deportability. However, Gina was subject to one of five major exceptions to the right to appear in immigration court — exceptions that now result in over 80 percent of the deported population being removed without a judicial hearing.
She had missed a previous immigration court date, at which time she was ordered removed in absentia — in her absence. At the time, Gina had moved from Los Angeles to Colorado to join her parents because her children's father had become abusive. When she missed her court date in Los Angeles, the judge issued a removal order. She had been in the process of applying for relief from deportation based on the hardships her children would face — an option available to her because she had not been convicted of an aggravated felony. Her lawful permanent resident status was revoked. Under an administrative process called reinstatement ofremoval, immigration officials were allowed to deport Gina again without allowing her to appear in court. She was taken into immigration custody and dropped off in Tijuana.
Shocked and alone, she immediately tried to come back to the United States. Gina walked across the border at the port of entry and presented her Colorado driver's license. Customs and Border Protection officers realized she had previously been deported; she was detained and deported again. A few weeks later, in a state of desperation, Gina tried to run across the border. She explains,
I knew I would get caught. But I didn't care because I just wanted to talk to a judge — to explain how this was just a mistake and that my kids need me. Everybody kept telling me that I couldn't go to court because they already deported me. But that wasn't fair because I never got to explain my problems to a judge. I thought, "I'd rather be in jail over there than be stuck over here."
Gina's instinct that she should be able to appear in court to present the hardships deportation would cause for her and her children is consistent with the procedural due process protections that would generally apply in other legal proceedings — protections most Americans expect from the legal system, like the right to a fair trial. However, she lost this right when she missed her court date. During the deportation process, Gina recalls meeting with an immigration agent who told her "that [she] had to sign the paper." Rather than sign the document, Gina asked to go to court. "You lost that right," the agent replied. Once the deportation order had been issued in absentia, it could be reinstated outside of court. The only court she was likely to get taken to was criminal court, where she could be prosecuted for the federal crime of illegal reentry. Relatively speaking, she was lucky. She was dropped off back in Tijuana rather than being sentenced to serve time in federal prison.
Gina's children were two, five, and seven years old at the time of our first interview six years ago. The two oldest were going to therapy on a weekly basis due to emotional and behavioral issues stemming from their separation from their mother. Gina was reluctant to bring them to Mexico because, she said, "I'm not even stable. I don't have money. I don't have a place, nothing. So what am I going to do with my kids over here?" Toward the end of our first interview, she asked, "Do you know how I can get to court? They're telling me I have to wait twenty years to go back. Is that true? My kids can't wait that long."
If she had understood the serious consequences of missing her court appearance, Gina undoubtedly would have gone to court. However, under the severe stress of being embroiled in a physically abusive relationship and raising young children — one of whom had special needs — she didn't realize how crucial this court date was. Losing the opportunity to appear in court before a judge who could consider the negative toll her deportation would take on her and her children is an extreme sanction. However, in deportation cases, judicial efficiency and finality are often prioritized over people's well-being.
In addition to highlighting the human toll of legal policies that value finality over humanity, Gina's case illustrates the cost of eliminating courtroom appearances for so many people, combined with a lack of access to quality legal representation. Gina may have qualified to file a motion to reopen the original removal order that had been issued in her absence. This is essentially what she wanted to do when she said "I was asking everyone to take me to court" while in immigration custody. However, she did not have an attorney and did not know how to obtain one while in custody. She tried making phone calls but to no avail. She did not know how to file a motion to reopen, or even that such a motion existed. Thus her previous removal order was reinstated, and she was dropped off in Tijuana without seeing a judge. If she had been taken to court — even if she had not filed a motion to reopen — a judge might have advised her that this was an option and could have scheduled a future court appearance, giving her some additional time to seek the assistance of an attorney. However, without this procedural protection in place, Gina lost that opportunity.
Once deported, she dug herself deeper into a hole. Her impulsive efforts to reunite with her children made a lawful return even more unlikely. When Gina was first deported, she was barred from returning to the U.S. lawfully for a period of ten years. She might have qualified to file a waiver to request permission to return through the U.S. consulate, but she didn't realize that. Instead, she tried to walk across the border. The government asserts that when she did so, she claimed she was a U.S. citizen. Making a false claim to citizenship triggers a permanent bar, with no waiver available — ever. Gina has now been in Mexico for over seven years and might have been able to return to her children if she had not tried to walk across the border in a state of desperation. Instead, she recently consulted an immigration attorney who told her she had no hope of ever lawfully returning because of the false claim to citizenship she made that day.
Standard constitutional protections that apply in almost every other area of the law systematically underprotect people in immigration cases. Due process protections that Americans expect in the legal system — hearings before judges, access to attorneys, and the right to appeal — are frequently unavailable to people facing deportation. Lawyers who are unfamiliar with immigration law are often shocked when they hear about the practices courts allow in the immigration realm because the rules deviate so sharply from the standards that exist in the rest of the legal system. History explains how this has come to be.
HISTORICAL CONTEXT OF EXCLUSION
The systematic lack of protection for noncitizens facing deportation is the current manifestation of a long history of demonizing and excluding racialized "others" in the United States. Citizenship has been an exclusive category in the U.S. since its inception. In the past, the terms employed were more explicit — African Americans, Native Americans, Asians, anyone else courts categorized as nonwhite, and women were excluded from full citizenship. The United States exterminated and isolated Native Americans onto reservations. African American slaves were so dehumanized and excluded from membership in U.S. society that they did not even qualify as people under the law. Now, although overt racial restrictions are no longer a part of the law, this exclusionary framework continues to govern both legal and social constructions of citizenship and membership in society. Deportation is the most overt manifestation of these roots.
The United States has historically employed its immigration laws specifically to exclude people of color. The 1790 Uniform Rule of Naturalization specified that only "free white men" could naturalize to become U.S. citizens. The Chinese Exclusion Act — which was in effect from 1882 until 1943 — explicitly prohibited Chinese people from migrating to the United States. In 1924, the United States passed its first comprehensive immigration bill, which further institutionalized white privilege by specifically barring immigrants deemed nonwhite, such as people of Chinese, Japanese, and Indian descent, from becoming citizens. The Supreme Court maintained the whiteness requirements in immigration law throughout the 1920s.
Chinese Exclusion and Plenary Power
The roots of modern deportation law can be traced back to two cases that upheld the government's decision to exclude or deport long-term residents because they were Chinese. In the 1889 case of Chae Chan Ping v. United States, a long-term Chinese resident of the United States traveled to China. While he was there, Congress changed the law. Previously, Chinese residents had been allowed to reenter the country as long as they had a residency certificate, but the Scott Act of 1888 barred reentry for Chinese residents even if they had this certificate. Chae Chan Ping argued that he should be able to return because the change in the law violated his constitutional rights.
The Supreme Court's decision focused on the larger question of whether the judicial branch had authority to review acts of Congress that regulate immigration. It decided that it did not have such authority, justifying its deference to Congress's plenary power to regulate immigration as "an incident of sovereignty" essential to the country's ability "to preserve its independence, and give security against foreign aggression and encroachment." It concluded that foreign aggression can come not only in the form of a "foreign nation acting in its national character" but also "from vast hordes of its people crowding in upon us." Therefore, the Court found that excluding Chinese migrants because they were Chinese was perfectly constitutional. This rule of judicial deference to congressional authority in immigration matters became known as the plenary power doctrine. In the 1893 case of Fong Yue Ting, the Supreme Court extended the plenary power doctrine to apply to people facing deportation from within the United States. It held that the right to deport people "is as absolute and unqualified, as the right to prohibit and prevent their entrance into the country."
The decision to exempt long-term residents facing exclusion or deportation from standard constitutional protections was not clear cut. Vehement dissents argued that noncitizen residents "are within the protection of the Constitution, and secured by its guarantees against oppression and wrong," and that "arbitrary and despotic power can no more be exercised over [foreign resident] persons and property than over the persons and property of native-born citizens. ... As men having our common humanity, they are protected by all the guaranties of the Constitution." However, the majority's exclusionary approach won out because the residents in question were perceived as "vast hordes of ... people crowding in upon us." At the time, President Theodore Roosevelt praised the United States for acting "with the clear instinct of race selfishness" when it "kept out the dangerous alien" — the Chinese — whom he also called "the race foe."
Limited Protections in Deportation Cases
Paradoxically, around the same time that the Supreme Court decided to allow overt racial discrimination in immigration cases, it held that racial discrimination against people who were not citizens violated the Constitution in non-immigration-related cases. In Yick Wo v. Hopkins, the Court held that noncitizen Chinese laundry owners were entitled to equal protection under the Fourteenth Amendment. The city of San Francisco had passed an ordinance that had a disparate impact on the operation of Chinese-owned laundries. The Court ruled that the Constitution protected citizens and noncitizens alike from racial discrimination. Combined, the Yick Wo, Chae Chan Ping, and Fong Yue Ting cases set up a contradictory legal framework that imbues noncitizens with constitutional protections in some cases but not in others. In 1903, the Supreme Court narrowed its decision in Fong Yue Ting by holding that noncitizens facing deportation from the United States were at least entitled to procedural due process protections. Yet despite the fact that procedural due process limits formally apply to deportation proceedings, courts have generally been "unwilling[] to give the procedural due process requirement any real content." As the Supreme Court stated in the 1977 case Fiallo v. Bell, "In the exercise of its broad power over immigration and national security, Congress regularly makes rules that would be unacceptable if applied to citizens." Deportees do not have the right to a jury trial in removal proceedings, the right to appointed counsel, the right to bail, the right to standard Fourth Amendment protections preventing the use of illegally obtained evidence, and the right to protection from ex post facto laws. In the words of deportation scholars Daniel Kanstroom and M. Brinton Lykes, "Indeed, much of the late twentieth and early twenty-first century story of deportation is a story of de-formalization in which even certain very basic procedural rights recognized by courts — such as the right to be heard by a judge — have been severely restricted."
Given the underprotection of people's rights in immigration-related cases that has emerged from this history, the Constitution has not functioned as a shield against the harsh immigration laws that have emerged in the past quarter century, driven in large part by anti-Mexican sentiment.
THE SOCIAL CONSTRUCTION OF MEXICANS AS "THE OTHER"
Like the Chinese, Mexicans were framed as "the other" in the nineteenth and early twentieth centuries. The rhetoric of Manifest Destiny was employed to frame Native Americans and Mexicans as inferior "savages" and "imbeciles" in order to justify taking their land. Between 1880 and 1930, Mexicans were widely depicted as "inferior beings" in popular publications, and Mexico was presented as a "social problem." In the early 1800s, a politician asserted that Texas was "redeemed by Anglo-American blood and enterprise" from Mexicans, whom he characterized as "savages ... benighted by ... ignorance and superstition." A widely read 1845 publication reported that Mexico's "incorporation into the Union was not only inevitable, but the most natural, right and proper thing in the world. ... Imbecile and distracted, Mexico never can exert any real governmental authority over such a country." Mexicans continued to be characterized as "underdeveloped," "unambitious," and "uncivilized" in popular discourse in the United States at the beginning of the twentieth century.
At the same time that these racist and derogatory attitudes were directed toward them, Mexicans were privileged under U.S. immigration law because they were largely exempt from the whiteness requirement governing access to citizenship in the late 1800s and early 1900s. They occupied a unique position because the Treaty of Guadalupe Hidalgo authorized Mexicans to obtain citizenship after the U.S. took over much of Mexico's land. Despite several notable exceptions wherein Mexicans were barred from naturalizing because they had "a strain of Indian blood," federal law generally allowed Mexicans to become citizens during a time when other immigrants of color — Asians and Native Americans — were not. Notably, people of African descent were also exempted from the whiteness requirement as a result of the legal reforms that abolished slavery.
Despite the fact that they were allowed to naturalize, Mexican Americans were quite clearly treated as racialized "others" in the social sphere. They were subject to Jim Crow segregation across the Southwest and attended segregated schools; children were routinely beaten if they were heard speaking Spanish in school. Texas Rangers killed migrants at the border with legal impunity, and hundreds of Mexicans and Mexican Americans were publicly lynched across the Southwest between 1850 and 1935. The discrimination and marginalization Mexican Americans experienced during this period contributed to the social construction of Mexican as a subordinated racial group in the United States.
(Continues…)
Excerpted from "Deported Americans"
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Table of Contents
Acknowledgments xiIntroduction 1
1. In the Shadow of Due Process 17
2. Return to a Foreign Land 49
3. Life after Deportation 67
4. Deported by Marriage 101
5. Children of Deportees 127
Conclusion. Resistance and Reforms 153
Epilogue 189
Notes 193
Index 227
What People are Saying About This
“Deported Americans provides a compelling, clear, and humanistic analysis of the widespread consequences of U.S. policies of mass deportations. Drawing on extensive research, and writing evocatively and personably about the lives of deportees, Beth C. Caldwell deftly combines astute legal analysis with rich stories of deportees and their family members.”
“In this beautifully written book, Beth C. Caldwell presents the story of ‘deported Americans’—noncitizens with strong ties to the United States who view themselves as Americans. She sheds much-needed light on how deportees experience and attempt to cope with their removal from the United States. In so doing, Caldwell not only provides a picture of the difficult and sometimes heartbreaking experiences of our deported diaspora but also presents a useful roadmap for policy reform.”
“In this beautifully written book, Beth C. Caldwell presents the story of ‘deported Americans’—noncitizens with strong ties to the United States who view themselves as Americans. She sheds much-needed light on how deportees experience and attempt to cope with their removal from the United States. In so doing, Caldwell not only provides a picture of the difficult and sometimes heartbreaking experiences of our deported diaspora but also presents a useful roadmap for policy reform.”