Rethinking deportation

No, immigration hasn’t really been the central talking point in this election. It’s deportation. Think about how different the discourse would be if we were arguing about how to let people in instead of how to keep – and kick – them out.

Nearly seventy years ago, the Supreme Court described deportation as “a drastic punishment, and at times equivalent to banishment or exile.” Finding the stakes to be high, it refused to read laws resulting in deportation broadly.

{mosads}Since then, Congress has passed increasingly broad deportation laws. Long-term immigrants are deported for minor infractions to countries they never knew. Others who flee persecution are deported to their deaths. Sometimes even US citizens or immigrant veterans who fought for this country are swept up in the deportation machine. We incarcerate children in for-profit jails. Judges lost the power to stop deportation in sympathetic cases. The immigration law now creates perverse incentives to remain in the United States even if they want to leave and come back legally. The enforcement-first approach has been failing for decades, and its primary weapon is deportation. And still they come.

What the law used to recognize as strong medicine is now available over the counter. It is used by policymakers, politicians, and self-styled commentators. Don’t like what someone says? Deport them! Don’t like a religion? Deport it! Don’t like a candidate? “Maybe they’ll deport her.” How many civilizations have fallen after they fractured over such disagreements?

It’s time to rethink deportation as a panacea – or even a prerequisite – toward fixing our immigration system.

For all the talk, deportation is not well understood. In his immigration speech in Phoenix, Ariz. (which was really a deportation speech) Donald Trump boomed, “They’re gone,” referring to what he says are 2 million “criminal aliens.”

But deportation is not so automatic or easy. It’s not even necessarily permanent. Due process does – and has always – applied to all people within the United States, even if the exact process due may vary. The line between legal and illegal immigration status is not as black and white as the current discourse assumes. Many American citizens were once undocumented. Documented immigrants may lose status, only to find another way to regain it. Others are ordered removed, but are granted limited relief – limbo status that does not result in physical removal.

Removal proceedings require identification, apprehension and sometimes detention, often for lengthy periods of time while hearings and appeals conclude. Even afterwards, physical removal from the U.S. requires obtaining travel documents from the receiving country. Given the numbers, it is not as easy as saying “They’re gone.” That so many get deported is more a comment on the due process they (didn’t) receive rather than actual ineligibility to stay. Immigration judges have an average of 7 minutes to decide a case. Expansion of deportation will involve further loss of due process.

Moreover, deportation is not necessarily permanent. Those who are deported from their lives and families will fight tooth and nail to come back, despite stiff penalties for unlawful re-entry. It was the deportation of Central American gang members in the 1980’s that caused their transnational growth, leading to the virtual collapse of three countries, which in turn has created a humanitarian crisis on our southern border. And the heavy-handed enforcement-only rhetoric only risks providing fodder for those who openly express criminal intent against the United States. It’s also hugely expensive – and for what purpose? Is there no other way to promote respect for the rule of law?

The human cost of deportation is immense. Thousands of US citizen children can’t be sure their parents will be there when they get home from school. Family ties are broken. Our prisons are bursting at the seams and yet we allow powerful companies to line their pockets with our tax dollars to detain even more.

Obviously, any country has the right to expel undesirable people. But deportation has become the go-to instant cure not only for illegal immigration, but for any perceived social ill. When used like so much candy, the side effects become worse than the illness. And when it’s not used as directed, it can create more of the problem it purported to solve.

Unlawful entry is a Class I misdemeanor. The punishment should fit the crime. Since actual legislated immigration reform is proving elusive, we must better use existing laws – parole, administrative closure, deferred action – to give people options short of deportation. It’s time to stop relying on it as a panacea.

Hassan Ahmad is an immigration lawyer in Northern Virginia. He tweets at @HMAEsq. 

The views expressed by authors are their own and not the views of The Hill.