When De Facto Americans Are Deported

Deported Americans: Life After Deportation to Mexico, by Beth C. Caldwell, Duke University Press, 248 pages, $94.95

Peter Sean Brown was jailed in Florida last year for a probation violation. Three weeks passed before the charge was dismissed. During that time, Immigration and Customs Enforcement (ICE) mistakenly thought Brown, who was born in Philadelphia and raised in New Jersey, was a deportable Jamaican.

ICE asked the county jail to honor what's called a "detainer"—a request that Brown be held for ICE pickup. Brown repeatedly told his jailers that he was an American citizen, but they ignored him. After a judge dismissed the probation violation, he was turned over to ICE, which recognized its error in a few hours and released him. Brown is now suing the sheriff who runs the jail for illegally holding him for ICE.

You may have heard about that case. You're less likely to have heard about millions of other people, people who have been in this country practically for their entire lives, who really have been deported, often accompanied by spouses and children who are U.S. citizens. The courts provide these deportees no relief, because they were neither born here nor naturalized. They might as well be citizens—they've lived in the United States for years and we know them as Americans. But de facto does not equal de jure.

This disconnect between life and the law is the theme of Beth C. Caldwell's Deported Americans. Many people in the United States have no papers but are wed to American citizens; about half have U.S.-born children. Two-thirds have been here for more than a decade. Many came when they were so young that they have no memories of the countries where they were born. Their language is English. They celebrate the Fourth of July. But they're at risk of banishment.

That risk precedes the current president. From 2009 to 2013, during the Obama administration, 1.5 million noncitizens were deported. The Trump administration has continued the expulsions. More than a quarter of a million people were sent packing in fiscal year 2018, a 13 percent increase over 2017. Most of the deported are Latino men who were adjudged as criminals—though the crimes that most committed were traffic infractions, driving under the influence, or immigration violations, such as coming back to the country illegally after being kicked out.

Today, more than a million children in the United States, most of them citizens, have parents who have been deported. Many suffer from depression, conduct disorders, and, in Caldwell's words, the "constant sense of a diminishing and ambiguous future." Many other U.S.-citizen kids have left the country to be with deported parents. About 600,000 such children reside in Mexico, for example. Most arrived speaking only kitchen Spanish. They founder at school and are bullied by classmates. One study found that they display more symptoms of depression than do children who stayed in the U.S. after a parent was deported.

Caldwell, a legal scholar in California and a former public defender, interviewed some 100 people who were deported to Mexico or who stayed in the United States after a loved one was banished. They compared their experiences to dying, amputation, and rape. They were depressed, anxious, and suicidal. Some scholars have described the deportation experience as "social death."

A woman named Melany talked about living happily with her undocumented Mexican husband in New York City until the day police stopped him for not wearing a seatbelt. He was deported, tried to return via the Southwest desert, and almost died before being caught and expelled again. Melany joined him in Mexico, and the couple now live on a farm, raising vegetables and earning less than $100 a week. In New York, Melany wore designer clothes. In Mexico, her home sometimes lacks running water.

Melany told Caldwell about a recurrent nightmare. She's in Central Park and sees her husband. "She walks toward him, he grabs her, and she breaks into pieces." Meanwhile, her husband dreams about the desert. Both frequently wake up screaming.

A recent Gallup poll found that eight in 10 Americans support a path to citizenship for immigrants here illegally. Given that high figure, why is America so bollixed about legalizing and naturalizing our compatriots who happen to have been born abroad? Caldwell answers with a historical map of the legislation and court decisions that brought us to this point.

In America, virtually all immigration policy flows from the antique idea that a country must define itself by rejecting unwanted foreigners. This is enacted through what's called plenary power—the principle that Congress, not the courts, has the sole ability to regulate foreign affairs and international relations, including immigration. With judges hesitant to intervene, the rights of the foreign born and their U.S.-citizen families can be trampled in ways that would never happen if immigration were not involved.

Marriage and family are the most glaring arenas of abrogation. The right to marry has been deemed fundamental by our justice system, and in the past half-century we've seen a march toward extending that right. Loving v. Virginia, decided by the Supreme Court in 1967, outlawed prohibitions on interracial marriage. In 2015, Obergefell v. Hodges extended the right to wed to same-sex couples.

Yet when it comes to the right to marry an immigrant, courts have said that deporting the spouse of a U.S. citizen does not violate the Constitution, because the citizen can live with her spouse anywhere else in the world where they're both allowed. In other words, to enjoy one right (marriage), a U.S. citizen spouse must give up another right (to live in the United States). Yet in other legal contexts, the Supreme Court has said it's unconstitutional to force someone to choose between two basic rights.

In nonimmigration contexts, courts forbid the government from separating children and parents absent a compelling state interest. Kids clearly suffer terribly when a parent is deported. Yet as Caldwell points out, American courts have routinely dismissed children's challenges to a parent's deportation.

But things may be changing. Some judges are having bouts of conscience. Others have already challenged the plenary power doctrine.

For an example of judges' consciences kicking in, consider the case of Andres Magaña Ortiz, who came to the U.S. from Mexico at age 15. Three decades later, he was a successful coffee farmer in Hawaii with a wife and three children who were American citizens. When the government set out to deport him, Magaña Ortiz applied for what immigration law calls a "stay of removal." But because of the plenary powers doctrine, the 9th Circuit said it had no authority to grant the stay.

Even so, the judges called their decision neither "fair [nor] just." The government's "insistence on expelling a good man from the country in which he has lived for the past 28 years," the court said, "deprives his children of their right to be with their father, his wife of her right to be with her husband, and our country of a productive and responsible member of our community." One judge expressed dismay at "having to participate in such inhuman acts."

Caldwell thinks that in the long run, individual rights will increasingly trump plenary power. To help things along, she proposes two changes. First, courts should treat the deportation of people who grew up in America with the same gravity as when they consider whether to denaturalize a citizen. (Though the Trump administration has made noises about broadening that punishment, it is considered draconian—denaturalization is traditionally reserved for people exposed as former Nazi concentration camp guards or people who have funded terrorists.) Second, courts should protect the rights of U.S. citizens and their noncitizen loved ones to keep their families whole.

Caldwell also proposes legislation to reverse the automatic social death of immigrants convicted of crimes. Before 1996, judges could consider, case-by-case, the harms deportation could wreak on a person and his or her family. That discretion is not allowed today, and immigrants convicted of crimes are uniformly painted as "bad hombres," no matter the offense they committed.

Passing laws to protect these people would be "a political challenge, to say the least," Caldwell writes. "It would require a radical transformation in public discourse from one that demonizes noncitizens who have been convicted of crimes to one that recognizes their humanity." Don't hold your breath.

Still, Caldwell suggests concrete legislative reforms. One would again allow judges to exercise discretion, even in aggravated felony cases. Another would offer deported "criminals" a legal path back into the U.S. based on their demonstrated rehabilitation.

Even amid growing nationalism and xenophobia, Caldwell concludes, new concepts of citizenship are emerging—concepts that derive from individuals' cultural associations rather than where they were born. As the Canadian political scientist Joseph Carens has put it, "People who live and work and raise their families in a society become members, whatever their legal status." Recognizing that fact, and honoring it under the law, could propel America out of reaction and into the modern world.