U.S. Citizens Are at Risk of Detention and Deportation

Increased immigration enforcement at times sweeps in Americans

Cassandra Robertson and I have a new piece in The Conversation about the ways in which the U.S. government has detained and deported many of its own citizens even though there is long-standing Supreme Court precedent on how having even a few such cases is unacceptable. We discuss how these situations tend to arise and why this must stop regardless of the government's other goals. It is worth emphasizing that some of the individuals currently in ICE detention are almost certainly U.S. citizens.

Comments

[Bob from Ohio]

"ICE detained the California-born child for 10 hours when it picked up his undocumented father"

He was with his father. I thought family separation was bad?

[Martinned]

I know that you're just trolling, but for the record: unlawfully detaining US citizens and detaining children are both bad.

[Ben of Houston]

Except how could they not pick up the child? They couldn't just leave the kid.

Stop creating fake catch-22s

[NToJ]

"They couldn’t just leave the kid."

In his bed, where he was sleeping when ICE agents broke into his father's apartment? Why not? What if they just hadn't shown up at all? And why did they "leave the kid" later with someone who wasn't his father, but who wasn't in ICE custody? How do you think ICE later resolved this "fake catch-22"?

[RestoreWesternHegemony]

So as long as you have an anchor baby child, you cant' be arrested yourself. Lovely. And presumably, they left the kid with someone who wasn't his father after investigating the relationship. Much the way that a child will often be released to a grandparent or uncle after a parent's arrest.

[NToJ]

Well being in the country illegally is a misdemeanor. Do you think the police should routinely execute no-knock warrants for misdemeanors?

"...presumably, they left the kid with someone who wasn’t his father..."

No, that's what the child's father asked them to do. They denied his request to make arrangements for that. Instead they detained him and then settled a lawsuit later for that idiotic decision.

[Noscitur a sociis]

The ACLU summary expressly says that they knocked...

[bernard11]

Right.

He was taken into custody in the early hours of March 6, 2007, when federal agents pounded on the door and stormed into the apartment where he lived with his father.

For a misdemeanor. Assholes.

[RestoreWesternHegemony]

It's not like every other misdemeanor, and you know it.

[bernard11]

Yes. It does no damage, unlike, say, littering.

[TwelveInchPianist]

"Well being in the country illegally is a misdemeanor. "

Being in the country illegally is not a crime, although entering the country illegally is. (I have no idea if the father illegally or not.) There are great arguments for open or near open borders, but until the law is changed, the remedy for illegal presence is forcible removal, and there's no nice way to do that. This ought to give pause to people who favor large amounts of regulation in other areas.

[David Nieporent]

Well being in the country illegally is a misdemeanor.

Quibble. Entering illegally is a misdemeanor. Simply being here is not. (Unless there are other facts, such as one having already been removed once.) It's not a crime to overstay a visa.

[Brett Bellmore]

Definitely quibbling. Yes, if you enter illegally, and then proceed to live in the wilderness eating bark and leaves, you can commit no further crimes. Your typical illegal immigrant hermit is off the hook.

OTOH, if you enter illegally, and try to live in human society, you're going to be committing crimes galore. Identity theft, so that you can pretend to be a citizen. In most states, either driving without a license and insurance, or obtaining same using false ID. Illegally working without a work permit. Tax fraud. Fraudulently obtaining welfare.

Your typical illegal immigrant is a criminal many times over.

[James Pollock]

"So as long as you have an anchor baby child, you cant’ be arrested yourself."

Approximate number of people who have (seriously) made this claim: 0.

[RestoreWesternHegemony]

So we can't detain anchor baby "citizen" children, because they're citizens! Just as American as you and I! But we also can't separate them from their illegal parents, so the only solution is to release the illegal parents into the U.S. Hopefully they'll show up to their hearing, but if they don't, it's cruel to deport them back to a life of poverty and abject conditions anyway! Do I have this right?

[James Pollock]

"So we can’t detain anchor baby “citizen” children, because they’re citizens!"

Duh.

[RestoreWesternHegemony]

You are providing the best argument against birthright citizenship and this catch and release "amnesty" process. You realize that right?

[Last of the Shitlords]

I’m sure he doesn’t. Pollock isn’t known for his self awareness.

[James Pollock]

Oh, noes! The trolls are teaming up against me!

[Brian_davis100]

Ha!
"almost certainly U.S. citizens". ????
Re-write this article when you have some facts.

[NToJ]

Well when the American citizen's father asked ICE if he could make alternative arrangements for the child, ICE officers denied the request. They later regretted the decision and released the American citizen to his uncle. And then they had to settle the ensuing lawsuit, predictably. Pretty fucking stupid on ICE's part.

[bernard11]

Nah. Not stupid.

The agents got to be nasty to an illegal immigrant, which they seem to enjoy, and the government picked up the tab

[James Pollock]

PLENTY of money in the Treasury, to cover this sort of thing. Taxpayers don't mind covering this sort of thing. We need to send a message.

[Brett Bellmore]

" Northwestern University political scientist Jacqueline Stevens estimated that approximately 1% of all immigration detainees from more than 8,000 cases between 2006 and 2008 that she studied were U.S. citizens. "

Since, so long as there's any such thing as deportation at all, there are going to be occasional mistakes, how do we determine an acceptable error rate? Or is the suggestion here that the only acceptable error rate is zero, so that all deportation has to be ended?

[MP]

That's certainly what bugged me about this post/article. Yes, law enforcement errors are bad. And? I'm happy to entertain any and all suggestions regarding reducing error rates. But I'm not seeing how errors are somehow unique to immigration enforcement. Nor did they make any argument that immigration enforcement error rates were uniquely higher than other areas where law enforcement deals with imperfect information.

[Valkanis]

Deporting someone who is a citizen is not a "law enforcement error." It is a serious constitutional violation if it happens even a single time. Pretending like it is just a fact of life that some citizens will be detained and deported is embarrassing.

[Brett Bellmore]

Yeah, you could say the same of any legal proceeding. It's a serious constitutional violation to imprison an innocent man. Still happens with some frequency, and that's an unavoidable consequence of having a legal system.

[NToJ]

"...and that’s an unavoidable consequence of having a legal system."

Right, but we have due process to protect against this. The issue is that there are American citizens who are not receiving due process. That's why it's a good reason to submit purportedly illegal people to due process, to make sure we protect actual American citizens.

[Noscitur a sociis]

What additional process are people due before they're deported?

[Brett Bellmore]

Due process doesn't guarantee you don't get arrested. It gets you a trial.

[santamonica811]

Well, true and untrue. Due Process is one of those things that stops a cop from knocking on your door and arresting you (without a warrant) for crimes she did not personally observe. So, yes, very often due process *does* prevent you being arrested . . . the initial police investigation clears you, or the DA determines that the gathered evidence is insufficient for even an arrest, etc..

[bernard11]

Wait, Brett.

Elsewhere here you claim it's not unconstitutional to execute an innocent man. So which is it.

Thanks, by the way, for not going full Scalia and claiming that no innocent person has ever been executed in the US.

[TwelveInchPianist]

It's not a constitutional violation to imprison, or execute, and innocent man, as long as there is due process. It's also not a constitutional violation to deport someone with due process, and unfortunately courts have ruled that very little process is due.

[bernard11]

TIP,

I understand. Just pointing out that Brett is sort of arguing whatever is convenient at the moment.

And of course there are different opinions as to what constitutes "due process" in any situation. (I understand the courts decide.)

[Brett Bellmore]

Yeah, I'm pointing out that the Constitution doesn't prohibit executing a factually innocent man. Rather, it requires due process to render executing a factually innocent man unlikely.

The law is not constitutionally required to be perfect. It's required to make a good faith attempt to be right.

[Valkanis]

Deporting even one U.S. citizen is a gross Constitutional violation, so yeah, the only acceptable error rate is zero.

[ThomasW]

Similarly, falsely convicting even one person of a crime is a gross Constitutional violation, so the only acceptable error rate should be zero.

Unfortunately, the only way to guarantee an error rate of zero is to never prosecute crimes (or never detain / deport people). There is a tradeoff between convicting/detaining the innocent/citizen and letting the guilty/illegal go free.

[NToJ]

Except the accused is entitled to criminal process in ways that American citizens who are accused of being here illegally are not. That's the issue.

[Noscitur a sociis]

Fortunately, Prof. Manta has not provided a single example of a US citizen being deported, so it appears that part of the system is working, at least.

[MatthewSlyfield]

The US Keeps Mistakenly Deporting Its Own Citizens

One of the Department of Homeland Security's most notorious citizenship identification errors occurred when the agency detained and deported a four-year-old girl to Guatemala back in 2011. Officials apprehended the girl when she arrived in Virginia's Dulles International Airport after visiting relatives in Guatemala, and they detained her for 20 hours, refusing to release her to her parents in the US. They then sent her back to Guatemala, where she remained until her father hired a lawyer for her return three weeks later. Last summer, the government agreed to pay $32,500 to settle a lawsuit for her wrongful deportation and the stress it caused.

"After returning to the States, [she] began to develop symptoms related to the stress of her ordeal. She began to overeat, throw tantrums, and soil her pants during the day," the lawsuit claimed. "She hid whenever people knocked on the door, she refused to let go of her father's hand, and she became frightened whenever the lights were off at night."

[NToJ]

More cases: Pedro Guzman, Mark Daniel Lyttle, Andres Robles Gonzalez, Emilio Blas Olivo.

[Ben of Houston]

Don't be foolish Valkanis. There is a difference between goals and objectives.

A goal is something you aspire to be at. An objective is something that you get punished for not meeting.

For example, a workplace safety goal is always zero injuries. An objective is no more than 2 OSHA reportable injuries a year. Obviously you want zero, but even at the very best, someone is going to trip over their own feet and bust their lip sooner or later.

[Don Nico]

Ben,
What you say is true enough, BUT that does not excuse not having activities and procedures that can reduce rates and tallying these as leading indicators. In the world of safety. Those have proven benefits. In addition there is the system theoretic approach to managing intolerable accidents and their effects. You can download, Prof. Nancy Leveson's Book
"Engineering a Safer World" free from the MIT Press. This approach won't stop near deportation but it could prevent actual dportation of citizens.

[James Pollock]

Since there's always going to be accidental executions in the streets... ("I thought he was going for a gun! How was I supposed to know he didn't have one?")
Let's figure out how many is an acceptable number.

" Or is the suggestion here that the only acceptable error rate is zero, so that all deportation has to be ended?"

Try being outraged from the other direction. Every deportation hearing that is given to a citizen is one that then cannot be given to an illegal.

[MatthewSlyfield]

" Or is the suggestion here that the only acceptable error rate is zero, so that all deportation has to be ended?"

Except there is two separate and distinct type of error here.

False positives (US citizens detained/deported) should be under 0.01%)

If that means a significant increase in false negatives (illegal immigrants not deported), so be it.

[Orbital Mechanic]

We have had plenty of stories now about being a U.S. Citizen does not prevent CBP from harassing you, confiscating property, and outright preventing you from entering your own country.

Why haven't we seen more court actions over this? It really doesn't seem to me this could pass constitutional requirements in any way be it seems to be going on with full impunity. What gives?

[Martinned]

Because the people who fall victim to this typically don't have the money to sue the government. Litigation is expensive...

[bernard11]

They also may be glad to just get the ordeal over with, and not want to spend years in litigation with a government that is obviously hostile to them.

Letting sleeping dogs lie may be a sensible policy.

[DWB]

Government makes mistakes?

Blasphemy!!!!!! Heritics!!!

[F.D. Wolf]

Why arrest and jail anyone for anything, as this will invariably result in the detention of innocent people? Heck, why even have a criminal justice system, as this will surely result in prison sentences for some innocent people? How many people awaiting trials in jail right now are innocent? I imagine more than the 1% figure cited in this piece.

That is why we have a process, which includes hearings in front of an immigration judge where the government must prove that the individual is, indeed, deportable. Obviously no judicial system is perfect, but it would probably operate better if it weren't overwhelmed by those abusing the system, often encouraged by open-borders attorneys and politicians who actively work to undermine the system.

[NToJ]

"That is why we have a process, which includes hearings in front of an immigration judge where the government must prove that the individual is, indeed, deportable."

Do you think this is the process we have for illegal immigrants? Have you heard of an expedited removal process? Did you know that about a year ago, the President said "When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came." So is it safe to say you disagree with the President?

Are there special evidentiary rules in Immigration Court? Why might hearsay be sufficient to prove illegal status but not sufficient to prove murder? Are immigration proceedings civil or criminal? If the former, do you think constitutional guarantees for criminal cases apply? If not, why do you think they shouldn't apply?

[Armchair Lawyer]

So, expedited removal is something a little different. It typically applies to people who have recently crossed the border. The typical example is an border patrol official who catches a van full of people, without papers, who just crossed the Mexican border in the middle of the desert.

And in this case, often they are shipped right back across the border, without a full detention hearing in front of a judge.

Perhaps you think they should all get a full hearing, trial, and so on, and be held for the length of it? Or should they be released on their own parole, with a promise to show up for the immigration trial?

[NToJ]

"It typically applies to people who have recently crossed the border."

First, if I'm an American who has been here for years, but have been accused of being here only "recently", how do I challenge that accusation from ICE if I don't get a hearing? Second, the President has purported to expand expedited removal to people who have been here for less than 2 years, continuously. (The law says 14 days but what does he care?) Without a hearing, I'd have a hard time proving continuous residency for two years. And I've had continuous residency for over three decades, and am a lawyer.

"And in this case, often they are shipped right back across the border, without a full detention hearing in front of a judge."

Right, and if one of those people is an American, that's a real fucking problem, don't you think? So how are you going to ensure that Americans aren't deported under the expedited deportation rules?

"Perhaps you think they should all get a full hearing, trial, and so on..."

Uh, if I was detained by ICE for entering the country illegally, you're god damn right I'd expect a full hearing and trial. Wouldn't you?

"Or should they be released on their own parole, with a promise to show up for the immigration trial?"

Of course, why shouldn't we have bond hearings for illegal immigrants? Is there something unique and magical about that crime that separates it from other crimes? Why the special pleading?

[Armchair Lawyer]

"How do I challenge..."

I might recommend telling the nice ICE official "I am an American Citizen." Perhaps with some combination of "I've been living at this address. Just check". Now, a smart ICE official will probably just kick your case over to the standard deportation hearings given this statement. I'm sure an ICE official who "accidentally" deports US citizens, instead of bumping them to the standard deportation hearings will quickly become an ex-ICE official.

But if you are deported, I might recommend going to the US embassy or border, and explaining your situation. There are, of course, civil responses. And also, probably a very nice lawsuit.

"If I was detained by ICE..."

Yes, I'd ask for a full trial. Assert my American Citizenship, as noted above. ICE isn't that dumb.

"Of course we should have bond hearings".

That's a bigger problem. The issue is...the lack of bond. Many don't have any funds to post. Then there's also the 40 odd percent of people who just...don't show up to their hearings, then disappear into the woodwork. But perhaps you have a solution for that?

[David Nieporent]

I’m sure an ICE official who “accidentally” deports US citizens, instead of bumping them to the standard deportation hearings will quickly become an ex-ICE official.

Are you a child? Have you ever seen a newspaper? What kind of turnip truck did you fall off of to think that government agents get fired for overaggressively enforcing the law?

[Armchair Lawyer]

I have seen a newspaper, and have even read them. Of course, I read the full article, rather than just the headline, and the background behind the story.

Cases of ICE deporting US citizens are rather rare. One case that pops up is that of Peter Shawn Brown. He was held by the local cops for deportation, despite his protests he was a citizen. He was then handed over to ICE. He continued to protest his citizenship to ICE, and...get this...ICE agreed to look at his birth certificate. And, wouldn't you know, once it was verified, he was promptly let go.

See, lawsuits for deporting American citizens have a way of...swaying...how the officials work.

[James Pollock]

"See, lawsuits for deporting American citizens have a way of…swaying…how the officials work."

Do the words "qualified immunity" mean anything to you?

[James Pollock]

"But if you are deported, I might recommend going to the US embassy or border"

Did they provide you with some cash when they deported you, to cover the cost of this travel? (Besides the fact that if I've been deported to country X without my passport, I'm in that country illegally, making travel potentially risky.)

[NToJ]

"I might recommend telling the nice ICE official “I am an American Citizen.” Perhaps with some combination of “I’ve been living at this address. Just check”."

Well fuck, I guess we don't need to have hearings, I'll just depend on the friendly ICE officer to do the right thing. Why even have probable cause affidavits in regular criminal proceedings? If I haven't done anything wrong, I can just tell the police officer that he's mixed up, and he'll let me go!

"And also, probably a very nice lawsuit."

Right. Here's a true story. An American citizen was detained and kept as a deportable alien for three and a half years. The victim had told ICE officers, jail officials, and eventually a judge that he was a US citizen. He had his father's naturalization certificate, and mailed it to the immigration officers, who ignored it. Since immigration courts are civil, he didn't get a court-appointed attorney, and couldn't afford one. He eventually was released--you know, because he is a fucking citizen--and did sue. Although the district judge had awarded him a king's ransom of $82,500 for three god damn years in illegal detention, the appellate court threw the case out because limitations ran while he was fucking detained.

[NToJ]

"ICE isn’t that dumb."

How fucking naive are you? Google Devino Watson. ICE may not be that stupid, but they are mean and malicious.

But if you were detained by ICE within a 100 miles of the border, what difference would it make that you assert your American citizenship? If ICE ignores you, who are you going to talk to? Without a hearing, the only audience you get is with ICE.

"Many don’t have any funds to post."

Having the bond hearing is precisely the sort of place where you can "[a]ssert [your] American Citizenship" to some human who doesn't work for ICE.

"Then there’s also the 40 odd percent of people who just…don’t show up to their hearings..."

Ummm, bond hearings are still constitutionally required in non-immigration cases. You deal with it the same way every court deals with it, by setting bond at amounts appropriate to prevent flight. What's strange here is that you think an American citizen wrongfully accused of entering the country illegally should not get a bond hearing, while an American accused of fleeing the police, or skipping bond, or failing to appear in court, or attempted interstate murder, or any other crime that indicates a severe risk of flight, is still entitled to a fucking bond hearing. Just because you have a bond hearing doesn't mean the court releases you.

[Armchair Lawyer]

Sigh...

So your best case example for why ICE is evil and is gonna deport American citizens is....a 8 year old case, about a convicted cocaine dealer, who wasn't even deported? And in which case, it was clear that the protocol wasn't followed, by accident?

So, now you're afraid when you visit Buffalo, ICE is gonna swing by and instantly deport you to Uzbekistan or another place? And rather than just insist ICE follow its protocol, the entire system which has processed millions needs to be overturned, because of this one case, where the citizen wasn't even deported? That's your logic? And what about the "single case" of the illegal who wasn't deported, and ended up killing someone. Does that factor into the balance at all? No?

There's a balance here. A shift like this would end up in one of two situations. One where it's effectively impossible to deport people, in the massive numbers they come across, due to the limitations in resources, for what is essentially a civil misdemeanor. Or, if you really want criminal/felony level trials, then there should be criminal/felony level punishments. Perhaps change it into a year in prison for illegal border crossing. As a "bonus", that will fix the families illegally crossing problem.

Furthermore, there's nothing wrong with a bond hearing. There is everything wrong with a bond release, without an actual bond being given. Because they don't show up to trial if there's no bond. Just...skip.

[NToJ]

"So your best case example for why ICE is evil and is gonna deport American citizens is..."

Who said it was my best case? It's one that ICE got caught, from the hundreds to thousands of instances in which they've been found to illegally detain American citizens.

"...the entire system which has processed millions needs to be overturned..."

The expedited removal system must be overturned. It's a political, constitutional, and moral hazard. If you accuse American citizens of breaking the law, they should be entitled to a hearing. And the hearing should not be denied just because some LEO says "I don't think this person is an American citizen."

"One where it’s effectively impossible to deport people..."

You're not going to persuade me that Americans should be detained or deported without a hearing because Congress has not supplied sufficient resources to police the border. If the juice isn't worth the squeeze to Congress, so be it.

"...what is essentially a civil misdemeanor."

It isn't "essentially a civil misdemeanor." It is technically a civil misdemeanor. The problem is that the potential punishment (deportation) is not a misdemeanor punishment for an American. That is why immigration courts have been able to operate outside of Article III, imposing massive punishments, but without normal constitutional protections. That's a problem.

"There is everything wrong with a bond release..."

A BOND HEARING DOES NOT REQUIRE A BOND RELEASE.

[bernard11]

Why arrest and jail anyone for anything, as this will invariably result in the detention of innocent people? Heck, why even have a criminal justice system, as this will surely result in prison sentences for some innocent people?

Maybe because a felon, especially a violent one, going free by mistake is much worse than an illegal immigrant going undetected and continuing to go to his landscaping job.

See again: false positive/false negative.

[Armchair Lawyer]

Why do we have laws against littering? Should they be enforced? What does a single wrapper mean, really?

Think about this.

[bernard11]

You think about it.

So far you haven't.

First, what is the rate of false convictions for littering?

Second, the littering has already happened.

Third, how severe are the penalties, anyway?

Fourth, you seem not to understand my point at all.

[James Pollock]

"Why do we have laws against littering? Should they be enforced? What does a single wrapper mean, really?
Think about this."

OK. I think that falsely convicting someone who hasn't littered of littering offends my sense of how America should work. Now, if you get detained for an extended period for it, that doesn't help. If there's a chance you get forcibly removed from the country over it, that REALLY doesn't help.

[ToddR]

It would be really unimaginable to be a U.S. born military veteran and be taken into custody for potential deportation proceedings.

[bernard11]

Hey. That's what he gets for having a Hispanic last name.

[ToddR]

Orwellian future state: ICE: "Place this chip in your palm or we might deport you. It's painless compared to being put in a holding cell."

[MP]

By all appearances, Prof. Marta would be fully on-board with that. I mean, if you want 0 errors, then what better way to have that by having all citizens get mandatory identification implants.

[TW]

It sounds like the issue is that sometimes when illegal aliens are apprehended, they’re with young children (sometimes their own) who were born in the United States and therefore citizens. So unless and until the kids can be placed with someone who is in the United States legally (family member, trusted friend, etc.), they’re technically “detained” rather than leave them unaccompanied. In some cases it may not be clear that they were “citizens” and could end up getting deported with their parents who were in the country illegally and subject to deportation.

[James Pollock]

It's also sometimes the case that groups of minors are detained for being here illegally, and the U.S. citizens don't routinely carry papers proving they're U.S. citizens. I remember a case where they determined that a person had fake I.D., and when they wouldn't admit the ID was fake, they decided "non-citizen" and removed the kid, dumping her over the border with no way to contact her family.

[F.D. Wolf]

Or, alternatively, when the parents of U.S. citizen minors are deported, they go with their parents. The idea that minor children go where their parents go isn't extraordinary; it's reasonable and logical. Family court judges do this every day. Parents are divorcing. Dad lives in the U.S. Mom lives in France. Judge awards custody to Mom; Kid goes to France. "But Kid is a U.S. citizen," doesn't mean anything

[James Pollock]

"Or, alternatively, when the parents of U.S. citizen minors are deported, they go with their parents"

Or alternatively, the PARENTS decide for the children, rather than random people on the Internet.

[markm23]

That's only part of the issue. Adult citizens are also mistakenly detained and (rarely) deported. In one case here, it was a brown-skinned mentally ill veteran, who was arrested for a minor crime. But when he was released from that, the cops turned him over to Immigration, who held him for 3 weeks until his parents hired a lawyer to prove he was a citizen. He claims he had ID proving citizenship on him when arrested - but in any case, one phone call to the VA would have established he was a citizen, and neither the cops nor the Immigration agents could be bothered to make that phone call.

Now, that is neither better nor worse than the cases of people being held for weeks, if not longer, on drug charges because the cops used an inaccurate field test and could not be bothered to send a sample to a lab. These are both cases of depraved indifference on the part of the authorities. I'd favor sending both cops and immigration agents to jail for whatever time any American spent in jail _after_ a simple investigation would have freed them.

[Rev. Arthur L. Kirkland]

Another spirited meeting of Libertarians For Bigoted, Cruel, Authoritarian Immigration Practices and Policies.

The Conspirators must be proud of the following they have cultivated.

[Stephen Lathrop]

What is an acceptable citizen deportation error rate? What is reasonably achievable? It is the rate which applies to the WASP residents of Concord, MA. Or, to avoid too small a sample, let the census bureau figure out the demographic characteristics for that bunch in Concord, match it nationally, and let the deportation experience of that national cohort govern the rate.

[M L]

More agitators for open borders. Keep it up!

[Sarcastr0]

Excluding the middle is an extremist tactic, ML.

Neither NToJ, nor I, nor I think bernard are open borders people. Being against the performative neglect and cruelty of this administration's immigration is not the same as wanting open borders.
Noting that citizens aren't getting due process and that's unconstitutional isn't the same as wanting open borders.

That you are trying to defend both cruelty and neglecting due process by conflating those positions with open borders says a lot about you, though!

[MonitorsMost]

I don’t practice immigration law, but i recently went to an immigration CLE presented by a professional acquaintance which seemed interesting on this issue. The detention and deportation of citizens born in the United States is rare. (My understanding is) that ones that are harder is where the person is a citizen born outside of the United States but are nonetheless citizens through a family member based on the immigration law in place at the time of their birth or relative’s birth. The presenter discussed how a client came to her to begin the legalization process and through research she learned that he and his entire family were actually citizens based on the citizenship of a relatively close family member. The ones where the person doesn’t even know they are a citizen would be incredibly hard to track.

[James Pollock]

Another problem occurs when the person detained has false ID (because they want to smoke or drink, or go to R-rated movies or buy lottery tickets, or whatever.)

[Valkanis]

You might not like "anchor babies," but if they are citizens, then they are citizens. So detaining them is, you know, not a good thing.

[LiborCon]

“This article states the problem, then goes to 11 to compare the current situation to the Chinese Exclusion Act.”

That’s because comparing the US to Nazi Germany has been used so much that it’s passé. Going full Godwin simply shows the speaker has no credibility.

Bitching about a racist law that was passed in the 19ᵗʰ century and repealed 76 years ago displays a more sophisticated level of virtue signaling. And it implicates us with the sins of our fathers. Two birds, one stone.

[NToJ]

"According to the lefty advocacy group Freedom for Immigrants, it’s 34 days on average that people spend in detention facilities during processing."

Was the probable cause affidavit submitted by ICE within 24 or 48 hours? How long into detention were they magistrated? Do you think constitutional due process should apply to American citizens accused of being here illegally?

[James Pollock]

Let's put it this way. There's a HUGE number of illegals in the U.S. If they flee the jurisdiction while being investigated, that's a win. So why the rush to scoop up people who aren't even illegals?

[Valkanis]

The rate is always zero. Yes in reality sometimes mistakes will be made but the attitude has to be that it is never acceptable.

[NToJ]

I don't follow this argument, but is the suggestion here that due process is not due to American citizens so long as the error rate is some minimal percentage? Like, we don't have to have jury trials, so long as non-judicial tribunals only get it wrong sometimes? No constitutional requirement for confrontation of witnesses, so long as the error rate is manageable? What is it y'all are arguing for, here?

[TheAmazingEmu]

The resources spent and error rate can always be reduced by reducing deportations. That isn't to say that the ideal removal rate is zero - I think that would be absurd, but errors are due to volume more than anything else. And, if the excuse for not spending the resources to ensure there's no errors is that there isn't time and money available, they could divert resources from enforcement and removal proceedings until that's no longer the case.

[Robert Beckman]

I’d be fine with up to a 20% error rate with full compensation plus punitive.

Lots of potential specifics, so here’s one.

Anyone improperly deported has essentially been kidnapped, so take the maximum penalty for kidnapping (20 years) multiplied by the average immigration agents compensation (guess: 100k), and make that the presumed damages. If you can show greater damages, you get that.

Then the error rate will self regulate.

[Brett Bellmore]

I'd agree with the full compensation part, but only with the punitive aspect if it could be shown the mistake was deliberate.

You're just trying to make working for the ICE unreasonably dangerous.

[Don Nico]

One just has to distinguish between an "acceptable rate" and an "achievable rate."
The acceptable rate is zero, just as with workplace accidents, the achievable rate is as low as possible.
But just counting errors does not help lower the rate. Lagging indications never do that. One has to consider training and reviewing procedures that may lower errors. Tracking these leading indicators do have the effect of lowering actual rates.

[MP]

Too bad Prof. Manta doesn't discuss that book, or the basic concepts around error rate, or even acknowledge it.

The point is that it's a shitty thought piece and a shitty post that doesn't make any attempt to grapple with the real world challenges related to immigration enforcement/individual identification and accept that many LE errors are good faith errors.

[bernard11]

just counting errors does not help lower the rate.

That depends on what you do with the data.

[RestoreWesternHegemony]

I don't consider them citizens, even if liberal judges and traitors like yourself do. I'll never consider these genetically inferior interlopers to my countrymen.

[RestoreWesternHegemony]

Before you ask me to cite my sources regarding the inferiority, see the average IQ for Guatemala. 79. Meaning that the average Guatemalan is functionally retarded.

http://worldpopulationreview.com/countries/average-iq-by-country/

[Dilan Esper]

"I’m not particularly worried."

This is reminiscent of Justice Scalia's opinion that executing the innocent isn't unconstitutional.

It's a really easy position to take when it won't happen to you.

Note that, for instance, conservatives don't accept this logic on gun control. There's a .02125 percent chance that the government might improperly confiscate someone's guns because of a registration requirement? That's too much! Can't have gun registration!

The fact is, if you were one of these US citizen children, or related to one, you wouldn't say that you weren't "particularly worried" about erroneous deportations. You would be pissed. Just like Justice Scalia wouldn't tolerate a system that might execute an innocent member of his own family. It's only when it's other people who bear the brunt that people find this sort of reasoning acceptable.

[chemjeff radical individualist]

I’m not particularly worried.

Let me guess... you weren't one of those 'accidentally' deported?

[Dilan Esper]

" It might be unavoidable based on their parent’s lawbreaking."

If only there was a source of wisdom in Western culture that said something about suffering the sins of parents on the children....

[NToJ]

"...we should also have an immigration system..."

We don't have to have open borders. We could just have due process for people seized by ICE. That way, Americans seized by ICE would get due process. Which is what they'd get for all other crimes, except the ones that ICE enforces. Why the special pleading for immigration crimes?

[MP]

We do have Due Process. We don't have Perfect Process. Because this is the real world. We can fine tune Due Process. But occasional failures of Due Process are to be expected, regardless of how much you fine tune it.

[RestoreWesternHegemony]

Firstly, there's a big difference. Black Americans descended from African slaves were brought here forcibly and against their will. The third worlders present here post 1965 Immigration and Nationality Act were foisted upon an unwilling populace. It's the difference between a family adopting a puppy and deciding they don't want him because it's a lot of work and a litter of sick puppies being dropped off in a family's house and then being told they are their responsibility.

Secondly, I do think that blacks are largely a problem and will be a financial and cultural burden on us forever. There's no reason to replicate that with 100 million additional low IQ people.

[NToJ]

So why is Due Process different for American citizens accused of illegal entry into the United States, than it is for other crimes?

[Sarcastr0]

NToJ is not arguing for no errors like some on here are, he's arguing for due process.

Read what he's saying again. We don't have due process, as defined by the minimum process American citizens must get. That's not acceptable in a subset that can sometimes include American citizens.
Add in that due process might lower the number of American citizens being detained or deported wrongly, and it's hard to see why that's not going on.

[bernard11]

We do?

Let's see. The kid's father showed the agents the kid's passport, and repeatedly asked to call a relative or friend to take care of him.

Doesn't sound like due process to me. And yeah, it's one case, but just another example of an out-of-control agency.

[Armchair Lawyer]

And the kid was released to his uncle. Ten hours were spent in US federal officials care. Ideally it wouldn't have happened. However, it's not exactly world ending.

[NToJ]

@Armchair,

"However, it’s not exactly world ending."

This is asinine. There has never been a constitutional violation that ended the world.

[Armchair Lawyer]

@NToJ,

Literally hundreds of American citizen children are kept by US authorities of one type or another for a matter of hours every year. It happens. They're held, then they're released when someone comes to pick them up.

[James Pollock]

"Literally hundreds of American citizen children are kept by US authorities of one type or another for a matter of hours every year."

Literally millions of American citizen children are kept by government authorities for thousands of hours (each) per year.

[Sarcastr0]

FFS, what kind of lawyer argues that proper procedure doesn't matter so long as the outcomes are OK?

[Brett Bellmore]

"This is reminiscent of Justice Scalia’s opinion that executing the innocent isn’t unconstitutional."

Well, Scalia was clearly right about that: Executing the factually innocent isn't unconstitutional. Executing the innocent without a proper trial and conviction first is unconstitutional. Just as executing the guilty under those circumstances is.

The legal system doesn't have access to perfect knowledge of factual innocence and guilt, it has to make due with procedures like trials and evidence, instead. And they're not rendered unconstitutional by being less than 100% reliable!

We're promised due process, not perfect outcomes.

[bernard11]

What is an acceptable error rate?

This is a standard false positive/false negative problem. The "error rate" you are asking about is the false positive rate. Reduce that and you increase the false negative rate, so the proper question is the relative harm done by each. (Of course ICE should try to reduce both, but the tradeoff exists regardless.)

IMO, which will surprise no one, deporting, or even detaining for any length of time, a citizen is vastly more harmful than letting some quite large number of illegal immigrants remain undetected, so I want to see a very low rate of false positives, much less than 1%.

[David Nieporent]

The article doesn’t say how many citizens have been improperly *deported*, just detained until they can prove they are citizens.

Innocent until proven what?

[bernard11]

Actually, I'd prefer ICE spent less money on pre-dawn raids.

These people are not Mafia dons.

[bernard11]

Your .0215% figure is incorrect.

You are taking citizen deportations as a percentage of detentions.

And there is this:

"Recent data suggests that in 2010 well over 4,000 US citizens were detained or deported as aliens,

If we accept your 400,000 detentions a year as correct, then we're back to 1%.

[bernard11]

And false detentions?

[bernard11]

That figure is wrong. You compare deportations with detentions.

[Armchair Lawyer]

What about false detentions?

A false detention is just an arrest and holding. One that occurs to millions of Americans citizens for a variety of reasons, both related to illegal immigration and not related to it.

[bernard11]

OK, but that doesn't answer my question, nor does it make m_k's figure correct.

[James Pollock]

"What about false detentions?

A false detention is just an arrest and holding. One that occurs to millions of Americans citizens for a variety of reasons"

Millions of American citizens are falsely arrested? You got a source for this claim?

[Brett Bellmore]

"False" arrest isn't mistaken arrest, it's deliberately arresting somebody you know you lack cause to arrest. So let's get that out of the way immediately, the number to compare to is the number of citizens every year arrested and then not subsequently convicted, not "false arrests".

Let's see, according to statistica, 10.5 million arrests for all reasons in 2017. The conviction rate for felonies in the US is about 90%, and not everybody arrested gets tried for a felony, so...

Yeah, I'd say that in excess of a million Americans get arrested every year, and ultimately released without a conviction.

[Dilan Esper]

So you would make that argument if one of your own family members were in danger of execution?

It's cheap and easy to slough off the rights of people you don't care about.

[Dilan Esper]

That Bible verse means EXACTLY what I am quoting it for.

[bernard11]

The origin of the separation of Church and state that we love in the West? Yes, that came from Jesus actually.

That's rich, given that various Christian churches spent nearly two millennia fighting for, and usually gaining, control of governments to a greater or lesser degree.

Guess they weren't paying attention.

[RestoreWesternHegemony]

I do not think most are, no. My countrymen are people who share my values. I think the vast majority of American blacks see themselves on the outside of America, and not as part of it.

[Armchair Lawyer]

The argument being made on one side is that "even one false detention is too many, and we must have a 0% false detention/deportation rate".

The argument made on the other side is that an actual 0% rate isn't realistic, because errors and mistakes happen. One tries to minimize such errors and mistakes, of course, but they do happen, and there are channels to rectify such mistakes.

Now, of course, one could push even further towards avoidance of such mistakes (which we'll call false positives). But then the false negative rate (not arresting those who should be deported), would get much higher. So, a balance between the two is needed.

[James Pollock]

" I’m taking that 34 days in detention (on average) as the worst case scenario for a citizen detained for being wrongly thought of as being an illegal alien."

That's not the worst case, though. The worst case is being detained and then deported to a foreign country with no resources to return, AKA "exile".

[NToJ]

"Of course constitutional due process is due every person, even non-citizens."

Unless you're a citizen who has been detained by ICE for expedited removal, in which case you aren't entitled to a hearing. While this process was ordinarily limited to within 100 miles of the border, for people who have only been in the country for 14 days (a fact which you would ordinarily dispute at a hearing), the President has directed DHS to expand expedited removal to the entire country. Americans detained (wrongfully) as illegal immigrants aren't entitled to a bond hearing.

The "tragedy" here is that American citizens have different procedural protections if they are accused of being here illegally rather than committing some other crime. Because there is no serious dispute that Americans are frequently accused (wrongfully) of being in the country illegally, some accused Americans are being treated differently than others.

[bernard11]

Why would you take 34 days as the worst case? That makes no sense.

[bevis the lumberjack]

That's his point. You've got deportations in the numerator and detentions in the denominator. The percent error you get by doing that is bogus.

And honestly, citizens shouldn't be detained, either, without probable cause. "I think you're an illegal" isn't probable cause.

[bernard11]

You are simply wrong, m_k.

400,000 detained or deported, of whom 85 are citizens wrongly deported.

But not all 400,000 are deported, so dividing 85 by 400,000 is meaningless.

Looks like 1% it is.

[James Pollock]

"I never thought you’d get to the point that you’d argue against elementary school math itself!! Freedom is saying 2+2=4 I guess. "

If arguing that 2+2=4 is arguing AGAINST elementary school math, you must have had a rough couple of years!
(Yes, I know, it's a typo, and I don't normally make fun of people who make typoes because I make typoes. But that typo is particularly unfortunate.)

[bevis the lumberjack]

"I believe in the Constitution, but only when it suits me". Got it.

[Armchair Lawyer]

I'm pretty sure RWH is a troll. Perhaps Russian. In any event, it's best not to engage.

[RestoreWesternHegemony]

Who said anything about the Constitution?

[NToJ]

If this is the argument, it makes me think y'all are not understanding the point of the error rate. If you have a government policy that has the potential--even a minor potential--to deprive American citizens of constitutional rights, the process has to satisfy the Constitution's procedural protections. Deportation proceedings do not currently satisfy the Constitution's procedural protections. The fact that Americans are put through that process and deprived of constitutional rights, without the same protections enjoyed by violent criminals (as an example), is the problem.

[James Pollock]

"Now, of course, one could push even further towards avoidance of such mistakes (which we’ll call false positives). But then the false negative rate (not arresting those who should be deported), would get much higher. So, a balance between the two is needed."

Meh. There are only around 400,000 deportation hearings available per year. Every damn one of them should be used for someone who's deportable, as long as the pool of deportable people far exceeds the number of deportation hearings available. When there's only 300,000 or so illegals present, THEN some of them can go to American citizens.

[Armchair Lawyer]

Just to be clear, are you just referencing expedited removal, or all removal proceedings?

[James Pollock]

" You want to stop the mistaken (very small) number of wrongful deportations, you should want to end the flood of illegal immigrants, so ICE isn’t so busy. "

If the rate of illegal arrivals fell to 0.00/yr, ICE would still have work to do for the next 25 years, quite possibly longer.

[Robert Beckman]

Respondeat superior. The agency pays the damages, not the agent themselves. That gives the agency incentive to have policies that minimize violations.

Leave open personal damages if the violation was intentional, but lay out for inadvertent violations regardless.

This would, of course, require its own statutory scheme.

[ducksalad]

the "mistake" was "deliberate".

Yeah, a typo but enough to suspect you've at least unconsciously prejudged these types of cases in favor of the officers. IMO it would be a for-cause strike off the jury.

But more importantly, you've implicitly approved a bunch of other categories like "grossly negligent", "depraved indifference", "knowingly but not deliberately", etc. Officers should be personally liable for those as well.

[Sarcastr0]

Spoken like a non-believer

The moral values faith puts forth are going to inform one's policy choices.
The specifics of those values may vary, but your denying they exist at all using the render unto Caesar quote, which makes me wonder about your own faith.

[James Pollock]

It's true... there's a Scriptural citation for pretty much every position a person can take.

Doesn't mean that one isn't applicable to a specific set of circumstances, though.

[James Pollock]

" actual Christian Theocracies are pretty much limited to the Papal States."

Not that the good people in the Bible Belt aren't TRYING.

[markm23]

"But actual Christian Theocracies are pretty much limited to the Papal States." In the present, that's true, largely because secular monarchs struggled to maintain their independence from the Papacy for over a thousand years. In the past, the Byzantine Empire was a theocracy, and Henry VIII sought to make England another one.

[James Pollock]

If only we could deport him to be with his countrymen, EXCLUSIVELY. But (alas) birthright citizenship...

[James Pollock]

"at worst he will be detained 34 days, on average"

"at worst" and "on average" are highly different things.

If 34 days of unlawful detainment are acceptable to you, when do you plan to serve yours? Ha, ha, just kidding. YOU don't get to decide when.

[NToJ]

Expedited removal has the least due process, so start there. But non-expedited removal proceedings also have less due process than criminal proceedings, since they're under immigration (rather than Article III) courts, are civil rather than criminal, etc.

[ducksalad]

"gives the agency an incentive..."

A fairly weak incentive. Going over budget has few consequences and might even be a nice bullet in the Powerpoint requesting a larger budget next year.

If the damages came out of a zero sum budget AND the financial unit was small enough (say less than 100 employees) then the incentive might be significant.

[Brett Bellmore]

It's cheap and easy to demand that people be irrational because some rare problem might personally affect them, and they might be expected to be irrational in that circumstance. There's a reason we ask people to recuse themselves from decisions where they're personally impacted.

Screw that. I'm not sloughing of anybody's rights, I'm identifying what the right actually is to: Not to a factually correct outcome, but to a process designed to mostly produce factually correct outcomes.