By Daniel Kanstroom, Professor of Law at Boston College Law School
Good news: The major U.S. immigration enforcement agency has reported that “The border has been secured.” Bad news: That was in 1955 and nothing similar has been repeated since. Worse news: INS also recognized that “the prevention of illegal entries…is, in the long run, more economical and more humane than the expulsion process.” Worst news: The undocumented population now approximates 12 million. Despite recent Administration initiatives aimed at so-called “Dreamers” (the most innocent and the “best and the brightest” among the undocumented), massive deportation enforcement remains the dominant reality. Most frustrating news: No set of public policy issues is as widely misunderstood and as intractably resistant to rational solution. A virtual consensus among experts in the field as to comprehensive visa reform including work visas that match the realities of the labor market, better border control, some sort of legalization program for those already here, and flexible future enforcement discretion has yielded no legislation.
Meanwhile, the United States continues a radical deportation experiment of unprecedented size and ferocity. The experiment has now continued for more than a decade. It is time to consider what it has accomplished and what it has wrought. The story is grim: deportation has cost much, achieved little, and caused tremendous pain and suffering. It is also widely misunderstood. Few realize, for example, that many deportees are not “illegal aliens.” All over the world, hundreds of thousands -- maybe millions -- of former U.S. legal permanent residents, people with green cards, families, and jobs in the United States find themselves scattered in an odd, unplanned new American diaspora.
Deportation has developed into a huge, expensive, and dangerous enterprise. If we count deportation events (including various mechanisms for what are technically called “removals” and “returns” through which a person is compelled to leave U.S. soil by government agents) over the last twenty years, the total number is around 25 million.
How did this experiment begin? In some ways, the system began changing in 1986, following the last great enforcement compromise, when legalization and employer sanctions were paired. But in 1996, following erroneous reports that the Oklahoma City bombing was the work of “aliens,” two laws passed quickly and were signed by Pres. Clinton. These laws dramatically changed what, until then, had been a comparatively small enterprise, with various safeguards allowing judges to exercise mercy and compassion. Why has it continued? September 11, 2001 is part of the answer. But the bigger truth involves more complex political considerations. Harsh penal laws are always easier to enact than to repeal. Scapegoating is frequently irresistible. And supporting the rights of “criminal aliens” is not a likely path to electoral victory.
Positive results are hard to see: the billions spent on deportation have not stemmed the tide of migration north in any meaningful way. The undocumented population in 1990 was estimated at about 3.5 million. By 2000, it was some 8.5 million; and by 2008, before the economic crash, it was about 12 million. Of course, the increases might have been greater without such enforcement, but the same powerful forces that induce the undocumented to risk violence and death to come north also impel them to risk deportation.
Border control is not the goal of deportation of legal residents. Here we encounter more complex goals of crime and social control. But the best social science research has shown little positive effect, if any, on serious crime rates from deportation. The vast majority of criminal deportees were convicted of relatively minor offenses. Do not be fooled by the term “aggravated felony,” a category in which many deportees have found themselves. It sounds bad, and in some cases it is. But it has included simple possession of drugs, petty larceny, simple assault, and driving while intoxicated, among other misdemeanors.
Moreover, many deportees never should have been deported in the first place. The Supreme Court has held, in a series of cases (some 8-1 or unanimous) that the government's theory of deportation in many thousands of cases was simply wrong. The Court has also recognized that many criminal defense lawyers did not understand immigration law and, if they advised about deportation at all, they often advised badly. I get calls every week from deportees from all over the world who have learned that the government’s reason for deporting them was incorrect. But for most deportees and their families, there is no recourse. The Board of Immigration Appeals has said that once they are deported, they cannot re-open their cases. They have “passed beyond our aid.”
What has the experiment wrought? Deportation has forcibly separated hundreds of thousands of families, many with U.S. citizen children or elderly parents.For the deportees, it is a depressing, isolating, and even life-threatening experience. In 2000, for example, the Haitian government imposed mandatory, indefinite detention on all U.S. criminal deportees under atrocious conditions including a lack of basic hygiene, malnutrition, pervasive, brutal mistreatment and very poor quality health care. Some suffered from beriberi, AIDS, and tuberculosis. Young men who have been sent back to El Salvador and Honduras have faced well-documented abuse by police and sometimes fatal acts of violence from gangs. Dominican and Jamaican deportees are ostracized and shunned. Their job prospects are few, their life prospects dim.
In 1920, Louis Post, formerly Commissioner of Immigration, wrote a powerful book about a “Deportations Delirium.” He criticized actions by the young J. Edgar Hoover and others against such anarchists as Emma Goldman. But in 1920, the total number of deportations was 14,577 and immigrant admissions totaled 430,000. The ratio of deportees to immigrants was (roughly) about 3:100. Since 1996, the U.S. has admitted about 14.5 million legal permanent residents, a large number befitting a “nation of immigrants.” But total removals and returns have exceeded 20.7 million, for a ratio of 144:100, a nearly 50-fold increase from 1920. Now that is a delirium. And it is in dire need of a cure.