A banner drops from a hotel window while President Obama holds a fundraiser inside. Jacek Boczarski/Demotix. All Rights Reserved
In 1996, two laws were passed that dramatically changed deportation practices in the United States. Since the implementation of these laws in 1997—the Illegal Immigration Reform and Immigrant Responsibility Act, and the Antiterrorism and Effective Death Penalty Act—over five million people have been deported from the United States. That’s over twice the total of all deportations that took place prior to 1997, when people facing deportation had many more options for appeal. Although immigration reform is not on the immediate political agenda, past proposals have not included a recommendation to overturn the 1996 laws.
It is these laws, however, which lie at the heart of current problems. They transformed deportation from a relatively rare practice into an everyday function of immigration law enforcement. Any non-citizen in the United States, even a legal permanent resident, even the adopted child of a US citizen, has become vulnerable to deportation. For some adopted children, youthful indiscretions could result in being severed from the only families they have known. John Gaul, for example, was deported to Thailand at age 19 after being convicted of car theft, despite being the adopted child of US citizen parents.
These legislative effects continue to be felt across the US, particularly amongst the Latino community. A recent Pew survey revealed that over a quarter of Latinos know someone who has been deported or detained in the past year. Last year, about 100,000 parents of US citizen children were removed from the United States. That’s ten times as many as the sum total of all parents of US citizens removed between 1997 and 2006. Not only is mass deportation on the rise, it also targets specific populations. About 90 percent of deportees have been men, and nearly all (97 percent) are from the Americas, even though about half of all non-citizens are women and only 60 percent of non-citizens are from the Americas.
Mass deportation often happens with minimal due process. In 2009, according to the New York Times, 231 immigration judges heard more than 300,000 cases—an average of more than 1,200 for each judge. Dana L. Marks, an immigration judge in San Francisco, explained in the same report that asylum hearings often feel “like holding death penalty cases in traffic court”. Despite the seriousness of the cases involved, immigration court is an administrative court without the due process protections of criminal courts. In immigration proceedings, you have no right to legal representation. You can be detained without bond. You can be deported without a full hearing. The discretionary power of judges is severely restricted. Those convicted now face mandatory and automatic deportation, no matter the extenuating circumstances.
Deportation without due process
Current deportation laws ignore rights of due process. Joe Velasquez, for example, was at a party in 1980 when an undercover agent approached him and asked where he could purchase drugs. Velasquez, who was in his early twenties at the time, pointed the undercover agent to a drug dealer. This action led to Velasquez getting a drug conviction and five years of probation. Once that was over, Velasquez never got into trouble with the law again. He married a US citizen, had three children, and opened up a sandwich shop in Philadelphia. He figured his past was behind him. It would have been if he had been a US citizen.
Unfortunately, Velasquez was a Panamanian citizen, and a legal permanent resident of the United States. In 1998, at the age of 52, immigration agents detained him at the airport on his way home from vacation. Velasquez was then taken to Hudson County Jail, where he was to be detained until he could be deported to Panama. The 1996 legislation created a situation where Joe faced mandatory deportation to Panama, a country where he had not lived since he was five years old.
Joe Velasquez’s case is emblematic of the lack of due process in deportation proceedings. Due process refers to the establishment of appropriate procedures prior to subjecting anyone to punishment or the deprivation of liberty, yet Velasquez did not have the procedural protections normally accorded in criminal proceedings. This lack of procedural protections was significant in three ways:
1) As a non-citizen facing deportation, he did not have the right to a bond hearing to determine whether or not he should be detained.
2) His detention and deportation were mandatory. If the immigration judge had the opportunity to weigh all of the equities of the case through a review, he might have found that Velasquez’s three decades in the United States, family ties, and evidence of rehabilitation meant he did not deserve permanent exile.
3) Joe’s deportation order was retroactive: although his 1980 drug conviction did not lead to deportation when he was convicted, a change in laws meant he could be ordered deported retroactively.
The rights to due process and a fair trial are fundamental to the democratic tradition in the United States, yet they do not apply to non-citizens facing deportation. This is because deportation proceedings in the United States are civil matters rather than criminal procedures.
Deportation laws are not only draconian. They are also disproportionately applied to Caribbean and Latino men. As I show in my forthcoming book, Deported: Immigrant Policing, Disposable Labor and Global Capitalism, Jamaican and Dominican male legal permanent residents are five times as likely as other legal permanent residents to be deported.
The racialised and gendered nature of immigration law enforcement—specifically the targeting of black and Latino men—should not surprise anyone familiar with the history of state repression in the United States. The enslavement of African Americans, the internment of the Japanese, and the mass deportation of Mexicans in the 1930s were all official state practices that targeted specific ethnic or racial groups.
In today’s political climate of colourblind racism, it is unacceptable to have a policy that explicitly targets certain groups. However, it is legal and acceptable to have a policy that—in its implementation—produces radically and racially disparate outcomes. Insofar as deportation laws are colourblind in their language, it is legally permissible that they are discriminatory in practice. It is well past time that these 1996 laws are overturned, as there can be no legitimate justification for these racially coded patterns of deportation and vulnerability.
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