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Why Undocumented Migrants Deserve More Legal Protections

Deportation as Punishment

by TANYA GOLASH-BOZA

Negril, Jamaica.

Undocumented migrants are not criminals. Detention is not prison. Deportation is not punishment. These are truths in the legal system of the United States. However, undocumented migrants are treated like criminals; detainees feel as if they are in prison; and deportees experience their exclusion as punishment.

A person is undocumented if they have violated provisions of the Immigration and Nationality Act (INA) by overstaying their visa, entering the United States without inspection, ignoring a deportation order, or something similar. None of these are crimes – and there is no punishment for them. Instead, if a person is found to be in violation of the INA, they face detention and then deportation.

An undocumented migrant who has lived in the United States for thirty years, who has U.S. citizen children and grandchildren can be ordered deported without due process. He has fewer rights at his trial than does a murder suspect. Unlike murder suspects, he can be arrested without a warrant. He can appeal his case by applying for cancellation of removal, but may be detained while doing so, has no right to appointed counsel, and may have no right to judicial review. Most of the evidence he may wish to present – such as his ties to the US and his lack of ties to his home country – will be inadmissible. As deportation is not punishment, immigration trials are not under the purview of the judicial system and people facing deportation have few procedural protections.

Deportation is Not Punishment

Deportation is not punishment – it is the civil penalty for violating the INA. People who face deportation are not given the same constitutional protections given to suspected criminals. They have no right to appointed counsel, no right to a jury trial, and, often, no right to judicial review. Deportation is an administrative procedure applied to people who do not have the legal right to remain in the United States. For example, a non-citizen who commits a crime in the United States first completes any jail or prison time that is mandated as punishment for their crime. If that criminal conviction renders them deportable, they are ordered deported upon completing their sentence. As deportation is not punishment, the United States government is not violating the International Covenant on Civil and Political Rights (ICCPR) that both indicates that a person should not be punished twice for the same crime and that people should not be discriminated against because of their national origin.

Article 14 of the ICCPR (which the U.S. has ratified) reads “No one shall be liable to be tried or punished for an offence for which he has already been finally convicted.” Legal permanent residents who are convicted of certain crimes in the U.S. face deportation after serving their sentences. The decision as to whether or not they are to be deported is made by an immigration judge. However, it is not technically correct to say that they are punished twice for a crime – as deportation is not punishment. For example, if a citizen and a non-citizen both shoplift $900 worth of clothes and both are sentenced to 18 months in prison, the citizen goes free after serving her time, yet the non-citizen is detained and faces deportation after serving her time. Although the non-citizen is treated differently for the same crime, this is not in violation of Article 26 of the ICCPR which states that “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination … on any ground such as … national or social origin, … birth or other status” because detention and deportation are not punishment.

Deportation Feels Like Punishment

Nearly all of the 156 deportees that I have interviewed over the last year in four countries felt as though their deportation was punishment, either for being in the US illegally or for committing a crime.

O’Ryan, a Jamaican citizen, moved to the United States as a legal permanent resident when he was six years old. When he was 25 years old, O’Ryan was deported to Jamaica because of a drug-related conviction. When I spoke to O’Ryan, he had been in Jamaica for seven years and continued to have trouble getting adjusted to life in his birth country. He told me he understands he made mistakes, but did not see it as fair that he should pay the rest of his life for those mistakes. He doesn’t see a future for himself in Jamaica, where he feels like a foreigner. He told me “I shouldn’t be deported because I’m really not a bad person.” For O’Ryan, deportation feels like a cruel punishment that he never had the chance to contest. His deportation was an automatic consequence of his drug conviction. He had no opportunity to explain to a judge that he grew up in the United States, that he was a college student, and that he had no ties to Jamaica.

Nearly all of the deportees with whom I have spoken have told me that they experience their deportation as punishment. However, since deportation is technically a regulatory procedure and not a punitive procedure, non-citizens do not have the right to contest their deportation in the same way they would had they been accused of a crime.

My research makes it clear that non-citizens in the United States often feel as if they are treated like criminals – even if the laws indicate that they are not criminals but immigration violators. In terms of human rights treaties, which matters more? Should we believe the legal documents that allow one to argue that no human rights treaties are being violated or should we listen to the experiences of people who feel that they are treated as criminals?

As a sociologist, the answer to this rhetorical question is clear. If deportees experience their deportation as punishment, then it is. Insofar as deportation is often experienced as a severe punishment, often worse than the punishment for any criminal conviction, it should be treated more carefully in U.S. courts. There is a tremendous difference between an undocumented migrant who comes to the U.S. with the goal of working for two years and returning to his home country and a legal permanent resident who was brought to the U.S. as an infant. Deportation has vastly different meanings for those two individuals. For the former, it might be experienced as an administrative procedure – especially if he has already met his savings goal in the U.S. and was preparing to leave anyway. For the latter, deportation after serving a year in prison for a drug charge could be the most cruel punishment conceivable. This is especially the case if, for example, this latter young man is deported to Haiti and does not speak Creole or to El Salvador and has gang-related tattoos. Insofar as deportation is often experienced as punishment, courts must take the matter more seriously and allow non-citizens to present more evidence against their deportation than has been the case, especially since the implementation of the 1996 laws.

Tanya Maria Golash-Boza is an Assistant Professor at the University of Kansas. She blogs at http://stopdeportationsnow.blogspot.com

 

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