Imagine you are placed on trial. When you ask what you are being tried for, no one responds. When you ask for a lawyer, you are refused access to one. When you ask to face your accuser, you see no person step forward. In this situation, there is not much room for a “fair” trial, as your 6th Amendment guarantees have been violated.
For migrants in the United States, this situation is a serious reality. In my last article, I explored disparities in legal rights between migrants and nonmigrants in the United States. Concerningly, courts will not appoint attorneys for migrants who are unable to afford counsel, creating an especially staggering inequity that begs a question. Why are migrants in the U.S. denied certain legal liberties despite their classification and treatment as criminals?
Eroding Legal Rights through the Supreme Court
The Supreme Court first ruled that deportation was a “civil” sanction rather than a “criminal” one in 1893, rendering deportation as an “administrative mechanism” meant to return immigrants to their native countries rather than a “punishment” imposed on a charged convict. Thus, deportation proceedings are not considered criminal trials despite the criminalization of immigration itself, and the same rights and protections guaranteed by a criminal trial do not hold for deportation.
Since the Supreme Court’s decision, Congress has gradually and deliberately expanded the number of crimes that may deem an individual deportable, and immigration law violations go hand-in-hand with criminal prosecutions. This unjustly imposes the notion that immigrants facing removal are not entitled to the same constitutional rights provided to other defendants facing criminal punishment.
Even relatively minor offenses may lead to detention and subsequent deportation, due, in part, to the increasing role that police play in the immigration enforcement system.
Deportation as an All-Encompassing “Mandate”
The grounds of deportation have no statute of limitations, therefore, immigrants may be placed in removal proceedings regardless of how long ago the misconduct occurred or whether the individual can provide evidence of rehabilitation. This grants courts the ability to initiate removal proceedings for lawful permanent residents, or green card holders, who were convicted for minor offenses before receiving their LPR status. Consequently, many migrants are hesitant to apply for full-fledged citizenship for fear that law enforcement may discover an old criminal conviction that could lead to deportation.
Not only can immigrants be deported without a statute of limitation, but they can also be deported for engaging in conduct that was perfectly legal at the time, but was later deemed illegal. This was famously highlighted in the 1954 Galvan v. Press case, where the court upheld the deportation of the petitioner for joining the Communist party, even though he did so before it was unlawful. By classifying deportation as a “civil” penalty, the Supreme Court encourages the use of removal proceedings as a consequence of engaging in conduct that constitutionally could never be the basis for criminal prosecution.
Classifying and Criminalizing Immigration
The “civil” status of immigration explains why officers do not read migrants their rights after they are arrested, as well as why the government does not appoint attorneys for those who cannot afford one. Migrants do not have the ability to challenge an order of removal for being “cruel and unusual,” severely limiting their options to almost none if they cannot afford an attorney. And, out of the 500,000 people in detention, only about 30 percent are able to acquire counsel. Even when attorneys are willing and able to defend a detained client, detention officers enact policies — like routinely refusing to allow attorneys and their clients to schedule their calls — that intentionally impede upon the legal process.
While the wording that our Supreme Court chose to use in 1893 sounds harmless, the intent was more malevolent. Our brain is far more likely to have a negative association with the word “criminal” versus the word “civil” — a word that is neutral to most. By stating that deportation is a civil matter, the court almost neutralizes the public view of deportation in relation to immigration. Given the increasing criminalization of immigration, the permanence of this act, and the emotional and physical burdens that a migrant experiences during deportation, it is unjust to support the notion that deportation is not punishment.
Contrasting Criminal Trials and Deportation Proceedings
Perhaps most important to focus on are the consequences of choices in wording in the immigration system. Deeming these acts “civil” allows society to continually impose harsh punishment on immigrants, even though they are not technically being tried in a criminal court. The differences between criminal trials and deportation proceedings puts migrants in a position where it is virtually impossible for them to win their proceeding, resulting in often permanent relocation from the U.S. Among these differences are the lack of judicial independence and the lack of an adequate discovery process.
In contrast to criminal trials, deportation proceedings do not give migrants the ability to undergo their removal proceedings in a state other than the state of apprehension. Moreover, deportation may even occur without a hearing, unlike criminal trials, and migrants are denied their right to a speedy trial. In fact, the American Immigration Council cited that almost one in three deportations from the United States occurred following an order of removal from an immigration judge. Yet, “after factoring in ‘stipulated’ orders of removal, it is likely that fewer than 25 percent of removals involved immigrants who appeared in person before an immigration judge.”
The ramifications that migrants face as a result of this conflict between the criminalization of immigration and the civil status of deportation are life-changing. For a comprehensive list of the consequences of our flawed legal system, the article I’ve referenced by the American Immigration Council is a fascinating read and a wonderful resource.
Padilla v. Kentucky
While most of this information may not leave much room for optimism, the 2010 Supreme Court case Padilla v. Kentucky may give us a sliver of hope. Although the Supreme Court decided not to overrule the notion that deportation is not a punishment, the Court recognized that, “deportation is a particularly severe ‘penalty’” and that “deportation is . . . intimately related to the criminal process.” Furthermore, the Court acknowledged that recent modifications in our immigration law have essentially rendered removal an automatic result for noncitizen offenders.
While the existing immigration system refuses to uphold due process rights for noncitizens, the Supreme Court has begun to call attention to the inequity and malpractice present in our modern immigration enforcement practices.
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