Deportation Constitutes Cruel and Unusual Punishment

“As Justice Brandeis recognized long ago, deportation is akin to the loss of property or life, or ‘all that makes life worth living.’” (Bender’s Immigration Bulletin, 1997, 2(18), p. 737)

Donald Trump recently suggested that U.S. citizens who burn the American flag should be punished, perhaps by being stripped of their citizenship. This elicited a reminder that the U.S. Supreme Court has ruled that revoking someone’s citizenship in order to punish that person for a crime is unconstitutional, violating the Eighth Amendment’s prohibition of “cruel and unusual punishments.” In that ruling, the court stated that revocation of citizenship

“… subjects the individual to a fate of ever-increasing fear and distress. He knows not what discriminations may be established against him, what proscriptions may be directed against him, and when and for what cause his existence in his native land may be terminated. He may be subject to banishment, a fate universally decried by civilized people.”

For undocumented immigrants and other immigrants vulnerable to deportation from the U.S., the court’s language describes their predicament, especially for those with deep roots in the U.S. They fear losing their work permits (those who have them), apprehension, and deportation, and if expulsion comes, it is devastating. (It is undoubtedly also devastating for those who have spent less time in the U.S., especially if they are sent back to a country where they are endangered, but here I am limiting my focus to those immigrants whose experience is very similar to that of a denationalized citizen.) The ruling thus suggests that the suffering caused by the U.S. deportation regime, which includes both deportation itself and the threat of it, constitutes “cruel and unusual punishment,” let alone being immoral from an open borders perspective. (The term “punishment” is used here because it connects to the Constitution. Punishment of any kind based on immigration status is, in my opinion, immoral.)

Joseph Carens would likely agree that expelling immigrants who have long resided in the U.S. constitutes “cruel and unusual punishment.” In addition to arguing for open borders generally, Carens has emphasized the injustice of deporting immigrants who have established roots in a society:

“Living and working in a society makes immigrants members of that society over time, even if they arrived and settled without permission. This is clearest for those who arrived as young children. Everyone has heard stories about the Dreamers, young people who were raised in the United States and who are now stuck in limbo because they do not have legal status. They are Americans in every respect that should count, and they can’t be blamed for coming here because they were only children when they arrived. So it would be morally wrong to kick them out… when people have been here for a long time, living peacefully and contributing to the community in ordinary ways, the morally right thing to do is to let them stay, regardless of how they arrived.”

The election of Donald Trump has exacerbated immigrant suffering, heightening their anxiety and threatening greater numbers of deportations, although it is unclear what his policy will actually be. At times, he has pledged to deport all undocumented immigrants.  More recently, he has suggested he would focus on immigrants with criminal records. It is also unclear whether he will overturn President Obama’s Deferred Action for Childhood Arrivals (DACA), which has protected hundreds of thousands of undocumented immigrants who arrived in the U.S. as children from deportation and provided them work permits. (It should be remembered that, despite DACA, the deportation regime thrived under Obama.)

Immigrants who are protected under DACA are certainly distressed by the possibility that their protection will disappear under Trump. The New York Times, which has reported on some of these young immigrants, notes that if Trump terminated the program, at first they would lose their work permits, depriving them of sometimes middle class salaries: “…the Dreamers could see the accouterments of middle-class life — a studio apartment in Brooklyn, a driver’s license, a biweekly paycheck with deductions for retirement, a coveted desk in a financial firm — disappear.” A teacher at a middle school said of possibly losing her work permit, “‘I wouldn’t lie to say it won’t devastate me.’”  Moreover, there is the fear of being deported: “Advocacy groups have been inundated with calls from people afraid or despondent,” reports The New York Times. A 27 year old financial consultant stated: “‘The first thought I had is that I have done everything right and it is all going to be taken away from me… It feels a little bit like a betrayal. I’ve been here since I was 4 years old. I’m an American.’” A legal assistant who has been in the U.S. for almost thirty years, said “‘It feels like a step backward, to be back in this insecure place where you don’t know what the next step might be,’ she said, her voice breaking with tears. She has tried not to cry in front of her children and to assure them that she is safe.”

Non-DACA undocumented immigrants who spent many years in the U.S. but who have been deported have suffered immensely, as The New York Times also has shown. Juventino Martin Gonzalez was deported to Mexico after working in the U.S. for 20 years and having three children here. A month after being deported, he came to the border fence separating California from Mexico “for a glimpse of the American side he still considers home. He said, ’I belong over there, not here… this is the closest I can get…’” Miguel Romero was also deported to Mexico:

“For 16 years, he had worked as a glazier in Brooklyn. He married and was raising five children. But earlier this year, immigration officials arrested him while he was installing glass in a storefront in lower Manhattan, Mr. Romero said… His wife, also in the United States illegally, decided not to join him, and he says he does not blame her, since wages here average about $10 a day… He does not dare cross the border illegally again, for fear of getting caught and serving time in jail. ‘My whole life I spent up there, and it’s hard for me to come back,’ he said in perfect English. ‘We have been up there so many years, and most of us don’t commit crimes. People that do nothing but work should get a break.’”

Many additional immigrants who lived in the U.S. for many years have been deported, not because they were undocumented but on account of a criminal record. My opinion is that immigrants (who have not become citizens, in which case they generally are immune from deportation based on their criminal records) who have been convicted of a crime in the U.S. should be punished through the justice system, as would a U.S. citizen, but that they should not face deportation because of the crime, regardless of the offense. Regardless of one’s position on this issue, it is clear that those deported (often for very minor offenses) after living rooted lives in America suffer. The Leitner Center for International Law and Justice at Fordham Law School has noted that many Cambodian immigrants to the U.S. have been deported after committing crimes. The center observes that “The U.S. separated them from their homes and families and sent them to a country with which they had little or no connection.” While some individuals eventually accept their life in Cambodia, many struggle to adjust, with some committing suicide. Especially devastating is the separation from loved ones in America: “Deportation destroys these relationships. It forces non-citizens to leave their friends, parents, siblings, and spouses. Furthermore, many must abandon their U.S. citizen children. Of the forty-eight returnees interviewed for this report, twenty-five left behind sons or daughters in the United States. As U.S. law makes it all but impossible for returnees to obtain a tourist visa, most will never see their children again.” One man was deported after forging a $900 check to pay his bills and has never seen his baby girl, who was born while he was in immigration detention before being sent to Cambodia.

Those under the threat of deportation because of their criminal record also are distressed. Lundy Khoy was born in refugee camp in Thailand, arrived in the U.S. thirty five years ago when he was a one year old, and has legal permanent resident status. He is not an American citizen but states “there is no way I am not an American.” In 2000 he pleaded guilty for possessing seven tablets of Ecstasy with intent to sell. His conviction made him deportable, even though he later received a pardon from the governor of Virginia. He has not been deported but has spent almost nine months in immigration detention (he is now released) and is fearful: “If I was deported, I would be sent to Cambodia. But I had never been to Cambodia!”

Another immigrant who faced a similar situation is Qing Hong Wu, who immigrated legally from China when he was five years old. When he was fifteen he pleaded guilty to muggings he had committed. After serving three years at a reformatory for his crimes, Wu worked to become a vice president for Internet technology with a national company. However, almost twenty five years after coming to the U.S., Wu was detained by immigration agents and subject to deportation because of his criminal record. In a telephone interview from detention with The New York Times he said, “’Being permanently banned from the U.S., that’s the biggest stress I’m under… That’s the harshest penalty any person can ever receive.’” Fortunately, after Wu spent four months in detention, the governor of New York pardoned him, which erased the grounds for deportation, unlike in Khoy’s case.

I believe that deportations are immoral, except in extradition cases in which individuals face criminal trials in other countries. However, I am not a lawyer and am not arguing here that the deportation of immigrants with strong roots in the U.S. could be found unconstitutional by a court. Apparently, a legal claim that deportation violates the Eighth Amendment probably would be unsuccessful, since deportation is not legally considered a punishment. The New York Times notes that “under the 19th-century legal doctrine still at the heart of much of modern immigration law, however, neither detention nor deportation counts as punishment, just as administrative remedies for the failure to exclude an undesirable foreigner in the first place, experts say.” It is evident, though, that deportation and the threat of it cause immigrants to suffer the equivalent of what the Supreme Court has deemed to be  cruel and unusual punishment, which is a damning indictment of both the status quo and a possibly even crueler future under Trump.

The US really is a Nation of Immigrants – and Peter Brimelow is wrong

Some time back, I got into a discussion with some commenters on Open Borders. The starting point was a claim by Peter Brimelow who is the editor of the restrictionist website VDARE. In an address to the Philadelphia Society, delivered in 2006, he stated it this way:

„But the last estimate that I saw, when I was researching Alien Nation, was that if there had been no immigration at all after 1790—none at all—the population of the US would still be about half of what it is now, through natural increase.“

This is part of an argument that it is misleading to call the US a “nation of immigrants.”

I was baffled by the claim, and my first reaction was to point out that American population would have grown by a factor of 40 since 1790, while the population of Germany grew only by a factor of less than 4, and world population by a factor of 7. A commenter then supplied an argument that very high fertility in the early US was behind it. This seemed to be an explanation, and so I retracted my criticism, but was still amazed how that could be.

Turns out I gave in too fast because:

The US really is a nation of immigrants, and overwhelmingly so.

I will go into more detail in another post because there are further aspects that are interesting (hint: it’s the momentum effect again). Here I will confine myself to a simple argument that shows why something has to be wrong with Peter Brimelow’s claim. I will also derive a more realistic estimate for the counterfactual.

Let’s first look at where the US population in 1790 had come from: Of the slightly more than 3.9 million inhabitants, about 760,000 were African Americans, mostly slaves. Native Americans were not counted at the time. The rest were of European descent, some 3.2 million people. More than 2.5 million of those of European descent or 78.6% traced their ancestry to Britain (59.7% English, 10.1% Scots-Irish, 5.0% Scottish, and 3.8% Welsh).

The reference year for Peter Brimelow’s claim is 1990, and he asserts that about half of the American population would have been there at that time without any immigration after 1790: 122 million in the counterfactual versus an actual population of 249 million (cf. “Alien Nation – Common Sense About America’s Immigration Disaster”, page 48).

There were 30 million African Americans in 1990. It is certainly an overestimate that all of them would have been there without any immigration after 1790 where this would have to include also forced “immigration.” That’s so because about half of all new slaves were brought to the US after the founding of the Republic.

Let’s be generous and concede 20 million African Americans in the counterfactual. There were also almost 9 million Native Americans who would have been there in 1990. So the number of all those of European descent in the counterfactual works out as 122-20-9 = 93 million people in 1990.

It is reasonable to assume that 78.6% of those 93 million would have been of British descent in the counterfactual, or about 73 million people. Otherwise you would have to explain why other groups (mostly Germans, Dutch, French, and Irish) had vastly diverging fertility over 200 years. I don’t see how you can make that case.

Now, since the counterfactual is just a part of what really happened with immigration, there should have been also at least 73 million actual people of British descent in 1990, or about 29% of the population. Of course, those would only be the same people as in the counterfactual if there had been complete segregation of later immigrants, which was not the case.

What counts here are surnames which anchor a claim to ancestry. Since half of someone’s descendents (usually sons) keep the surname, and half of them (usually daughters) lose it, the shares do not change a lot across generations. That is barring strongly differential fertility or systematic name changes that I find implausible. So the shares for ancestries should be roughly stable.

But then 29% has to be an underestimate because there were another 3.5 million immigrants from the UK between 1820 and 1930 alone. You can get a rough idea from German immigration for the effect of that later immigration in 1990.

There were only 280,000 Americans of German descent in 1790. They should have grown to about 7 million people in 1990 with the same rate as for those of British decent. But there were another 5 million German immigrants between 1850 and 1930. In 1990, there were 58 million Americans of German descent. So the 5 million later German immigrants should have grown to about 51 million people.

Hence it seems reasonable that the 3.5 million later British immigrants from 1820 to 1930 should have grown to some 35 million people. But that means that the share of those of British descent in 1990 would have been about 43% of the total population (108 million out of 249 million).

However, there were only 18.8% in 1990 who claimed to be of British descent or much less than half of what it should have been if Peter Brimelow were right.

There is one objection, though. There were also 6.2% who declared “American”, “US”, “European”, or “white” ancestry in the 1990 census. Probably some of them should be counted as of British descent, too. But even if you include all of them, you only get to 25%, or somewhat more than half of what is required. So the numbers simply don’t add up for Peter Brimelow’s claim, and that is so by a wide margin.

Now let’s derive a more realistic estimate (which has its limitations, but should be much closer to the truth):

If you take the high estimate of 25% for those of British descent (including all those who checked “American” ancestry, “US” ancestry, and so forth), there were about 62 million people in 1990 that belonged to that group. Subtracting the 35 million resulting from immigration after 1790, yields 27 million people, or only somewhat more than a third of the 73 million in the counterfactual.

But that can only mean that also the number of those of European descent in the counterfactual has to be much lower, not 93 million, but only 34 million people. Add in the 20 million African Americans (probably an overestimate) and the 9 million Native Americans, and you arrive at an estimate for the American population in the counterfactual of 34+20+9 = 63 million people.

Hey, that’s not bad, that’s almost the population of France! It is well below that for Germany, though, and only half the Japanese population. But relax, the US would still be more populous than Canada, admittedly not by a lot.

And a population of 63 million people would have been only 25%, and not almost 50% of actual population in 1990. Or in other words: Roughly 75% of the American population were there because of immigration after 1790!

But there is also a silver lining for Peter Brimelow here: The US was taken over by immigrants long ago, and it worked out so well that he is now defending the result as the status quo. Just imagine: No one would have noticed this massive swamping if I hadn’t written my post. And it is a fine example of how a nation of immigrants could become a great country. Make America great again!

Bureaucracy and Domination: An Indirect Argument for Open Borders

People support open borders from very different – and possibly conflicting – philosophical and ideological perspectives. Anarchists such as David Graeber and libertarians such as Bryan Caplan tend not to cite each other. Readers of economist Lant Pritchett’s Let Their People Come or Michael Clemens’ “Economics and Emigration: Trillion-Dollar Bills on the Sidewalk?”  usually do not read geographer Reece Jones’ Violent Borders or activist Natasha King’s No Borders. There are even schisms within disciplines so that liberal philosophers such as Joseph Carens operating in very different idioms from philosophers inspired by continent figures such as Thomas Nail.

The lack of dialogue among open border camps is unfortunate as it isolates potential allies behind disciplinary silos and impoverishes debate. Moreover, there are strong reasons to support open borders – or at least much more open borders – even if we are not convinced by philosophical arguments about freedom of movement or equality. Even a superficial glance at the violence used to enforce border controls should give conscientious people pause.

Border walls and barriers have proliferated in recent years around the world, often with lethal consequences. Border controls have forced migrants to hire smugglers to take increasingly risky journeys to flee violence or seek opportunities. In 2016, nearly 5000 migrants have drowned in the Mediterranean and hundreds perish each year attempting to cross the US border.

The Obama administration deported over 2.4 million people and, as Stephanie Silverman has recently noted, immigrant detentions in the United States have grown from 70,000 people in 1996 to around 400,000 people today with a 34,000 “bed mandate” for detainees – which include asylum seekers and children.

My article “Immigration Enforcement and Domination: An Indirect Argument for Much More Open Borders” calls attention to one particular problem with immigration enforcement: bureaucratic domination. Immigration bureaucrats have enormous power to reject applications to immigrate (often giving no explanation at all for their decisions), denying opportunities and separating families. They can deport and detain, often at their discretion with little accountability to migrants or to anyone else.

“Immigration Enforcement and Domination” brings together ideas from political philosophy and from critical border studies.  From political philosophy, I draw attention to the problem of bureaucratic domination and analyze it using neo-Republican theories of freedom developed by philosophers such as Philip Pettit and Frank Lovett (and applied to immigration by scholars such as Iseult Honohan, Sara Fine, and Meghan Benton). Neo-republicans understand domination in terms of arbitrary interference and argue that interference with people’s lives can only be justified if those affected have a genuine opportunity to shape and contest decisions and policies. Typical mechanisms to shape and contest decision include participation in democratic politics through voting, lobbying, and public demonstration and using the legal system.

Bureaucratic domination is a problem for everyone living in complex societies and it can never be entirely overcome. One reason for this is that bureaucrats require considerable discretion to do their jobs and this is often beneficial to the people they serve then they are professional, well-trained, and committed to fulfilling legitimate public goals. Nonetheless, domination can often be mitigated by civil society, legal recourse, and democratic politics to ensure that bureaucracies are accountable to the people they serve.

The more power bureaucracies have over people’s lives, the more important these mechanisms to contest and shape policies become. Bureaucrats enforcing immigration policy have extraordinary power: they can send refugees back to torture or to death. They can separate young children and parents for months or years. They can indefinitely incarcerate people who have committed no crime. To avoid bureaucratic domination, it would be necessary to have strong means for migrants to contest decisions.

Unfortunately, migrants do not have resources that would allow them to adequately protect themselves from bureaucratic domination. In most jurisdictions, immigrants do not have political rights such as the right to vote, allowing most politicians to ignore their plight. Furthermore, they are vulnerable to deportation if they do not have legal status or to non-renewal of their visas. Immigrant populations are often racialized and suffer discrimination, exacerbating their vulnerability.

Moreover, the very nature of immigration enforcement makes it highly unlikely that these avenues could be created. Critical migration scholars such as Ruben Andersson, Josiah Heyman, Sandro Mezzadra, William Walters, and many others have examined how immigration policy is implemented. In popular imagination, borders are thought of as natural lines demarcating pre-existing national territories. In reality, they are not simply barriers preventing entry, but rather shape migration flows (often violent results) and create classes of people with different juridical and social statuses (“illegal immigrants”, temporary workers, family-class migrants, refugees, etc.). Borders are the result of political decisions and actively shape reality.

Critical migration studies draws attention to three aspects of border controls: dispersion, externalization, and privatization. First, immigration enforcement is dispersed, i.e., carried out by multiple actors around the world including airline carriers, private security companies, employers, schools, universities, and NGOs – along with national and foreign governments.

Second, enforcement is externalized, taking place outside of states national territories. In one of the most notorious examples, Australia has sought to deter asylum seekers through mandatory detention in offshore facilities which have been repeated condemned for human rights violations. Europe cooperates with third countries such as Libya to stem migration despite well-documented violence including torture and sexual abuse.

Third, much enforcement is carried out by private organizations such as for-profit prisons. One mechanism for preventing people from claiming asylum is the practice of fining airlines through carrier sanctions  if they allow people without visas to board their flights, forcing asylum-seekers to resort to smugglers.

Together, dispersion, externalization, and privatization make it impossible to overcome bureaucratic domination for immigration enforcement. Not only are the many agents engaged in preventing immigration unaccountable to any democratic republic, but it is often impossible to determine who they are. Despite daily reports around the world of appalling abuse against migrants, abusers are almost never held responsible or sanctioned. Indeed, the dispersion, externalization, and privatization of immigration controls is a strategy allowing governments to abjure responsibility for the brutality of their practices – in many case, they are adopted in order to flout their own laws and to avoid democratic oversight.

The result is that even if there are philosophical reasons for why states are not obligated to open their borders, the nature of enforcement makes most border controls morally repugnant. The only way to avoid the injustice of bureaucratic domination – and a great deal of human suffering – is much more open borders.