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.

Joel Newman

Joel has a bachelor’s degree in history from Pomona College and works as a teacher in Beaverton, Oregon.

See also:

our blog post introducing Joel
all blog posts by Joel

2 thoughts on “Deportation Constitutes Cruel and Unusual Punishment”

  1. no one’s even talking about the impossibility of applying an immigration law 25 years later. how long does it take to “immigrate”, anyway? there is a 5 year bar to bring any civil action under federal law.

  2. Joel Newman, you are a lawful permanent resident still after how many years in the United States? Your loyalty must not be to the United States, but to Canada. Or, you must have a health condition and desire to maintain that dual citizenship and your “free” Canadian health insurance? Wow. If you hate the United States so much, go home to Canada.

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