Among the most poignant and compelling stories one hears in deportation cases are those that describe the effects on individuals, families, and, indeed, on entire communities. The more one hears such stories, the more one is struck by the collateral consequences and their frequently disproportionate harshness. When judges, politicians, reporters, and scholars write about deportation as a sanction that may deprive a “man and his family of all that makes life worthwhile,” this is what they are thinking of.
Let us begin with family separation and the de facto deportations of U.S. citizen children. It is striking how the protections given by law to the family are absent from much deportation law. In general, the U.S. legal system is strongly protective of marriage and family. However, for many deportees, one of the cruelest aspects of their plight is the complete disregard by the legal system of their family ties. This approach contradicts norms of state laws, other federal laws, and international human rights law, for which a basic proposition is that the family is “the natural and fundamental group unit of society” and therefore entitled to protection.
The hard fact is that the separation of families has been one of the most compelling consequences of the increase in deportations since the 1996 changes in the law. One can see this clearly in certain "post-entry social control deportations" aimed a drunk drivers. David Balderrama was 68 years old and a grandfather. He was born in Mexico. Together with his wife, Marina, and infant daughter, Lucy, he had crossed the border into Texas more than four decades earlier, in 1956. They became legal permanent residents. The Balderramas had seven more children, all born in the United States. David Jr. served in the Army’s 82d Airborne Division. George became the owner of a sheet metal company. Patsy worked in a hospital. Joe was a sheet metal worker, like his father. Peter was a produce manager in a grocery store. Mario worked for the state natural resources department. All had graduated from high school. Maritza, the youngest, went on to college and was studying for a master’s degree.
For years, David had worked in a sheet metal factory by day, fixed houses by night, and paid his taxes promptly every year, and then he retired to spend time with his family. But he also got behind the wheel of his pickup truck after drinking beer with his relatives and some union buddies. There is no question that he had a serious problem. In fact, the police caught him driving drunk three times, and he received his punishment in the criminal justice system. But then, on September 3, 1998, armed INS agents showed up at Balderrama’s home and told him he would be deported to Mexico -- not because of any problem with his immigration status, but because of his three crimes. He was one of more than 500 people, most of them Mexican laborers, who were rounded up in Texas in one frenzied month pursuant to an INS operation jauntily named “Operation Last Call.”
In support of the operation, INS had enlisted the support of community groups such as Mothers Against Drunk Driving. Dale Chavez, from the MADD chapter in El Paso, offered a rather chilling justification: “If someone is deported, his family still has the opportunity to get together, even if it’s in another land,” she said. “But if he kills somebody, then the victim’s family can only get together at the graveyard.” Of course, no one supports drunk driving; but David Balderrama had not killed anyone.
Operation Last Call was criticized as being overinclusive as well as betraying a class bias (it did not focus on the well-to-do who drank and drive) and being racist. Many, including Balderrama’s youngest son, Mario, were also concerned about disproportionality: “Drinking and driving is a serious offense, but you can’t compare it to murder, rape, or drug dealing.”
Moreover, it seemed like double punishment. Balderrama’s attorney noted that deportation punished those who had already paid fines and gone through court-ordered rehabilitation programs.” Others focused on the consequences of deportation for families: “If [my child’s father] is deported, who is going to pay those bills?” David’s wife, Marina sat inside their house, surrounded by photos of her twenty-two grandchildren and one great-grandchild. As she pondered David’s impending deportation, she said, “I have diabetes and sometimes I have to go to the emergency room. Who is going to take me?”
Such deportations frequently turn hearings in immigration courts into tragic spectacles. Family members and friends simply cannot believe that the system lacks all possibility of mercy or consideration of effects on close family members. David C. Brotherton and Luis Barrios [professors at the John Jay College of Criminal Justice] have described a particularly poignant — but all too typical — deportation hearing in New York of a Dominican man who had lived and worked legally for twenty-seven years in Manhattan. Some twenty-one family members came to testify in support of the deportee, Mr. Delgado. Mr. Delgado’s father offered his sense of the unfairness of the proceedings: “He never should have pleaded guilty ... [T]he lawyers said ... he would only do 3 years. He never said anything about being deported.” As the father continued, the unfairness began to seem much deeper:
My son didn’t do anything. He’s a good boy. He’s always lived with his mother and father. How can they do this to us? All he wanted to do was play baseball. When he couldn’t play anymore he started to drink. He started to get depressed ... Oh God, Oh Maria, we are good religious people; we go to church. He was raised a good boy. Why this?
The deportee’s mother said that she was an old woman and had terrible blood pressure. “I cannot take the stress. My heart, my heart can’t take it. I love my son. I don’t want to see him taken away. He’s my baby, my son, I can’t stand it. I can’t.”
For the U.S. deportation system, however, all of this is essentially irrelevant background noise. Mr. Delgado, while drunk, had allegedly gotten into a fight. Although there was apparently no weapon involved, this would still be a “crime of violence” and — because of the sentence he received — an “aggravated felony.” His defenses were minimal and highly unlikely to succeed. His fears of mistreatment by the Dominican police did not rise to the level of torture. As the judge put it: “I have no doubt the country we are sending [him] to is a bad place. I have no doubt that the deportees do not wish to go there and that life will be difficult for them. I have no doubt that for some of them it will lead to serious harm.” But, under the law of the United States, those concerns were basically irrelevant. The judge even described a deportation he had ordered of a man with full-blown AIDS in which he had agreed that the man should not be sent back. But the Board of Immigration Appeals had disagreed and sent him to what the judge said was almost certain death. As the judge sadly intoned: “That ... is the law of this land.”
Still, Mr. Delgado’s family tried, with desperate futility, to appeal to the judge’s heart. His father testified that the Dominican Republic is a place “where the police kill people for nothing, absolutely nothing.” Soon, the father began to visibly shake as the other people in the room howled in tears. A guard distributed tissues to an audience that could not control its grief. The judge, however, was mostly annoyed at Mr. Delgado’s lawyer. The judge asked pointedly, “Was all this necessary? Did you have to put the father through this? ... Why are you putting this family through this?”
But forgiveness was not part of the law for Mr. Delgado. And family did not matter. The judge knew the law all too well and instructed the lawyer harshly: “Please don’t let’s go through this again. It is not helping your case. It is not helping Mr. Delgado.” In the end, the judge stated his ruling with banal simplicity: “I see nothing that alters the opinion of the court that Mr. Delgado will be deported ... to his homeland after completing his sentence.”
But there was still more. The judge allowed Mr. Delagdo to address the court. He expressed simple despair: “I agreed to plea for something I didn’t do ... I don’t need to be torn away from everything I love. This is my life here. I’ve been here since I was a kid. This is all I know ... What am I gonna do there? Where am I gonna live? How am I gonna see my children again? Where is the justice in all of this?” Rather than attempting to answer such questions, the judge could not resist asking an obvious question: “Why, Mr. Delgado, didn’t you become a citizen like your sisters? Why?” The answer was stunningly simple: “Because I can’t read or write, judge. I knew if I took the test I wouldn’t be able to write down all those names of the states ... I got a scholarship to a college when I was a kid, somewhere in Oklahoma, to play baseball, but they never taught me to read or write. It’s as simple as that.”
Such stories are neither unique nor even rare. Hearings much like this have likely occurred tens, if not hundreds, of thousands of times since the 1990s. I have personally participated in some [as counsel]. The numbers of people involved are simply staggering. Some 33 million native-born citizens have at least one foreign-born parent. Further, among the estimated 12 million undocumented people in the United States, more than 1.5 million are children. In 2009, Human Rights Watch estimated that over 1 million family members have been forcibly separated by deportation. Unfortunately, we may never know the full effects of our recent deportation delirium on long-term residents because the government has failed to keep comprehensive, accurate data on deportations from the United States. Such data are especially important because the losses are felt acutely throughout U.S. communities: “shops close, entrepreneurs lose their business partners, tax revenues are lost, and, most tragically, U.S. citizens and lawful permanent residents are forced to confront life without their fathers, mothers, children, husbands, or wives.”
The effects of deportation are especially hard on families with preexisting difficulties. Yvonne Johnson, a Jamaican-American woman in her 60s, faced a terrible ordeal due to the deportation of her son, Christopher, 40, who suffers from bipolar disorder and schizophrenia. After spending more than half of his life in prison or juvenile detention, Christopher was deported. He has almost no memory of a Jamaican childhood, and, at the time his story was reported, he was sleeping in a temporary shelter for deportees in Kingston. His mother went deep into debt wiring him money, while struggling to keep her house from sliding into foreclosure. Another Jamaican deportee, also separated from his family and community in the United States, simply and eloquently summed up the feeling of many others: “It’s all kind of heartbreaking, you know.”
Family separations have devastated Cambodian refugees who managed to survive the “killing fields” of Pol Pot’s Khmer Rouge regime from 1975 to 1978. Thousands of their children, many of whom came to the United States as infants, have faced deportation to a land about which they may know nothing beyond horror stories. The New York Times reported the case of Loeun Lun, who had escaped from the Khmer Rouge as a baby and was brought to the United States. Years later, he fired a gun in a shopping mall as he fled a group of teens who he thought were attacking him. Convicted of assault, he served eleven months in prison. After this, he lived a model life, marrying, starting a family, and working steadily. He decided to apply for citizenship and a couple of years later innocently walked into an INS office to inquire about his case after a two-year delay. Arrested on the spot for deportation, separated from his wife and children, he was sent to Cambodia in 2003, after more than two decades in the United States, nearly his entire life. Under the law, he may be banished from the United States forever, permanently separated from his elderly mother, his wife, and his two young daughters.
Deportation has two distinct types of effects on children. On the one hand, parental deportation can be devastating for children (many of whom are U.S. citizens) who remain in the United States. Such children often must grow up in a family broken by deportation or must move in with other relatives or friends if they wish to remain in the States. In addition, there is the less well-known phenomenon of children who are, in effect, de facto deported along with their parents. These children, though they may retain U.S. nationality, often grow up in substantially worse situations, with significantly diminished life prospects than they would have had in the United States.
As we have seen, U.S. law generally does not require any sort of balancing of harms in such cases. The “best interests of the child” are, in fact, merely an afterthought — if a thought at all — in many deportation proceedings. In one particularly troubling case, the Seventh Circuit Court of Appeals affirmed the removal order of a lawful permanent resident mother who had argued that her 9-year-old citizen daughters would be subject to genital mutilation in Nigeria. Rather than keeping the family together, the best the court could do was report to state social service authorities that the mother had said that she would take her children with her back to Nigeria, where they might well be subject to harm. The implication was that a good mother would leave the child behind.
The effects of deportation on children and families have moved some judges. Some — seeing no legitimate alternative — have dutifully rendered their decisions and then bemoaned the consequences. A typical formulation might begin: “While the court is not unmoved by the plight ...” Other cases contain a plea to the Congress or the executive to recalibrate the laws or to exercise some sort of ameliorative discretion. Judge Harry Pregerson of the Ninth Circuit Court of Appeals, for example, dissented in some sixty unpublished dispositions in which he noted that ordering the deportation of a noncitizen parent in effect would result in the effective deportation of a U.S. child. In a published dissent to a decision deporting the parents of four U.S. citizen children, Judge Pregerson wrote: “I pray that soon the good men and women in our Congress will ameliorate the plight of families like the [petitioners] and give us humane laws that will not cause the disintegration of such families.”
Reprinted from "Aftermath: Deportation Law and the New American Diaspora" by Daniel Kanstroom, with permission from Oxford University Press, Inc. Copyright © 2012 by Oxford University Press, Inc.