You may have heard that the Del Rio, Texas school district is policing a bridge that crosses the border with Mexico. Children crossing the bridge to attend school in the morning have been given letters seeking verification of their residency and explaining that non-residents will be expelled.
When you live in walking distance from the US-Mexico border, Newsweek points out, “the distinction between the U.S. and Mexico can get blurry—often children will pay visits on the weekend to family members who reside in Mexico and cross the border again Monday morning to go to class.” Indeed, given recent rates of deportation, it is not at all unlikely that some children have (deported) parents living on one side of the border, while their citizen or permanent resident parents reside in Texas.
The trouble is that some of the students, allegedly, were crossing from Mexico every day to attend class in Texas. And although public schools in the U.S. are forbidden by the Equal Protection Clause from denying education to children on the basis of their immigration status, schools do, of course, have the legitimate right to verify students’ residency in the district. As the superintendent of the Del Rio district states, “It’s very simple. If you reside in the district, you can go to school. . . . . Texas has the same residency issues not just with children from Mexico but with children from Louisiana, New Mexico, Arkansas, and Oklahoma.” (An attorney for the Mexican-American Legal Defense Fund asks, “Why isn’t the school district setting up a roadblock on the east side of town to see if students are coming from an adjacent school district?”)
I read about the controversy on a number of different websites, and you can probably imagine the character of many of the comments. But one particular exchange played into a question that I have become a little obsessed about recently: who is an “American”? Is an “American” identified by legal citizenship? By something more? By something different from that altogether?
The exchange began when a young woman who had commented in favor of immigrants’ rights was explaining her family background and her plans for the future; she stated, in part, “I stick up for my people.” That statement, which highlighted the writer’s sense, apparently, of belonging to a different “people” from the other commenters, triggered this response:
Who are your people? My people are Americans, all colors, all races, all religions. If Americans are not your people you should be living, working and educating yourself in your own country with your own people.
“Who are your people?” That question has been on my mind all semester, for a number of different reasons.
First, I wrote a short summary of the Padilla v. Kentucky case for the ABA Supreme Court Preview publication. In that case, which was argued last week, the United States seeks to deport Jose Padilla, a Vietnam veteran who has lived in the US for more than forty years but who never sought citizenship. Padilla’s immigration troubles began because, while working as a truck driver, he was caught moving a large amount of marijuana in his truck. He eventually pled guilty to a drug trafficking charge that counts as an “aggravated felony,” meaning that his Lawful Permanent Resident status would be revoked after his sentence ended, and he would be deported.
Mr. Padilla’s defense to deportation is that he received ineffective assistance of counsel. He says that during plea negotiations, he specifically asked his attorney whether there would be any immigration consequences to the guilty plea, and his attorney advised him that there would not “since he had been in the country so long.”
On appeal, the United States has abandoned its former position, and now agrees with Padilla that affirmative misadvice about immigration consequences must be ineffective assistance. The fight in the case is reduced to whether that terrible legal advice prejudiced Padilla’s case, as well as the politically more interesting issue of whether simple failure to provide any advice at all, i.e., non-advice, regarding the immigration consequences of a immigrant’s criminal conviction also constitutes ineffective assistance. It seems likely that Mr. Padilla will win his argument that he received ineffective assistance, provided he can prove that his attorney misadvised him so terribly. But it remains unclear whether he will avoid deportation.
Which is what leads me to the question. Isn’t a man who lived here in our country for more than 40 years, who was a lawful permanent resident, who fought in Vietnam on our country’s behalf, who has a wife and children here, one of “our people”? By what measure is such a man not as American as I am?
We can call what we are doing to Mr. Padilla, “deportation,”* but it is something different. We should invent a new word.
The scope of this issue came into even clearer focus for me, when, with a group of law students, I participated in a “know your rights” presentation and initial screening of some detained immigrants on behalf of a nonprofit that works with immigrants. Before that experience, I knew that there had been an increase in deportation of “criminal aliens” due to the 1996 changes in our immigration laws, as well as later amendments. It is one thing, however, to know that, and a very different thing to sit across a table and talk with some of the human beings being deported under these laws.
I talked with one man who has lived in the US since he was seven years old, and who seemed to have little to no chance of avoiding deportation. Another interviewer met one who arrived when he was two. The combination of the expansion of the “aggravated felony” definition (which now encompasses almost all felonies and even some misdemeanors) and the elimination of most forms of relief from deportation for such individuals means that many lawful permanent residents with criminal convictions are being deported from the United States to places where they have not lived in a long time. In fact, there must be thousands of people like Mr. Padilla.
I guess you can say that Mr. Padilla, or the man who lived here since he was 7, or the one who came when he was 2, is not an American because he is not a citizen. But saying so doesn’t make it true. If Mr. Padilla can be deported for drug trafficking, why isn’t it justifiable to revoke the citizenship of anyone convicted of drug trafficking? What is the legitimate difference? What does “deportation” even mean when applied to someone like Mr. Padilla?
A third experience happened the same day and made the situation seem even more bizarre. One of the immigrants with whom I spoke claimed, rather credibly, to be a US citizen caught up in a terrible mistaken identity problem. Did you know that in the most recent wave of deportations, the US has deported quite a few citizens, mistakenly? If you want to read about how something like that can happen, there is an interesting blog post on it here. The short answer is that it is correlated with the increased use of expedited procedures.
Someone definitely should invent a new word for deportation of citizens.
Writing about Mr. Padilla, and meeting with detained immigrants, and reading the “Who are your people?” comment also led me to reflect on my recent interactions with law students and professors from other parts of the world. In September I attended the International Association of Law Schools Conference on Constitutional Law, at American University Washington College of Law. Law professors from every part of the globe participated in the conference. At my small-group sessions, and in breaks and social times, I discussed comparative constitutional law with professors from Australia, China, Costa Rica, India, Ireland, Italy, Malaysia, Mexico, the Philippines, South Africa, Zimbabwe, and many more places, too many to name. I had just finished the Padilla write up at that time, and couldn’t stop talking about it. It was often difficult to explain, though, to professors from other countries, because they didn’t understand why the government would provide counsel for indigent defendants in criminal proceedings but not for the same aliens in their related deportation proceedings.
That point came up again in my interaction with the Hurtado students who recently visited our law school. During a conversation with one student, I was once again talking about Padilla (as I said, I can’t shut up about the case), explaining that there is no right to free counsel in the immigration proceedings because deportation is not a “punishment.” The student gave me a very strange look, and interrupted to ask how it can be said that deportation is not a “punishment” when it is triggered by commission of a crime. It is a good question.
My personal interactions at the IALS conference and with the Chilean students also left me with a more positive feeling with regard to “who are my people.” A recognition that people who don’t share my location or my local circumstances or my nationality, but who do share important values, interests, and a way of thinking about the world are also “my people.”
In the end, maybe Peter Spiro‘s recent essay in the ABA’s Spring 2009 Focus on Law Studies publication, “Whither Citizenship,” is right. He discusses how globalization is “blur[ring] the boundaries that once more distinctly separated the ‘us’ from the ‘them,'” arguing that “[t]he primacy of the state is on its way to obsolescence,” and along with it, the concept of citizenship as it is currently understood, as a relation between individuals and the nation states of which they are citizens. He asserts that this process has begun and is inevitable, and that all people “who value robust liberalism should start training their sights on other institutions, public and private. The challenge, a formidable one, will be to apply the virtues of citizenship in the state in these other arenas.” I hope that our people are up to the challenge.
I guess I will stop here, as I don’t have any satisfying way to end this discussion. I will leave you with a picture of some of my people, schoolkids walking in Del Rio, Texas in September. (The caption pointed out that it’s not known whether these particular children are Del Rio residents, or not.)
“It is a severe rebuke upon us that God makes us so many allowances and we make so few to our neighbors…” – William Penn 1682
*For the immigration lawyers and professors, I am aware that the equivalent to “deportation” under current law is “removal.” But I’ve noticed that most people in the news and the blogosphere continue to use the familiar word, “deportation,” so I am doing the same here.
“If Mr. Padilla can be deported for drug trafficking, why isn’t it justifiable to revoke the citizenship of anyone convicted of drug trafficking?”
I’m all for it, but unfortunately few nations on this earth willingly accept criminals from another as immigrants. I suspect that most nations would happily revoke citizenship of their recidivist dirtbags, but unfortunately it can’t be done under international law.
Note that you are defending a drug dealer, not exactly the most worthy of people. Would you do the same if he was a war criminal or child molester? I suspect that it is only because the drug is marijuana do you give him a pass. This guy has been in the country for decades, much longer than necessary to turn a green card into citizenship, but he saw no need to become a fully vested resident. I guess that it was too much bother. No, I don’t think that this country will miss the contributions of Mr. Padilla, whatever they may be. And there are too many millions of would-be immigrants who would just love the opportunity to come here but will never have the opportunity to do so. Weep over Padilla if you must, but I will not, and neither will any but the most fervent open borders advocates.
Hi, Horace
With regard to the first point, I don’t think that it’s international law, so much, that blocks denaturalization of citizens, as our own law. It’s true, of course, that there would be the practical problem of what to do with the denaturalized persons. I hadn’t really thought about that, as it hadn’t occurred to me that some people would actually advocate revocation of citizenship for criminals.
I didn’t defend Mr. Padilla’s drug dealing, and of course wouldn’t defend war criminals or child molesters either. I said something different: I don’t understand how his crime justifies his deportation after such a long life in the United States. I also implied that I think that immigrants facing criminal charges should receive advice of counsel regarding the immigration consequences of their contemplated pleas. I do think that.
It’s true that Mr. Padilla didn’t become a citizen, and that’s a good point. I have no idea why he didn’t do so, nor why so many other eligible permanent residents fail to do so. Cases like his have led to efforts to encourage those eligible for citizenship to apply for it rather than risk losing the opportunity ever to do so. That was one of the reasons, probably, that last year saw the highest-ever rate of applications for citizenship. http://www.dhs.gov/xlibrary/assets/statistics/publications/natz_fr_2008.pdf
I regret if it sounded like I was weeping. I tried not to sound melodramatic. I just wanted to start a conversation about the question of “who belongs here” these days.
I also want to clarify something that I didn’t state expressly in the post. I think that the Del Rio district has every right, and even an economic responsibility, to ensure that those attending its schools are genuine residents. The particular method they chose seems both unwise and unkind, but confirming residency is of course the right thing to do.
I talked about Del Rio in the post only because, as I said in the post, one of the comment threads following an article about the situation got me thinking about my “who belong here” obsession.
To “Horace”:
At the risk of sounding too solicitous given my student status, I commend you to read the Comments Policy of this blog: “All comments must include the first and last name of the author….”
Unless your parents had an odd sense of humor, I strongly suspect that your real name is not that of the fictional BBC barrister . Casting aspersions (cf. “recidivist dirtbags”) via anonymous online postings is uncivil and cowardly.
Thanks, Peter–I should have realized that ridiculous-sounding name was fictional.
As to why legal residents don’t become U.S. Citizens.. my parents obtain citizenship last year, after 33 years as permanent residents. 1)Until recently, the paperwork required you to list all visits outside the country since you were admitted. Over 25 years, that can add up to a lot of dates that you have to remember (or make up). (2) Cost – at about $800 per person to apply, it’s often put off in favor of things like insurance policies, food and clothing for the family, etc. (3) While there are no real additional requirements with citizenship – permanent residents already have to pay taxes on foreign income and register with selective service for potential involuntary military service – the additional benefits are not numerous (1) avoiding potential deportation (2) voting, (3) serving on a jury.
And it’s not thousands of people in Mr. Padilla’s situation, more likely hundreds of thousands. The goverment’s not very good at keeping records of those deported who are not violent criminals. This doesn’t include spouses and children who are U.S. citizens who may be forced to move, either. Yes, in 1996 the definition of “aggravated felony” was expanded to include such things as misdemeanor shoplifting and attempted burglary, so now they can be deportable offenses.
Regarding revoking citizenship status of criminals, does anybody know if the criminals sent by Britain to the Australian penal colony had their citizenship revoked?
1)Until recently, the paperwork required you to list all visits outside the country since you were admitted. Over 25 years, that can add up to a lot of dates that you have to remember (or make up).
That doesn’t explain why they didn’t bother to gain citizenship after the first five years, or even ten. The argument that you’ve made is just an excuse. I don’t know about other countries, but expired passports are just voided and returned to the holder. All they’d have to do is look over those exit and entrance stamps on their passport(s) and all the info regarding dates would be revealed.
“….who is an “American”? Is an “American” identified by legal citizenship? By something more? By something different from that altogether?”
You’re a lawyer, but you fail to understand that when push comes to shove, it’s always a matter of law and nothing else.
It seems that other countries have no problem in separating citizens from foreign nationals, even those like Mexico, that seem to question our soveignty, event to the point of showing contempt, but doggedly defend theirs with fierce national pride.
Tom: does it really matter whether their was such a legal declaration? It seems clear that that was the de facto effect.
George: I realize reasonable minds can differ. As I’ve said, in the post and in the comments, I just disagree with you that the crime justifies deportation of someone who has lived here so long and has so many ties to the country. I realize that my side lost this argument in our democracy, and that the law is the opposite. I am simply expressing my disagreement.
Donald: As I just said, I understand the law perfectly well. But it has happened in the past that the law has been unjust. I am simply expressing my view that this particular law is unjust.
And, more than that, I was trying to draw the conversation out to consideration of the larger human considerations that are the reason we have laws. I think a mismatch has developed between our laws on citizenship and deportation, and the reality of the human situation those laws relate to. It is simply my opinion; I’m not claiming it’s law–it’s clearly, not.
I don’t really understand the last paragraph of your comment. It is true that other countries’ practices with regard to distinctions between their citizens and noncitizen residents differs from ours. In some places it matters more, and in some less.
“Regarding revoking citizenship status of criminals, does anybody know if the criminals sent by Britain to the Australian penal colony had their citizenship revoked?”
I doubt that Tom, as these people were still subjects of His Majesty, and Australia remained a colony of Great Britain and subequently the Commonwealth up until recent times. If His Majesty revoked their citizenship, they would no longer be his subjects and not legally under his control. They could therefore legally emigrate. The offspring of the criminal exiles were also subjects of the King as they were born on British soil.
Many went in lieu of a death sentence. I believe those under death sentence were subject to the penalty if they ever showed up on the shores of England. The only way to escape jurisdiction of the King was to die.
Jessica
It seems to me that there are three main areas of interest here. The first is whether a permanent resident of long standing is entitled to more protection than is currently afforded. I am generally agnostic on that.
The second, related to the first (the answer could depend on degrees of residency), is whether those subject to deportation ought to be provided with free lawyers. Again, I don’t have a strong conviction but can’t agree that the comments of the Hurtado students are particularly helpful. In fact, I hope that someone pointed out the weakness of their legal argument. That a consequence is prompted by a criminal conviction does not make it a criminal penalty and does not mean (or even imply) that the reasons we provide people with lawyers in criminal cases are applicable in deportations prompted by criminal convictions or allegations. Maybe we want to provide indigent persons counsel in deportation proceedings but I don’t see how that question is controlled by what we do in criminal cases. Nor does it seem, if we do believe the nature of deportation is such that counsel should be provided, that the availability of counsel should turn on whether deportation is prompted by a criminal conviction or allegation.
The most interesting question for me is the idea that citizenship may be an outmoded notion. I think not. My own view is that membership in a political community ought to be – in fact in a liberal democracy must be – predicated on some shared commitment to a set of values or common identity. It is that commitment that justifies the application of (and commands the acquiesence to) the legally sanctioned force which stands behind government.
It does not seem to me that this commitment can be grounded in the idea that all men and women are, in some sense, “our people” (or, put in more traditionally religious terms, our brothers and sisters). That is, of course, true, but I remain unlikely to submit myself to a political community unless I share its governing values.
And there is no such global political community. I, for example, would be willing to concede precisely nothing to the authority of the United Nations because I do not believe that a body which, among other things, seems to regard Israel as a unique manifestation of human malevolence is worthy of my allegiance. Nor is it the type of authority that I want to grant the power to come after me with a gun. To be sure, I may believe it prudent to participate in such an organization and hope that it will someday become better but I can’t even come close to regarding myself as its citizen.
Of course, even assuming this perspective, there is a wide latitude to choose among the various immigration policies that are politically viable in the US and I am hardly an immigration hawk. But I do think that the idea that a political community requires some level of shared cultural and political values (as opposed to simply a system of government – even a democratic one) does have significance for immigration policy.
I am not so sure that immigration in the US had ever undercut the nation’s shared cultural and political values even as it has tweaked them. Immigration in Europe, however, has sometimes roiled those values and not in ways that a western liberal is likely to welcome. Consider, for example, the Netherlands – once a socially liberal kind of place that was the envy even of the west side of Madison. Today, not as much. Do the Dutch have an interest in preserving the type of culture they wish to live in even if it means saying that not everyone is, as far as the political community is concerned, “our people?”
Rick, thanks for actually talking about the questions I was trying to raise here.
I’ll take the last point first. I was (intentionally) moving back and forth between at least two different meanings of “our people” in the post. One is in the sense of the “our neighbors” in Penn’s quotation, or, as you say, “our brothers and sisters.” For me, it is that universal sense of other human beings as “our people” that has made Del Rio’s actions so controversial. As I’ve said a couple of times now, I fully agree with the superintendent that he has the legal right, and indeed, the fiscal duty, to ensure that district students are district residents. But the particular way that the district chose to carry out that task, approaching young children on their way to school in the morning, and handing them letters questioning their residency, seems unwise and unkind. It doesn’t seem like an action that one would take while thinking of those kids walking to school as “our brothers and sisters.” My five year old, for instance, would be really confused about such an encounter. So, it was that universal “my people” that I was trying to refer to at the end of the blog post, and in some other places.
Thus, I didn’t mean to imply that I think that our political community should include everybody everywhere. Only that our kindness and respect for human dignity should extend that far.
Elsewhere, though, I was thinking about political community when I used “our people,” the community of the United States, in particular. Also about the vision of a global political community that Spiro talks about, one that, I agree (even Spiro would agree, I think), is at this point just an idea, not a reality. I do tend to agree with Spiro’s observation that the concept of citizenship based on relationship between individuals and the nation-states has been breaking down due to globalization (really, I would say, for decades, globalization has just sped up the pace). Did you read the Spiro piece? You might find it interesting, because he very much agrees with you with regard to the necessity of shared values to bind people into political communities. Anyway, I am not at all as sure about his predictions about the future with regard to the fading of those ties at the nation-state level and the creation of such ties in different institutions. But, as I said, if he is right, I hope we are up to the challenges he identifies. Political communities based on shared values can be achieved in many different ways, some of them much less peaceful than the path he outlines.
Actually, I guess that the reason that I was trying to invoke the “our brothers and sisters” concept and the “our political community” concept in one post is because I wish that the debate about immigration and who is deserving of membership in our community could come from the perspective of acknowledging the universal humanity of other people, those in the community and those not in the community. It seems like we would have a better chance of achieving justice if we kept that perspective. So, for instance, if we think about Mr. Padilla and his family as human beings, and really think about the impact on those particular human beings if Mr. Padilla is removed to Honduras, where he hasn’t lived for 40 years, and then multiply that out by hundreds of thousands, then maybe it would not seem like such a good policy to create such broad, strict deportation rules for long-term lawful permanent residents.
With regard to the narrower legal issues you mention at the start of the comment, I will take agnosticism on the first one. And as for the second, of course I understand the legal reasoning that has justified the US Supreme Court’s decision that deportation is not punishment and that the Sixth Amendment therefore does not require that counsel be provided for indigent aliens facing deportation. I did try to explain this to all to whom I explained the Padilla case. But the reasoning (which, I’ll admit, was never that convincing to me in the first place) seems even more thin in cases like these. It is difficult to argue that someone in Padilla’s position can make a knowing, voluntary, and intelligent plea without being advised about the immigration consequences of his plea.
I think that question of, “Geez this guy is being deported and he’s been a permanent resident for 20 years…why didn’t he naturalize already?!” comes up quite a bit in any office that does immigration law. And until very recently I never came across a truly satisfactory answer. I definitely agree that the cost may stop some people, but something always lingering in the back of my mind was what if someone just didn’t want to pledge allegiance to this country?
I think when one works in or deals with immigration law a lot, it’s easy at times to forget the true meaning of citizenship and the oath of allegiance, and to only see “natzing” as a safeguard against removal or a way to get one’s family into the immediate relative category. I think there might a few people out there that have taken the citizenship oath and didn’t really mean it, but I always wondered how many people didn’t naturalize because they didn’t want to take an oath they actually didn’t mean. What if someone doesn’t really want to pledge their allegiance to this country and be willing to bear arms on behalf of this country? Well that’s fine, but then they are subject to deportation under certain circumstances…is the answer I always arrived at, and it at least made some sense to me.
But then I was reminded recently by a USCIS Official at a training that the U.S. does not recognize dual citizenship and that the beginning of the citizenship oath includes renouncing any foreign allegiances. When the same officer is asked how it is that a person could be recognized in his/her country of origin as both a citizen of that country and of the U.S., and at the same time have U.S. citizenship based on an oath renouncing allegiance to that other country, he explains that this is a “grey area” of sorts.
But, for me it is a good reason to not become a U.S citizen. Sure Mr. Padilla hasn’t been in Honduras for forever; but perhaps he still has some extended family there. And perhaps while Mr. Padilla fought in Vietnam, some relative of his that he highly respects served in the Honduran army. Quien sabe… But I have a feeling that if I had moved to Italy at age 12, by the time I was 30 or 40 I’d probably have good reason to become an Italian citizen. But if Italy had the same oath requirements as the US, then I’d have to figure out how to explain myself to my grandpa who lost a brother during WWII.
The punishment must fit the crime if we are to retain a claim to the ideals set forth in our various founding documents. Mr. Padilla’s case clearly illustrates the injustice of Bill Clinton allowing rightwing zealots to write laws in 1996.
Anyone who thinks that deportation is not a punishment needs to come with me to visit children whose mother or father has been deported. I am not opposed to throwing out certain serious criminals, but the current statutory inflexibility is, or at least should be, an embarassment to decent citizen of this country.
“I wish that the debate about immigration and who is deserving of membership in our community could come from the perspective of acknowledging the universal humanity of other people, those in the community and those not in the community.”
Agreed and I’ll take it a step beyond (although I know you’ll agree.) I wish our debates in general could proceed on that assumption.
Relating to the issue of why some long-term PRs don’t apply for citizenship, I recently received a notice (via the Catholic Legal Information Center) of USCIS “public naturalization information sessions” to raise awareness of how to go through nationalization. You can see more at the USCIS website, here: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=54029c8bfe524210VgnVCM100000082ca60aRCRD&vgnextchannel=9f2e9ddf801b3210VgnVCM100000b92ca60aRCRD