{"id":7207,"date":"2009-10-18T12:54:54","date_gmt":"2009-10-18T17:54:54","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=7207"},"modified":"2009-10-18T13:07:10","modified_gmt":"2009-10-18T18:07:10","slug":"who-are-our-people","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2009\/10\/who-are-our-people\/","title":{"rendered":"Who Are Our People?"},"content":{"rendered":"

\"picresized_1255928517_44f5eb317716ee226f9fe3075b925dd1\"<\/a>You may have heard\u00a0that the Del Rio, Texas school district is\u00a0policing a bridge that crosses the border with Mexico<\/a>. 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.<\/p>\n

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\u2014often 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.” \u00a0Indeed, 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.<\/p>\n

The trouble is that some of the students, allegedly, were crossing from Mexico every day to attend class in Texas. \u00a0\u00a0And although public schools in the U.S. are\u00a0forbidden by the Equal Protection Clause from denying education to children on the basis of their immigration status<\/a>, schools do, of course, have the legitimate right to verify students’ residency in the district. \u00a0As 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,\u00a0“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?”)<\/p>\n

I read about the controversy on a number of different websites, and you can probably imagine the character of many of the comments. \u00a0But one particular exchange played into a question that I have become a little obsessed about recently: \u00a0who is an “American”? \u00a0Is an “American” identified by legal citizenship? \u00a0By something more? \u00a0By something different from that altogether?<\/p>\n

<\/p>\n

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.” \u00a0That statement, which highlighted the writer’s sense, apparently, of belonging to a different “people” from the other\u00a0commenters, \u00a0triggered this response:<\/p>\n

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.<\/p><\/blockquote>\n

“Who are your people?” \u00a0That question has been on my mind all semester, for a number of different reasons.<\/p>\n

First, I wrote a short summary of the\u00a0Padilla v. Kentucky case<\/a> for the ABA Supreme Court Preview publication. \u00a0In 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. \u00a0Padilla’s immigration troubles began because, while working as a truck driver, he was caught moving a large amount of marijuana in his truck. \u00a0He eventually\u00a0pled\u00a0guilty 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.<\/p>\n

Mr. Padilla’s defense to deportation is that he received ineffective assistance of counsel. \u00a0He 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.”<\/p>\n

On appeal, the United States has abandoned its former position, and now agrees with Padilla that affirmative\u00a0misadvice\u00a0about immigration consequences must be ineffective assistance. \u00a0The 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.\u00a0It seems likely that Mr. Padilla will win his argument that he received ineffective assistance, provided he can prove that his attorney misadvised\u00a0him so terribly. \u00a0But it remains unclear whether he will avoid deportation.<\/p>\n

Which is what leads me to the question. \u00a0Isn’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”? \u00a0By what measure is such a man not as American as I am?<\/p>\n

We can call what we are doing to Mr. Padilla, “deportation,”* \u00a0but it is something different. \u00a0We should invent a new word.<\/p>\n

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. \u00a0Before 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. \u00a0It 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.<\/p>\n

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. \u00a0Another interviewer met one who arrived when he was two.\u00a0The combination of the expansion of the “aggravated felony” definition (which now encompasses almost all felonies and even some misdemeanors) \u00a0and 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. \u00a0In fact, there must be thousands of people like Mr. Padilla.<\/p>\n

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. \u00a0But saying so doesn’t make it true. \u00a0If Mr. Padilla can be deported for drug trafficking, why isn’t it justifiable to revoke the citizenship of anyone convicted of drug trafficking? \u00a0What is the legitimate difference? \u00a0What does “deportation” even mean when applied to someone like Mr. Padilla?<\/p>\n

A third experience happened the same day and made the situation seem even more bizarre. \u00a0One of the immigrants with whom I spoke claimed, rather credibly, to be a US citizen caught up in a terrible mistaken identity problem. \u00a0 Did you know that in the most recent wave of deportations, the US has\u00a0deported quite a few citizens<\/a>, mistakenly? \u00a0If you want to read about how something like that can happen, there is an interesting blog post on it\u00a0here<\/a>. \u00a0The short answer is that it is correlated with the increased use of expedited procedures.<\/p>\n

Someone definitely should invent a new word for deportation of citizens.<\/p>\n

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. \u00a0In September I attended the \u00a0International Association of Law Schools Conference on Constitutional Law<\/a>, at American University Washington College of Law. \u00a0Law professors from every part of the globe participated in the conference. \u00a0At 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\u00a0Philippines, South Africa, Zimbabwe, and many more places, too many to name. \u00a0I had just finished the\u00a0Padilla<\/em> write up at that time, and couldn’t stop talking about it. \u00a0It 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.<\/p>\n

That point came up again in my interaction with the\u00a0Hurtado\u00a0students<\/a> who recently visited our law school. \u00a0During a conversation with one student, I was once again talking about\u00a0Padilla<\/em> (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.” \u00a0The 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. \u00a0It is a good question.<\/p>\n

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.” \u00a0A 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.”<\/p>\n

In the end, maybe\u00a0Peter Spiro<\/a>‘s\u00a0recent essay \u00a0in the\u00a0ABA’s\u00a0Spring 2009 Focus on Law Studies<\/a> publication, “Whither Citizenship,” is right. \u00a0He 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.\u00a0He asserts that this process has begun and is inevitable, and that all people “who value robust\u00a0liberalism should start training their sights\u00a0on other institutions, public and private.\u00a0The challenge, a formidable one, will be to\u00a0apply the virtues of citizenship in the state\u00a0in these other arenas.” \u00a0I hope that our people are up to the challenge.<\/p>\n

\"rsz_3texas-schools-border-wide-horizontal\"<\/a>I guess I will stop here, as I don’t have any satisfying way to end this discussion. \u00a0I will leave you with a picture of some of my people, \u00a0schoolkids walking in Del Rio, Texas in September. \u00a0(The caption pointed out that it’s not known whether these particular children are Del Rio residents, or not.)<\/p>\n

<\/a><\/p>\n

“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<\/p>\n

*For the immigration lawyers and professors, I am aware that the equivalent to “deportation” under current law is “removal.” \u00a0But 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.<\/p>\n","protected":false},"excerpt":{"rendered":"

You may have heard\u00a0that the Del Rio, Texas school district is\u00a0policing 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, […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[66,56,1],"tags":[],"class_list":["post-7207","post","type-post","status-publish","format-standard","hentry","category-human-rights","category-immigration-law","category-uncategorized","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/7207","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=7207"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/7207\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=7207"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=7207"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=7207"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}