The New Deportations Delirium

Interdisciplinary Responses

Daniel Kanstroom, M. Brinton Lykes

• Publisher: NYU Press
• Year: 2015
• ISBN:
  9781479873760
• Topic: Diritto
• Subtopic: Diritto dell'immigrazione

Since 1996, when the deportation laws were hardened, millions of migrants to the U.S., including many long-term legal permanent residents with “green cards,” have experienced summary arrest, incarceration without bail, transfer to remote detention facilities, and deportation without counsel—a life-time banishment from what is, in many cases, the only country they have ever known. U.S.-based families and communities face the loss of a worker, neighbor, spouse, parent, or child. Many of the deported are “sentenced home” to a country which they only knew as an infant, whose language they do not speak, or where a family lives in extreme poverty or indebtedness for not yet being able to pay the costs of their previous migration. But what does this actually look like and what are the systems and processes and who are the people who are enforcing deportation policies and practices? The New Deportations Delirium responds to these questions. Taken as a whole, the volume raises consciousness about the complexities of the issues and argues for the interdisciplinary dialogue and response. Over the course of the book, deportation policy is debated by lawyers, judges, social workers, researchers, and clinical and community psychologists as well as educators, researchers, and community activists. The New Deportations Delirium presents a fresh conversation and urges a holistic response to the complex realities facing not only migrants but also the wider U.S. society in which they have sought a better life.

Part I

The Legal, Administrative, and Political Responses

1

Unhappy Families

The Failings of Immigration Law for Families That Are Not All Alike

David B. Thronson

Happy families are all alike; every unhappy family is unhappy in its own way.

—Leo Tolstoy, Anna Karenina

Immigration law privileges certain families, those “happy families” whose individual and group characteristics align with the narrow parameters that immigration law makes vital to successfully navigate the maze of immigration law. The central role of family ties in assisting such families move smoothly toward lawful immigration status creates a ubiquitous yet inaccurate impression that the promotion of family unity is a key value underlying immigration law. By focusing only on the happy families that benefit from immigration law, it is easy to ignore the disdain for family unity that is evident in the failure of immigration law, by acts and omissions, to keep families together. Family can play a significant role in immigration law, but in a much more narrow and less benign way than is generally contemplated.

For families that do not meet the exacting templates of immigration law, the story is not of family unity but rather of separation and hardship. By failing to value basic notions of family independence and decision-making, immigration law fails these “unhappy families,” those that do not conform to the model family recognized and rewarded by immigration law. These families find themselves at odds with the harsh mandates of immigration law and demonstrate that the law is not always, or even usually, a family-friendly endeavor.

As immigration law intrudes upon and shapes family decisions about who will live where and with whom, it stands out for the starkness of its demands and the frequency with which its dictates conflict with the values and narratives that are foundational to ideas of family in broader society and other areas of law. A closer inspection of the role of family in immigration law reveals that for families outside the exacting mold that immigration values, family is of little use in slowing robust deportation efforts and, even more broadly, in providing avenues that would allow families to achieve lawful immigration status and protect themselves from fear of deportation.

The failings of immigration law for families that do not conform to particular characteristics result in family separation, hardship and suffering for families, and predictably prevalent patterns of poverty that impact many immigrant families. These failings also lead to confusing interactions with other societal institutions and legal systems, such as family courts, that attempt to effectuate family unity and work in the best interests of children. As an outlier in its treatment of children and families, immigration law is out of step with broader values and efforts to preserve families.

Privileged Narratives—Narrowing What Matters

In general society, the importance of family is rarely questioned. Yet in the confidence of this presumed importance it is all too common to overlook the ways in which public policy choices and the law fail to support and protect families. Nowhere is the gap wider between rhetoric touting the importance of family and the reality of the law’s impact than in the area of immigration. A review of the role of family in immigration law reveals the extent to which immigration law strays from the values and views of family that we espouse in other public policy arenas and in other legal realms, such as family law.

Outside immigration, family and notions of family unity play a central and privileged role in the U.S. legal system. Despite the absence of the word “family” anywhere in the U.S. Constitution,1 the Supreme Court consistently has acknowledged that “the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition. It is through the family that we inculcate and pass down many of our most cherished values, moral and cultural” (Moore v. City of East Cleveland 1977). In family law, an important means to protect family integrity has been emphasis on the parent-child relationship, as “the interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by the Court”2 (Troxel v. Granville 2000). While elevating the parent-child relationship, however, the Court also has recognized that families may decide they are best served by living in some arrangement other than the traditional nuclear family and that the Constitution prohibits the government “from standardizing its children and its adults by forcing all to live in certain narrowly defined family patterns” (Moore v. City of East Cleveland 1977). Although uneven in their success, legal frameworks in the United States generally strive to effectuate the vitality and independence of the family that the centrality of family demands.

Immigration law stands in stark contrast to soaring rhetoric about the family’s fundamental importance and independent diversity. As a result, there is tremendous potential for deep conflict as immigration law and family law intersect. The vindication of immigration law often compromises family integrity, and family integrity often can be accomplished only in violation of immigration laws. Through the operation of immigration law, parent-child relationships routinely are strained and broken. And even when immigration law provides benefits or relief on the basis of family for some, rigid and standardized notions of family limit options for many families that do not exhibit a narrow range of characteristics.

Through stilted statutory frameworks, narrow notions of family, and harsh provisions that anticipate and accept infliction of family suffering, immigration law renders compelling narratives and facts about families largely irrelevant to immigration analysis. The veneer of family friendliness that often is attributed to immigration law fades under closer observation.

Enforcement and Deportation—Things That Matter Made Irrelevant

U.S immigration law at first blush appears oriented toward advancing family unity through an elaborate system of family-sponsored immigration and provisions for derivative immigration of the family members of certain immigrants who qualify for immigration benefits. See Immigration and Nationality Act (INA) § 201(b)(2)(A)(i), 8 U.S.C. § 1151(b)(2)(A)(i) (Supp. 2011), (excluding “immediate relatives” of U.S. citizens from direct numerical limitations on immigrant visas); § 1151(c) (2006) (setting levels of family-sponsored immigrants); 1153(a) (2006) (creating preference categories for family-sponsored immigrants); § 1153(d) (2006) (permitting some family members to accompany or follow to join family members with immigrant visas). Indeed, reports of U.S immigration law often attribute to it the goal of keeping families intact (see also Sanger 1987). The conflict between this perception and the reality of immigration law is most obviously apparent in situations where a family member faces deportation from the United States, but deeper tensions in the basic family immigration framework occur less openly but quite effectively to keep families from living together in conformity with immigration law.

First, when a person faces removal from the United States it is as an individual, not as a family unit (But see 8 U.S.C. § 1227(a)(4)(B) (2006) and 8 U.S.C. § 1182(a)(3)(B) (2006), making spouses and children deportable based on their relationship to a noncitizen involved in terrorist activity; see also Nessel 2005). For example, removal proceedings may result in an order of deportation against a parent that does absolutely nothing to affect directly the immigration status of a child or other family members. This hardly means, however, that family members are not affected.

Family can play a limited role in mounting a defense to removal from the United States, but the legal framework that permits this is narrow and eliminates consideration of most facts that obviously come to mind when thinking about the reality of a family facing the prospect of losing the presence of a family member. The compelling narratives of loss and separation that accompany the enforcement of immigration law are rendered largely irrelevant.

For example, persons without lawful immigration status who are placed in removal proceedings may apply for cancellation of the removal if they meet a number of criteria, including having been physically present in the United States for ten years and being of good moral character (INA § 240A, 8 U.S.C. § 1229b (2006 and Supp. 2011)).3 To qualify, they also must prove that removal would cause “exceptional and extremely unusual hardship” to a legal permanent resident or U.S. citizen spouse, parent, or child (INA § 240A, 8 U.S.C. § 1229b (2006 and Supp. 2011)). The standard here is high and has proven difficult to satisfy. Cancellation applicants not only must have qualifying family members but also must demonstrate hardship “substantially different from, or beyond that which would normally be expected from the deportation of an alien with close family members here” (In re Monreal-Aguinaga 2001).

In other words, the expected or normal hardship that the deportation of a family member entails is made irrelevant as an expected result of the enforcement of immigration laws. Under this reasoning, for example, separation between parents and children left behind in the United States is unlikely to rise to “exceptional and extremely unusual hardship” because such separation is not unusual and “[d]eportation rarely occurs without personal distress and emotional hurt” (Sullivan v. INS 1985). Family separation is “simply one of the common results of deportation or exclusion [that] are insufficient to prove extreme hardship” (Jimenez v. INS 1997). Anticipating suffering, immigration law renders it irrelevant and insufficient to warrant relief from deportation.

Arguments that the requisite hardship will result if families choose not to separate by having members accompany the deported person abroad are an equally difficult path to immigration relief. For example, diminished access to education, healthcare, and economic opportunities for U.S. citizen children who are raised in other countries similarly are viewed simply as the anticipated results of deportation and thus do not meet the “exceptional and extremely unusual hardship” standard (Jimenez v. INS 1997).4 So high is the standard to establish extreme hardship that one circuit court of appeals described its role as reviewing the record for hardship that is “uniquely extreme, at or closely approaching the outer limits of the most severe hardship the alien could suffer and so severe that any reasonable person would necessarily conclude that the hardship is extreme” (Hernandez-Cordero v. INS 1987).

The meager and dwindling set of narratives that can lead to relief in the cancellation of removal context is contrary to mainstream values and approaches in other areas of law, such as family law, where the importance of considering children’s interests in legal decisions regarding family is well established: “The custody law in every state in the United States . . . embraces the ‘best interests’ standard” (Blair and Weiner 2005). Over the last several decades, however, immigration law has moved away from considering such narratives. Immigration law demands no more than mere avoidance of exceptional and extremely unusual hardship to certain family members, while anticipating that significant hardship is inevitable. Immigration law dismisses narratives of family suffering that accompany deportation for not matching the extremes it requires. The unique and deeply felt experiences of families facing the loss of loved ones are gathered together as expected, and disregarded. Immigration law ignores the uniqueness of each family by requiring a particular and demanding form.

Second, even where exceptional and extreme hardship exists, immigration law limits relief by restricting its application to a short list of relationships based on the traditional nuclear family. By failing to acknowledge the importance of nontraditional arrangements for caretaking and support of children, immigration law again limits the relevance of compelling family narratives that result from the application of immigration law. Immigration law’s restrictive use of a narrow construct of family effectively “negates other prevalent family configurations which make up functional families, such as single-parent households, grandparent-grandchild households, same-sex couples, polygamous marriages, and extended family configurations (King 2010, p. 515).”5 This approach fails to consider that millions of children in the United States “grow up in families in which care is not provided exclusively by two heterosexual opposite-sex parents. Instead, caregivers increasingly include gay and lesbian families, single parent or ‘cohabiting’ parent families, families with grandparents (either as primary caregivers or in addition to primary caregivers), and various other formations” (Kavanagh 2004, p. 91).

The failure to recognize nontraditional families in immigration law creates disparate impacts across racial and ethnic lines. For example, ignoring the reality of grandparents who care for their grandchildren in immigration law has a particular impact on Latino populations because “Hispanic grandparents are the largest population of noncitizen caregiver grandparents” (Zug 2009, p. 242). By insisting on an outdated and restrictive construction of family, immigration law advances “a false construct of human society, cultural constructions, and racial and ethnic prejudices” (King 2010, p. 515).

Beyond the context of immigration law, families routinely function in ways that diverge from the traditional notion of the nuclear family. Family decisions about who lives with whom often take into account who cares for or provides for whom. Indeed, these decisions, which create networks of interdependency and support, are hallmarks of the notion of family. By removing many of the basic realities of families from consideration when family members face deportation, immigration law proceeds on a faulty premise and fails to respond to the realities it creates.

Third, beyond the substance of immigration law, the manner in which immigration law is enforced has tremendous impact on families. Shifts in immigration enforcement strategies to emphasize interior enforcement significantly affect immigrant families. First, the past decade saw raids targeted at workplaces, often large-scale, dramatic events that impacted hundreds of immigrants and their families and disrupted entire communities (Capps et al. 2007). The more recent shift to raids targeted at homes results in events that are of smaller scale and less likely to generate widespread media coverage, but this makes them no less dramatic in nature for the i...