Deportation is unconstitutional — US courts should reject the practice

A federal appeals court in February reversed President Biden’s temporary ban on most deportations, arguing that the power to deport undocumented immigrants resided with Congress. A few weeks later, in Pereida v. Wilkinson, the Supreme Court further affirmed the Federal government’s right to deport immigrants with modest criminal records. The courts have sent a clear message: deportation is part of the American way to manage immigration.

Instead of affirming the legitimacy of deportation, the Courts should reject the practice. The rationale is clear. Deportation violates the Eighth Amendment which promises that punishments not be “cruel and unusual.” By any common standard, forcibly moving people to another country is a harsh punishment. Deportation separates the deportee from their friends and family in the United States. If we have learned anything from a year of social distancing, it is that isolation from loved ones is crippling. It is not hard to see how being sent to another country, removed from spouse and children, can be incredibly painful. 

Deportation also causes serious economic damage. The basic fact of the world economy is that even a modest job in one of the advanced economies of the world pays anywhere from three to ten times the average income. According to the OECD, the average annual wage in the United States in 2019, before the pandemic, was $65,836. In Mexico, the number is $9,148. By forcibly removing a person to a low performing economy, deportation imposes a de facto fine of tens of thousands of dollars per year.  

The economic damage is even worse for immigrants who have developed a business or own property in the United States. While some businesses can be run from afar, most can’t and it is common for businesses owned by deported individuals to collapse, as has been documented in various academic studies of deportation. It’s bad enough to lose years of income, but the collapse of a business adds insult to injury. 

Social scientists have begun to explore the social harms associated with forcible removal. In a study of over 100 people remanded to Central America, sociologists Tanya Golash-Boza and Yajaira Ceciliano-Navarro of the University of California, Merced, documented the multitude of harms. At the very least, there is shame, stigma and isolation associated with involuntary repatriation. This is quite similar to what happens when people leave prison. Those who have been deported are often viewed by their community as someone who has been tainted by the criminal justice system.

A smaller minority suffers far worse consequences. Many came to the United States to escape extreme violence and deportation puts them in harm’s way. It might be civil war, organized crime, or domestic partner abuse. When someone returns to their neighborhood, an estranged spouse might try to kill them. The United States government is not responsible for the actions of people in other places, but there is a moral responsibility to not put people in danger. This is analogous to walking by a burning home. One is not required to run in and save people, but there is an obligation to not throw someone back into a burning house who is trying to escape.

Then, of course, deportation creates massive collateral damage in families. Sociologist Joanna Dreby of the State University of New York at Albany reports in a 2012 article in the Journal of Marriage and Family that approximately 100,000 people in the United States have had a parent deported. Since then, the number has drastically increased. In interviews with children of deported parents, she finds that deportation often permanently dissolved families as it is extremely challenging for those left behind to indefinitely stay together when a parent literally disappears for years at a time. Deportation is double cruelty for children. Not only is the mother or father absent from their lives, but divorce often looms on the horizon. 

The case for deporting those with criminal records is also weak. The Fifth Amendment of the U.S. Constitution bars double jeopardy. Serve your time and you’re done. But the system of deportation adds extra punishment to the original punishment. If you’ve shoplifted, you not only have to spend some time in prison, but you might also have to break up your family and move to another impoverished or dangerous nation. Native born people convicted of crime don’t have to do this and neither should foreign born people. We don’t even need deportation for people suspected of crimes because we already have a very sensible process: extradition. If a person has been accused of a crime by another government, let that government produce a lawful arrest warrant which will then be enforced by U.S. authorities according to the extradition treaties we have with that nation.

The bottom line with deportation is remarkably simple: it is a brutal and cruel practice. Deportation deprives immigrants of vast sums of money, collapses businesses, puts people in mortal danger, stigmatizes them, and dissolves families. If someone runs afoul of U.S. immigration procedures, it should be no more of a nuisance than correcting a mistake on your taxes or taking care of some old parking tickets. Pay your fine, file your paperwork, and get on with your life. 

We don’t need a world where children come home from school to empty homes because immigration agencies have detained and deported their parents. We need a world where moving to America is the first step to a better life.

Fabio Rojas is the Virginia L. Roberts professor of sociology at Indiana University-Bloomington and a senior fellow at the Institute for Humane Studies.