This was originally posted on The American Prospect.
In 2008, Nydia, a transgender woman, fled physical and sexual attacks in Mexico and was granted asylum in the United States. She was saving money to apply for lawful permanent residence (a “green card”) when, in 2010, her mother died. Nydia returned to Mexico for the funeral. “I was afraid [to go back], but in the moment, I just blocked out everything that had happened to me,” she said. “When I got there, I thought ‘Oh my God, why am I here?'”
When her family in Mexico rejected her, Nydia found herself alone, attacked by a gang who tried to rip out her breast implants, beat, robbed, and raped her. Nydia returned to the United States border and told American border officers that she had been granted asylum and was attacked again in Mexico. They wrote down her story but ordered her deported anyway. She tried again to return to the United States but was arrested by border officers who verified that she had asylum. Then, once more, they deported her to Mexico with a 20-year ban on returning. In Mexico, Nydia was repeatedly attacked and then kidnapped by Los Zetas, a cartel that forced her to work as a sex slave. She eventually escaped, fled back to the United States, and this fall finally became a lawful permanent resident.
Immigration advocates just celebrated a reprieve for our nation’s rampant deportation machinery. Under President Obama’s executive action plan, more than four million individuals can apply for temporary protection from deportation—a hard-won victory for noncitizens and their families. But Nydia’s story shows that having rights or claims to be in the United States, even under current law, just isn’t enough. At the U.S. border, immigration enforcement officers decide whose rights matter. The new Executive Action does not change this—if anything, it could make the border even more lawless, as the plan continues to rely on expanded militarization and immigration enforcement at the U.S. border. The apparent assumption is that those apprehended and deported “at the border,” which can stretch 100 miles from the actual border, are strangers at our gate with no rights or claims to be there—and that we can trust immigration officers to tell who is of the deserving and whose rights are disposable.
We’re risking a lot on those assumptions, and both are wrong.
The Deportation Machine
In 2013, the United States conducted 438,421 deportations. In more than 363,279 of those deportations — over 83 percent — there was no hearing, no judge. Instead, individuals were deported through a cursory and often coercive process where the same presiding immigration officer acted as the prosecutor, judge, and deporter. Though these officers (think immigration police) carry a gun instead of bang a gavel, they wield enormous power like a judge: they decide whether someone can stay with their family or claim asylum or work in the United States — or can be banished in a blink.
The ACLU (my employer) just completed a year-long investigation into who is deported without a hearing and why that basic opportunity to present their claims and defend their rights matters. Those deported include asylum seekers who come in search of protection and are instead deported back to danger. They include longtime residents with U.S. citizen children who might now qualify for relief under the President’s executive action (if they are still in the United States, and many are not) but who must rely upon border officers to identify them. They even include lawful residents—U.S. citizens, people with work and student visas, and people who’ve already won the right to be here. Right now, people who already have rights to be in the United States are being deported, not because the law excludes them but because recognition of those rights depends upon the whim and mercy of individual immigration enforcement officers.
This means the overwhelming majority of deportations are not authorized by judges with training in immigration law but by agents from Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE). CBP in particular is an agency plagued by thousands of abuse allegations—from rape to corruption to murder. The nation’s largest law enforcement agency, CBP is also its most lawless. But while we know that many CBP officers act irresponsibly and with apparent impunity, we must not ignore the enormous and growing responsibility these agents have to determine the fate of those they arrest.
Today there are over 40,000 CBP officers authorized to act like judges but without legal training. They decide in a matter of minutes whether someone is a stranger or a citizen and whether or not to issue a deportation order that could expel a person for five, ten, twenty years or for life. There is no evidence or lawyer required and no independent review of the order. If an officer makes a mistake and deports a law-abiding resident or visitor or someone who could win her case in immigration court, there is virtually no way for that person to correct and expunge the deportation order.
And sometimes, judicial review would be too late, anyhow. Just ask Nydia and others like her.
The Erroneously Deported
It is predictable that people with rights or claims to be in the United States will be erroneously deported by border officers. Immigration law is notoriously complicated and, often, the interviewing officers don’t speak the same language as those facing deportation. But some of the “errors” appear to be the result of coercion, manipulation, and fear.
Braulia A., a mother of four U.S. citizen children and one son born in Guatemala, lived in the United States for almost 15 years. She left for one day and was ordered deported by CBP officers at the California-Mexico border. Braulia told the officers that gangs were threatening her family in Guatemala and that she needed help; they deported her there anyway. Her eldest son joined her back in Guatemala and was murdered by a gang. After his funeral, the same gang raped and shot Braulia, leaving her for dead. She survived and fled back to her family in the United States where, after months of detention, she finally won her immigration case.
Veronica V., a mother of three U.S. citizen children who lived in the United States for almost 20 years before her expulsion, was arrested by ICE just beyond the border and coerced into accepting “voluntary” return. After hours alone in a detention cell, Veronica recalls, “I told [the officer] I wanted to talk to my husband. He said, ‘You are not going to talk to your husband. What you are going to do is sign this salida voluntaria or you are going to jail.’ That is when I signed because they said there were bad people in jail who could do something to hurt me.” Even Veronica’s lawyer was not allowed to speak with her before Immigration and Customs Enforcement officers dropped her across the border in Mexico.
Several U.S. citizens have also been deported at the border without a hearing. Border officers deported Maria de la Paz, a U.S. citizen, because they did not believe a U.S. citizen would speak only Spanish. Maria spent years in Mexico trying to return to the United States and only did so successfully this summer, after finding an attorney and many months of litigation.
This isn’t justice; it’s administrative convenience and willful distortion of the laws. And these stories—only a sampling of the dozens we documented this year—are not exceptional but all too terribly common.
Deport First, Ask Questions Later
There isn’t a lot border officers are required to ask or screen for at the border. These interviews are often perfunctory and adversarial, with little opportunity for the person, suddenly facing deportation, to ask questions, call a lawyer, or provide evidence to show they are lawfully entering or living in the United States.
For years, the one thing that border officers have been required to ask is whether the person is fleeing danger and afraid to return to their country. But too often, officers aren’t even doing that.
In 2005, the United States Commission on International Religious Freedom released a report, commissioned by Congress, after watching expedited removal interviews at the U.S. border. In 50 percent of observed interviews, arriving non-citizens were not informed they could ask for protection if they feared persecution or torture in their home country. In our interviews this year with 89 individuals deported in the border zone, 55 percent said they were not even asked that basic required question about whether they were fleeing persecution or torture (or were not asked anything in a language they understood.) Of those who were asked and said yes, 40 percent were deported anyhow without even the chance to ask for protection.
President Obama’s Executive Action is an important step towards recognizing the rights of longtime residents whose lives are part of the fabric of our country. But it comes too late for many people who were unjustly deported—some, to their deaths. Moreover the plan relies upon immigration enforcement officers who may have a fundamental conflict of interest to determine who has a right to benefit and who can be spared deportation. Many officers operate under an apparent “deport first, ask questions later” policy, which is cavalier at best and callous endangerment at worst. It ignores that most people cannot get even illegal deportation orders reviewed and rescinded.
This is not an inevitable system. Officers have discretion to refer a person to court to have their claims reviewed. Why not do that? Why not give people a real chance at justice, when the stakes are so high? We can give people with strong claims to be in the United States an opportunity to be heard and to defend their rights. And in the meantime, we can create better guidance, oversight, and accountability for officers in using—responsibly— their tremendous power. Our laws and our communities are made stronger when we care about fairness and when we don’t sacrifice justice for arbitrary expedience, particularly when lives are on the line.