In his new book Deportation Nation, Kanstroom explains the deportation of non-citizens from the United States. The danger of deportation hangs over the head of virtually every non-citizen in the United States. In the complexities and inconsistencies of immigration law, one can find a reason to deport almost any non-citizen at almost any time. In recent years, the system has been used with unprecedented vigor against millions of deportees. We are a nation of immigrants- but which ones do we want, and what do we do with those that we don't? These questions have troubled American law and politics since colonial times. Deportation Nation is a chilling history of communal self-idealization and self-protection. The post-Revolutionary Alien and Sedition Laws, the Fugitive Slave laws, the Indian "removals," the Chinese Exclusion Act, the Palmer Raids, the internment of the Japanese Americans- all sought to remove those whose origins suggested they could never become "true" Americans. And for more than a century, millions of Mexicans have conveniently served as cheap labor, crossing a border that was not official until the early twentieth century and being sent back across it when they became a burden. By illuminating the shadowy corners of American history, Daniel Kanstroom shows that deportation has long been a legal tool to control immigrants' lives and is used with increasing crudeness in a globalized but xenophobic world.
As the national debate on immigration reform continues into the presidential election year, the usual political arguments for widespread deportation of “illegal immigrants” lack a basic awareness of the American deportation policy, argued Boston College law professor Daniel Kanstroom at the Boisi Center’s October 17 lunch colloquium. Kanstroom is the author of the recent book Deportation Nation: Outsiders in American History (Harvard, 2007), which chronicles the large, unnecessarily complicated and comparatively harsh system of laws, courts and enforcement mechanisms related to deportation. American deportation policy, he argued, challenges some of our most strongly held social values, including our self-image as a “nation of immigrants” and our faith in the rule of law.
Kanstroom explained that deportation serves two functions in the United States: extended border control and post-entry social control. If border control is about choosing who can legally enter and stay in this country, extended border control enforces these decisions after people have already entered the country. This is the most obvious reason sovereign nation-states wield the power of deportation. The problem, however, is that this form of deportation is neither dominant in the current debates nor on the horizon of conversation.
The latter function—post-entry social control—is on the rise today as the government uses the threat (and reality) of deportation to punish or silence foreign-born dissidents inside the United States. This threat is intense in part because defendants in deportation cases lack basic civil liberties: they are not allowed lawyers or jury trials, and they can be punished retroactively (and deported) for laws that criminalized certain behavior well after the defendants undertook it. Kanstroom worried about what this deportation policy will do in the future—not only to immigration policy more broadly, but also to legal policy in general. A more sensible and honorable approach to deportation policy, he argued, would re-align it with immigration policy once again, rather than making deportation a form of social control.
Ultimately, Kanstroom argued, deportation should be placed under the rule of law. It should be dealt with on a case by case basis, it should be more in tune with other forms of criminal law and it should not be retroactive. It is the clear lack of balance between immigration and deportation policy, and more specifically between post-entry social control and extended border control, which Kanstroom addressed in his book and in his talk.
Thomas Alexander Aleinikoff, Semblances of Severeignty: The Constitution, the State, and American Citizenship (Harvard University Press, 2002)
Daniel Kanstroom, Deportation Nation: Outsiders in American History (Cambridge: Harvard University Press, 2007)
________, “Post Deportation Human Rights Law: Aspiration, Oxymoron or Necessity?” Stanford Civil Rights & Civil Liberties Law Review (Spring 2007).
________, “The Better Part of Valor: The REAL ID Act, Discretion, and the ‘Rule’ of Immigration Law,” New York Law Review 51 (Fall 2006): 161.
________, “Criminalizing the Undocumented: Ironic Boundaries of the Post-September 11th ‘Pale of Law,’” North Carolina Journal of International Law and Commercial Regulation 29 (2004): 639-70.
________, “St.Cyr or Insincere: The Strange Quality of Supreme Court Victory,”
Georgetown Immigration Law Journal 16 (2002): 413-64.
________, “Introduction,” Human Rights, Winter 2001.
________, “Deportation, Social Control, and Punishment: Some Thoughts about Why Hard Laws Make Bad Cases,” Harvard Law Review 113 (June 2000): 1890-1935.
________, “Deportation and Punishment: A Constitutional Dialogue,” Boston College Law Review 61 (July 2000): 771-788.
________, “Wer Sind Wir Wieder? Laws of Immigration, Citizenship, and Asylum in the Struggle for the Soul of the New Germany,” Yale Journal of International Law 18 (Winter 1993): 155.
________, “The Shining City and the Fortress: Reflections on the ‘Euro-solution’ to the German Immigration Dilemma,” Boston College International and Comparative Review 16 (Winter 1993): 201.
Gerald L. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law (Princeton University Press 1996)
Mae M. Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America (Princeton University Press, 2004)
Hiroshi Motomura, Americans in Waiting: The Lost Story of Immigration and Citizenship in the United States (Oxford University Press, 2006)
Lucy E. Salyer, Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Laws (UNC Press, 1995)