November 13, 2009

After Eighteen Years in the US, No Due Process, No Judicial Review, Just Deportation

Vern entered the United States in 1991 and applied for political asylum. He was issued a work permit as his case was being processed, and began to work in a frozen food processing plant in Ohio. He met a Honduran woman, Maria, also applying for political asylum, and they began to date. Years went by, and each year, they received work permits that allowed them to continue working. Hopeful their cases would eventually be resolved, Vern and Maria married, and had their first child in 1996.

In 1998, Vern received a notice that he should leave the United States — his asylum application had been denied. Vern was devastated — he had established a life in the US, and had few ties to Guatemala. He decided to stay, and hope that his wife’s application would be approved, and that she could apply for him to legalize his status. They had another child, and continued to make their lives in Ohio. Vern rose up the ranks in the food processing plant, eventually becoming supervisor. Maria also worked there, but she worked on the line, earning less money than Vern.

Vern and his wife had a comfortable life in the US, but Vern lived in fear that immigration agents would come for him. To avoid this, he stayed out of trouble. He did everything he could to avoid problems with the police; he never drank, avoided making traffic violations, and abided by the laws at all times. He learned English, took his kids on outings every weekend, and tried to blend in as much as possible.

It wasn’t enough. One Sunday morning, two ICE agents came to Vern’s house and arrested him in front of his children — aged 12 and 9. The immigration agents were part of a Fugitive Operation Team — designed to find “fugitive aliens” — people like Vern who had ignored their deportation orders. Vern was put into detention, and, eight days later, he was in Guatemala, the country he had left eighteen years before.

Vern was never given the opportunity to explain to a judge that he had ignored his deportation order because he had already formed a family in the US, that his family depended on him to meet their daily needs, that he had worked at the same job for sixteen years, that he had never had any trouble with the law, that his two children are Americans, or that his wife was very close to attaining legal status, and thus to ensuring his own legal status. Vern had no opportunity to explain anything. He had sought entry to the United States, and had been denied admission. In one reading of the law, despite his years in the US, the fact that he entered illegally means that he never actually entered the US. As an extraterritorial subject, Vern was not afforded the Constitutional protections and due process we presume to be part of the US legal system.

Vern, like most non-citizens who face deportation, had no right to judicial review of his case. If a person entered the country illegally, he is considered to be seeking entry to the US, and not to be a person physically present in the US. As a person seeking entry, he is not entitled to Constitutional protections and judicial review in immigration proceedings. The right of the United States to deny due process to people seeking entry has merit insofar as it makes sense to avoid burdening the court systems and to protect the sovereignty of the US. However, it makes little sense to refer to a person as seeking entry when he has lived in the US for over two decades, has US citizen children, and has few if any ties to any other country. To deny that person judicial review of his deportation order is to ignore the notions of due process and Constitutional protections that are so important to the United States, and to international and human rights law more generally. It also ignores his human right to form a family and to be with his family.

This is a re-post from Dissident Voice

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