We Need to Tell the Truth About Deportation  

November 9, 2022

By Matt O’Brien

Much of the current commentary and scholarship on immigration law is based on a complete falsehood. That pernicious fiction holds that aliens in deportation proceedings are being “tried” for an offense and – if convicted – punished through removal from the United States. However, as matters of both fact and law, nothing could be further from the truth.

In reality, as the Supreme Court of the United States (SCOTUS) has repeatedly held, deportation is not punishment. Rather, it is simply the process of returning aliens who do not have authorization to be in the United States to their home country, where they possess full rights of residence.

The SCOTUS first opined on the nature of deportation proceedings in 1893, in Fong Yue Ting v. U.S. The court distinguished deportation from “banishment” (forcible expulsion from one’s country as punishment for a crime) and “transportation” (forcible relocation within one’s country as punishment for a crime). It held specifically that, “‘Deportation’ is the removal of an alien out of the country simply because his presence is deemed inconsistent with the public welfare, and without any punishment’s being imposed or contemplated either under the laws of the country out of which he is sent or under those of the country to which he is taken.”

Thereafter, the court repeatedly affirmed and reaffirmed its characterization of deportation as a non-punitive action in case after case. Among the most significant of those opinions was Wong Wing v. U.S.,in 1896, where the court opined that:

The order of deportation is not a punishment for crime. …. It is but a method of enforcing the return to his own country of an alien who has not complied with the conditions upon the performance of which the government of the [United States], acting within its constitutional authority and through the proper departments, has determined that his continuing to reside here shall depend.

Even more importantly, however, in Wong Wing the SCOTUS explicitly distinguished deportation proceedings – which are civil and administrative in nature – from criminal trials. The court stated that an alien in deportation proceedings “has not, therefore, been deprived of life, liberty, or property without due process of law; and the provisions of the Constitution securing the right of trial by jury, and prohibiting unreasonable searches and seizures and cruel and unusual punishments, have no application.”

Both Fong Yue Ting and Wong Wing, in turn, rest on a principle clearly articulated in Ekiu v. U.S. in 1892. The Ekiu court stated that, “It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty and essential to self-preservation, to forbid the entrance of foreigners within its dominions or to admit them only in such cases and upon such conditions as it may see fit to prescribe.” That proposition was further clarified by the SCOTUS in 1972 in Kliendienst v. Mandel, where the court stated that “unadmitted and nonresident alien[s], [have] no constitutional right of entry to this country.”

As one can see from the dates of the aforementioned opinions, the courts have been remarkably consistent in their holdings on these issues, from the earliest days of the Republic to the present.

Putting all of the foregoing into plain English gives an accurate picture of what deportation proceedings are and what is at stake for the alien: Sovereign countries can admit and eject foreign nationals from their territory as they see fit. Foreign nationals who have been formally admitted to the U.S. may have a claim that they should be allowed to remain here – but no foreigner has a constitutional right to enter or stay in the U.S.

Furthermore, since the worst possible outcome for an alien in deportation proceedings is a non-punitive transfer to his/her home country at U.S. government expense, deportation is not a form of cruel and unusual punishment. Because the alien in question has no legal right to be here in the first place, removing him/her from the United States is simply the correct legal result – no different from the civil eviction of a tenant from premises for which he/she has failed to pay rent.

In essence, a deportation proceeding is less like a criminal trial and more like an administrative hearing to determine whether a driver should lose his/her license – the benefit in question is a revocable privilege, not an irrevocable right.

Current portrayals of the deportation process are emotionally-charged narratives calculated to portray aliens as hapless victims of an unkind system that deprives them of rights. In reality, this is untrue.

The United States has one of the fairest immigration systems in the world. It is one that takes into account both a migrant’s professed reasons for coming here and the potential consequences of deportation. On the other hand, in most other countries of the world, foreigners are regularly subjected to summary removal, at the hands of law enforcement officials, without ever seeing a judge.

Accordingly, it is high time that the talking heads who comment on immigration law and policy did some serious research and gave the public an accurate, responsible picture of the removal process.

Matt O’Brien is the director of investigations at the Immigration Reform Law Institute. Prior to working for IRLI, he was an Immigration Judge assigned to the U.S. Immigration Court at Arlington, Va.

Also published at The Hill, November 8, 2022.

Photo credit: U.S. Immigration and Customs Enforcement.