Law in Contemporary Society

A Note on Self-Deportation

-- By LizzieGomez - 15 Feb 2012

A few months ago, Romney presented his solution to our broken immigration policies at a GOP debate in Tampa. “The answer,” as he called it, was self-deportation. While Romney has never soft on immigration, his latest stance on immigration dropped any pretense of a moderate view. In short, the idea is to encourage undocumented immigrants to leave voluntarily through policies that deny them employment and make life unbearable enough. The theory is synonymous with a strategic plan developed by anti-immigrant groups called “attrition by force,” which is embodied in laws denying work, education, transportation, housing services to those who cannot prove their legal immigration status. Romney’s comments drew immediate criticism for being too extreme from both the conservative and liberal camp. Others mock the term itself because it is more or less an oxymoron – combining the reality of immigrants getting expelled from this country with the fiction of that being their choice.

However, this not a joke since the idea of self-deportation is just another manifestation of what Arizona’s SB 1070 and Alabama’s HB 56 immigration laws are promoting. And while these laws mark another cyclical period of our nativism and xenophobic attitude against immigrants, they also set in motion the possibility that “self-deportation” will become a normative aspect of our immigration policy.

Since his comments in Tampa, Romney's camp has recanted its position on self-deportation, stating that he’s “still deciding what his position on immigration reform is.” I anticipate his views going forward will become more clear when the Supreme Court release its ruling on AZ’s SB 1070 this coming June.

Based on the oral arguments, it’s likely that the Court won’t strike down the most controversial elements of SB 1070.

Determining what's going to happen from transcripts of oral argument in the Supreme Court is, in general, impossible. For one thing, the people there don't know. Votes change, cases change, opinions change. Insiders with the best possible knowledge don't know when a case has been argued. I know. You might have an idea that in many cases turns out to be right, but with the canniest will in the world you couldn't know enough to make bets on the outcomes. For another, Justices do not behave at oral argument in a fashion that closely correlates with their eventual votes on the merits. Some of them sometimes, some of them often, ask questions that press very firmly in a direction their first conference vote a day or two later does not reflect. Not only my own experience but lots of published documentation shows this.

The reason why was no major assault on SB 1070 from the higher court is because the US Solicitor General, Donald Verrilli, didn’t focus on racial profiling or alienage discrimination. In fact, the Chief Justice raised these issues at the outset by asking Verrilli: “No part of your argument has to do with racial or ethnic profiling, does it? I saw none of that in your brief.” Verrilli confirmed: “We’re not making any allegation about racial or ethnic profiling the case.” Instead, Verrilli and the Justice Department are arguing that AZ’s law is preempted because the Constitution vests exclusive authority over immigration to the federal government.

On one level, there’s no sense in raising an allegations of racial and ethnic profiling since the government has challenged AZ’s law before it has actually gone into effect. To be sure, the point is to try and stop the law before its implementation. However, racial profiling and alienage discrimination are at the heart of SB 1070. The four specific provisions under review make it possible for AZ’s authorities to continuously stop, interrogate, and check the status of its Latino population without more than a “probable cause.” This is the broader and most significant impact of the law, but without empirical evidence of this, there’s not much strength in this argument. As a result, we saw the higher court water down what is really at stake if AZ’s law is implemented. Case in point: Justice Scalia, a proponent of the law, characterized the federal government's argument as "the state has no power to close its borders to people who have no right to be there." Of course, Justice Kagan’s recusal leaves the possibility of a 4-4 split, which would automatically affirm the Ninth Circuit's judgment without creating a nationwide precedent against similar laws passed in five other states and being seriously considered by another eight. So far Romney has tread carefully when it comes to SB 1070, never going on the record in praise of the law. Yet he firmly opposes the amnesty and pledges to veto the DREAM Act. In the end, Obama’s appeals to Latino voters this time around will depend to a great extent on how easy Romney makes it for him. Though my bet is that the Court will uphold most of AZ’s law, Romney’s challenge will still be getting rid of his flip-flopper image on immigration.

To close, here’s a personal reflection:

I'm lucky to be a naturalized U.S. citizen. I don't mean just thankful. I mean that the naturalization process, among other variables, depends on pure luck. It took an abnormally short amount of time for my family to get our green cards because we came during an amnesty period. The tranquility citizenship has afforded us is at moments a bittersweet reality for me, namely because the horror stories about immigration that I know come from my family, neighbors, and friends.

To even get a temporary residency means a world of difference. I went to a small magnet high school of predominately black and Latinos. From my class, 2 did not complete college, both due to immigration problems. One of them is my best friend. He was a stellar student; he had over a 4.0 GPA and national merit scholar. Yet his family never disclosed his illegal status until he applied for college. The truth was devastating because he had no control over the situation. I’ll leave out some of the details, but in the end he couldn’t secure federal loans to finish his degree at UC Berkeley. He now works as a cashier at a bookstore. It's a dead end job relative to what he and I know he is capable of. He also can’t leave the job or the city because his immigration case is still ongoing. The topic is pretty much taboo when we get together. If it were up to me, however, I would like to turn to him one day and say that he doesn’t have to hide anymore. But for now, I can only share with you that I’m getting my license in a couple years, and as long as I have it, he won’t be going anywhere. (980 Words)

On the legal and political analysis, you see that it's already more complicated than you described, and the Supreme Court hasn't even decided Arizona v. United States yet. The President has moved aggressively to secure support from people like you and your friend, who is precisely affected by his executive order. We'll soon see what it really means in practical immigration law terms, but the immediate political, organizational meaning is that he's giving the strongest reasons for you to help bring people to the polls for him in swing states in November. Arizona, no matter which way the Supreme Court rules, will be a much harder state for Republicans to carry if every Latino person entitled to vote registers and votes. Nevada will again belong to the Democrats. In fact, what happens in almost all the swing states could be affected by strong growth in Latino turnout. And even if the Supreme Court has found its way to a holding that the federal immigration power hasn't preempted this legislation—which would be quite a change from the constitutional law of preemption we thought we knew when I was a youngster at the Court—a reelected Obama Administration would have good reason to pursue in new litigation the "unconstitutional as applied" challenges that you too recognize are really the heart of the civil rights case against these laws.

You should revise when the Court opinion comes down, in the next few days.


Webs Webs

r10 - 22 Jan 2013 - 20:10:40 - IanSullivan
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM