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3Qs: Who is American?

In a soon-to-be-published article in the Boston College Law Review, Rachel Rosenbloom, an immigration policy expert and associate professor of law at Northeastern University, sets forth a new vision for the immigration adjudication system and critiques the core features of contemporary immigration enforcement, such as mandatory detention and fast-track removal procedures. We asked Rosenbloom, who has been widely quoted in the media on the wrongful detention and deportation of U.S. citizens and permanent residents, to explain the shortcomings of the immigration adjudication system, which has erroneously deported some 20,000 Americans since 2003, as well as her solution to immigration reform. Rosenbloom will be discussing her forthcoming article on the immigration enforcement system at Boston College on Tuesday, Nov. 12.

You argue that the deportation of U.S. citizens signals the existence of much broader problems within the immigration enforcement system. What are some of these problems and their attendant solutions?

Many people are shocked to hear that U.S. citizens have been erroneously deported—or “removed,” as the process is officially called—and such cases are indeed shocking because the government has no authority to deport citizens. However, it is also important to understand that the same conditions that have led to such incidents have also led to other types of troubling errors, such as cases in which immigrants have been deported despite having valid claims to asylum or other forms of relief. As it currently stands, our immigration enforcement system is set up to encourage people to give up their claims rather than to pursue them. Many of those facing deportation are subject to mandatory detention. Eighty-four percent of detained immigrants lack legal representation. Without attorneys and facing the prospect of years behind bars if they try to fight their cases, many people just give up and accept deportation. Some key changes that would make an immediate difference would include ending mandatory detention policies and providing attorneys at government expense to those who cannot afford legal representation.

What makes immigration enforcement unique within the American legal system? How does the system’s lack of safeguards lead to erroneous deportation?

The federal courts have always applied a more lenient standard to immigration enforcement than they have applied to other forms of government action that affect core rights such as liberty and family unity, on the theory that the federal government has heightened powers when dealing with the rights of noncitizens. For example, the Supreme Court has upheld the constitutionality of mandatory detention without requiring any finding that the individual poses a danger to society or a flight risk. And except in rare and very limited instances, federal courts have not found that a person facing immigration detention or removal to another country has the right to appointed counsel, or even the right to a full hearing before an immigration judge if she falls into a category that is subject to a fast-track removal procedure that bypasses the immigration courts. Without such safeguards, it is inevitable that valid claims will fall through the cracks.

The annual number of deportations has increased twentyfold since the 1980s. Why has the deportation rate skyrocketed?

Part of the reason for this increase is that Congress radically changed the deportation laws in 1996, taking away the discretion of immigration judges to grant relief to deserving individuals and imposing harsh new limits on asylum claims. Another factor driving this increase is that federal funding for immigration enforcement has ballooned in the last two decades, particularly since the 9/11 attacks. The federal government now spends more money on immigration enforcement than on all other federal law enforcement agencies combined. Congress has made these changes in the name of “fighting terrorism,” but in truth most of this money is being spent on rounding up and deporting ordinary people who pose no threat to the United States. Many are longtime residents whose deportations are tearing apart families and communities.