The logic of deportation

If we are to be a nation of laws, would-be immigrants who lose bids for asylum can’t stay in the U.S.

Reports out of Washington suggest that the Obama administration is planning to sweep up and deport hundreds of families whose applications for asylum or some other form of permission to remain in the country were rejected by immigration courts. Immigration rights advocates have begun rallying in opposition, arguing that it is inhumane for the government to send back to Central America — the source of many of the cases — people who have fled violence and crime-ridden neighborhoods for a chance at a better future for themselves and their children.

It’s hard to argue with that logic, but it is based on a flawed premise. To not deport those whom an immigration judge has ruled ineligible to remain in the country is to throw over any notion of enforceable immigration law. And that is an indefensible position.

We share some of the concerns that have been raised about the fairness of the immigration court system. It is understaffed, and judges carry excessively high caseloads. Studies have found that petitioners who have a lawyer at their elbow stand a much better chance of winning permission to stay than those without lawyers, largely because of the arcane and confusing nature of immigration law itself. Immigration cases typically are civil proceedings, and although those facing deportation have a right to counsel, they do not have a right to one paid for by the government, unlike criminal defendants. So those without means to hire an attorney are at the mercy of the pro bono immigration bar, which is just as overextended as the judges. In that scenario, it’s likely that some people who have a legitimate right to asylum wind up getting deported anyway, a regrettable turn of events.

But that shortcoming is an argument for a more robustly funded immigration courts, not an excuse to turn the system on its ear and not enforce a lawful order from an immigration judge.

There is no doubt that the U.S. immigration system is in shambles. More than 11 million people are living here illegally, but most have been here for so long they are deeply entwined in our economy and our neighborhoods. To deport them all — a popular mantra from the nativist right during this presidential election cycle — would tear apart families and communities. It also would be prohibitively expensive, requiring billions of dollars in added enforcement capacity and causing billions of dollars in losses to the economy. The better approach would be for Congress to stop using illegal immigration as a boogeyman and start crafting meaningful reforms that would include a path to citizenship for those who have put down roots and been responsible members of society, while stiffening the government’s ability to enforce borders and track down people who overstay visas.

The current wave of asylum-seekers raises some particularly vexing questions. The U.S. has a long and occasionally problematic history in Central America, and bears some moral culpability for the criminal gangs that relocated from U.S. cities, including Los Angeles, to thrive in urban neighborhoods of Honduras, Guatemala and El Salvador. The U.S. also is the main market for the illicit drug trade that helps many of those gangs flourish.

The solution to those issues, though, isn’t to allow entry to the U.S. for anyone able to reach the U.S. border after fleeing a dangerous neighborhood in Tegucigalpa or San Salvador. Those who face legally articulated persecution — usually based on religion, political beliefs or other recognized classes of special victimization — should be granted asylum if U.S. immigration courts say they are eligible.

The government has both the right and the responsibility to determine who gets to enter the country, and who gets to stay as legal residents with the possibility of eventual naturalized citizenship. Openness to immigration has been a defining aspect of American history, and one of the nation’s strengths. Still, we have to expect the government to follow through on legal processes that have been completed. When the courts reject arguments that individual migrants have a right to stay, the government is correct in targeting them for removal. To do otherwise not only erodes the sense that we are a nation ruled by laws, but it also serves as an encouragement for others who think gaining entry to the U.S. is as simple as showing up and saying, “Let me in.” That only exacerbates our illegal immigration problem.