The ‘Unexamined Law of Deportation’

Under current laws, noncitizens convicted of serious crimes are deported. But a Stanford University researcher argues that basing deportation decisions of immigrants on the level of criminality without looking at the length of time they have been in the U.S. disrupts families and turns immigration services into a vehicle for crime control.

In  a forthcoming paper published in the Georgetown Law Journal, David K. Hausman, a former immigrants’ rights attorney and a current postdoctoral fellow at Stanford University, asserts leaving this blanket principle unexamined creates unintended and harmful consequences.

In the paper, entitled “The Unexamined Law of Deportation,” Hausman identifies three main impacts of the current policy,  beginning with the fact that noncitizens are already punished more severely than citizens when convicted of the same crime.

Second, when Immigrations and Customs Enforcement (ICE) officers go after criminal noncitizens who have lived in the U.S. longer, they are disrupting families with stronger ties to the U.S., creating a collateral form of “additional punishment.”

“Finally, the relationship between ties and criminality is asymmetric,” Hausman writes, adding “there are better arguments for deporting people with weak ties and no convictions than for deporting people with strong ties and serious convictions.”

In general, being convicted of a crime as an undocumented person makes it “at least 100 times more likely” that he or she will be deported, Hausman wrote, citing data from the Obama administration’s Priority Enforcement Program.

Then-President Barak Obama said the program aimed to deport “felons, not families.” The Biden administration didn’t change the basics, putting a priority on the deportation of people convicted of aggravated felonies, with agreement from many immigration rights groups, the paper said.

But while deporting people with serious convictions ahead of people with minor convictions sounds like something that everyone across the aisle could get behind, other factors are ignored in making such decisions, said Hausman.

He noted there are substantial differences in life experience between citizens and noncitizens — mainly in harsher charges and sentencing, creating the falsehood that noncitizens are more violent or act more criminally than citizens.

According to research from Purdue University, noncitizens are more likely to be sentenced to prison and for longer terms in federal court compared to U.S. citizens — at a difference of 11 percent.

Noncitizens, unlike citizens, may also be deported after completing their sentences — creating an inequality between their experiences, Hausman found.

“Once a noncitizen has lived in the United States for many years and has a family here, deportation after a criminal conviction operates less as a selection mechanism for admissions than as a mechanism of social control, imposing a more demanding code of conduct for noncitizen residents than for citizens,” Hausman wrote.

Moreover, deporting individuals who have been in the U.S. for an extended time negatively impacts friends, family, employers, and acquaintances — all of whom suffer in different ways from the banishment of the undocumented individual.

To put this into perspective, Hausman cites that as of 2018, 84 percent of undocumented people have lived in the U.S. since before 2010.

And as other advocates and researchers have detailed, Hausman notes that there’s a possibility that the fear of deportation may deter noncitizens from making investments into their lives in America, therefore increasing the likelihood of other arrests.

“These three types of costs—costs to noncitizens, costs to noncitizens’ ties, and social costs imposed by incentives—all offer reasons to prioritize enforcement by ties to the United States,” Hausman concluded.

Prioritizing for deportation recently arrived immigrants who have committed serious crimes and have no ties yet would establish a better balance between society’s interest in crime control and immigration policy by

The current system makes immigration enforcement “a method of social control of noncitizen residents than as a tool of immigration policy.”

“Coming to grips with this tradeoff would reorient immigration enforcement away from racialized social control and toward immigration policy goals,” he wrote.

David K. Hausman is a former immigrants’ rights attorney and a postdoctoral fellow at Stanford University, who studies administrative law and immigration enforcement. From 2016 to 2019, Hausman worked as an attorney at the ACLU’s Immigrants’ Rights Project in New York, where he helped litigate challenges to the Trump Administration’s use of immigration detention, its arbitrary revocation of DACA grants, and its Muslim Ban.

The 2022 forthcoming paper can be accessed here.

Andrea Cipriano is a TCR staff writer.