After Eighteen Years in the US, No Due Process, No Judicial Review, Just Deportation

Vern entered the United States in 1991 and applied for political asylum. He was issued a work permit as his case was being processed, and began to work in a frozen food processing plant in Ohio. He met a Honduran woman, Maria, also applying for political asylum, and they began to date. Years went by, and each year, they received work permits that allowed them to continue working. Hopeful their cases would eventually be resolved, Vern and Maria married, and had their first child in 1996.

In 1998, Vern received a notice that he should leave the United States — his asylum application had been denied. Vern was devastated — he had established a life in the US, and had few ties to Guatemala. He decided to stay, and hope that his wife’s application would be approved, and that she could apply for him to legalize his status. They had another child, and continued to make their lives in Ohio. Vern rose up the ranks in the food processing plant, eventually becoming supervisor. Maria also worked there, but she worked on the line, earning less money than Vern.

Vern and his wife had a comfortable life in the US, but Vern lived in fear that immigration agents would come for him. To avoid this, he stayed out of trouble. He did everything he could to avoid problems with the police; he never drank, avoided making traffic violations, and abided by the laws at all times. He learned English, took his kids on outings every weekend, and tried to blend in as much as possible.

It wasn’t enough. One Sunday morning, two ICE agents came to Vern’s house and arrested him in front of his children — aged 12 and 9. The immigration agents were part of a Fugitive Operation Team — designed to find “fugitive aliens” — people like Vern who had ignored their deportation orders. Vern was put into detention, and, eight days later, he was in Guatemala, the country he had left eighteen years before.

Vern was never given the opportunity to explain to a judge that he had ignored his deportation order because he had already formed a family in the US, that his family depended on him to meet their daily needs, that he had worked at the same job for sixteen years, that he had never had any trouble with the law, that his two children are Americans, or that his wife was very close to attaining legal status, and thus to ensuring his own legal status. Vern had no opportunity to explain anything. He had sought entry to the United States, and had been denied admission. In one reading of the law, despite his years in the US, the fact that he entered illegally means that he never actually entered the US. As an extraterritorial subject, Vern was not afforded the Constitutional protections and due process we presume to be part of the US legal system.

Vern, like most non-citizens who face deportation, had no right to judicial review of his case. If a person entered the country illegally, he is considered to be seeking entry to the US, and not to be a person physically present in the US. As a person seeking entry, he is not entitled to Constitutional protections and judicial review in immigration proceedings. The right of the United States to deny due process to people seeking entry has merit insofar as it makes sense to avoid burdening the court systems and to protect the sovereignty of the US. However, it makes little sense to refer to a person as seeking entry when he has lived in the US for over two decades, is married to a US citizen, has US citizen children, and has few if any ties to any other country. To deny that person judicial review of his deportation order is to ignore the notions of due process and Constitutional protections that are so important to the United States. It also ignores his human right to form a family and to be with his family.

Tanya Golash-Boza is on the faculty at the University of Kansas. Read other articles by Tanya, or visit Tanya's website.

27 comments on this article so far ...

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  1. deborah said on November 13th, 2009 at 1:56pm #

    Too bad! Vern was an illegal who broke immigration law so ICE had every right to deport him. He knew he was wrong as he was worried about agents coming for him but he still decided to get married and make babies, knowing he could be deported at any time. He knowingly put his family at risk and now all of them will suffer for his stupid decisions and behavior. Sorry, no sympathy for another stupid illegal who thinks they don’t have to obey the laws of this country. He got what he deserved. Deport all illegals !!

  2. rosemarie jackowski said on November 13th, 2009 at 2:12pm #

    Good article…I think I smell a little racism here in the comment from deborah above. Don’t be afraid of ‘them’ because they have tan skin. They should be treated with the same dignity as those from Cuba.

    There is a higher law than that which limits the freedom of those from other countries. Hiding behind ‘the law’ is what kept slavery going for so many years.

    No one should be punished or granted any privilege because of the location of his mother at the time of his birth. All men are created equal. Love thy neighbor. Every child born in the US has the moral right to have his parents, grandparents, aunts, uncles, cousins, and entire family with him in the USA.

  3. Jillian C. York said on November 13th, 2009 at 2:15pm #

    I certainly do NOT feel the way the above commenter does and do think there is an extreme need for reform of the entire system, however, Vern did enter the country illegally and was asked to leave. Do I think the way it was handled was right? Absolutely not. But there are asylees who enter the country LEGALLY, nevermind refugees who apply legally and are granted entrance legally. Vern had the right to appeal his asylum decision when it was handed to him, but as far as I know from your article, he instead chose to simply remain here and hope he didn’t get caught. The system is messed up, but it’s nonetheless a system and Vern broke the rules.

    That said, the asylum processes have since changed; asylum applicants are now guaranteed response within a certain length of time (rather than the years it used to take).

  4. Tanya said on November 13th, 2009 at 2:29pm #

    Vern did break the law, twice, first by entering the country illegally, and then by ignoring his deportation order. That much is clear.

    What I would like to ask us to do is to put these legal infractions into context. Had Vern driven without a driver’s license in 1991 and then cheated on his taxes in 1998, in most cases, the statute of limitations would be applied, and he would not be punished for these infractions in 2009.

    Were he to be punished, other factors would be taken into consideration, like his criminal record, his role in the community, his family ties.

    I think it is important to point out and to reflect on the fact that illegal entry is unique among other legal infractions in that 1) there is no statute of limitations and 2) there is no judicial process to weigh any other factors.

    Ironically, it is often the same people who show that they hold the USA so dear by insisting that we deport all the undocumented and seal the borders that support a system which seems so out of line with values fundamental to the USA – justice, family, and the balance of powers.

  5. rosemarie jackowski said on November 13th, 2009 at 3:26pm #

    I suggest that those commenting on this article read the books of William Blum, “Rogue State” also “Killing Hope” – also John Perkins “Confessions of an Economic Hit Man”. Having any USer complain about those from other countries coming into the USA legally or illegally, with or without the ‘necessary’ legal documents is like the pot calling the kettle black. The US has caused global damage in many countries. Central America has been has been an area under US attack for decades. The US should be paying reparations to the countries in Central America and others all around the globe. Has anyone here ever read Zinn’s History of the US.

    How many countries has the US invaded since WW 2? Blum lists them.
    In how many countries does the US have unwanted military bases right now – maybe 702 bases in 132 countries. Do you know how the USA got its military base on Diego Garcia? That one is a US crime against humanity – genocide. How many thousands of innocent civilians were slaughtered by the US in Panama? AND how many innocent civilians were killed today by US drones ? While you’re at it, I suggest that you take a peek at the photos of the babies born to mothers who had been exposed to US depleted uranium! By comparison, Vern should not only be welcomed in this country but he should be nominated for Sainthood.

  6. rosemarie jackowski said on November 13th, 2009 at 3:30pm #

    I also suggest the reading of Ward Churchill’s work.

  7. Deadbeat said on November 13th, 2009 at 3:56pm #

    I agree with Ms. Jackowski there should be no such thing as “illegal alien”. That’s like calling someone a “runaway slave”. It is a term grounded in racism and exploitation. The main reason why people migrate to the U.S. is due to the fact that their economy has been disrupted by trade agreement like NAFTA and austerity measures caused by the IMF debt crisis. In fact more of their money flows into U.S. bank then stay within their own economies which could be used for their own local development.

    The term “illegal alien” is the legacy of Lou Dobbs who recklessly used the epitaph. This Texan hide is racism under the guise of “legality” and goes to show you that what is “legal” is not always just.

  8. Beast said on November 13th, 2009 at 6:05pm #

    Calling an illegal alien an undocumented person is like calling a burglar an unwanted house guest. Vern came illegally, he knows the consequences of that. He willingly broke the law coming here illegally, so don’t cry for old Vern, he knew better. Deporting these people is a good thing, it sends a message that if and when you get caught, you will be deported and ruin any chance of legalization.

    Deadbeat and Rosemarie – this is not racism, this would happen in any other country someone enters illegally. You cannot just cross borders unlawfully without facing the risk of punishment. You should see Mexico’s immigration laws if you think we are so harsh. Are Mexicans racist when Central Americans are deported from crossing into Mexico illegally? But I see you need the “hate whitey” train to keep rollin on.

  9. Mary-Ellen Pecci said on November 13th, 2009 at 7:18pm #

    Yes, Confessions of an Economic Hit Man, a chilling expose of our past political elite! We have or I should say the World Bank and its investors have destroyed cultures around the world in the name of greed.

  10. Deadbeat said on November 13th, 2009 at 10:27pm #

    Beast writes …

    Deadbeat and Rosemarie – this is not racism, this would happen in any other country someone enters illegally. You cannot just cross borders unlawfully without facing the risk of punishment.

    Beast you miss the point. Restrictions on the movement of HUMAN by the legal fiction known as “nations” is unjust because it goes against ALL humans. Nationalism is one of ideologies that keep people divide, apart and separate. Nationalism benefits CAPITALISM and thus by definition is anti-human an exploitative.

    Who care whether is it “illegal” if the law is itself is UNJUST. I’ve been advocating debt repudiation. Such action is illegal but such laws that protect debt is immoral and unjust. “Runaway slaves” were illegal and the people running the Underground Railroad were committing illegal acts but actions that were morally and humanly JUST.

    If you want to see change and I presume that is why you are here on a blog identified as “DISSIDENT” then defiance of unjust laws is going to have to be DEFIED and boarders and boundaries fall like the Berlin Wall did 20 years ago.

  11. Hue Longer said on November 13th, 2009 at 11:24pm #

    Those who say others are saying “hate whitey” are “whitey”

  12. C. Eliyah said on November 14th, 2009 at 3:31am #

    Okay, I hope this makes it above the reactionary comments.

    First of all, I believe in judicial review. I think that, especially in our court system, judges have the power to ensure that the law is applied more fairly than it is in other systems. This doesn’t mean that our justice system never uses draconian measures. Nevertheless, it has a potential to be fair and balanced, if a case is put up for review.

    Had Vern’s case been reviewed, it probably would have been noted that Vern came here on the cusp of a civil war in his country of origin and was most likely eligible for refugee status. The reactionaries might want to think about this when responding with “he broke the law.”

    Also, immigration law in this country is not a constant; immigrants from Europe have traditionally been given the green light for citizenship or even dual-citizenship status, a tradition ranging back to colonial times, whereas immigrants from that ambiguous territorial stretch known as “the third world” often have problems unless they have lived pristine lives and find themselves in dire straights. I’m not sure whether this resembles a monastic, a judicial, or a racially based system of immigration decision-making, but when most of us think “illegal immigrant,” the face that comes to mind is usually not white.

    Having said that, I don’t really think it helps to make fallacious arguments such as the following:

    “However, it makes little sense to refer to a person as seeking entry when he has lived in the US for over two decades, is married to a US citizen, has US citizen children, and has few if any ties to any other country.”

    As mentioned in the article, his wife was not a U.S. citizen; his children were, and we can talk about the ethical implications of sending away the primary financial supporters of U.S. children. Also, we don’t know from the information given what his ties to Guatemala were, but I’m assuming that he fled for a reason. Given the fact that he didn’t stay very long in detention before signing his release papers (8 days), he probably had reason to believe that he could either make it once he got to Guatemala, or that he could make it back here fairly easily once his wife achieved citizenship. I’m not saying that they should have to deal with this hardship, but I have heard worse cases. Vern at least has a fighting chance at coming back to live with his family.

    Also, you never mention in your article that our conception of “due process” stems from English habeas corpus laws that are internationally recognized; i.e., due process is not a financial, economical, fiscal, whimsical, or other option of state or federal judicial authorities. Rather, habeas corpus is jus cogens, it is an international human right, and in this case, it was denied. This is a common trend in recent U.S. detention history, especially in military and immigration cases, and it is an unfortunate turn of events for the world. Your article should focus on this more.

    From Seattle,

    C. Eliyah

  13. newflx said on November 14th, 2009 at 5:55am #

    this goes to show no one is above the law. he got what any other illegal alien deserved.

  14. Tanya G-B said on November 14th, 2009 at 7:54am #

    @C. Eliyah:
    Thanks for your comments.

    You are right, my sentence about being married to a US citizen is misleading. Vern was not. Had he been, however, his deportation order could have been executed in the same way. A person married to a US citizen could still be viewed as “seeking entry,” because of the plenary power doctrine.

    You are also right about his decision to sign his deportation order; his best option was to return to Guatemala and wait for his wife to attain legalization. And, his is not a worse-case scenario – when his wife attains legalization, he should be able to return. But, this will take years and he will miss watching his children grow up. I have met other people who have no foreseeable legal option for return – because of criminal convictions or repeated illegal entries.

    Thanks for your comments on due process. I am a sociologist by training, and in the process of learning more about the intricacies of Constututional and human rights law and how they are applied (or not) in the case of immigrants. I will focus on this more in my forthcoming book on immigration enforcement and human rights.

    As for the comments about racism, it is worth noting that over 90 percent of people who are deported are deported to Latin America and the Caribbean. Europeans and Asians rarely face deportation, even though there are hundreds of thousands of undocumented Asians and Europeans in the US. Punitive immigration laws have a disproportionate impact on blacks and Latinos in the US. This could be considered part of structural racism in the US – something present since the founding of this nation.

  15. kalidas said on November 14th, 2009 at 12:40pm #

    Everyone knows, legal or not, if Vern had $$$ he would be in like flint.
    Not only here but anywhere.
    Every country in the world is “free” if you have the do-re-mi.

  16. rosemarie jackowski said on November 14th, 2009 at 12:41pm #

    I can see that Vern needs a good lawyer and a fair jury that is informed on the law.

    Vern is NOT in violation of any law. Under the legal Doctrine of Clean Hands an entity that is itself in violation cannot then prosecute others. The US is in violation of many laws – national and international. It, therefore, has lost not only its moral authority, but also legal authority.

  17. rosemarie jackowski said on November 14th, 2009 at 12:52pm #

    When I used as part of my arguement in Court the Doctrine of Clean Hands, the judge smiled and said that he “…knew better than to debate with me”.

    Here is part of what I said at my Sentencing. “… It is my profound respect for the Rule of Law that brought me to the 4 corners on March 20, 2003. At the precise moment of my arrest, the federal government of the United States was bombing civilians. The bombing of civilians is a violation of international law, a violation of U.S. treaties, a crime against humanity, and a war crime. Now that same government is sitting in judgment of many who have protested the war. Last week, in a court in Philadelphia, Lillian Willoughby, an 89-year-old deaf woman, in a wheelchair, was sentenced to prison. She had participated in a peaceful protest. Also in Philadelphia, Andrea Ferich, a 22 year old, was sentenced and she has just spent a week in solitary confinement. She also had participated in a peaceful protest. I have just been told that Michael Berg, father of Nick Berg, was arrested in a peaceful protest on Saturday, in Washington. All over this country, hundreds of those who have peacefully protested the war, are now condemned by the government. The way that this country is headed, eventually, all people of peace will be behind bars. I am in solidarity with them and all others who have resisted the government in the past, or will do so in the future.

    Your Honor, it is with deep respect that I voice some concerns. How can it be that a nation, that is itself in violation of the law, can then hope to impose the rule of law on its citizens? I believe that either the rule of law applies to everyone, or else it applies to no one. Even a nation as powerful as the United States, can not have it both ways. The fact that the government of the U.S. is in violation of the law, is a fact that has been documented by many around the world. William Blum, one of the world’s leading historians, and also former member of the U.S. State Dept., has authored several books on the topic…even naming one of his books about US foreign policy, Rogue State.

    I have here a copy of the Indictment of 19 charges against members of the government as compiled by former U.S. Attorney General Ramsey Clark. [I held the documents up for all to see.] Also, here is a statement from a group of U.S. law professors. The statement is entitled “U.S. Lawyers Warn Bush on War Crimes.” Also, here is a report from an international human rights organization that is accredited by the United Nations. This report documents extensive U.S. war crimes in Iraq. This is just a small sample of information that is easily available. Can all of these experts be wrong? Also, I have here an Associated Press report that was released shortly before my arrest, stating that the U.S. was threatening to use nuclear weapons. That, too, is a war crime.

    Your Honor, I believe that our government will not regain its legal and moral authority until it gives up its life of International Crime, and in the words of William Blum, is no longer a rogue state….”

    The entire courtroom statement is published on the Internet under my name and titled “A COURTROOM SPEECH”.

  18. B99 said on November 14th, 2009 at 12:58pm #

    Kalidas – Maybe In like Flint – but certainly In Like Flynn.

  19. Mikey said on November 14th, 2009 at 2:11pm #

    He is a person! Stop looking at economics, people, stop looking at laws! He is a person who deserves to live a comfortable life that he wants to live just as much as you do!
    How are some of you so selfish?

  20. Mary-Ellen Pecci said on November 14th, 2009 at 4:26pm #

    It is very discomforting to find moral and ethical vacuums in ones immediate environment. I have to keep telling myself, “They can’t help it, they are uneducated and locked into their own backgrounds as a result of this lack of education. It is frustrating to know that I cannot educate them. It is so great to read the views of the educated and enlightened such as Rosemarie J. and C. Eliyah.

  21. bozh said on November 14th, 2009 at 4:46pm #

    mary-ellen, respectfully
    The worst thing that happend to iraqis, indians, koreans, vietnamese, afghanis, et al is that americans have been very well ‘educated’.
    Put in other words, the ruling class in america provided just the right ‘education’ for lower and even higher classes.

    Or to put in still other words, people who are being disinformed are by far more dangerous to red people all over the world than if they had been uninformed.
    And we are ok. Don’t let the most cunning and dishonest people, pols and clergy, to tell us we are unwashed, uneducated, unruly, prone to crminal behavior if we wld not be guided by them.
    The biggest the lie from top class, the greater it’s believability. Please read my posts. I will be from time to time giving u a cristal clear picture why and how the worst people among us rule us and oppress us!

  22. montagnard said on November 15th, 2009 at 12:31am #

    @Tanya G-B
    “… it is worth noting that over 90 percent of people who are deported are deported to Latin America and the Caribbean. Europeans and Asians rarely face deportation …”

    I do not have exact numbers from ICE, but I feel that the author is biased in favor of Latinos. After Sept 2001, there have been waves of mass deportation of Asians from Muslim countries. Mass deportations were reported by various sections of media of immigrants from Pakistan. I have personal knowledge of cases where a large number of Pakistani origin people were stripped of US Citizenship and deported.

    Your figure of 90% Latinos can be disputed unless you have some numbers from DHS / ICE.

  23. Hue Longer said on November 15th, 2009 at 2:23am #

    How ya goin, Bozh

    Nothing wrong with the word, “educated”. Don’t let the word be hijacked because I don’t think its bastardized or common mis-usage was how it was being used by Mary-Ellen

  24. Tanya G B said on November 15th, 2009 at 11:48am #

    these numbers are indeed based on ICE numbers. I do not have the data in front of me to look up Pakistani numbers. However, consistently, over the past four years at least, over 90 percent of ppl deported go to Mexico, El Salvador, Honduras, Guatemala, Nicaragua, Colombia, Brazil, Jamaica, and the Dominican Republic. These numbers are based on ICE and DHS reports , which are publicly available from the Office of Immigration Statistics.

    Cases of people being denaturalized are quite rare, so it may be the case that this is more likely to happen to people of Muslim background. I do not have the data on that.

    At any rate, thanks for the comment, I will check up on Pakistani deportations next time I look at the data, as it will be important to point out the rate at which ppl from South Asia are being deported. I do know for a fact that less than 1,000 Indians were deported in 2006, the same year that over 20,000 Hondurans were deported.

  25. Mary-Ellen Pecci said on November 16th, 2009 at 12:53pm #

    Thanks Hugh Longer. Bozh, maybe I should have been clearer in my statement; I am offended by people who don’t respect the autonomy of other human beings that desire a peaceful and happy life. I frequently hear racial and religious and other slurs and feel the people saying them may hurt the survival of the planet and our survival as human beings.

  26. Leonardo said on November 19th, 2009 at 7:18pm #

    this story is like mine but different. I came to the u.s when i was only six months old tho. I’ve been rasied here since. i’ve finished school with a gpa of 3.4 i could have gone to college but since i got no ss i couldnt. i was even willing to join the army to pay back and show my respect but nope i cant join

  27. tono rosario said on November 19th, 2009 at 9:08pm #

    I have read Vern real life story, I have lived the same, It is a shame that ICE do not seen to notice, that this wonderfull people who many call ilegal or elien….we pay taxes to support your elderly retirees. Also know this, ilegal people have the right to emmigrate to who ever place they want, we were colonazed by many countries, these countries with their power took our gold etc. long agreement to their convinience let our contries in bad shape.