“Jose” was 16 years old when he was arrested for participating with two other teenagers in an attempted robbery. All three were arrested, but they faced very different consequences. The prosecution dropped the charges against the young man who planned the robbery in exchange for his testimony against the other two. The second was sentenced to six months in a juvenile detention facility. Jose, however, was transferred to adult court, where he was sentenced to serve time in adult prison. While in prison, he grew up. He graduated from college with highest honours and made plans for his future.
When he was released at the age of 28, he was not allowed to go home. Instead, he was transferred to immigration custody and was dropped off along the Mexican border, deported to a country he had not set foot in since he was four years old.
The Campaign for Youth Justice reports that 250,000 youth under the age of 18 are processed in adult criminal courts in the US each year. Once in adult court, minors are subject to the same punishments as adults, even if they are as young as 10 years old. In the past decade, the US Supreme Court has imposed limits on the types of punishments that can be imposed on juvenile offenders.
In 2005, the Court abolished the death penalty for juveniles. In 2010 and 2012, the Court imposed strict limits on sentencing juveniles to life without parole. The US remains one of only two countries in the world that sentences juveniles to life without parole, a sentence juvenile justice advocates refer to as “death in prison” because it offers to hope of release.
The US also imposes lifetime deportation for crimes committed by juveniles. It is unclear how many people are deported each year due to crimes they committed as minors. Since they are treated as “adults” once transferred to adult court, the numbers are difficult to track. But anecdotal evidence suggests that this issue has far-reaching implications.
Deporting youth who are essentially American
Return to Sender, a 2012 video produced by Studio Revolt in Cambodia, features 15 young men and women who grew up in the US, identify as American, but have been deported to Cambodia. Many were born in refugee camps in Thailand and had “never set foot in Cambodia” before they were deported. Four were deported on the basis of crimes committed when they were under the age of 18.
Those deported for juvenile crimes moved to the US as children. Most report no childhood memories of the countries where they were born. Their cultural references are American – from food to music to favourite sports teams. Many of their parents, siblings, spouses and children are American. In the words of President Obama, “These are young people who study in our schools, they play in our neighbourhoods, they are friends with our kids, they pledge allegiance to our flag, they are American in their hearts, minds, in every single way but one: on paper.”
President Obama used these words to describe young people whose parents brought them to the US as children when he announced the Deferred Action for Childhood Arrivals (DACA) programe in June 2012. The programme offers temporary immigration relief to teenagers and young adults who migrated to the US as children. However, it excludes anyone who has been convicted of a felony, a “significant misdemeanour” such as driving under the influence, or any three misdemeanour offences.
Children caught in the middle of
Deported youth often describe feeling like foreigners in their countries of origin. Obtaining work is difficult because many do not speak the language, and because their cultural and educational backgrounds are so different. Many of their family members are in the US, so they find themselves on their own. “I felt lonely, depressed, and isolated when I got deported,” explains a young deportee in Tijuana, Mexico. Another reports, “I felt like I lost everything. Well I did. I lost my family, my kids, my job, my car, and my home.”
Deportation under the law
American law treats deportation as a civil, rather than a criminal, sanction. In other words, it is not treated as a criminal punishment. Because of this legal categorisation, constitutional protections that apply in all criminal cases do not apply to deportation. As a result, the Eighth Amendment of the US Constitution – which prohibits the imposition of cruel and unusual punishment, or disproportional punishments – does not apply to deportation.
Judges and legal scholars have criticised this construction since 1893, when the Supreme Court first held that deportation was not a punishment. In 1922, the Court acknowledged that although deportation is not a punishment, “it may result… in loss of both property and life, or of all that makes life worth living”. More recently, in the 2010 case Padilla v Kentucky, the US Supreme Court acknowledged that deportation is a “particularly severe penalty”, but maintained that it is not technically a criminal punishment.
Treating deportation as non-punitive means that the government’s power to order deportations is virtually unchecked. This is particularly problematic when dealing with juvenile offenders given that most juvenile offenders grow out of their delinquent behaviour and mature into law-abiding adults. The Supreme Court found a life without parole sentence unconstitutional in Graham v Florida in part because such a sentence “improperly denies the juvenile offender a chance to demonstrate growth and maturity”. Yet that is exactly what deporting young offenders for the rest of their lives does.
While it is true that many who have been deported due to juvenile offences have been convicted of serious offences, the same is true for young offenders who face sentences like life without parole. Nonetheless, the Supreme Court has acknowledged that even young people who have committed serious crimes “are more capable of change than are adults”.
Immigration law is thus inconsistent with this recent line of Supreme Court cases. There is currently no mechanism for American courts to assess whether a juvenile offender has been rehabilitated prior to ordering his or her deportation. 1996 changes to immigration law stripped judges of the power to consider individual circumstances such as ties to the US, the impact of a deportation on American family members, and whether an individual presents a danger to the community. Instead, all those convicted of one of at least 45 listed offences (including both misdemeanours and felonies) must be deported. These deportation orders are permanent, meaning that there is no hope of returning to the US in the future.
This policy has been criticised for violating numerous international human rights. In 2010, the Inter-American Commission on Human Rights found that the mandatory nature of crime-based deportations violated numerous provisions of the American Declaration of Human Rights. The Commission recommended that the US weigh the state’s interest in deporting the individual against the harm such deportation would cause. It urged that this “balancing test must be flexible to the specific facts of each individual case”.
Many hope the expected comprehensive immigration reform bill in Congress will address some of the problems created by the 1996 immigration reforms. As long as the Supreme Court continues to shield deportation law from constitutional protections, legislative reform is the only hope for young men and women who feel they have been permanently exiled from their homeland.
Beth Caldwell is a legal scholar whose research focuses on juvenile justice and immigration. She teaches at Thomas Jefferson School of Law and has published widely in academic journals. Her article entitled “Banished for Life: Mandatory Deportation of Juvenile Offenders as Cruel and Unusual Punishment” is forthcoming in the Cardozo Law Review. She also blogs for the Huffington Post. As a Soros Justice Media Fellow, she is researching the consequences of mass deportation from the US.