Exile is punishment – a right to counsel for immigrant detainees

Exile is the state or a period of forced absence from one’s country or home. One synonym for exile is deportation. Last year the United States government deported more than 400,000 people; though all of them were born outside the United States, many of them arrived as children and knew only life in the United States, while others assimilated and adopted the United States as their own country. One of those 400,000 deportees was a man named Paul.
In 2011, Paul (not his real name) was attending a rock concert with his younger brother in Phoenix, Arizona. During the show, Paul’s brother became embroiled in a shouting match with another man, which escalated to a brawl. Rushing to restrain his brother, security guards obstructed Paul before he could reach him. Though his involvement was on the periphery of the melee, event security nevertheless turned him over to police, who took him into custody, despite never charging him with committing a crime. A few days later, they handed over Paul to immigration officials, who placed him in deportation proceedings. Paul was indigent, but he had no right to court-appointed counsel to help him investigate his immigration case, and prevent his removal from the United States; as a result, he represented himself. Less than six months after the concert fracas, Paul found himself in a foreign country, Mexico, a country he had left when he was a baby.

In the landmark case of Gideon v. Wainright, the U.S. Supreme Court ruled that indigent defendants had a right to court-appointed counsel in criminal proceedings. But the Court has declined to hold the same for indigent defendants in deportation proceedings because deportation, according to the Supreme Court, is not punishment, but rather as Justice O’Connor put it: “a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry . . .” Her reasoning, however, lacks intellectual muscle, because there is no functional difference between a civil and a criminal proceeding, each carries a penalty for violating the law. But whereas the penalty for violating a criminal law can vary (i.e., fine, home confinement, probation), there is no such variation for violating immigration laws; there is only one punishment: banishment.

Undocumented immigrants are detained by ICE.

Throughout history people have been banished or exiled to distant lands as a form of punishment. For his political activities, Dante Alighieri was forced into exile by Florentine authorities. Crushed with grief and indignation at his lifetime sentence, Dante’s poetic book, “The Divine Comedy,” reflects his experiences in exile as wandering through hell. Immigrants, who live in the United States almost their entire lives, endure a similar suffering and hardship when they find themselves in a foreign country with no resources, no money, homeless, and unable to speak the native language. Banishment severs all connections to the harmony of home; indeed, many immigrants who are deported and later return to the United States remark that they would rather be incarcerated in the United States than return to foreign soil. Their antiexile sentiments express not only a feeling that deportation is a worse punishment than incarceration, but also their desperation to cling to some semblance of home.

By small degrees, the Supreme Court is beginning to acknowledge that deportation is a penalty. In Padilla v. Kentucky, Justice John Paul Stevens carried out a drive-by verbal assault on Supreme Court precedent when he wrote that “deportation is an integral part—  indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants,” adding that deportation is “intimately related to the criminal process.” Deportation does indeed have a promiscuous relationship with many criminal offenses, and only an attorney can prescribe which criminal offenses make suitable partners and the immigration remedy available to prevent banishment.

In exile, Paul made efforts to incorporate his surroundings and conform to the local customs and mores, but the only thing he had in common with the foreign country was his Spanish surname. The locals referred to him by the derogatory word pocho, an Americanized Mexican who had lost his Mexican identity, mother tongue, and culture. Unable to assimilate and adapt to his new ecosystem, and moved by despair, Paul returned to the United States and, within minutes of planting his foot in America, was caught by U.S. Border Patrol agents and charged with illegally entering the United States. At his sentencing hearing, where he was represented by defense counsel, Paul told the judge that America was “my country.” As tears marched down his cheeks, he pleaded, “I don’t speak the language. I tried to live there but life is different there. I don’t know anyone there.” Before deporting him again, the federal judge sentenced him to seven days’ jail.

In 1947, Justice William O. Douglas wrote, “Deportation can be the equivalent of banishment or exile.” Nonsense! Deportation is banishment or exile – it is a punishment that endures in perpetuity.

To suggest otherwise, is intellectual dishonesty. If Paul had had the assistance of court-appointed counsel at his deportation proceedings, his defense attorney could have investigated his immigration case to determine what forms of relief, if any, were available to him, to avoid deportation; but he wasn’t because the Supreme Court considered his deportation hearing a civil matter. Indeed, not providing court-appointed counsel to indigent defendants in deportation proceedings reveals to the world, as one friend put it, “America without her makeup.”

Juan Rocha is an attorney in Chandler, Arizona. He has written about immigration reform, Arizona politics, and Ninth Circuit Chief Judge Alex Kozinski. He can be reached at jrocha.law@gmail.com.