Fight of the Century

by Michael Chabon

  * * *

  Although one of the more obscure court cases to the common public, Zadvydas v. Davis has recently been made relevant by the Trump administration’s horrific immigration policies. Families are detained and split apart, children separated from parents and caged in pop-up detention centers. I am acutely aware that if I had been born ten years later than I was, to, say, a Latin American family, or if I had crossed from the Southern border instead of the Northern border, I could have had a much different story. Instead, my citizenship has never been called into question.

  My identity, however, has always been in flux. The funny thing about emigrating is that many migrants are trading an emotional sense of security for a residential one. As my parents climbed the rungs of that American Dream™, I found that my sense of place was constantly under siege. “Where do you go when no one will claim you?” is not just a jurisdictional question. It is a psychic one, an emotional one, a spiritual one. Oscillating between nations as a child—living both on the western coast of Africa and the western coast of America back-to-back and back again—taught me that citizenship does not guarantee safety. Where you’re born does not indicate where you belong. I’ve never lived anywhere and not been the odd one out. I’m the African in America, the American in Africa, the African American among white Americans, the American African among black Americans. Similarly, our family never seemed to have the kinds of communal bonds that I learned to expect from years finding solace in literature instead of going out to play with kids who thought I was weird.

  Taking up residence in a country that is not originally “yours” is like signing a deal with the devil—you accept that you may never have a cultural sense of community in this new land, you might not find a restaurant that cooks the food of your homeland, you may never see your family again. But! Your children will have passports and be able to travel. If they can afford it. And maybe if they aren’t left with an inherent sense of alienation and divorce from their roots, they might even return “home.” That’s, of course, if you don’t get kicked out of the country first.

  Although Zadvydas v. Davis established that non-citizen residents of the United States do have constitutional rights, as a first-generation American, I constantly feel taxed to acknowledge questions like “What right do immigrants have to the bountiful resources of their adopted country? Why are immigrants deserving of our sympathy, when they’ve already exploited our resources?” At the risk of generalizing or oversimplifying a non-monolithic issue, I like to focus less on what immigrants are running to and more on what they are running from. West African immigrants (not unlike Latin and Central American immigrants) are trying to correct, on an individual basis, the sociopolitical trappings of neo-imperialism. That is to say, these nations are territories that have been politically destabilized, resourcefully depleted, culturally corrupted, and exploited by the United States and its allies. If developing countries had been allowed to self-actualize without foreign interference, fleeing them would be far less necessary. Immigration (legal or otherwise) is a Band-Aid that attempts to heal the deep injury of colonization. And so we move, to where the grass is greener and the water comes out of the faucet hot. It’s a kind of fucked-up reparations, except instead of being handed a salve for decades of oppression, non-citizens are doing it for themselves.

  When I call my dad to seek approval to reveal our story to the public for the first time, he jovially insists I share: “I didn’t come here ‘illegally.’ What they call illegal, I call alternative entry. They stole Africans and illegally moved us to this country. So you could say me coming was me avenging my lineage. I didn’t come here ‘illegally’—I came by all means necessary, to pay my taxes, get my masters and PhD, and go back home. I tried for ten years to enter the country legally and they denied me based on technicalities. What they couldn’t deny was my heart and my ambition.”

  * * *

  Back in London, I’m not convinced by the slice of orange with which the French waitress has colonized my Earl Grey tea. I like my tea the way they do it in Ghana, which is the way the British taught them to do it during imperialism, after they stole tea from the Indians. The way I insisted on having it when I went to visit family in Accra two months ago. Black, with milk, and slightly sweetened. Except I want almond milk instead of cow’s milk, because my American nutritionist has made it clear that dairy is not good for my system. And I’ll have it with honey instead of sugar because sugar is evil and, yes, honey converts to sugar in your digestive system, but it’s at least good for your throat. See, I’ve been having allergic reactions lately for the first time in my life. It’s been pointed out to me that when in a new climate, a new city or county or state or sovereignty that doesn’t sit well with your body, having raw, locally sourced honey helps your body adjust and rid your system of symptoms that scream “I’m foreign!” I take a sip of tea and sniffle. There isn’t enough honey in the world.

  IMMIGRATION AND NATURALIZATION SERVICE V. ST. CYR (2001)

  Enrico St. Cyr’s victory in Immigration and Naturalization Service v. St. Cyr represented the first time in over a decade that an immigrant prevailed over the Immigration and Naturalization Service (INS) before the Supreme Court. The case, argued by the director of the ACLU Immigrants’ Rights Project, Lucas Guttentag, stood as a powerful preservation of noncitizens’ habeas rights.

  The INS soon ceased to exist. The post-9/11 creation of the Department of Homeland Security divided its powers between US Citizenship and Immigration Services (USCIS), US Immigration and Customs Enforcement (ICE), and US Customs and Border Protection (CBP). St. Cyr, however, provided critical precedent for later cases, especially Rasul v. Bush (2004) and Boumediene v. Bush (2008), that addressed and protected habeas rights for Guantánamo Bay detainees.

  The Way the Law Leads Us

  GEORGE SAUNDERS

  Let’s say that in 1977, you were me and were caught going 80 mph in a 35 mph zone, in your dad’s Chicken Unlimited company van, while cranking the Foghat. Let’s just say that. You plead guilty, pay the fine. Twenty years later, in 1997, when you are older and wiser and teaching at Syracuse University and have a beautiful wife and two darling daughters, Congress changes the law: going 45 mph over the speed limit is now a felony. A cop shows up at your door and arrests you and puts you in jail—because, by the way, the new law is going to be applied retroactively.

  Should you get to plead your case before a judge?

  This (roughly speaking, and with a few adjustments) is what faced thousands of people in 1996.

  The adjustments: (1) I was a US citizen; the people in question were lawful permanent residents (LPRs), aka legal immigrants, aka green card holders; (2) for “speeding,” substitute: “crimes of various types, sometimes minor, but deemed to be deportable”; and (3) for “puts you in jail,” substitute: “deports you immediately without possibility of further appeal.”

  * * *

  Before 1996, if you were a legal immigrant to the United States and committed a crime that made you deportable, you were entitled to a hearing before an immigration judge, where you could present an argument for relief from deportation under section 212(c) of the Immigration and Nationality Act. This didn’t guarantee you wouldn’t get deported; it just guaranteed that you’d have a day in court—a chance to put forth what, in the legal world, are called “individual equities,” essentially, the mitigating factors that might argue that the country was better off with you in it than with you kicked out of it.

  Then, in 1996, with the passage of the (terrifyingly titled, at least to my ear) Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the situation changed: if you were a legal resident and committed any of a broad category of crimes, including very minor ones, you could now be deported immediately (no appeal possible) to your country of origin, regardless of the fact that you might have a house, a family, and/or a business in the United States, and none of those in your country of origin, where you may have lived only as a baby, and whose langua
ge you might not even speak.

  * * *

  To further complicate matters, some courts held that the AEDPA could be applied retroactively: that is, it was applicable to people whose crimes predated the passage of the AEDPA and to those who had made plea deals pre-AEDPA on the understanding that they would not be deported, and even to those who had already completed their sentences.

  Some of these cases seemed to have come out of bad absurdist novels. Take, for example, Gabriella Dee, a Canadian with a doctorate in biology, teaching college in Pennsylvania under a temporary visa who, while applying for a green card, being a college professor and all, answered forthrightly that, yes, she had, in fact, been arrested before, once, ten years earlier. While she was a student in Canada, her visiting Israeli boyfriend had expressed a desire to see the United States but couldn’t get a visa. So, as Anthony Lewis reported in the New York Times, “A fellow student… drove her across the border; the Israeli walked across without going through immigration, and they picked him up. I.N.S. agents immediately stopped them. A magistrate found Ms. Dee guilty of a misdemeanor and fined her $25.”

  In 1996, ten years after the event, her green card review triggered… a deportation order. Imagine the feeling that evening in the apartment, presumably strewn with half-graded student papers, that Dee shared with her American husband—the shock, the sadness, the isolation, the frightening transition that now suddenly loomed ahead of this person who, outside of what was basically a juvenile prank (and was treated as such by law enforcement), had done everything correctly.

  Or consider Jesus Collado. As described by NYU law professor Nancy Morawetz, in the book Immigration Stories, Collado came to the United States from the Dominican Republic in 1972, when he was seventeen. He had a girlfriend younger than he (she was sixteen, he was eighteen—something like Rolf and Liesl in The Sound of Music, if Rolf and Liesl had lived in New York City) with whom he had a consensual sexual relationship (okay, here we depart somewhat from The Sound of Music). Her parents disapproved and brought statutory rape charges against him (departing entirely from S.O.M.). His lawyer advised him to plead guilty, in exchange for no jail time, and he did; he was convicted of a misdemeanor, received probation, and went on with his life. He got married (to a different woman, thus avoiding many future tense Thanksgivings with the in-laws), had kids, ran a successful restaurant in New York City. Then in 1997, returning from a trip overseas, he was handcuffed and detained at the airport by immigration inspectors. In this case, the sterile phrase “denial of 212(c) rights” meant this: Collado, who had, since that early (arguably contrived/punitively motivated) run-in with the law, been living an utterly normal, positive, productive life, found himself in detention, awaiting deportation to a country with which he had no real connection and in which he had not lived for twenty-five years. And he had no legal recourse: neither he nor his wife and daughters would be allowed to speak to a judge about what kind of husband, father, or person he was, or what kind of life he had been living over the course of those twenty-five years.

  Tens of thousands of people were in similar, potentially life-wrecking, situations.

  Danny Kozuba had come to Dallas from Montreal as a small child. He enlisted in the US Army, served in Vietnam, and went on to run a kitchen-installation business. In 1990, he began serving a three-year term in prison for drug possession. He was released in 1993, but after passage of the AEDPA, he suddenly found himself facing deportation, despite his forty-three years of living in the United States. Was that forty-three-year period punctuated by a rough patch? Well, apparently. Or at least a period during which he had possessed drugs and been caught doing so. Had he served his time? He had. But post-AEDPA, his punishment was to be renewed, and ongoing, and we only need compare his situation with that of a hypothetical native-born American in the same situation to detect the extent of the unfairness. Imagine the many other people of Kozuba’s age and generation who had possessed drugs, been caught, done their time, and were now back in the world. What was the difference between Kozuba and this imaginary peer group? He had been born in Canada, about an hour from the border, and brought here as a child. Was this really a meaningful difference, one that justified the catastrophic disruption of his now law-abiding American life?

  Junior Earl Pottinger was another child immigrant. He came to the United States from England at the age of three. He had served a brief prison sentence for attempted sale of a controlled substance and then, on his release, as Morawetz describes it, “Pottinger thought he was going home to his mother and brother in New York. Instead, he was whisked away to an INS detention center in New York and then transported to a remote detention facility in Oakdale, Louisiana. When he sought 212(c) relief before an immigration judge his request was denied… and he was summarily ordered deported.” By the time his ordeal ended, Morawetz writes, Pottinger “had spent far more time in detention fighting for a 212(c) hearing than he had spent in prison serving the sentence for his crime.”

  Morawetz described one type of legal resident imperiled by the AEDPA: “LPRs who either had long forgotten their brush with the criminal law or assumed that any deportation consequences would be measured against their individual equities.”

  But the AEDPA also now applied, moving ahead, to all legal immigrants convicted of crimes that made them deportable. So, if you were a lawful permanent resident and committed a crime deemed to be deportable, that was it: you could be taken into custody and deported as soon as possible, and that was that.

  To make all of this worse and even more Orwellian, also in 1996, Congress enacted, and President Clinton signed, another draconian immigration law, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which included a provision that, the INS argued, made it impossible for immigrants like Collado and Pottinger to go to federal court to challenge their deportation orders.

  So according to the US government, these tens of thousands of people would be exiled from their home and families without even having a day in court.

  * * *

  Tracking the historical progress of this issue toward the Supreme Court (or trying to, if one is as big a legal dunce as I am), one gets a notion of the intense and highly technical type of lawyering done by the ACLU. Following passage of the AEDPA, there were upward of ten thousand deportation orders, and many of those affected had no lawyers, or had lawyers without experience in the federal courts, who were not aware of the larger work being done around this issue, or that the ACLU was involved. Relevant cases, happening all over the United States, had to be identified and tracked without the benefit of databases, websites, social media, this all having occurred in, roughly speaking, a pre-Internet world. “Merely keeping track of cases was a Herculean task,” Morawetz wrote.

  The particular case that finally brought this discussion to the Supreme Court was INS v. St. Cyr. Enrico St. Cyr, an émigré from Haiti, was serving a prison term for a drug charge; he had sold around a hundred dollars’ worth of cocaine and been sentenced to three years. He had pled guilty, and the resulting conviction made him deportable. But in the meantime, passage of the AEDPA had made it impossible for him to request that an immigration judge permit him to remain in the United States based on his ties in the US—a common form of relief before the 1996 law. After his release from prison, he was taken into custody by the INS. St. Cyr had no family in Haiti and, to make matters worse, would be jailed upon arrival in Haiti and kept, as Morawetz somewhat understatedly puts it, “in harsh conditions,” even though, in the view of the US government, he had served his time.

  The effort to push back against the AEDPA and IIRIRA was led by Morawetz and Lucas Guttentag of the Immigrants’ Rights Project (IRP) of the ACLU, who ultimately argued the case before the Supreme Court. The ACLU “placed 212(c) relief in the context of an immigration process which requires two steps before anyone is deported. First, there must be a determination whether a person is deportable. Next there must be a determination whether the person is eligible for and
deserving of any relief. Only after these two steps can a person be deported.”

  On June 25, 2001, the Court ruled in favor of St. Cyr, establishing that immigrants have a right to challenge the legality of their deportation through habeas corpus proceedings (or an adequate substitute procedure). The case “changed the fate of thousands of legal immigrants facing deportation proceedings,” according to the New York Times. St. Cyr was released in July 2001, having spent six years in custody—three for his crime and another three in INS custody—as he awaited deportation. The government offered no recourse or relief to those who had already been deported under AEDPA, arguing that the St. Cyr ruling did not grant these individuals any right of return. Many of these people remain deported to this day, their lives having been altered forever.

  In essence, INS v. St. Cyr asked, Does a legal immigrant who has committed a crime for which he or she is deportable have the right to a review by a federal court? The Court answered: Yes. Can that immigrant be deported without the opportunity for a habeus review? The Court answered: No. The case, wrote Morawetz, serves as “a sober reminder of how difficult it is to protect immigrants from harsh and illegal deportation laws and litigation that curbs access to the courts.” It speaks also to the question of the separation of powers enshrined by the Constitution. That is, can the executive branch (the attorney general, in these cases) simply throw someone out of the country? The law, in other words, serves as an acknowledgment of the possibility that sometimes one part of government gets things wrong, and in such a case, the courts have a legitimate role in setting things right. It asked, implicitly, a critical question about due process (a right that many of us take for granted) that resonates powerfully today: Who exactly is entitled to due process, and why?