Deportation of Americans from the United States

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Deportation of Americans from the United States refers to the involuntary removal of U.S. citizens or nationals who have been convicted of a common crime in the United States. Such deportation entitles Americans to seek damages, which may include immigration benefits and/or money, in the form of injunctive relief under the Federal Tort Claims Act (FTCA) and Bivens v. Six Unknown Named Agents. Some Americans have been placed in immigration detention centers to be deported but were later released. "Recent data suggests that in 2010 well over 4,000 U.S. citizens were detained or deported as aliens[.]"

History

The Immigration and Nationality Act (INA), which was enacted by the U.S. Congress in 1952, states that an alien is a person who cannot qualify as a national of the United States. "The term 'national of the United States' means (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States."

According to Congress, a lawful permanent resident (LPR) of the United States is not a foreign national. Longtime LPRs, especially those that immigrated as refugees under 8 U.S.C. § 1157(c), may at any time apply for a "U.S. non-citizen national" status. This process requires taking the oath of allegiance in front of any U.S. immigration officer, officially making an LPR American. This legal finding "is consistent with one of the most basic interpretive canons, that a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant."

According to the INA, the terms "inadmissible aliens" and "deportable aliens" are synonymous. An LPR who is not "removable" from the United States is plainly and unambiguously neither deportable from, nor inadmissible to, the United States. Anything to the contrary will make deportation from the United States a paid international vacation for some and a "cruel and unusual punishment" for others. For example, some deportees could successfully make the U.S. government pay them hundreds of thousands (or possibly millions) of dollars while others could end up committing suicide. In this regard, Congress has warned all government officials by stating the following:

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be subject to specified criminal penalties.

Expansion of the definition of "nationals but not citizens of the United States"

In 1986, less than a year before the United Nations Convention against Torture (CAT) became effective, Congress expressly and intentionally expanded the definition of "nationals but not citizens of the United States" by adding paragraph (4) to 8 U.S.C. § 1408, which plainly states that:

the following shall be nationals, but not citizens, of the United States at birth: .... (4) A person born outside the United States and its outlying possessions of parents one of whom is an alien, and the other a national, but not a citizen, of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than seven years in any continuous period of ten years—(A) during which the national parent was not outside the United States or its outlying possessions for a continuous period of more than one year, and (B) at least five years of which were after attaining the age of fourteen years.

The natural reading of § 1408(4) demonstrates that it was not exclusively written for the 55,000 American Samoans but for all people who statutorily and manifestly qualify as "nationals but not citizens of the United States." This means that any person who can show by a preponderance of the evidence that he or she meets (or at any time has met) the requirements of 8 U.S.C. §§ 1408(4) and 1436 is plainly and unambiguously a "national but not a citizen of the United States." Such person must never be labelled or treated as an alien, especially after demonstrating that he or she has continuously resided in the United States for at least 10 years without committing in such years any offense that triggers removability. "Deprivation of [nationality]—particularly American [nationality], which is one of the most valuable rights in the world today—has grave practical consequences."

Consequences of an "aggravated felony" conviction

In 1988, Congress introduced the term "aggravated felony" by defining it under 8 U.S.C. § 1101(a). As of September 30, 1996, an "aggravated felony" only applies to a person whose "term of imprisonment was completed within the previous 15 years." And, as stated above, if a person is not "removable" from the United States then he or she is plainly and unambiguously not inadmissible to the country. After such "15 years" successfully elapse (and without sustaining another aggravated felony conviction), a longtime LPR automatically becomes entitled to both cancellation of removal and a waiver of inadmissibility. He or she may (at any time and from anywhere in the world) request these immigration benefits depending on whichever is more applicable or easiest to obtain.

The phrase "term of imprisonment" in the INA expressly excludes all probationary periods. Only a court-imposed suspended sentence (i.e., suspended term of imprisonment) is included, which must be added to the above 15 years. And it makes no difference if the aggravated felony was sustained in Afghanistan, American Samoa, Australia, Canada, Mexico, the United Kingdom, the United States, or in any other country or place in the world.

Illegal Immigration Reform and Immigrant Responsibility Act

In February 1995, U.S. President Bill Clinton issued an important directive in which he expressly stated the following:

Our efforts to combat illegal immigration must not violate the privacy and civil rights of legal immigrants and U.S. citizens. Therefore, I direct the Attorney General, the Secretary of Health and Human Services, the Chair of the Equal Employment Opportunity Commission, and other relevant Administration officials to vigorously protect our citizens and legal immigrants from immigration-related instances of discrimination and harassment. All illegal immigration enforcement measures shall be taken with due regard for the basic human rights of individuals and in accordance with our obligations under applicable international agreements. (emphasis added).

Sample of a permanent resident card (green card), which lawfully permits its holder to live and work in the United States similar to that of all other Americans. Before any legal immigrant is naturalized as a U.S. citizen, he or she must be a green card holder for at least 5 years and satisfy all other U.S. citizenship requirements. Many green card holders are actually Americans without them knowing, and are thus not removable from the United States.

 

On September 30, 1996, President Clinton signed into law the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which is particularly aimed at combating illegal immigration to the United States. But despite what President Clinton said in the above directive, some plainly incompetent immigration officers began deporting longtime LPRs (i.e., potential Americans), who have permanent resident cards, Social Security numbers, driver's licenses, state ID cards, bank accounts, credit cards, insurances, etc. These people own homes, businesses, vehicles and other valuable properties in the United States under their names. The ones admitted as refugees under 8 U.S.C. § 1157(c), statutorily and manifestly qualify as "nationals but not citizens of the United States" after continuously residing in the country for at least 10 years without committing (in said years) any offense that triggers removability. This appears to be the reason why the permanent resident card (green card) is valid for 10 years. It was expected that these legal immigrants would equally obtain U.S. citizenship within 10 years from the date of their "lawful entry" into the United States, but if that was unachievable then they would statutorily become "nationals but not citizens of the United States" after such continuous 10 years successfully elapse. Anything to the contrary will result in "deprivation of rights under color of law," which is a federal crime that entails, inter alia, capital punishment for the perpetrator(s).

The above refugees have already "been lawfully accorded the privilege of residing permanently in the United States" by the U.S. Attorney General, which becomes a federally protected right, but decades later the plainly incompetent immigration officers wrongfully turned these firmly resettled Americans into refugees again. These refugees have absolutely no safe country of permanent residence other than the United States, and they obviously owe permanent allegiance solely to the United States. This makes them nothing but a distinct class of persecuted Americans. They are indisputably Americans with no legal connection to any other country but the United States. The ones that cannot become U.S. citizens are statutorily allowed by Congress to live in the United States with their American families for the rest of their life. Deporting such Americans not only shocks the conscience but also constitutes a grave international crime.

"Only aliens are subject to removal." It is common knowledge that these aliens mainly refer to the INA violators among the 75 million foreign nationals who are admitted each year as guests, the 12 million or so illegal aliens, and the INA violators among the 400,000 or so foreign nationals who possess the temporary protected status (TPS). These aliens obviously do not have any legal right to U.S. nationality or permanent residency. Moreover, Congress made clear in 1996 that the aliens who were admitted to the United States as lawful permanent residents in accordance with Form I-130, Form I-140, Diversity Immigrant Visa, etc., be treated differently then those who were admitted as refugees.

An LPR can either be a national of the United States (American) or an alien, which requires a case-by-case analysis and depends mainly on the number of continuous years he or she has physically spent in the United States as a green card holder. The INA makes clear that any alien or any "national but not a citizen of the United States" who has been convicted of any aggravated felony, whether the aggravated felony was committed inside or outside the United States, is ineligible for citizenship of the United States.

However, unlike a "national but not a citizen of the United States," an alien convicted of any aggravated felony is removable from the United States as an aggravated felon, but only if his or her "term of imprisonment was completed within the previous 15 years." This 15-year statute of limitations equally applies to every alien, especially to a longtime LPR. Such alien or LPR cannot:

• be admitted to the United States prior to being granted a waiver of inadmissibility or cancellation of removal by any authorized U.S. immigration official, or "a full and unconditional pardon by the President of the United States or by the Governor of any of the several States."
• have his or her removal proceedings terminated without a written legal order issued by any immigration judge or a member of the BIA, or an injunction issued by any authorized federal judge.
• obtain asylum in the United States unless he or she was previously admitted to the United States as a refugee, or his or her aggravated felony was shown not to be a particularly serious crime. An alien convicted of a particularly serious crime may still receive asylum, so long as he or she is not "a danger to the community of the United States," or at minimum deferral of removal under the CAT. It must be added that granting the CAT is not a discretionary act but statutory and mandatory.
• obtain adjustment of status unless he or she was previously admitted to the United States as a refugee.
• obtain voluntary departure.

Challenging an aggravated felony charge

Any person (or class of people) may take his or her deportation-related case to the U.S. Supreme Court by invoking 8 U.S.C. §§ 1252(a)(1) and 1252(f).

 

An "order of deportation" may be reviewed at any time by any immigration judge or any BIA member and finally by any authorized federal judge. Particular cases, especially those that were adjudicated in any U.S. district court prior to the enactment of the Real ID Act of 2005, can be reopened under Rule 60 of the Federal Rules of Civil Procedure. The review of the order does not require the alien (or the American) to remain in the United States. It can be requested from anywhere in the world via mail (e.g., Canada Post, DHL, FedEx, UPS, etc.) and/or electronic court filing (ECF), and the case can be filed in any court the alien (or the American) finds appropriate. In other words, if one court refuses help then the alien (or the American) can simply move on to any or all of the other courts.

Every United States nationality claim, illegal deportation claim, and CAT or asylum claim is adjudicated under 8 U.S.C. §§ 1252(a)(4), 1252(b)(4), 1252(b)(5) and 1252(f)(2). When these specific provisions are invoked, all other contrary provisions of law, especially § 1252(b)(1) and Stone v. INS, 514 U.S. 386, 405 (1995) (case obviously decided prior to IIRIRA of 1996, which materially changed the old "judicial review provisions of the INA"), must be disregarded because the three aforementioned claims manifestly constitute exceptional circumstances. The Supreme Court has pointed out in April 2009 that "the context surrounding IIRIRA's enactment suggests that § 1252(f)(2) was an important—not a superfluous—statutory provision." In October 2009, Congress enacted 18 U.S.C. § 249 ("Hate crime acts"), which warns all government officials and the public by expressly stating the following:

Whoever, whether or not acting under color of law, willfully causes bodily injury to any person ... because of the actual or perceived race, color, religion, or national origin of any person—(A) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and (B) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if—(i) death results from the offense; or (ii) the offense includes kidnapping....

According to § 1252(f)(1), "no court (other than the Supreme Court)" is authorized to determine which two or more people in removal proceedings should be recognized as Americans. This includes parents and children or relatives. The remaining courts, however, are empowered pursuant to §§ 1252(b)(5) and 1252(f)(2) to, inter alia, issue an injunction to terminate any person's removal proceedings; return any previously removed person to the United States; and/or to confer United States nationality upon any person (but only using a case-by-case analysis). In addition to that, under 8 C.F.R. 239.2, any immigration official mentioned in 8 C.F.R. 239.1 may at any time move to: (1) terminate the removal proceedings of any person who turns out to be an American; or (2) cancel the removal proceedings of anyone who is clearly not "removable" under the INA.

Americans physically removed from the United States

A number of Americans have been placed in immigration detention centers to be deported but were later released. The following is an incomplete list of Americans who have actually experienced deportation from the United States:

• Pedro Guzman, born in the State of California, was physically deported from the United States in 2007 but returned several months later by crossing the border. He was finally compensated in 2010 by receiving $350,000 from the government.
• Mark Daniel Lyttle, born in the State of North Carolina, was physically deported from the United States but later returned and filed a money damages lawsuit in federal court, which he ultimately won.
• Andres Robles Gonzalez, derived U.S. citizenship through his American father before being deported. He was returned to the United States and filed a money damages lawsuit in federal court, which he ultimately won.
• Emilio Blas Olivo, born in Weslaco, Texas.