Deportation

Definition: Legal process by which a government expels noncitizens from its country

Significance:Deportation power gives the federal government a tool to remove immigrants who enter the United States in violation of immigration law or violate standards of behavior, as outlined in immigration law, after lawful entry into the country. Under US law, deportations are civil proceedings administered by the executive branch of the government. Deportees are generally removed to the country of their last legal residence.

By almost any measure, deportation is an enormous federal power. Between 1892 and 2000, the US government used this power to expel more than forty million immigrants from the country. The federal government first began to build its modern deportation policy with the passage of the Chinese Exclusion Act of 1882.

During the early twenty-first century, deportations continued to be based on the basic deportation powers and policies constructed between the late nineteenth and early twentieth centuries. Officially, the expulsion process commonly referred to as "deportation" included two different formal procedures, called "immigrant removals" and "immigrant returns."

Origins of Deportation Policy

The roots of what would become deportation policy in the United States, however, stretch further back in time. During the colonial period and much of the nineteenth century, European and Euro-American communities often expelled vagrants and individuals they thought were unable to support themselves. Residents in towns and villages expelled the migrant poor. There was, however, little distinction made between the nationalities of the poor. Membership in the local community was what mattered. American citizens and immigrants alike could be expelled from an American town if they were not municipal members and became public charges. Some American colonies tried sending expelled criminals or poor immigrants back to England, but it was generally too expensive and inefficient to remove undesirable residents to Europe. Consequently, expulsion was never a widespread practice in America during the colonial period. After 1787, several state constitutions authorized the removal of nonresidents, but this power also languished.

In 1798, the US Congress passed two laws called the Alien Friends Act and the Alien Enemies Act. These laws gave the president of the United States a limited power, based on executive order with judicial enforcement, to expel foreigners from the United States. Some in that era's Republican Party, including Thomas Jefferson, maintained that this expulsion policy was patently unconstitutional; they thought it represented an attempt by the opposing Federalist Party to remove its political enemies from the country. The constitutionality of the two 1798 laws was never tested, and most sections of the Alien Friends Act expired two years after its passage. Before the US Civil War (1861–65), there was neither the popular will nor, after the election of the Republicans and the dissolution of the Federalist Party, the political will to legitimize the federal removal of immigrants.

US deportation policy developed in tandem with immigration exclusions and citizenship law during the late nineteenth century. As a part of the Chinese Exclusion Act of 1882, Congress first empowered the federal government to deport immigrants. Like all the sections of Chinese exclusion laws, the deportation provision wrote racism into US immigration policy. In 1892, when Congress passed the Geary Act, it significantly expanded the range of immigrants who could be deported under Chinese exclusion and made deportation policy punitive. With this law, the government put the onus of proving lawful residence on every Chinese person within the United States. The Geary Act required that all Chinese workers apply for certificates of residence, which would prove that they were in the country lawfully. When immigrants were found without these certificates in their possession, the government assumed that they were in the United States unlawfully. The certificate of residence requirement made long-term residents who entered the country before 1882 deportable.

Over the next twenty years, Congress wrote immigration laws that gave the federal government the power to deport immigrants from all racial and ethnic heritages—beyond Chinese immigrants. General exclusion laws were passed in 1882 and 1883, but it was not until 1891 that the government synced each excludable category with a deportation provision. By 1903, the list of excludable and deportable immigrants included Chinese workers, contract workers (of all ethnicities), anarchists, prostitutes, and all those the government classed as morally or physically unfit. Included in the list of deportable immigrants were categories that are no longer meaningful or acceptable today, categories such as vagrants, idiots, and imbeciles.

Deportation, 1882–1965

As the federal government began using its new power to deport, several immigrants challenged their deportations in the courts. Their cases went further than challenging an individual deportation—whether or not the government’s case against one immigrant was fair or warranted—to challenge the entire legitimacy of the government’s new power of deportation. In 1893, the first deportation case reached the US Supreme Court in Fong Yue Ting v. United States. This case disputed the government’s ability to deport immigrants under the Chinese exclusion laws generally and under the Geary Act of 1892 specifically.

In Fong Yue Ting, the Court found that deportation was simply an extension of the government’s power to exclude. The Court wrote that the power to exclude and deport originated from the powers of a sovereign nation and fell within the powers nation-states could use to protect their national security. Relying on the precedent established in Chae Chan Ping v. United States (1889; also known as the Chinese Exclusion Case), the Court found that the power to exclude and deport fell into the emerging plenary power doctrine.

The Court’s decision in Fong Yue Ting also dealt with the validity of the process of deportation under the Geary Act. In a decision that distinguished between punishment and protection, the Court upheld the government’s deportation power. Something that was protective of national sovereignty, the Court reasoned, could not also be a punishment. The Court, therefore, legitimated the administrative and judicial structures of deportation under Chinese exclusion, dismissing claims that the hearings and appeals process violated Fourth, Fifth, and Sixteenth Amendment rights. The Fong Yue Ting precedent still stood during the early twenty-first century, upholding the legitimacy of the civil nature of deportations.

Between the passage of the first deportation law in 1882 and 1924, the US government typically deported a few hundred—at most, a few thousand—people each year. In the Immigration Act of 1924, Congress introduced the national origins system, which led to a number of significant changes in American deportation policy. Under the national origins system, the Bureau of Immigration began deporting thousands more immigrants each year. In 1922, just prior to the passage of the new law, the bureau deported 4,283 immigrants. In 1923, the bureau deported 3,546 immigrants. In 1925, the first year after Congress passed the new law, the government deported 9,402 immigrants. A high point in the deportations under the national origins system came in 1954, when federal officials deported more than one million Mexican immigrants in the campaign known as Operation Wetback (now considered an offensive term for undocumented Mexican immigrants in the US).

The Immigration Act of 1924 created the deportable category of “aliens without proper visas,” and, by the late 1920s, the Bureau of Immigration was deporting more than half of all deportees under it. Immigrants without proper documentation quickly became the largest class of deportees, above the qualitative provisions included in the immigration laws passed between 1882 and 1920. During the Great Depression of the 1930s, the government used deportation policy, in cooperation with state and local officials, as a part of Mexican repatriation—the forced removal of one million Mexican and Mexican Americans from the United States to Mexico.

A category particularly important during the pre- and post-1924 periods was that of alien radicals. In 1903, Congress first included alien anarchists in the list of inadmissible classes. In immigration laws passed in 1917 and 1919, it expanded the scope of the antiradical provisions. Unsuccessfully, the Bureau of Immigration tried to deport members of the Industrial Workers of the World in a number of cases in the Pacific Northwest during World War I. Then, in the Palmer raids beginning in 1919, the Bureau of Immigration arrested close to three thousand noncitizens, mostly from Russia. In the end, however, immigration agents deported only about three hundred. A broader use of the antiradical provisions occurred during the Cold War, especially after the passage of the Internal Security Act of 1950 and the Immigration and Nationality Act of 1952. The Supreme Court upheld the expansive antiradical provisions in Harisiades v. Shaughnessy (1952).

Deportation After 1965

In 1965 Congress ended the national origins system. Nevertheless, under the policies that the government instituted to replace it, deportations continued to increase. In the Immigration Act of 1997, however, Congress and the Immigration and Naturalization Service (INS) moved away from using the term “deportation.” Instead, the formal process of expelling immigrants was officially called "removal," or, when immigrants voluntarily depart the country after being detained by immigration officials, "return."

As national debate over undocumented immigration increased in the 1980s and beyond, there was also growing attention to the issue of deportation. Important laws that expanded the grounds for criminal deportations included the Anti-Drug Abuse Act of 1988 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The Homeland Security Act of 2002 further contributed to a steady increase in deportations, and established the Immigration and Customs Enforcement (ICE) within the Department of Homeland Security (DHS) as the agency administering immigrant returns and removals.

The system of removals and returns continued to operate under the administrative processes and court precedents on deportation established during the late nineteenth and early twentieth centuries. Immigrants could hire attorneys to represent them, but were responsible for paying the costs themselves. The decisions of a removal hearing were not “subject to judicial review” on grounds of fact, but only on procedural grounds. Federal law continued to state that a removal hearing is a civil proceeding, though laws did allow for charging some immigrants with criminal violations. Removals as well as returns continued to be classified as protective of national security, with the government’s power originating from national sovereignty.

Immigration in general became an increasingly partisan political issue in the early twenty-first century, with conservatives tending to support stricter regulations and enforcement and liberals tending to take a more lenient, pro-immigrant approach. However, the raw number of deportations remained high regardless of which party controlled the White House. For example, while the Republican administration of President George W. Bush (2001–2009) was seen as relatively strict on immigration, the Democratic administration of President Barack Obama (2009–17) oversaw an even greater increase in the total number of deportations. Yet policy and messaging did vary considerably between administrations. For example, the Obama administration focused primarily on removal of immigrants with criminal records and gave less emphasis to cracking down on undocumented immigrants in general. (Still, though, 60 percent of those deported from 2001 to 2018 were not convicted of a crime, according to the Pew Research Center in 2020.) Obama also established the Deferred Action for Childhood Arrivals (DACA) program in 2012, under which undocumented immigrants brought to the US as children could apply to remain in the country rather than face immediate deportation. In part due to such policies, while historically returns had outnumbered removals by a wide margin, this trend reversed in the 2010s.

In contrast to Obama, Republican president Donald Trump took a vocally hardline stance on both authorized and unauthorized immigration throughout his administration (2017–21). Indeed, among Trump's numerous controversial campaign promises was to begin mass deportations. However, despite several high-profile crackdown efforts, the number of deportations actually declined in the first years of the Trump administration. Researchers suggested several factors behind that decline, including possible deterrent effects, changes in the demographics of migrant arrivals, and changes in ICE procedures such as longer detention times. The COVID-19 pandemic that emerged in 2020 further caused a sharp decline in both ICE arrests and removals from the previous year. The pandemic also led the Trump administration to exercise an alternate process for rapidly expelling migrants (including those normally eligible for asylum) under a seldom-employed legal mechanism known as Title 42.

Democratic President Joe Biden subsequently let the Title 42 rule expire in May 2023. However, his administration responded to concerns about a potential fresh surge of undocumented immigrants with a concerted effort to increase formal removals and returns and otherwise publicize the deportation system as a deterrent. Overall, Biden took a similar approach to Obama, focusing on deportation of those with criminal records or otherwise deemed public safety threats while being relatively lenient toward undocumented immigrants who were otherwise law-abiding, as well as asylum seekers. In June 2023 the Supreme Court upheld the administration's ability to set such priorities, rejecting a challenge from Republican-led states that sought to mandate stricter treatment of all unauthorized immigrants.

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