Deportation

When John Smith, Sr., was 18, he spent a year in China on a church mission. While there, he met a local girl; one thing led to another, and his son was born in Hong Kong. The couple never married, but John returned to the United States with his baby, John Jr. Immigration officials assumed that the baby was a citizen and did not ask for documentation.

John Jr. grew up in the U.S. and never returned to China or Hong Kong. When he was 29, John Jr. was convicted of "trademark counterfeiting" and served a short term in prison. On his release, he was ordered deported to China as an alien. Just seven days later, he was put on a plane to Hong Kong.

Children of American parents born overseas usually become American citizens by birth. However, for a citizen father to pass on American citizenship to his child born overseas, he must have lived in the U.S. for at least five years after the age of 14. Since John Jr.'s father was only 18 when his son was born, it was impossible for him to meet that requirement, and John Jr. did not qualify for citizenship.

Following his deportation, John Jr. hired a lawyer and filed a motion to re-open the matter, based on constitutional objections to the statute under which he had been deported. But another surprise awaited him: a statute provides that once the claimant leaves the U.S., by deportation or otherwise, he is barred from re-opening the question of his citizenship and deportation.

John Jr., thankfully, is not a real person. But he could have been, and his story may in fact be based on a real set of facts.

I served on a three-attorney panel last night at the University of Washington law school, judging the semi-finals of an appellate advocacy competition. As usual, the student "lawyers" were excellent. Since the participants were students who had survived earlier rounds and had reached the semi-finals, I was seeing some of the best of the best. Their legal arguments involved minute dissection of a web of statutory and regulatory law, as well as issues of constitutional law.

But I tell John Jr.'s story because it points out how absurd America's immigration laws can be in practice, and the gross injustices that can result in individual cases. As one of my fellow judges asked the "U.S. Attorney," what's to stop California police from sweeping up large numbers of persons with Hispanic names or appearances on routine drug charges, for an immigration judge to determine that those unable to produce appropriate documentation are illegal aliens, and for them to be deported virtually overnight to Mexico? American citizens caught up in this drug sweep, unable for some reason to produce proof of citizenship before the immigration hearing would -- once deported -- be unable to re-open the queston of their citizenship once they ended up in Mexico.

Our fictitious John Jr. came to the U.S. as a baby in his father's arms. He grew up an American, with no subsequent contact with China. Both he and his father believed he was an American. Twenty-nine is a late age for such a person to learn for the first time that he's actually Chinese. Seven days after that determination is an early time to find oneself on a one-way flight to China. But, as the student attorney for the government pointed out, under present law, not even excusable ignorance of your non-citizenship is a bar to deportation.

This moot court appeal points out one of the many ways in which American immigration law -- rigidly applied as it is, with no real sense of equity in individual cases -- is unfair both to American citizens somehow caught up in it, and to those who would be American citizens but for a technicality of which they were understandably unaware.