Cassandra Burke Robertson and Irina D. Manta
We are law professors who have studied civil litigation involving citizenship disputes and thousands of cases involving citizens caught up in immigration cases.
That includes the U.S. citizens who have been accidentally swept up in the government’s immigration enforcement efforts since the mid-19th century. In many cases, they have been detained and even deported.
In fact, more than 1,500 U.S. citizens spent time in immigration detention between 2007 and 2015 before the government acknowledged the mistake, federal records indicate. Northwestern University political scientist Jacqueline Stevens estimated that approximately 1 percent of all immigration detainees from more than 8,000 cases between 2006 and 2008 that she studied were U.S. citizens.
Chinese Exclusion Act
Following its founding and for more than a century, the United States allowed foreigners to voluntarily settle here. The Chinese Exclusion Actin 1882, the first of several measures designed to restrict immigration from China, limited immigration for the first time.
The Supreme Court made it clear in 1920 with a ruling related to those curbs on Chinese immigrants that it is illegal for immigration authorities to deliberately detain or deport U.S. citizens. The case resolved a dispute between Kwock Jan Fat, a man born in California who was denied permission to return to the United States after a trip to China, and the immigration authorities.
The unanimous ruling included a warning about the risks of accidentally deporting citizens. “It is better that many Chinese immigrants should be improperly admitted than that one natural born citizen of the United States should be permanently excluded from his country,” Justice John Hessin Clarke wrote in the court’s opinion.
More than 75 years after the Chinese Exclusion Act’s repeal in 1943, we believe that the court’s concerns about protecting the rights of U.S. citizens during immigration enforcement actions remain relevant.
Scholars like Francisco Balderrama of California State University in Los Angeles and Kelly Lytle-Hernandez at University of California, Los Angeles have researched what happened when hundreds of thousands of people of Mexican descent were rounded up and forced onto trains bound for Mexico during the mass deportations of the Great Depression and the 1950s. They have determined that many of the people expelled from this country were actually U.S.-born citizens.
Hard to count
More recent examples abound of the U.S. government detaining citizens after falsely accusing them of breaking immigration laws.
Immigration and Customs Enforcement authorities reportedly detained for three days Jilmar Ramos-Gomez, a veteran born in Grand Rapids, Michigan who served with the Marines in Afghanistan, in 2018 because the agency did not believe he was born here.
ICE also detained for more than three weeks a man named Peter Brown who was born in Philadelphia and lived in the Florida Keys in 2018 because the agency confused him with an undocumented Jamaican immigrant – who was also named Peter Brown.
Peter Sean Brown, a U.S. citizen who lives in the Florida Keys, was locked up by ICE authorities who got him confused with a Jamaican immigrant with the same name.
In 2007, the government settled a lawsuit arising from ICE’s detention of six-year-old Kebin Reyes. ICE detained the California-born child for 10 hours when it picked up his undocumented father, even though his father immediately handed the authorities Reyes’ U.S. passport to prove the boy’s citizenship.
And Justice Department records obtained by the Los Angeles Times indicate that a 10-year-old boy from San Francisco was mistakenly held in immigration detention in Texas for two months, according to his lawyer.
The Department of Homeland Security’s internal watchdog has released a report detailing “dangerous overcrowding” and “prolonged detention” in immigration detention facilities.
The Inspector General’s report details several ways in which the detention facilities violate federal laws. For example, the law requires the government to move people out of border-control facilities within 72 hours. But 3,400 detainees were held for longer. Some adults stayed in standing-room-only conditions for up to a week.
There is no guarantee that U.S. citizens, including children, are not included among the detainees enduring those conditions. That’s because studies have shown that children are particularly vulnerable to being wrongly subjected to immigration enforcement actions for two main reasons.
First, many adults who are detained and deported have children who are U.S. citizens.
Second, families of children born outside the United States – especially those born out of wedlock – may not even realize that their child is a U.S. citizen because the rules are complex. They vary according to year of birth, the amount of time the parents spent in the United States and the marital status of the parents. Having a grandparent who became a naturalized citizen could mean that a child born outside the U.S. also acquired citizenship at birth.
Even when someone knows their own citizenship status, it can be difficult to prove. Federal regulations require government officials to “carefully and expeditiously investigate and analyze the potential U.S. citizenship of individuals encountered by ICE.”
Proving citizenship can require collecting a significant number of records, including birth certificates from multiple generations, records of parents’ prior residence in the United States and affidavits from people who can confirm that information.
Even so, detaining and deporting citizens violates the constitutional right all Americans have to not be subjected to unreasonable searches and seizures under the Fourth Amendment.
Cassandra Burke Robertson is Professor of Law and Director of the Center for Professional Ethics, Case Western Reserve University. Prior to joining the faculty in 2007, Cassandra Burke Robertson clerked for the Texas Supreme Court and served as Assistant Solicitor General in the Office of the Texas Attorney General. She teaches Civil Procedure, Professional Responsibility, International Civil Litigation, and Remedies. She received a law degree from the University of Texas at Austin, where she also obtained joint master's degrees in Middle Eastern Studies and Public Affairs. Professor Robertson's scholarship focuses on legal ethics and litigation procedure within a globalizing practice of law. She has published in the Columbia Law Review, Boston College Law Review, and the Washington Law Review, among others.
Irina D. Manta is Professor of Law and Director of the Center for Intellectual Property Law, Hofstra University. Professor Manta teaches intellectual property law subjects. Her research examines the intersection between intellectual property law and social science, with a focus on psychology. She has most recently written about the hedonic value of trademarks and its legal implications, the problem of cognitive bias in copyright infringement litigation, price discrimination through software licensing in the age of the Internet of Things, and the role of criminal sanctions in intellectual property. Professor Manta has published or has forthcoming work in the Emory Law Journal, William & Mary Law Review, Iowa Law Review, Alabama Law Review, Boston College Law Review, Ohio State Law Journal, Washington and Lee Law Review, Harvard Journal of Law & Technology, Stanford Technology Law Review, Florida Law Review, Arizona Law Review, and Cornell Law Review Online, among others. She is also a co-author for a forthcoming textbook on criminal law issues in intellectual property. Professor Manta has further been a guest blogger for PrawfsBlawg and for Concurring Opinions. In 2014, she received the Lawrence A. Stessin Prize for Outstanding Scholarly Publications, which is awarded to two junior faculty members across all disciplines at Hofstra University.
Before joining the law school faculty in 2012, Professor Manta was an Assistant Professor of Law at the Case Western Reserve University School of Law. She was a Bigelow Teaching Fellow and Lecturer in Law at the University of Chicago Law School from 2007 to 2009. Professor Manta has also served on the faculties of Brooklyn Law School, The George Washington University School of Law, and the University of Arkansas at Little Rock William H. Bowen School of Law. She clerked for Judge Morris S. Arnold on the U.S. Court of Appeals for the Eighth Circuit for the 2006-2007 term.
While earning her J.D. at Yale Law School, Professor Manta was the grand prize winner of the Foley & Lardner LLP Intellectual Property Writing Competition. She also served as tributes editor of the Yale Law Journal, articles editor of the Yale Law & Policy Review, and editor of the Yale Journal on Regulation. She graduated magna cum laude from Yale University with a B.A. in psychology.
Disclosure statement: The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment. Case Western Reserve University provides funding as a founding partner of The Conversation US.
Note: originally published at theconversation.com; re-published with permission.