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Book Review
| Daniel Kanstroom, Deportation Nation: Outsiders in American History, Cambridge: Harvard University Press 2007. Pp. xii + 340. $45.00 (ISBN 978-0674-02472-4).
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| Deportation Nation by Daniel Kanstroom, a law professor at Boston College, is an ambitious reframing of the history of U.S. immigration law since colonial times. Making rich use of primary and secondary sources, this important book is both a work of legal history and an analysis of modern doctrine and policy. It examines the evolution of deportation as a system of "post-entry social control" that views noncitizens as "eternal guests" on "eternal probation." Kanstroom contrasts deportation as post-entry social control with a concept of deportation as extended border control that is limited to correcting mistakes in the admission process or enforcing the conditions of admission. He finds the prevalent use of deportation as post-entry social control to be troubling for persuasive reasons that he devotes much of the book to explaining. |
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Kanstroom's argument is elegantly woven. He starts with precursors of modern deportation. The first antecedents were colonial and early state and federal laws regulating the movement of persons—our first immigration laws. The second antecedents were the Alien and Sedition laws of the 1790s, intended to rid the country of subversives. The third group of precursors were efforts to remove unwanted groups: American Indians, fugitive slaves, and free African Americans. Kanstroom next addresses the emergence of modern deportation laws, first discussing the federalization of immigration law, with special attention to Chinese exclusion. He examines federal deportation law, especially its expansion to scrutinize noncitizens after their arrival, and analyzes the parallel growth of an elaborate deportation bureaucracy. Finally, he explores features of modern deportation law that enhance its social control function—broad enforcement discretion; lack of meaningful judicial review; and retroactive laws. Embedded in his account are fascinating stories of colorful immigrant characters—including Emma Goldman, Harry Bridges, and Carlos Marcello—and of revealing episodes—such as the Palmer Raids and the Bracero program. |
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Though Deportation Nation is organized chronologically, it is better appreciated as having a conceptual architecture with three elements. The first explains the contrast between extended border control and social control. Though this distinction may seem obvious, it is an illuminating reframing, for it has become typical for immigration commentary to address two questions: (1) admissions: whom do we let in?; and (2) undocumented immigration: what about people here illegally? Both questions relegate deportation to a secondary role. By putting deportation at center stage, Deportation Nation significantly shifts our perspective on policy choices. |
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The second key element of Deportation Nation builds on the contrast with extended border control to show why post-entry social control is deeply troubling, at least as currently structured. To explain, Kanstroom explores basic features of modern deportation. For example, his cogent criticism of broad agency discretion is grounded in his arguments that executive branch decisionmaking is unguided and judicial review is weak. He convincingly explains why it is disturbing that constitutional protections against deportation are not more robust and that retroactive application of deportation laws is routine. |
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This brings us to the book's third key element. Kanstroom argues persuasively that many noncitizens should be protected from deportation as social control, but he implicitly begs this question: exactly how should we define the group of persons whose eternal probation should trouble us? For example, he writes: "There have to be limits beyond which the probation metaphor breaks down.... A more forthright approach would analyze deportations to determine whether—under the circumstances in which they are imposed—they are punishment" (244). But what are those limits, and what is this more forthright analysis? Kanstroom may well be right that lawful permanent residents shouldn't be treated as eternal guests, but what about long-time undocumented residents? He suggests what matters is the length of time, not lawful status (242). Or is deportation as post-entry social control unjustified for all noncitizens? |
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This uncertainty about the scope of Kanstroom's argument is rooted in his key concepts of post-entry social control and extended border control. Readers might ask: aren't they the same thing, if we define "border" broadly enough—in space to reach from the physical frontier into the interior, and in time from the instant of crossing to the present moment? If the post-entry social control label fits, it is because Deportation Nation is concerned with noncitizens who belong to U.S. society. But Kanstroom's main arguments—that post-entry social control (1) differs from extended border control, and (2) is deeply troubling—depend on each other to be convincing. A complete case for both propositions can be made only through textured engagement with when and why they are true for some or all noncitizens. Deportation Nation makes an invaluable contribution by bringing us to the brink of these questions about a fundamental aspect of justice in immigration, but leaves some of the answers for another day. |
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