UC Berkeley

This dissertation is a study of the structural challenges to due process in summary deportations in the border setting and their consequences. It focuses on a little-understood but consequential U.S. Border Patrol practice called administrative voluntary departure (or colloquially, “voluntary return”) whereby, on paper, an undocumented immigrant apprehended by immigration authorities agrees to waive his or her right to a hearing before an immigration judge and voluntarily depart the United States. Voluntary departure is not legally constructed as “deportation” or “removal,” but the vast majority of individuals who have been required to depart the U.S. via state action have been subject to voluntary return, and they are overwhelmingly Mexican nationals removed by the U.S. Border Patrol.

Voluntary return has largely been studied as a “border” practice and as part of the social process of border crossing, whereby undocumented immigrants with little to no equities in the U.S. are caught illicitly crossing the border and promptly (within hours, if not minutes) and informally returned to the Mexican side of the border, where they try to effect another entry. It is depicted in the literature and by federal courts as a disposition that undocumented immigrants accept in their own self-interest because they avoid the stigma and consequences of formal removal and would not benefit anyway from lengthy removal proceedings, given their lack of equities in the U.S. In contrast, this law-in-action study shows that the U.S. Border Patrol has also historically used voluntary departure as a racialized tool of interior enforcement to summarily deport long-term resident Mexican immigrants from the communities they have lived in for years, if not decades, with long-term deleterious consequences.

Drawing on 29 in-depth, semi-structured interviews with immigration practitioners and border advocates in the border city of San Diego, as well as a range of documentary evidence including Border Patrol organizational materials (such as voluntary return instructor guides and training materials) obtained through a Freedom of Information Act request from the American Immigration Council, this dissertation shows that the U.S. Border Patrol has relied on systematic surveillance of the border region to target and deport en masse Mexican nationals in a process that, contrary to statute and regulations, is unduly coercive. Coercion in voluntary departure is a result of the weak context of rights and protections for custodial migrants in the civil immigration context (e.g. lax USBP policies governing detention conditions, barriers to legal representation, information-deficient forms, and deficient USBP officer training in voluntary departure procedures)—structures that undermine the conditions of consent. I argue that the legal construction of voluntary return as a consensual process belies the ways in which subtle forms of power such as information control, deception, persuasion, and manipulation operate through these structural factors to induce undocumented immigrants with ties to the U.S. to relinquish important procedural rights and potential opportunities to formalize their status in immigration court. Through the mass processing of Mexican nationals and the lack of procedural due process, I show that voluntary return functions as an engine of mass social inequality, comparable to the U.S. system of mass incarceration, which is similarly a racialized institution, systematic in practice, and quasi-illegal.

Ultimately, my research on voluntary return finds that the law-in-action differs from the law-on-the-books in a way that is symptomatic of an immigration system that lacks a commitment to the due process rights of undocumented immigrants. This gap signifies that the promise of the law-on-the-books for due process cannot, or will not, be kept. The lack of commitment to due process is corroborated by the relatively recent shift in border enforcement to summary removal procedures (e.g. expedited removal and reinstatement of removal), which have constituted the vast majority of removals in recent years. Where the law provides the option of due process in court for those subject to voluntary return, summary removal procedures altogether bar migrants in these proceedings from a hearing. The predominance of expedited removals and reinstatement of removals signal not only a continued neglect of due process rights, but one that is now enshrined in the statute and regulations. What these new policies effectively do is remove the gap between the law-on-the-books and the law-in-action, not by providing more due process, but by removing the promise of due process altogether. Thus, there is a kind of devolution from the law on the books, which promised due process, to voluntary departure in action which violates that promise on the ground, to formal summary removal policies which remove the gap by removing the promise (i.e. writing the promise of due process out of the law). This movement away from a policy of formally consensual voluntary returns to summary removal procedures exposes the legal fiction of consensual voluntary departure.

This dissertation contributes to the growing field of deportation studies by providing a study of one of the main mechanisms of deportation, one that has largely been understudied and undertheorized. It also illuminates the central role in the U.S. deportation regime of “deformalized” or “fast-track” deportations (those that bypass courts), which have largely been neglected by empirical scholars of deportation. By shifting the focus of deportation studies outside of courts, this dissertation shows that the U.S. deportation regime is more expansive, but also less visible, than what the literature indicates, and that to truly understand the scale of the deportation system and its effects, it must be studied from the perspective of these dispositions.