09/18/2013 03:03 pm ET Updated Nov 18, 2013

When Will We Stop Deporting U.S. Citizens?

I reveal no great secrets when I say that the United States has deported its own citizens numerous times. Many news outlets have covered the problem, including the New Yorker magazine in the April 29, 2013 article "The Deportation Machine." In this piece, William Finnegan describes the travails of a cognitively disabled man who was born and raised in the United States, yet deported to Mexico through the actions of careless, overzealous bureaucrats.

The urge to deport is not the only cause of U.S. citizens' removal. News reports abound of overburdened Immigration Judges and unrepresented immigrants, who often appear in court en masse via televideo. This procedural travesty results in legal and factual oversights -- and the permanent banishment of U.S. citizens.

Sadly, none of this remains "news."

Less well known is how deep the problem of failure to identify citizens goes. The United States Court of Appeals for the Fifth Circuit taught everyone a bitter lesson on the issue last week. The Court addressed the case of Sigifredo Saldana Iracheta, a native of Mexico who had been arrested for "illegally" reentering the United States after deportation. On September 11, the Court ruled that Saldana Iracheta is in fact a U.S. citizen by virtue of his blood relationship with his U.S. citizen father. In other words, it was unlawful to deport Saldana Iracheta to Mexico in the first place, and the Court barred the government from doing so again.

What went wrong in Saldana Iracheta's case? Why did the government attempt to deport a U.S. citizen, not once, but multiple times? The mistake in Saldana Iracheta's case did not flow from a moment of carelessness, or what we might dismiss as random human error. It cannot be attributed to the vast and perhaps unwieldy deportation machinery that continues its sprawl under the Obama administration. Rather, the mistake was rooted in decades of case law generated by the administrative judges who interpret our immigration and nationality statutes -- the judges that decide who stays and who goes.

As background, let me recount some immigration law fundamentals. For a U.S. citizen father to transmit citizenship to a child born out-of-wedlock abroad, that father must somehow "legitimate" his child. In other words, by some act of law, the child must possess the same rights as a child born to marriage -- for example, the right to inherit and receive financial support from his father. In the 1978 case Matter of Reyes, an administrative law panel found that, in Mexico, the only way for a father to legitimate an out-of-wedlock child was to marry his mother. According to Matter of Reyes, that's what the Mexican Constitution said. The courts followed Matter of Reyes, apparently unthinkingly, until the Fifth Circuit destroyed it last week.

In Saldana Iracheta's case, a series of administrative adjudicators had found that he was not legitimated under the Mexican Constitution, because his U.S. citizen father did not marry his mother. Therefore, they determined, Saldana Iracheta was not a U.S. citizen. Now comes the punch line. According to the Fifth Circuit, the Mexican Constitution contains no such requirement. Nor did it in 1978. The language was simply never there. In other words, Matter of Reyes relied on a non-existent constitutional provision. The government sought to deport Saldana Iracheta based on a blatant legal error.

One shudders to think how many Americans have been deported because of this mistake. And the question becomes, what will the U.S. government do about it? Unearth every administrative law decision since 1978 ordering the deportation of Mexican natives claiming U.S. citizenship through their fathers? Send an army of federal agents to Mexico to locate and confer passports on persons illegally deported 30 years ago? Award damages for lost wages and emotional distress?

Most likely, the government will do absolutely nothing. The cost of conceding erroneous deportations is too high. Matter of Reyes is not the only case that has led to the wrongful deportation of U.S. citizens. For example, starting in 2008, the government ordered U.S. citizens deported to Jamaica under Matter of Hines, an administrative decision issued that year. However, lawyers from the Department of Homeland Security stated in 2011 that Matter of Hines applies only prospectively (i.e., to new cases). In the meantime, however, both the Department of Homeland Security and administrative law judges had applied the decision retroactively to order U.S. citizens deported. One such citizen was my client. He is now out of immigration detention and back at home in Connecticut, where he belongs. Others were not so fortunate.

Circling back to the title of this article: When will we stop deporting U.S. citizens? Another way to pose the question: when will administrative law judges and government officials begin to check the veracity of the case law they rely on when ordering and executing deportations? As President Obama so often reminds us, the buck stops with Barack. The key players in the deportation drama are executive branch employees. Immigration Judges are housed within the Department of Justice. So is the Board of Immigration Appeals. These administrative decision makers are ill equipped to cope with the avalanche of cases brought on by ever-increasing immigration enforcement. Immigration Judges require more support and better infrastructure. The Board of Immigration Appeals has too few members and is under too much pressure to decide complex cases within tight time frames.

Immigration and Customs Enforcement, known by the acronym ICE, is also part of the executive branch. ICE requires a cultural transformation. ICE must recognize that the duty to protect U.S. citizens encompasses an obligation not to deport them. Immigration officers who identify U.S. citizens should be recognized and rewarded. ICE attorneys who terminate deportation proceedings against U.S. citizens should be commended. In general, when confronting claims of U.S. citizenship, the government needs to proceed with far greater caution.