Fight of the Century

by Michael Chabon

  Sometimes I marvel at what it might feel like to be a white American. Especially a white American male. To walk out of my front door and enter public space and to be free of preconceived notions of who you are, of your morality or lack thereof, your work ethic or lack thereof, your intelligence or lack thereof, your ethical standards or lack thereof. To walk through the world unjudged. And then I often wonder what it is like for white men to not have to worry about the types of judgments that are particular to my sex: What must it be like to not have to worry that your work is worth the same as everyone else’s, to not have to worry that if you are sexually assaulted or harassed, you will be blamed for it because of how you dressed or spoke or drank or stood or sat? What must it feel like to exist in the outside world unencumbered by the threat of not only racial but also sexual violence?

  Sometimes I think I have experienced something of what it must be like to move through the world a bit more freely. When I left Mississippi for college in California when I was eighteen, the farther I got from the South, the lighter I felt. I looked up more often instead of watching my feet as I walked. My shoulders, perpetually curved as a cowed animal’s, began to straighten. I had conversations with classmates wherein I would relate stories of racism from my past, and in the telling, I would realize how I’d accepted the bullying, internalized it, accepted it as my due because I was black, and this was Mississippi. In leaving Mississippi, this place where every other street is named for a Confederate, where politicians pose with Confederate flags, where they make flippant remarks about public lynchings at campaign events, I felt a little safer, a little lighter in public. This is the kind of place where Cruisin’ the Coast, a gathering of mostly white, older people who tool around the different small towns of the Gulf Coast in restored antique cars, produces just as much, if not more, traffic and congestion business as Black Spring Break in Biloxi, and while Cruisin’ the Coast is celebrated, BSB is heavily policed, restricted, and the outcry to cease the event increases every year. This denial of community gathering does this too, teaches us that we are less than human, that we don’t deserve to feel that sense of joy of being serenaded, or the sense of kinship when an arm is flung over your shoulder, or that sense of ease when someone you have known for years tells a good joke, and you turn your face to the sky and laugh.

  I am ever grateful for the work the ACLU does to root out this racist behavior legitimized in law, wherever it occurs, in Mississippi, where they’ve brought suit against the Madison County Sheriff’s Department to challenge racially motivated policing or Chicago or elsewhere, but it is disheartening to know that this happens all over the country, even when not codified in law. This belief that black people, brown people, queer people, trans people, disabled people, women are perpetually less is the great American Gorgon, and these endless terrible laws and behaviors are its myriad heads, regenerating one after another. Rooting us in place with one glance, miring us in inequality. This is how we are frozen in stone. Sometimes I believe this is an endless battle. And in a rare moment, I believe maybe we are our greatest heroes, ACLU and all. On these moments, I think: onward, to freedom.

  ZADVYDAS V. DAVIS (2001) (amicus)

  At its core, Zadvydas v. Davis is a case about due process rights and who possesses them. The second Bush administration argued that undocumented immigrants could be detained indefinitely, even if there was no realistic hope of deportation. This amounts, essentially, to life imprisonment without any hope of parole. When Mr. Zadvydas filed his habeas petition, the ACLU and other rights groups immediately filed spirited amicus briefs on his behalf.

  Writing for the majority, Justice Breyer declared that all persons in the United States possess due process rights and that the indefinite detention of undocumented immigrants is unconstitutional because it constitutes arbitrary imprisonment. The Court reasoned that undocumented immigrants are not convicted criminals, so imprisoning them for long periods of time is both a rights violation and an affront to individual liberty. What’s more, the Court held that the lack of procedural safeguards in the immigration legal system (such as judicial review) increased the likelihood of inappropriate detention. Accordingly, indefinite detention of undocumented immigrants was struck down; the government is required to release non-deportable persons after six months. In Clark v. Martinez, the Court would extend this principle to inadmissible immigrants, i.e., those who are detained because they are barred from entering the United States. Undocumented persons are therefore protected from indefinite detention when both leaving and entering are impossible.

  This issue is by no means settled. Immigration authorities have pivoted to other justifications for violating undocumented persons’ due process rights. The ACLU continues to fight such abuses, whether by direct representation, amicus briefs, or simply raising awareness of these injustices.

  Stateside Statelessness

  MOSES SUMNEY

  The first time my African father was deported in 1980something, he had snuck onto a plane out of France with a fake passport in his satchel. Upon landing in Boston, he was immediately seized by authorities. Caught. In holding, a sympathetic border security agent gave him clear instructions before carting him back to a return flight: “This is the best country. This is where you want to be. Don’t stop trying to get in. Have your children here. Try and try again to come back.” Soon after, America expelled my father back to his port of last departure, Paris, instead of back to Accra, Ghana’s capital, where he originated from. It was sheer luck and logistics that saved him from being sent back to his country of origin, because it would have been virtually impossible to leave Ghana for the Promised Land that is North America.

  * * *

  The path back to country of origin was not so simple for Kestutis Zadvydas of the Zadvydas v. Davis ruling. Although a legal resident of the United States, he was born to Lithuanian parents in a displaced-persons camp in Germany. He was not recognized as a citizen by Lithuania, Germany, or the United States (although he likely held a green card after his family migrated to the US). After serving two years in prison for a blue collar crime, he was further detained and ordered deported. Federal immigration law stated that once a person had been ordered removed, the US attorney general must complete the extraction process within ninety days. Failing that, the immigrant could either be released back to the public or be detained indefinitely until removal became possible. Since both Lithuania and Germany refused to take him, Zadvydas remained in prison for two additional years (after completing his initial two-year sentence). After a long battle, the Supreme Court ruled that it was indeed unconstitutional for expats to be detained for longer than ninety days without confirmation of verifiable, imminent acceptance from their country of origin.

  The case posed foundational legislative questions about immigrants in America: Do non-citizens have constitutional rights? Are the rights of “aliens” inalienable? Can deportees be detained indefinitely if their country of origin will not acknowledge them? But it also asked philosophical questions, existential questions of humanity: Where do you go when no one will claim you? Who are you if you can’t clearly be identified?

  * * *

  As my excursion into researching Zadvydas v. Davis begins in a tea café in London, I am struck by the immense privilege my US passport has granted me in my lifetime, especially as I’ve achieved a basic level of financial self-determination. The United Kingdom has recently instituted a Registered Traveler Program for citizens of certain nations (it isn’t difficult to imagine which ones), so that an approved foreigner can enter the UK expeditiously and stay for up to six months at a time without rhyme, reason, or visa. This means that I can come to Great Britain literally whenever I want, sail right through customs without waiting to see a border agent, and stay for as long as six months. To reset that entry period, all I must do is briefly step out of the country, perhaps take a two and a half hour train ride to Paris and come back. After being here for a month, I realize my experience contrasts greatly with the way m
y parents entered Europe in the 1980s, before they finally settled in America and started a family. I breeze through the gates, but they snuck in.

  After falling in love in a Ghanaian village in the 1980s, my parents knew it would be best to migrate to a Western country before having children. This is a common mentality among Africans who covet upward mobility; the only way to climb the echelons of Ghanaian society was to go abroad and return with foreign currency. Having Western citizenship would ensure that their kids had everything they didn’t—a chance at a better life, but most important, global autonomy. Because, as they soon found out, traveling country to country is no small feat when you hold an African passport; it’s often impossible. And getting a visa to go to America was harder than smuggling a camel through the eye of a needle. So even though America was always their end goal, they moved first to Nigeria, then Germany, then France, then Great Britain, then Canada, before settling in California in the early 90s. It was an immigration process that took ten years, a long game of international hopscotch that had to be played because almost no country would grant them legal entry—especially not the United States.

  * * *

  My family is well acquainted with the North American purgatory of casually wondering when it’s your turn to be deported. Just a few years ago, well into my twenties, my parents sat me down (over the phone) for the first time and unveiled some family secrets about their road to living in America. After residing in Quebec for two years, following a two-year stint in France, my father moved to California to plant the seeds for my mom and older sister joining him. He saved up while working as a janitor, and once he had enough to provide for them, sent for my mom and sister. But, of course, my mother couldn’t get a visa. She embarked on a migration that by now was familiar to my parents: she snuck across the Canadian border in the middle of the night. Or at least tried to. She was stopped by Canadian border security while trying to enter Michigan, and was rejected. Caught. Instead of driving six hours back home as instructed, she holed up in a motel near the border for a week. Now that she had been discovered, she was at great risk of being deported, and it was only a matter of time before they came back for her. Lying on her back on that stiff motel bed, my mom could fearfully foresee a carceral future in which she was trapped in a transitory state similar to that of Zadvydas, and many other immigrants who were awaiting their fate in jail before inevitable deportation. Except this was Canada, not the US, and my mom was female, not male, and, to complicate matters further, she was several months pregnant with me.

  Maybe this pregnancy provided the determination and grace that kept her from being freighted home immediately. Legend has it that a cavalcade of immigrant mothers rode up in the middle of the night, slipped her into their chariot of fire (the back of a cargo truck), and successfully stowed her away to California.

  I have to interrupt this fugitive drama to interject that I myself wonder how much of this story is accurate. Like most oral histories, the facts get distorted and diminished in the retelling, and the details of this pilgrimage have changed every time I’ve spoken to my mom. I chalk that up to her propensity for dramatic flair (yes, it’s hereditary), mixed with a lifelong habit of concealing the truth for the sake of safety. There is something about concealment that transforms the truth. As for my father, he won’t even let me share the specific details of how he crossed over from Canada for fear that it will expose him and disrupt future migrants from taking the same path.

  Reading Zadvydas while I await a refill on my Earl Grey tea (the French waitress in this east London café insists that I must try it the “right” way, black with a slice of orange, instead of ruining it with soy or almond or oat milk), I wonder where, exactly, would they have sent my mother if she was caught again on either side of the border? Where would my family have been shipped off to if we had been discovered, paperless, in the 1990s? Back to Canada where my sister was born? Back to Europe, where my parents had spent all of their twenties building their lives? Or back to Ghana, from whence they originally came, but hadn’t been in over ten years? Faces and places in Ghana would now have been foreign to them; they would not likely be smoothly accepted by their peers. Where do you go when no one will claim you?

  Questions like these inspired my parents to keep our origin story a secret from us children, for fear that we would slip up on the playground, or at the post office, or at the doctor’s office, and reveal our illegitimate status. Maybe we would accidentally tell our friends at church that our mother didn’t have documents, and those snot-nosed kids would tell their conservative Christian parents. We remained in the dark, even as we moved back to Ghana in the early 2000s, and back again to California six years later.

  As of early 2019, Ghanaian-American expats are having their identities questioned more than ever before. In early 2019, it was announced that the Department of Homeland Security had imposed sanctions against incoming visa requests from Ghanaian nationals as a blanket penalty for the Ghanaian government refusing to accept seven thousand fresh deportees from the US. In response, the Ghanaian government has insisted that it must verify each individual deportee of Ghanaian citizenship before accepting them back onto Ghanaian soil, holding up deportations. And then there is the infrastructural issue of finding accommodations for each person once their citizenship is confirmed; Ghana’s population is smaller than that of California’s, and one can imagine that social resources must already be at capacity if people are so eager to emigrate in the first place.

  Pressuring the Ghanaian government to accept potential deportees is the current administration’s way of circumventing the immigration law established by Zadvydas v. Davis and its associated cases (such as Clark v. Martinez). Since detaining deportees indefinitely beyond ninety days is unconstitutional, penalizing innocent Ghanaians seeking visas is a clear attempt to strong-arm Ghana into accepting the deportees before the purgatorial period runs out, and the US is legally required to release the would-be expellees.

  I wonder what will happen to each of these citizens, stuck in limbo between two nations that don’t want them. I think of the dread I feel when I drive into an intersection during congested LA rush hour traffic, and get stuck in the static crossroads, neither here nor there, at risk of collision from either side. I think of how I feel when I get lost driving through Accra’s Tetteh-Quarshie interchange at night, having just barely missed an exit because the freeway signage is elusive and the lighting is not illuminating. How I feel when lost on a train platform in central London, unsure if I’m going north or south or east or west, only sure that time is a finite resource I can’t control. In these moments coming and going become interchangeable: “Nowhere” becomes an inhabitable place, a zip code ending in an infinity loop of zeros that I seem to occupy indefinitely. We get our sense of self from a sense of home. We are taught to root our identities in feelings of belonging and community. We are programmed, across customs, to define ourselves by our origins first and our preferences second. But who are you if you can’t clearly be identified?

  * * *

  It has already been so difficult throughout my lifetime for Ghanaians to emigrate—even the well-connected ones. We hear so much about the parasites trying to illegally get into America, but not enough about how difficult legal entry is, especially from countries oppressively deemed the “Third World” (propagating the idea that they are so underdeveloped that they might as well be the bottom-most tier of the planet). The fact that most illegal immigration occurs through overstayed visas, not fence-hopping, is ignored. I’ve learned this firsthand through my half brother, ten years older than me, whom I did not meet until we moved back to Ghana when I was ten. My father had him shortly before he met my mother and left Ghana, but was unable to bring him along. Once my parents reached America, my brother tried to join us, but the US Embassy denied him a visa, year after year, decade after decade, until he was thirty years old. Even after my parents were legally granted naturalization, and even after my father’s near-twenty years of acc
umulated US residency, the government denied my half brother a visa because there was no guarantee that he would return to Ghana if he visited us. Nor did they allow him to immigrate, because they refused to accept that our tax-paying family could sustain him.

  Learning I had an older brother when I was ten may have been confusing, but learning for the first time in my twenties that my parents had been illegal immigrants felt like discovering I was adopted, or that I had been a phantom of my assumed self all along. Suddenly, so many things about my childhood made sense. My parents were almost always self-employed or working odd jobs; my mom was a seamstress for much of my childhood, sewing African clothes for San Bernardino women who wanted to connect with the motherland, and my dad was a taxi driver who often picked us up from school in his cab and broke taxi codes by planting us in the front seat while he picked up passengers throughout the Inland Empire. At some point they ran a thrift shop in downtown San Bernardino. We went to private school, but didn’t realize that my parents worked there as custodians and assistants in order to pay the discounted tuition. My sister and I were the only black students in our Colton school—truly a feat considering San Bernardino had such a large black population. Being the alien was not alien to me.

  By the time my older brother was finally granted a visa in the 2010s, any fantasy semblance of constructing a quintessential American family had dissipated. I had gone off to university, and my family had decided that after twenty or so years courting America, they just didn’t want to date it anymore. Besides, they had what they needed—passports for their kids, citizenship for themselves: clinging to a dying economy would be overkill. Over the course of three years, ravaged by the recession, we had downsized from a five-bedroom, two-story stand-alone house to a two-bedroom apartment for five people. My mom took a government job with the county, but it still wasn’t enough. The American dream had long given way to night terrors by the time my brother finally arrived. And though he made it over the pond, he found it hard to make it in America without a support system.