David Monda: Why Kenyans deported from the United States face unequal protection under the law

Equal protection under the law is a fundamental tenet of the US Constitution. Kenyan immigrants deported from the US should be protected by this core constitutional provision. But they are not.

Historical, systemic, political and socio-cultural factors combine to marginalise this group of Kenyans. Faced with deportation proceedings before they are deported, Kenyans find themselves in legal deserts where their rights are trampled upon. This culminates in their deportation to Kenya being a fait accompli.

The roots of the American republic are heavily racialised. It was not until the Immigration and Naturalisation Act of 1965 that the racially discriminatory national origin quota system, in place since the 1920s, was abolished.

However, the legacy of the heavily racialised immigration system still haunts Kenyan deportees today. But even with this 1965 law, US immigration remains heavily racialised, disproportionately targeting immigrants from black and brown countries for deportation. Immigrants from these countries include those from Africa, Latin America and Asia.

Deported immigrants are often denied their habeas corpus (due process) rights. They are also deprived of their constitutional right to a lawyer under the 6th Amendment once they enter the mass immigration detention system.

The system is even more unfair because if an immigrant is deported to Kenya or Nigeria, for example, their right to appeal egregious constitutional violations by immigration authorities is nonexistent once they leave the US. The US Supreme Court recently further restricted the rights of deported immigrants to petition for their re-entry into the US after being wrongfully deported.

Systemically, local and state jails in the US have a perverse incentive to detain immigrants because they rent prison space in state and county facilities to the federal government. These immigration detention facilities are also a major source of revenue for some of the poorer states, such as Louisiana or Georgia.

There is also an incentive for local communities in these states to keep immigration detention facilities open in order to benefit financially from jobs for the local community.

Another systemic factor is that the US mass detention system is closely linked to the mass incarceration system. America has the highest incarceration rate in the world, with over two million people behind bars. This is no accident. Mass incarceration and mass detention are correlated and complementary. They symbiotically feed the corporatised carceral state.

Detained immigrants are moved from one detention centre to another as a coercive tool to keep them from protesting the dehumanising conditions in these immigration detention centres.

Unfortunately, being moved also keeps them away from their lawyers (if they are able to get one) and, more importantly, from the support of family and friends.

Socially, the unpredictable and random movement of detained immigrants keeps families apart, which is un-American. The idea that America should be a safe haven for the oppressed and marginalised by keeping loving families together is not being upheld in this context.

The Obama administration's policy of viewing immigrants through a binary lens of felons versus families has further marginalised the immigrant population in detention. The felons President Obama referred to are human beings. They have families and need constitutional protections.

Kenyan deportees find themselves in a political environment where the veracity of immigration officials is reflected in the national and state political climate.

Donald Trump, for example, built his 2016 presidential candidacy around a populist nationalism that was rabidly anti-immigrant, xenophobic, racist and bigoted.

He was responsible for demonising immigrants and weaponising the plight of this group of marginalised people for his own racist political gain. He created a climate of hysteria around immigration, describing immigrants from abroad as "invading" America, bringing drugs, disease and violence to the republic. None of this is true.

Native-born Americans commit more crimes per capita than immigrants.The criminal record of immigrants is low compared to the rest of the US population.

In addition, Trump's 2017 "Muslim Ban" decree, through Executive Order (EO) 13769, stopped immigrants from certain Muslim countries from entering the US. This EO was discriminatory against a number of international and national constitutional edicts, including the UN Charter's Universal Declaration of Human Rights, the Geneva Convention, and the 14th Amendment's Equal Protection Clause.

This toxic political rhetoric emanating from the White House ended up shaping public opinion about immigrants and entrenching deep-seated predispositions within the immigration bureaucracy to target and abuse immigrants' rights.

The US immigration system is also a tapestry of convoluted and contradictory protections for immigrants depending on their country of origin. Take, for example, the contradictory treatment of Cuban asylum-seekers compared to those from Mexico.

Or the hardship faced by African asylum seekers compared to the soft reception of white Ukrainian immigrants to the US following the Russian invasion of Ukraine. The high-profile case of Kenyan deportee Sylvester Owino reflects this challenge (Sylvester Owino v Eric Holder (2014)).

Finally, Kenyan embassy officials are widely accused by the diaspora in deportation proceedings of being aloof, unresponsive and unhelpful when they encounter immigration problems.

The prevailing view among many Kenyan diaspora is that embassy officials are in the US because of political patronage and ethnic favouritism, not because of their professional competence. This weak link between deportees and the embassy and consulates remains a major challenge.

In conclusion, this article does not imply that deported Kenyan immigrants have no agency in this gargantuan immigration milieu.

However, it reiterates that the US immigration law, process, procedure and application are by no means equal and fair for all. Kenyans deported from the United States suffer unequal protection under the law.

Professor David Monda teaches political science and foreign policy at the City University of New York.

@dmonda1, davidmonda.com