Criminalizing Migration: How We Got Here

The U.S. needs to radically change existing immigration laws and policies to shift away from the mindset of “migrant sorting” by criminal status, according to a paper published in the Daedalus journal.

Beginning in the mid-1980s and carrying into today, immigration law has become increasingly intertwined with criminal law, resulting in a growing number of deportations, writes University of Denver law professor César Cuauhtémoc García Hernández, in an Ohio State Legal Studies research paper.

By intertwining immigration and criminal law, the thought was to “sift” through migrants, so those who committed crimes were deported while those who did not were allowed to stay.

However, this has resulted in migrants being unfairly sorted according to whether they are “desirable” or “undesirable” on the basis of “politically palatable characteristics,” writes García Hernández.

“Today, the results are clear: a law enforcement apparatus and immigration prison system propelled by a vast infrastructure of laws and policies,” he asserted.

“The presidency of Donald Trump augmented this trend and brought it to public attention. But lost in President Trump’s unique flair is an ideological commitment shared by multiple presidential administrations and legislators from both major political parties to use the criminal justice system and imprisonment to sift migrants.”

Immigration and Criminal Justice Intertwined

 Traditionally, the criminal justice and immigration systems have operated independently from one another.

But, the paper argues, this has effectively been changed over the past 40 years.

Prior to the mid-1980s, very few migrants were deported from the U.S. due to drug crimes.

From 1892 to 1984, 15,824 people were deported from the U.S. due to drug crimes. From the slightly overlapping period of 1908 to 1990, 56,669 people were deported from the U.S. for the same reason.

Altogether, there were about 72,000 legal proceedings leading to deportations that took place over these ninety years.

That same number of proceedings took place in the year 2002 alone.

This rise in legal proceedings against migrants began when Ronald Reagan was elected president and has continued in similar fashion since.

Congress enacted harsher laws regarding criminal activity and expanded the roles of prisons in enforcing immigration law during the Reagan Administration.

Hernández gave the example of the Anti-Drug Abuse Act, enacted in 1986, which allowed the Immigration and Naturalization Service (INS) to detain anyone arrested for a drug crime.

Two years later, a similar law, the Anti-Drug Abuse Act of 1988, named a new category of crime called “aggravated felony” which included murder, drug trafficking and firearms trafficking. It allowed INS to detain migrants convicted of one of these offenses.

Since then, the definition of an “aggravated felony” has expanded to include 21 categories of offenses.

From Drugs to Terrorism

Continuing the trend, then-President George H.W. Bush signed the Immigration Act that raised the punishment for illicit drug activity, thereby expanding legal authority for migrants to be deported after being convicted of a broad range of drug crimes.

The Violent Crime Control and Law Enforcement Act, passed in 1994 under the Bill Clinton administration—and supported by then-Sen. Joe Biden, authorized the INS to construct prisons and created a federal program that reimbursed law enforcement for arresting migrants.

The Antiterrorism and Effective Death Penalty Act was also passed during the Clinton presidency and added select nonviolent offenses to the aggravated felony definition.

In addition to the implementation of new acts resulting in more ease in deporting migrants, the power of judges to issue waivers of deportation was stifled and a law used by federal judges to bar immigration officials from using a criminal conviction to deport a migrant was repealed.

“Congress’ decision to eliminate both authorities reflected an ideological transformation,” Hernández wrote.

“Instead of allowing migrants to transcend their worst moments, immigration law came increasingly to limit migrants to one opportunity at making a life in the United States.”

Following the September 11 attacks, immigration law enforcement responsibility was granted to the Department of Homeland Security’s Immigration and Customs Enforcement (ICE) agency.

The George W. Bush Administration required the federal government to build fencing along the Mexican border and began relying on federal prosecutors “to increase the consequence of immigration law.”

The administration also started using the power of the two federal crimes that make up the majority of cases in federal criminal court — unauthorized entry and unauthorized reentry — to turn “federal criminal dockets into fast-paced immigration processing centers.”

In the last fiscal year fully under his administration, 21,054 people were convicted of federal immigration crimes, a quarter of the total convicted crimes in federal courthouses that year.

The Obama Administration largely shifted immigration enforcement to prisons while also focusing on Bush’s push for prosecuting unauthorized entry and reentry.

His administration saw ICE’s prison population grow by about 478,000 people in a year and faced backlash for its Secure Communities program meant to sift through law enforcement information about immigration status.

Under Donald Trump, many of the same policies as the former presidents were carried out, but with more “inflammatory rhetoric.”

“Having carried himself into the White House in part on the strength of racist taunts and claims to build a border wall, he spent considerable energy launching or promoting attacks on migrants,” Hernández wrote.

“Most of the time, he laced accusations with fear-mongering rhetoric that echoed the criminal justice conversations of recent decades: innocent White victims pitted against merciless perpetrators, almost always People of Color, and the legions of white elitists who facilitate their violence.”

Migrants also face consequences for actions, that had they been citizens they would not face punishment for.

For example, while a U.S. citizen of age in Colorado can easily buy marijuana legally from a dispensary, a migrant would face mandatory imprisonment during immigration hearings and would face deportation for doing the same.

Changing the Template

 Although regulating immigration by way of whether a migrant has committed a crime or not has been politically popular for the past four decades, Hernández writes categorizing migrants in this way will fail.

Obama once said, “We’re going to keep focusing enforcement resources on actual threats to our security. … Felons, not families.”

And Trump has repeatedly attempted to associate migrants, namely migrants of color, with higher rates of crime, despite multiple empirical studies finding they tend to commit less crimes than people born in the U.S.

Hernández recognizes that while it might be politically popular to deport people based on criminal status, there has to be a recognition that felons also have families and are worthy of rehabilitation.

“We can continue fantasizing that it is possible to neatly categorize people as fit or unfit for membership or we can own up to the reality that the pursuit of that goal is like a mythical quest,” Hernández wrote.

“To assume that it is possible to neatly categorize people as fit or unfit for membership in the political community that is the United States requires faith in legislators’ ability to identify suitable markers of undesirability and an equally powerful belief that, even if they could do that, they could also then create a bureaucracy that boxes people accordingly.”

The full paper can be downloaded here.

Blake Diaz is a TCR Justice Reporting intern.