The Criminal Origins of Immigration Law
Who should be able to enter and stay in the United States? This question has remained central to the discussion of migration since the country first established its immigration system under the 1790 Naturalization Act.[1] Upon the nation’s inception, foreign nationals were not excluded from entering but rather entered freely to satisfy the nation’s need to increase its population and workforce in light of westward expansion.[2] Over time, however, state and federal political actors struggled to address the difficult question of how to handle migrants entering the country “illegally.”[3] The last several decades of American immigration law have been shaped by unilateral executive action, congressional inaction, and divergent policy initiatives among the individual states.[4] The events following the terrorist attacks on September 11, 2001 marked a critical point in the discussion about immigration with state governments beginning to assert their legislative authority with varying degrees of success.[5] In particular, many states administered their own immigration statutes, resolutions, and supplements to existing federal legislation, resulting in inconsistent policy initiatives from the local, state, and federal governments.[6]
The lack of consistent and humane federal immigration policy over the last several decades has left the nation in the midst of a legal crisis.[7] The Trump administration maintained a forceful stance on immigration throughout his term, adding various obstacles for undocumented immigrants to remain in the United States.[8] In recent years, conservative groups have continued to embrace the criminalization of immigration as waves of nationalism emerge in light of imminent threats to national security.[9] As security threats take the spotlight, legal scholars have documented their concerns about racial bias and discriminatory policies as the rate of immigrant offenders who are processed in the criminal justice system continues to grow.[10]
From the Regan Administration to Today: The Emergence of Crimmigration
Traditionally, immigration law and criminal law originated as separate legal areas.[11] Migrants were tried under federal immigration laws to decide who was admitted and who was excluded.[12] If the government found that a non-citizen violated their immigration laws, immigration courts were authorized to initiate removal proceedings against that individual.[13] However, when a noncitizen was accused of committing a crime, they were prosecuted and, if convicted, incarcerated until they could be transferred to an immigrant detention facility for removal proceedings.[14]
Beginning with the Regan administration, the division between both areas of law changed significantly.[15] With the support of Congress, key officials turned their attention to the southern border, claiming that the influx of migration posed a “public-safety risk.”[16] Although many migrants were escaping the civil wars plaguing the region, undocumented immigrants were seen as fugitives acting in defiance of the law.[17] In response to the concerns of growing migration trends, “President Reagan famously warned that Soviet-backed forces were only two-days drive from Texas.”[18] Out of the looming fear of a sudden influx of migration, individuals secretly crossing the border became associated with illegal narco-traffickers, a stereotype that continues to characterize modern efforts to criminalize immigration.[19] With the passage of the Immigration Act of 1990, the federal government declared the southern border as the “front lines [for the emerging] war on drugs.”[20]
Through continuous legislative action, Congress further facilitated the nexus between drug trafficking and “illegal” migration.[21] For example, the Anti-Drug Abuse Act of 1986 authorized immigration detainers as an extension of the Immigration and Nationality Act (“INA”).[22] Federal immigration officers were now vested with the authority to require local law enforcement to extend the custody of a person accused of violating immigration laws indefinitely.[23] Within two years of enacting the 1986 act, Congress broadened the federal law enforcement’s authority to require the mandatory detention of any immigrant charged with an “aggravated felony.”[24] Although the practice of mandatory detention was initially reserved for a narrow group of serious felonies, Congress has since passed various statutes to extend the definition of “aggravated felony” to cover various, additional crimes, including simple battery, theft, and failure to appear in court.[25] The latter is particularly burdensome and quite common in removal proceedings where immigrants receive a notice to appear upon their release from U.S. Border and Customs Enforcement without an exact date for their initial hearing.[26]
Upon passing the Antiterrorism and Effective Death Penalty Act of 1996, the federal government’s position on “illegal” immigration changed once again.[27] The Clinton administration eliminated the “aggravated felony” requirement but continued to mandate the mandatory detention of migrants for certain enumerated and unenumerated crimes.[28] The 1996 act was also the first time Congress established a nexus between immigration and terrorism by adopting the term “alien terrorist” as a comprehensive category for prosecuting individuals under the act.[29] Despite the existing threat of domestic terrorism,[30] the statute referred to certain migrants as threats to public safety or to the security of the United States.[31] Beyond imposing mandatory detention under the INA, the 1996 act further authorized local law enforcement agencies to collaborate with federal immigration officers in investigating, apprehending, and detaining individuals accused of violating immigration laws.[32]
Congressional legislating on immigration only grew in the aftermath of the 2001 terrorist attacks as a means to monitor, remove, and limit the social membership of immigrants who posed a potential threat to national security.[33] During his tenure, President Bush signed a series of Executive Orders and congressional statutes intended to address the national security crisis.[34] Beginning with Executive Order 13228, the Office of Homeland Security, now known as the Department of Homeland Security (DHS), was established to develop comprehensive strategies for protecting the nation from terrorist threats.[35] From its inception, the Office collaborated with local and state governments to identify credible threats of terrorism.[36] In describing its strategies for combatting terrorism, the Office recommended strict procedures for new arrivals as a preemptive measure to secure the border and the nation.[37]
Once DHS was formally established in 2002, Congress delegated to the agency the responsibility of regulating movement at the border, investigating potential immigration law violations, and detaining migrants who were waiting for a ruling on their immigration case.[38] Given that many Bush-era policies lacked explicit criteria for identifying persons posing a threat to the nation’s safety, DHS maintained broad discretion for profiling and detaining those individuals.[39] As one of the most controversial, yet “key pieces of legislation enacted in response to the 2001 [terrorist] attacks,” the USA PATRIOT Act further broadened the number of immigrants eligible for mandatory detention by extending the inadmissibility criteria to include “terrorist” activity.[40] Under DHS’s broad discretion, numerous immigrants were deported when DHS barred vulnerable migrant groups from applying for legal residency or asylum.[41] This pattern would only continue to escalate over the next two decades with millions of immigrants forced out of the country.[42]
As federal officers collaborated extensively with state and local law enforcement, state legislatures implemented policies extending their authority beyond what was already delegated to them.[43] Invoking its policing power, Arizona passed the controversial “show-me-your-papers” law.[44] Although most of the statute was struck down by the Supreme Court, local and state law enforcement officers were still authorized to inquire about an individual’s citizenship status.[45] Despite the high risk of racial profiling, similar provisions have since been implemented in various states and were endorsed by President Trump as a necessary nationwide standard.[46]
Today, immigration law and criminal law are “merely nominally separate.”[47] With the birth of crimmigration, the overlap under the two areas of law has made it difficult to identify the point in which “the criminal justice system ends and the immigration process begins.”[48] As immigration activity is becoming an increasingly focal element of the criminal justice system, state and federal law enforcement agencies are more readily implementing enforcement tactics that disproportionally punish individuals based on their citizenship status.[49]
The Three Pillars of the Crimmigration Doctrine
Once Congress and executive agencies laid the foundation for the emergence of crimmigration law, scholars noted these developments in American policymaking as features of a broader trend.[50] César Cuauhtémoc García Hernández, an influential scholar behind the crimmigration doctrine, established three primary trends that describe the new area of law: (1) criminal convictions being increasingly prevalent in determining one’s immigration status; (2) violations of immigration law being increasingly punished within the criminal justice system; and (3) traditional elements of criminal law being increasingly integrated in immigration law enforcement measures.[51] These trends are symptoms of the federal government’s excessive control of immigration through excessively harsh law enforcement tactics.[52] Furthermore, by prioritizing the prosecution of immigrants, the crimmigration mentality promotes higher degrees of alienation based on one’s citizenship status.[53]
The Role of Criminal History on Immigration Status
Various provisions of the INA may trigger removal proceedings.[54] Although many cases require a predicate conviction, such as domestic violence or a drug-related crime, a significant number of deportations result from the mere commission of certain offenses, including failure to update their current address and falsifying immigration documents.[55] As seen with the term “aggravated felony,” for example, criminal offenses are regularly updated to increase the number of “deportable aliens.”[56] The Supreme Court acknowledged the changing landscape of immigration law in Padilla v. Kentucky, noting that these “recent changes… [make] removal nearly an automatic result for a broad class of noncitizen offenders.”[57]
Without question, the federal government generally prioritizes the removal of individuals with criminal records. Certain administrations have taken steps to encourage this trend. In particular, President Obama was designated “Deporter in Chief” during his presidential term for contributing to the mass deportation of three million immigrants.[58] However, many remember the former president for his “Deferred Action for Childhood Arrivals” (DACA) initiative.[59] The presidential directive was one of the many steps the government took to establish a procedural distinction between immigrants charged with illegal entry and those who had committed a serious felony.[60] By focusing on “felons, not families,” the administration redirected “enforcement resources [to address] actual threats to our society.”[61]
However, attempts to highlight the humanity underlying the immigration process have not withstood the test of time. News coverage criticized the Trump administration’s return to framing immigration as a risk to national security based on the misconstrued notion that all immigrants are illegal criminals.[62] With a resurgence of the crimmigration mentality, top officials have once again started promoting the removal of all “illegal aliens,” including family units and unaccompanied minors.[63]
The Consequences of Violating Immigration Laws on Criminal Proceedings
As established above, one could easily conclude that the connection between removal and criminal convictions makes criminal proceedings an important indicator of an immigrant’s fate in the United States. Criminal defense attorneys routinely defend noncitizen clients facing criminal charges; the Supreme Court requires practitioners to consider and notify the client of any immigration consequences that may result from a criminal conviction.[64] Within immigration law, a majority of federal criminal cases involve the mere act of unauthorized (or illegal) entry and reentry.[65]
In addition to prosecuting crimes at the federal level, various states have passed legislation to criminalize acts related to immigration. For example, multiple states have begun prosecuting individuals found in possession of fraudulent immigration or citizenship documents.[66] Pursuant to the Supreme Court’s decision in Jennings v. Rodriguez, where it held that immigrants do not have the right to periodic bail hearings,[67] several states have also attempted to limit migrant’s access to bail in criminal proceedings.[68] Nothing suggested that these trends diminished under the Trump administration. In one of his earlier Executive Orders, President Trump directed law enforcement agencies to prioritize crimes possessing a “nexus to the southern border.”[69]
The Quasi-Criminal Aspects of Immigration Law
The final pillar of crimmigration pertains to the especially harsh method of enforcing the law against immigrants. Given that countless defendants are prosecuted for immigration-related crimes, they also “make up a disproportionate number of inmates in our prisons and jails.”[70] Oftentimes, immigrants in the criminal justice system do not receive the full extent of procedural safeguards that are traditionally required in criminal proceedings.[71] For example, those who believe in the idea that every defendant has their day in court likely believe that they will receive a judge’s undivided attention. Given the severe backlog of immigration cases in recent years, federal court proceedings for immigration-related crimes routinely occur through en masse hearings, where defendants may only have moments to plead their case before the judge makes a determination and moves on to the next case.[72] Although this is generally considered a right in federal cases, a judge’s individualized attention is a privilege that is commonly absent among the immigration courts.[73]
Another common misconception involves an immigrant’s right to have an attorney. Although Gideon v. Wainwright ensures every individual’s right to counsel in criminal proceedings,[74] the federal government identifies the act of illegal entry as a civil infraction in which individual may be detained, but not imprisoned, during the course of court proceedings.[75] Under this procedural loophole, immigrants are still perceived as illegal fugitives without receiving the constitutional benefits that a criminal defendant would receive when facing a possible sentence.[76] Designating illegal entry as a civil infraction does not overcome the fact that many individuals being deported must return to the country that they fled to escape persecution, famine, or unemployment. A removal order carries a punishment that cannot simply be overlooked.
The Future of Crimmigration Law
Despite its quick evolution, crimmigration remains in its infancy. Only four decades into its development, its effect in shaping the standard for our legal system is still unclear. It comes as no surprise that crimmigration is not likely to reverse course under republican administrations such as the Trump Administration. Nevertheless, the relevance of understanding the crimmigration mentality must be “not only to recognize the rights of immigrants, but also to rebuild a sense of solidarity in societ[y]” because we are a nation of immigrants, and we cannot forget that.[77]
[1] See LAURA O. BECKMAN, ASSESSING DISPARITY IN THE FEDERAL COURT PROCESSING OF IMMIGRATION CASES 2 (2018); see also Andrew Glass, U.S. Enacts First Immigration Law, March 26, 1790, POLITICO (March 26, 2012), https://www.politico.
[2] See The History of Immigration Policies in the U.S., https://networklobby.
[3] See Cristina M. Rodríguez, Immigration, Civil Rights & the Evolution of the People, 142 DÆDALUS 228, 230–36 (2013). For an extended discussion of the history and use of the controversial grouping of “illegal immigrants,” please see Kari E. Hong, The Ten Parts of “Illegal” in “Illegal Immigration” that I Do Not Understand, 50 UC DAVIS L. REV. 43 (2017).
[4] See Gallya Lahav & Marie Courtemanche, The Ideological Effects of Framing Threat on Immigration and Civil Liberties, 34 POL. BEHAV. 477, 480–82 (2001). See generally Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law, 125 YALE L.J. 104, 108–13, 136 (2015) (discussing the federal government’s attempts “to retake federal control over the immigration debate and suppress state efforts to shape both immigration policy and politics”).
[5] See Lahav & Courtemanche, supra note 4, at 480–84.
[6] See LISA M. SEGHETTI, CONG. RESEARCH SERV., RL32270, ENFORCING IMMIGRATION LAW: THE ROLE OF STATE AND LOCAL LAW ENFORCEMENT 1–3, 5–14,17 (2009) (finding that “[s]everal jurisdictions in Arizona, California, North Carolina, and Tennessee [acted] as a force multiplier for the [federal] Criminal Alien Program” by requiring convicted immigrants to remain incarcerated after completing their sentence).
[7] Rodríguez, supra note 3, at 235.
[8] See BECKMAN, supra note 1, at 152–53.
[9] See Douglas S. Massey & Karen A. Pren, Unintended Consequences of US Immigration Policy: Explaining the Post-1965 Surge from Latin America, 38 POPULATION & DEV. REV. 1, 5 (2012).
[10] See Lahav & Courtemanche, supra note 4, at 484–86.
[11] See Juliet Stumpf, The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, 56 AM. U.L. REV. 367, 376 (2006); César Cuauhtémoc García Hernández, Creating Crimmigration, 2012 BYU L. REV. 1457, 1458–59 (2013).
[12] See Stumpf, supra note 11, at 380–81.
[13] See id.
[14] See id. (explaining that “[w]hether a noncitizen violates immigration law that has been defined as criminal, or a crime that is a deportable offense, both incarceration and deportation may result.”).
[15] See César Cuauhtémoc García Hernández, Deconstructing Crimmigration, 52 U.C. DAVIS L. REV. 197, 200–01 (2018).
[16] See id.
[17] See id.
[18] Id.
[19] See id.
[20] President George H.W. Bush, Statement on Signing the Immigration Act of 1990 (Nov. 29, 1990), http://www.presidency.ucsb.edu/ws/index.php?pid=19117#axzz1OsUYZ1gw; see id.
[21] See García Hernández, supra note 15, at 201–03.
[22] See id.
[23] See id.
[24] See id. at 202.
[25] See id.; Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, tit. IV, § 411 (1996).
[26] See Pereira v. Sessions, 138 S. Ct. 2105 (2018) (finding that defective notices to appear do not disqualify immigrants from seeking cancellation of removal despite the act of missing court being considered an “aggravated felony” under the INA); Niz-Chavez v. Garland, 141 S. Ct. 1474, 1486 (2021) (requiring the government to issue a single notice to appear with all information specified under INA § 239(a), including the time and place of the removal hearing, to properly initiate removal proceedings).
[27] See García Hernández, supra note 15, at 202.
[28] See id.
[29] See Antiterrorism and Effective Death Penalty Act of 1996, § 411.
[30] See, e.g., Kelly-Leigh Cooper, Oklahoma City Bombing: The Day Domestic Terror Shook America, BBC NEWS (Apr. 19, 2020), https://www.bbc.com/news/world-us-canada-51735115.
[31] See Antiterrorism and Effective Death Penalty Act of 1996, § 411.
[32] See García Hernández, supra note 15, at 203.
[33] See id.
[34] See id. at 206.
[35] See Establishing the Office of Homeland Security and the Homeland Security Council, 66 Fed. Reg. 51,812 (Oct. 8, 2001).
[36] See id.
[37] See OFF. OF HOMELAND SEC., NATIONAL STRATEGY FOR HOMELAND SECURITY 22 (2002), https://www.dhs.gov/sites/default/files/publications/nat-strat-hls-2002.pdf.
[38] See García Hernández, supra note 15, at 203.
[39] See id.
[40] García Hernández, supra note 15, at 218; See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (“USA PATRIOT ACT”), 8 U.S.C. § 1226a.
[41] See generally García Hernández, supra note 15, at 218.
[42] See MARC R. ROSENBLUM & KRISTEN MCCABE, MIGRATION POL’Y INST., DEPORTATION AND DISCRETION: REVIEWING THE RECORD AND OPTIONS FOR CHANGE 1 (2014), https://www.migrationpolicy.org/research/deportation-and-discretion-reviewing-record-and-options-change.
[43] See García Hernández, supra note 15, at 203–04.
[44] See id.
[45] See Arizona v. United States, 567 U.S. 387, 411–16 (2012).
[46] See Elvia Diaz, Trump Takes Arizona’s ‘Show Me Your Papers’ Law Nationwide. Now What?, AZCENTRAL (July 23, 2019, 1:25 PM), https://www.azcentral.com/story/opinion/op-ed/elviadiaz/2019/07/23/trump-takes-arizona-show-me-your-papers-law-nationwide/1802122001/.
[47] Stumpf, supra note 11, at 376 (defining the crimmigration doctrine as the intersection between criminal and immigration law, focusing on changes to the substantive and procedural law as well as enforcement strategies).
[48] César Cuauhtémoc García Hernández, What is Crimmigration Law?, 17 INSIGHTS ON L. & SOC’Y 22, 22 (2017).
[49] See García Hernández, supra note 15, at 203–04.
[50] See id. at 207; accord Stumpf, supra note 11, at 376–78.
[51] See García Hernández, supra note 15, at 210–13; Eduardo Saad-Diniz, Crimmigration Law, 30 INT. J. REFUGEE L. 401, 403 (2018) (book review).
[52] See id.
[53] See id.; see also Stumpf, supra note 11, at 415.
[54] See Immigration and Nationality Act, 8 U.S.C.A. § 1227(a)(2)(A)-(F); § 1227(a)(3)(A)-(B) (2020).
[55] See id; see, e.g., Mark H. Metcalf, Skipping Court: U.S. Immigration Courts & Aliens Who Disappear Before Trial, CTR. FOR IMMIGRATION STUD. (Jan. 24, 2019), https://cis.org/sites/default/files/2019-01/metcalf-skipping-court.pdf; RUTH ELLEN WASEM, CONG. RSCH. SERV., RL34007, IMMIGRATION FRAUD: POLICES, INVESTIGATIONS, AND ISSUES 1, 7 (2008).
[56] See, e.g., Immigration Act of 1990, Pub. L. No. 101-649, § 501, 104 Stat. 4978, 5048 (1990); accord Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, § 321, 110 Stat. 3009, 3009–627 (amending INA § 101(a)(43) to add the offenses of rape and sexual abuse of a minor and reduced the threshold for qualifying money-laundering offenses).
[57] Padilla v. Kentucky, 130 S. Ct. 1473, 1481 (2010).
[58] See Muzaffar Chishti, The Obama Record on Deportations: Deporter in Chief or Not?, MIGRATION POL’Y INST. (Jan. 26, 2017), https://www.migrationpolicy.org/article/obama-record-deportations-deporter-chief-or-not.
[59] See id.
[60] See President Barack Obama, Remarks by the President in Address to the Nation on Immigration (Nov. 20, 2014).
[61] Id.
[62] See U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-20-245, SOUTHWEST BORDER: ACTIONS NEEDED TO IMPROVE DHS PROCESSING OF FAMILIES AND COORDINATION BETWEEN DHS AND HHS (2020).
[63] See id.; see also Ben Fox, US Under Biden will no Longer call Migrants ‘Illegal Aliens’, AP (April 19, 2021), https://apnews.com/
[64] See Padilla v. Kentucky, 130 S. Ct. 1473, 1477 (2010).
[65] See García Hernández, supra note 15, at 211 (noting that unauthorized entry is a misdemeanor for entering the U.S. without the government’s permission, while unauthorized reentry is a felony for attempting to or successfully reentering the country after being deported).
[66] See CAL. PENAL CODE § 114 (2018); OR. REV. STAT. § 165.800(2), (4)(b)(D) (2018).
[67] See Jennings v. Rodriguez, 138 S. Ct. 830, 851 (2018).
[68] See García Hernández, supra note 15, at 211.
[69] Exec. Order No. 13,767, 82 Fed. Reg. 8793 (Jan. 25, 2017).
[70] Sharyl Attkisson, One in Five US Prison Inmates is a ‘Criminal Alien’, THE HILL (Sept. 19, 2018, 9:00 AM), https://thehill.com/opinion/immigration/407312-one-in-five-us-prison-inmates-is-a-criminal-alien.
[71] See, e.g., García Hernández, supra note 15, at 221, 249–50.
[72] See id. at 212.
[73] See id. at 212, 231–32.
[74] See Gideon v. Wainwright, 372 U.S. 335, 340 (1963).
[75] See 8 U.S.C. § 1325 (b).
[76] See Sandra Sanchez, ‘It’s a Harsh System’: Immigration Courts Inch Closer to Offering Automatic Legal Representation, ARKLATEX HOMEPAGE (May 31, 2021), https://www.
[77] Saad-Diniz, supra note 51.
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