How Immigrants Became Criminals

By focusing on the mistreatment of “good” immigrants, advocates miss the bigger point that everyone should have the right to due process.
Alan A. Aja and Alejandra Marchevsky
March 17, 2017
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In late February nineteen-year-old “Dreamer” Josue Romero was arrested by the San Antonio police for possession of under two ounces of marijuana. Even though the Honduras-born youth had been granted relief from deportation under the Obama-era Deferred Action for Childhood Arrival (DACA) program, police handed him over to Immigration and Customs Enforcement (ICE). Romero’s detention evoked immediate public outcry at the possibility that a misdemeanor charge might cause him to be expelled from the country where he had lived since he was four. Thanks to the local media and activists, who celebrated Josue as a promising art student and a “good” immigrant, he was released by ICE after two days in detention. But while Romero remains in the United States for now, he is the exception. Hundreds of thousands of other immigrants with criminal arrests have not been spared from deportation.

For strategic reasons immigration advocacy has coalesced around Dreamers and families of “law-abiding” immigrants, while keeping in the shadows those who are deported on criminal grounds. The consequences of this tactic to emphasize immigrant respectability have been catastrophic for those who have been deported under the guise of criminality, perpetuating a silence that provides cover for a massive deportation regime that must be questioned and dismantled. 

In 2016 more than 60,000 immigrants were cast out from the United States on criminal grounds. According to ICE, “criminal removals” comprised 92 percent of all deportations from the nation’s interior last year, compared with only 3 percent in 1980. Yet immigrants are not committing more crime than in the past. Rather the definition of “criminal” has broadened significantly since the 1990s, when the federal government began criminally prosecuting immigration infractions that were previously enforced as civil matters, while also deporting an unprecedented number of immigrants with minor criminal records.

So-called criminal deportations bring into clear focus our nation’s “crimmigration” system, where immigration policy, criminal law, and their corresponding enforcement apparatuses are tightly intertwined. Though targeted as criminals, often at the hands of the police, deportees are not granted the same due process rights in the immigration system that are guaranteed in the criminal justice system. Many are detained for months or years without bond, and few have the chance to see a lawyer or have their day in court before ICE permanently expels them from their adopted homeland. Though technically an administrative measure rather than a criminal sentence, deportation is an extreme form of punishment that rips people from their families and communities.  Moreover, because the vast majority of deportees are immigrants from Latin America and the Caribbean, deportation operates through racially disparate sentencing that reserves the harshest penalties for people of color.

This has been the cornerstone of our nation’s immigration system for the past three decades, and it has met with little public outcry. Believing that immigrants who break the law deserve to be deported, most Americans are blind to the separate and unequal justice system that governs immigration detention and deportation. The full dangers of this silence—of acquiescing to an ever-expanding notion of the criminal who needs deporting by any means necessary—are now coming into view.

The allure and perils of the criminal immigrant trope are evident in Donald Trump’s rise to power. Trump peddles an alarmist picture of an America under siege by Muslim terrorists and Mexican rapists. His executive orders on immigration directed the Department of Homeland Security to pursue not only immigrants with felony convictions, as under Obama, but also any non-citizen arrested for or suspected of having committed a deportable offense, “fugitive aliens” with prior removal orders against them, and anyone known to “abuse public benefits.” Millions more immigrants now fall under Homeland Security’s elastic dragnet.

While Trump’s discourse and proposed plans are particularly draconian, the creation of a powerful state apparatus for identifying, incarcerating, and deporting the criminal began three decades ago. The criminalization of immigrants in part resulted from more aggressive policing of communities of color. In the 1980s and ’90s, law enforcement agencies across the nation implemented broken windows and stop and frisk strategies, claiming that mass arrests for low-level offenses would prevent more serious crime. As immigrants who lived in these communities fell victim to racialized policing and mass incarceration, the federal government’s rosters of the criminal immigrant exploded.

Ronald Reagan’s Anti-Drug Abuse Act of 1988 established the aggravated felony charge and made murder, drug trafficking, and firearms trafficking deportable offenses. George H. W. Bush in 1990 and Bill Clinton in 1996 signed immigration reform laws that expanded the aggravated felony charge to include a long list of nonviolent offenses with sentences of one year or more. In a neoliberal era that prioritized “immigrant responsibility,” falsified documents and unauthorized reentry became criminal violations punishable with prison time followed by deportation. The number of non-citizens in federal prisons rose steadily, as did deportations of immigrants with criminal records, including green card holders who were convicted and served their sentences far before 1996.

The links between the criminal and immigration systems grew stronger after 9/11 with the increase of surveillance and vigilance around national security. George W. Bush created the Secure Communities and 287(g) programs, which instituted unprecedented information sharing and cooperation between immigration and domestic law enforcement to identify and apprehend immigrants with deportable offenses. Drunk drivers, turnstile hoppers, marijuana users, and gamblers were all turned over by police to federal immigration authorities. Obama escalated this system, deputizing thousands of police officers to do the job of immigration law enforcement, thus overseeing three million deportations, more than any other president in U.S. history. Though he claimed to go after “felons, not families,” Obama’s ICE also deported over a million undocumented immigrants with no criminal records who were stopped by police for minor traffic infractions such as broken taillights and jaywalking. In his second term, faced with an increasingly vociferous immigrant rights movement, Obama ended Secure Communities and directed ICE to exercise “prosecutorial discretion” by focusing on non-citizens with aggravated felony convictions rather than low-level misdemeanors and immigration-related infractions. Still the paradigm of the criminal immigrant was kept in place, along with the DHS’s database of information.

Today teams of ICE agents aggressively swarm homes and workplaces in search of “fugitive aliens.” Drones hover over the border with Mexico. The DHS refers to undocumented immigrants that get swept up in its raids as collateral arrests—vocabulary that suggests warzone conditions in which the violation of civil liberties is necessary to protect national security. The immigration trap built over the past 30 years is an interconnected network of federal and local law enforcement that detains over 400,000 immigrants on any given day. Trump now controls it, and is already fashioning it into something even more brutal.

In early February, rosters in hand, ICE escalated its arrests, sweeping up others in the process. Homeland Security announced its intent to reinstitute the Secure Communities program and multiply the number of 287(g) agreements, which will put potentially thousands more police officers in the business of immigration enforcement. Almost immediately civil liberties and immigrant rights advocates lambasted the administration’s expansion of deportation priorities and its trampling of due process. Op-eds rehashed familiar statistics that immigrants are less likely to break the law than citizens, least likely to access public welfare programs, pay billions in federal and state taxes, and, in the case of Dreamers, are found to outperform their U.S.-born peers in our nation’s universities. Their narrative decried Trump’s criminalization of our nation’s overwhelmingly law-abiding and productive immigrant communities.

But the oft-made claim of innocence furthers a disturbing respectability politics that aids the Trump administration’s assault on communities of color. By insisting that most immigrants do not deserve to be deported, advocates leave unchallenged the idea that the criminals do. The good immigrant narrative misses the ways that overpolicing and mass incarceration produce a reservoir of immigrants with criminal records, creating an endless chain of detentions and deportations.

Nothing illustrates the linkages between mass incarceration and mass deportation more clearly than the history of the War on Drugs. The Reagan, Bush I, Clinton, and Bush II administrations bloated police department coffers and put tens of thousands more cops in communities of color. More police and bigger budgets meant more arrests, more convictions, and more incentive to police to maintain agency resources. The overpolicing of low-income neighborhoods has meant a sharp increase in the number of immigrants of color encountering the criminal justice —and thus the deportation—systems. In particular, more and more black and brown immigrants, both undocumented and authorized, were arrested and convicted of drug crimes, received longer sentences than their white counterparts, and then were deported. Between 2007 and 2012, there was an increase of 22 percent (totaling 260,000 deportations) in the number of lawful permanent residents and undocumented immigrants deported for drug offenses. Research shows that black deportees are the most likely to be legal permanent residents deported for drug convictions. The intersection of anti-drug policy and the Department of Homeland Security’s expanded deportation powers reflect and reinforce anti-black racism in our nation’s system of law, yet are rarely challenged in tandem.

Contrary to the stereotype, most immigrants deported for drug offenses are not traffickers or violent offenders. The largest group (39 percent) was convicted on possession charges, rather than sale, manufacturing, or smuggling. In 2013 marijuana possession was the fourth most common reason for a criminal removal, behind illegal entry, DUIs, and traffic offenses. Ironically, even as the Obama administration advocated for treatment and prevention over incarceration for those who suffer from addiction, drug-related deportations did not cease. Treatment over punishment only applied to U.S. citizens. Immigrants continue to pay a steep, and vastly greater, price for drug offenses.

While the good/bad immigrant debate is now being challenged by the immigrant rights movement and civil liberties groups (most notably the ACLU), progressive politicians and organizational leaders have yet to follow suit. Many states, cities and universities are creating sanctuary policies that make exceptions for criminal immigrants. In Los Angeles, Mayor Eric Garcetti and many members of the city council have balked at the idea of providing city funding to cover legal costs for immigrants with criminal records who are fighting deportation.

Although there has been growing awareness and action around the abuses behind mass incarceration, too often have they been siloed from discussions of and advocacy around mass deportation. Public pressure has forced many states to remove three-strike laws from their books, but few in the public are aware that the government may deport a non-citizen who has three misdemeanor convictions. Calls to roll back oversentencing in the criminal justice system have not made connections to deportation as a form of extreme punishment. The federal government routinely deports people who have already paid for their crime by serving a prison sentence, but outrage over this unconstitutional double indemnity is seldom heard in debates over immigration reform.

More than ninety years ago, Chief Justice Louis Brandeis warned that deportation could result in “loss of both property and life; of all that makes life worth living.” Outrage at this cruel and extreme punishment must extend to all immigrants, without exception. Supporters of immigrant rights must unequivocally reject weakened rights and racially disparate sentencing for non-citizens with criminal records. Otherwise they are providing cover for a massive and unjust deportation regime.

March 21, 2017