Americans have grown accustomed to reading about arrests, detentions and deportations of undocumented people — and these stories dominate any discussion of U.S. immigration policy, from the issue of border security to immigration reform.
Yet, Americans may be surprised to find this wasn't always the case: The criminalization of crossing the U.S.-Mexico border, for example, and immigration detention were the exception rather than the norm until the 1990s, and in fact is at odds with much of the nation’s history, according César Cuauhtémoc García Hernández, an Ohio State University law professor and the author of a new book, “Crimmigration Law.”
Basically, immigration law and criminal law have merged, he says, often to the detriment of the rights of those seeking to migrate to the U.S. This development has a racial component, according to García Hernández.
“It is not a coincidence that immigration law grew more criminalized just as the U.S. closed off more legal pathways for Mexicans to immigrate legally; we can look at crimmigration from a racialized viewpoint in the present context,” he said. “There are people from Canada, Australia and Western Europe who come here legally and then overstay their visas. But when you look at the ICE statistics, the people who are locked up and deported for visa overstays are overwhelmingly Latin American,” he said, referring to U.S. Immigration and Customs Enforcement. The government, he believes, is using its finite immigration resources to target people of Central and Latin American origin.
So, what is “crimmigration?”
“For me, the concept is one that tries to explain how practices that for a long time were common in enforcing criminal law all of a sudden started appearing in the immigration law context, and vice-versa,” García Hernández said.
Traditionally, immigration cases were considered civil matters and were handled in the immigration court system, while criminal cases were the arena for prosecutors, defense attorneys, and state and local judges who oversee criminal prosecutions. This distinction, he writes, “has undeniably become a historical relic.”
The government formerly had a policy of not using detention except in unusual circumstances or near the Mexican border. By contrast, about 429,000 people were detained pending immigration proceedings in Fiscal Year 2011.
Immigration law has likewise increasingly turned to a migrant’s criminal history to decide whether the person is imprisoned or deported. Between 1892 and 1984, for example, about 14,000 people were excluded from the U.S. based on a criminal conviction or narcotics violation, while about 56,000 were deported for those reasons between 1908 and 1980. These numbers, covering nearly a century, pale beside contemporary statistics. In Fiscal Year 2013 alone, ICE deported over 216,000 people with a criminal conviction on their record.
According to García Hernández, there were three forces at play in the 1980s and the 1990s that drove these trends. The number of people deported due to having committed a crime increased because the number of crimes that could result in deportation increased. Congress increased immigration officials’ detention powers and provided them with the money to exert these powers. And the federal government and some states have come to rely on a criminal justice model to control immigration.
"Illusion of justice"
García Hernández thinks that, if more people knew how U.S. immigration courts functioned, it would likely offend their notions of justice. “I talk to people all the time, and it shocks them to learn that we have high-stakes legal proceedings happening every single day, one in which judges are making life-altering decisions, for people without a lawyer.”
There are myriad ways in which the structure of our immigration system lends itself to the illusion of justice. “Despite being called “courts” and “judges,” neither the immigration courts nor the immigration judges who oversee hearings there are part of the judicial branch,” he writes. Rather, these are Justice Department trials run by its officials, falling under the purview of the executive branch.
Moreover, several constitutional protections that apply in criminal cases either do not apply or are limited in immigration proceedings. Fourth Amendment protections against arbitrary arrests and unreasonable searches largely don’t apply in removal proceedings. Nor do the Sixth Amendment’s right to counsel (including appointed counsel), right to a speedy trial and right to a jury trial. Immigration proceedings can be held en masse, with a judge addressing as many as 100 people at a time. “Hearsay is admissible in immigration court,” García Hernández said. “The federal rules of evidence do not apply at all in immigration court, so illegally-seized evidence can be used to bolster the government’s case in immigration matters.”
Just last week, the Supreme Court agreed to hear two combined cases which could allow the government to detain immigrants indefinitely, without a bond hearing.
"A fair shot" for everyone under the law
García Hernández remains optimistic about the chances of improving the U.S. immigration system. “I see my role as being able to participate in making the U.S. legal system the best version of itself that it can be. As a teacher, it is an enormous privilege to help train the next generation of lawyers and advocates who can work to reform the system that exists today.”
Born and raised in McAllen, Texas, García Hernández is a former Fulbright scholar. He is also the author of “Migrating to Prison: America’s Obsession with Locking Up Immigrants (2019) and has written for The New York Times, Los Angeles Times and The Guardian.
“If you want the sweet joy of daily victory, immigration law is not the field for you,” he added. “This is work for people who believe that everyone who goes through the legal system deserves a fair shot. This speaks to the legitimacy of our legal system — and the quality of the process is as important as the quality of the outcome.”