Excerpted From: Shani Mahiri King and Nicole Silvestri Hall, Tracing the Roots of a Poisonous Tree: on the Origins and Impact of Criminal Terminology in a Civil Apprehension Scheme, 53 New Mexico Law Review 255 (Summer, 2023) (217 Footnotes) (Full Document)


King HallLanguage has immense power to shape our beliefs. The potential impact of language is particularly evident in the legal world, where word choices can control the type of treatment certain groups receive under the law. These impacts are devastating in immigration law, where bias against the non-dominant group is pervasive. While the effects of language choice in judicial opinions have been studied, less research has been devoted to studying word choice in statutes and the biases that result from those choices. This Comment supplements the lack of research in this area by focusing on the harmful effects of poor language choices in immigration statutes.

In this Comment, our research focuses on the criminal terms “arrest” and “warrant” that are found in two federal civil immigration apprehension statutes, 8 U.S.C. Sections 1226 and 1357. Two fundamental problems arise when criminal language is inserted into a civil statute. First, terms such as “arrest” and “warrant” import distinct legal meanings usually reserved for the criminal context into the civil context-- meanings that serve to restrict individual liberty in ways that are constitutionally impermissible in the civil context. To begin our consideration of this problem, we trace the use of terms founded in criminal law in historical immigration apprehension statutes to illustrate how they became embedded within the apprehension machinery of the immigration system. Then, we expose the constitutional problems that arise when criminal apprehension techniques are enshrined in a civil statute to be enforced by non-judicial officers, who are supposed to be neutral and detached but are often incentivized by immigration agency regulations which compromise true impartiality. The legislatively created standards for executing immigration arrests fall short of the constitutionally mandated standard for criminal arrests, which in turn creates doctrinal uncertainty in applying jurisprudential principles to both civil and criminal arrests, and results in an inconsistent application of Fourth Amendment principles governing immigration apprehension in federal courts. These inconsistencies have profound practical effects, including diminished enforcement of constitutional rights for certain populations.

Second, the use of criminal terminology in a civil statute negatively impacts public perception of immigrant groups by furthering stereotypes and cognitive distortions that link immigrants with criminality. Describing immigration apprehension in criminal language, Immigration and Customs Enforcement (“ICE”) officers “arrest” undocumented non-citizens sometimes with, but often without,“warrants” and later release them on “parole” or “bond”--even though the undocumented non-citizen being “arrested” has not been charged with a crime. These terms from the criminal law provide legal, ethical, and moral justifications for treating undocumented non-citizens as criminals by promoting the false notion that an individual's unlawful presence in the United States (because of lack of documentation, for example) is a criminal act. Conceptualizing non-citizens as criminals puts the American public in a constant state of heightened anxiety toward perceived “outsiders.” This persistent state of fear in turn legitimizes the government's use of immigration arrests, which can be effectuated without agents obeying constitutionally mandated criminal procedure and diminishes any potential public outcry against potentially unconstitutional state action. These harsh enforcement mechanisms seem essential to protecting the safety of a public primed with false ideas about what it means to be an “illegal immigrant.”

Today, the persistent use of criminal language in immigration statutes has harmful effects. The use of this language creates doctrinal confusion for the judiciary, and in turn the media spins this confusion into a distorted narrative for consumption by a polarized public. This misleading narrative has resulted in a misinformed citizenry that is primed to believe that all immigrants are criminals and thus a direct threat to public safety. Harsh immigration apprehension tactics appear to offer the best protection for thwarting these perceived threats to personal security. This negative feedback cycle justifies overreliance on crimmigration tactics, the substitution of criminal justice bureaucracy for federal immigration enforcement, and the ossification of biases against immigrant groups.

At the root of this negative feedback cycle is doctrinal confusion that results from the judiciary's attempts to parse the meaning of criminal language in a civil statute. In 1960, the United States Supreme Court had the opportunity to dispel some of this doctrinal confusion by reviewing the constitutionality of administrative “warrants” for use in immigration “arrests,” but the Court declined to address the issue head-on. Instead, the Court in Abel v. United States endorsed the use of criminal apprehension tactics for the civil offense of unlawful presence, declaring that “[s]tatutes authorizing administrative arrest to achieve detention pending deportation ha [d] the sanction of time” and were “uncontested.” However, contrary to the Court's assertion, the legislative history of statutes authorizing quasi-criminal apprehension tactics for civil offenses indicates the concept of administrative arrests was anything but “uncontested.” Instead, Congress granted immigration officials the power to “arrest” individuals within the United States and to arrest those individuals without a “warrant” in numerous legislative actions spanning decades, despite the vehement protests of some congressmen who contested any government encroachment on an individual's constitutional rights to be secure in their personal space and to be free from unreasonable government intrusion, searches, and seizures. The Supreme Court's failure to address the constitutionality of administrative arrests in Abel has allowed for the persistence of problematic criminal language in immigration statutes and has perpetuated doctrinal tension.

In Part I, we discuss the power of language generally by demonstrating how statutory language choices of the past continue to burden non-citizens today. We present the work of other scholars who have researched the impact of language on law and policy and then discuss the power of statutory language in forming and furthering harmful immigration narratives. Enshrining criminal language in a civil removal statute operates as a convenient artifact for deepening collective cognitive biases and furthering common misperceptions linking immigrants to criminality.

In Part II, we lay out the apprehension statutory framework at issue and investigate how the use of “arrest” and “warrant” contribute to public perceptions of immigrants. We present the problems associated with a criminal/civil statutory “hybrid” and the confusion that arises when criminal language operates to accomplish the “arrest” for an underlying civil offense. We then discuss the terms “arrest” and “warrant” to create a shared understanding of the meaning of these terms, including both the legal definitions and the more common connotations associated with these terms. We conclude with a critique of Abel v. United States, a Supreme Court case still relied on today for the proposition that administrative arrests conducted far from the border without well-articulated probable cause and triggered by a civil offense are constitutionally valid because of the Court's presumption that they were traditional and customary since the inception of our Nation.

Parts III and IV are the core of our statutory research, where we explore legislative history to identify the roots of the criminal language enshrined in 8 U.S.C. Sections 1226 and 1357. The movement to enshrine criminal language in immigration law involved multiple Congresses, was both gradual and insidious, and might best be characterized as a “creeping,” yet steady, encroachment of administrative police power, over decades.

In Part III, we start with the earliest usage of criminal terms in deportation statutes, tracing the use of “arrest” and “warrant” to identify when, why, and in what context this language was first used. We focus on the era of Chinese exclusion as a period of experimentation with the criminalization of unlawful presence to maximize the goal of racial exclusion. While statutes from this era are not precursors to Sections 1226 or 1357, they nevertheless demonstrate early attempts to use criminal language as a method to manage groups of people considered undesirable by political actors. Then, in Part IV, we use the comparative print histories associated with Sections 1226 and 1357 to trace the use of “arrest” and “warrant” in statutory precursors to Sections 1226 and 1357. As we do, we question the premise that the delegation of sweeping police power to an administrative agency--especially far from the border--was indeed “uncontested.” Tracking the use and history of this language, we unearth legislative artifacts which controvert the traditional understanding that administrative arrests for a civil offense are constitutionally permissible simply because Congress decided that it be so.

In Part V, we discuss the need to revisit Abel and the constitutionality of administrative arrests for a civil offense in light of the legislative history presented in Sections 1226 and 1357. We consider practical ways to create and promote positive shifts in immigration narratives. We also address the need for empirical research to study whether there is a large-scale public misconception about what it means to be an “illegal immigrant,” and whether, to most Americans, illegal immigration indicates that the individual involved must have committed a crime. We conclude by endorsing a radical shift in our conceptualizations of national identity, away from a fictional shared history and towards principles and core values rooted only in equal protection under the law. We suggest that this shift in national identity could drive more consensus around politically divisive topics like immigration.

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Particularly in the field of immigration, language has the power to expose existing social, racial animus. It can also activate strong emotions rooted in our ideas of who belongs, and who does not, and how our “birthright” may bestow favored treatment on favored groups. Statutory word choices can help to reinforce ideas about immigrants which are often negative, incomplete, and untrue, like the notion that unlawful presence in the United States is a crime.

Large-scale public misunderstandings, such as equating unlawful presence with criminality, can create or deepen mental associations between immigration and crime and can lead to widespread ambivalence regarding the need for reform. Public perceptions have critical downstream consequences. Perceptions affect social norms and attitudes toward immigrant groups, and these perceptions influence the collective national identity and the dynamics of membership theory--who we consider “members” and who we consider “others.” Governments, in turn, respond by forming policies that mollify voters. If the public misperceives unlawful presence to be commensurate with criminality, all undocumented individuals can be mentally rebranded as “illegal” or “criminal,” gravely impacting the rights and treatment we believe they should deserve. However, because perceptions are elusive, nondescript, and often concealed, they can be as hard to identify as they are to change.

The good news is that negative racial attitudes and prejudicial associations can be altered. Growing evidence suggests racial bias and prejudice are malleable and susceptible to environmental conditions, cognitive strategies, and social motives. “Studies have found that implicit and explicit racial prejudice can be reduced with the use of evaluative conditioning that alters prejudicial associations.” Early in President Biden's presidency, his administration moved to do just that by shifting away from terminology engendering negative associations between criminality and immigration. Immigrants previously termed “illegal aliens” are now “undocumented non-citizens.” These shifts in language may provoke deeper, more conscious consideration of how we treat undocumented immigrants living in the United States, rather than making the knee-jerk assumption that the term “illegal immigrant” signifies that an individual has committed a crime.

We propose performing research to identify American perceptions and misperceptions surrounding “illegal immigration” and “unlawful presence.” If Americans largely misunderstand unlawful presence to be the same as “illegal immigration,” and therefore synonymous with a criminal act, the call for fair treatment of immigrant groups, as well as support or resistance for immigration policies directed at these groups, will be affected. A refutation text study is one way to test public misperceptions to identify whether most Americans consider unlawful presence to be a crime. Refutation texts, an intervention strategy that uses targeted text written to change common misperceptions, could help to change large-scale public misperceptions. At the very least, resistance or acceptance of a group or an immigration policy directed at a particular group could be based on accurate information rather than misinformation.

Finally, immigration, as a system, has historically been driven by fears rooted in false ideas about national identity. The history of immigration in the United States is tainted by xenophobia and filled with fear of foreigners. It has placed the Western identity of self as the normative center casting suspicion over anyone who falls outside of the preferred racial and ethnic parameters. Immigration policy, at its most basic level, is rooted in word choices, and these choices will both form and reflect our ideas about national identity. Past attempts to build a shared national identity based on ethnocentricity, given our vastly different paths and stories, have failed. A simpler national identity built on a vision of shared principles that prioritizes universally fair treatment, rather than one based on shared ethnicity or shared histories, for example, may result in more success and, certainly, more equal treatment for citizens and non-citizens alike.

The loose association tying modern immigrants to criminality has pervaded discourse in the field of immigration law. Interrupting the associations between immigration and criminality, even in small ways, can result in a diminished perceived threat to safety and security. Thinking more critically about language choices, particularly in statutes, is a necessary step in creating larger policy changes. Whether these steps will result in broader or systemic change is yet unknown, but we remain hopeful that it will.

Professor of Law and Emeritus Director, Center on Children and Families, University of Florida Levin College of Law, J.D. Harvard Law School, B.A. Brown University, Mst. University of Oxford.

Legal Research and Writing Associate, J.D. University of Pennsylvania School of Law, B.A., Brown University.