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Excerpted from: Alina Das, Inclusive Immigrant Justice: Racial Animus and the Origins of Crime-based Deportation, 52 U.C. Davis Law Review 171 (November, 2018) (135 Footnotes Omitted) (Full Document)


AlinaDasThe merger of immigration and criminal law has had a transformative effect on both systems in the United States. Immigration law and enforcement relies heavily on determinations made in the criminal legal system to identify targets for deportation. In FY 2017, federal immigration agents within the U.S. Department of Homeland Security ("DHS") Immigration and Customs Enforcement deported over 127,000 people from the United States on criminal grounds--fifty-six percent of all individuals deported. Moreover, immigration status and immigration-related violations are playing an increasingly significant role in the criminal legal system. Criminal immigration violations, including "illegal entry" and "illegal reentry" at U.S. borders, represented the largest percentage of crimes prosecuted in the federal system. In many ways, the two systems have merged to create a two-way pipeline for deportation--such that criminal records easily lead to deportation, and lack of immigration status increasingly factors into whether one may get a criminal record.

As scholars have written, the merger of the immigration and criminal systems has amplified the flaws in each. The longstanding racial disparities in the criminal legal system have led to similarly racialized effects in detention and deportation based on crime. The lack of due process in the immigration system has perverted the criminal legal system, limiting the impact of criminal law reforms aimed at reducing the harshest criminal penalties. Thousands of people who find themselves at this intersection between immigration and criminal law--labeled as so-called "criminal aliens"--are left vulnerable to political scapegoating and hyperenforcement.

In pursuing these rich and important critiques, scholars have explored the modern manifestations of the immigration-criminal law merger, focusing largely on 1996 laws that transformed our current immigration system. This focus makes sense given how these laws both dramatically expanded criminal grounds of removal and mandatory detention, and eliminated previously longstanding options for relief from removability. Those of us who study this area of law and work closely with people directly impacted by these changes denounce the scapegoating of individuals with criminal records. We call for inclusive immigrant justice--a reframing of the immigrant rights debate away from the good-versus-bad, criminal versus non-criminal immigrant narrative, and towards principles that honor each immigrant's human dignity and right to due process. By necessity, we focus on the modern impact and harms of the criminal immigration system.

Because of this modern focus, the story of the criminalization of immigrants often begins with discussion of federal legislation in the 1980s and 1990s that criminalized certain acts and vastly expanded the criminal grounds of deportability and exclusion (known as inadmissibility) in the United States. One recent article, for example, described this legislation as "the specific laws that first linked and then solidified the association between undocumented immigrants and criminality." It goes on to provide a rich and helpful critique of that linkage, as do many other articles that begin their story of the merger of criminal and immigration law in the 1980s and 1990s.

The benefits of a modern-day focus are clearly reflected in the massive changes that the wave of anti-immigrant legislation of the 1980s and 1990s brought to the current system. The Immigration Reform and Control Act introduced new federal immigration crimes, criminalizing the hiring of undocumented workers and smuggling offenses. The 1988 Anti-Drug Abuse Act gave birth to the immigration law term "aggravated felony"--which in turn ushered in bars to discretionary relief from deportation, bars to bond hearings for the detained, and sentencing enhancements for illegal reentry. The 1996 Illegal Immigration Reform and Immigrant Responsibility Act and the 1996 Antiterrorism and Effective Death Penalty Act led to an explosion in the criminal grounds of removal. These laws created even more draconian bars to discretionary relief, expanded no-bond detention, and increased criminalization overall. Moreover, these laws came during the same period when reliance on mandatory minimums and harsh drug laws were transforming the criminal legal system as well. A vastly expanded role in immigration enforcement at the state and local level has also contributed to further criminalization. Thirty years later, we are still reeling under the weight of these draconian changes to the system, and attention to these developments is well-deserved.

The danger of a modern-day focus, however, is that it creates room for a relatively sanitized view of our history. It assumes that the criminalization of immigrants began in the 1980s and 90s, and that the systems that existed prior to this time were free from the flaws that came with this more recent merger. But criminalization and the subsequent targeting of immigrants as "criminals" goes much further back in time than these more recent draconian policies and legal overhauls. One must look back further into our history to understand that criminal records have never been a neutral means for prioritizing immigrants for deportation from the United States.

For these reasons, the success of any call for inclusive immigrant justice requires more than a critique of the modern merger of the immigration and criminal legal systems. It requires a deeper dive into the historical antecedents of this merger. Despite an increasingly nuanced public understanding of the ills of the criminal system, many people still view criminal records as a reasonable, racially-neutral mechanism for identifying immigrants as priorities for detention and deportation. By examining the origins of crime-based deportation, we begin to see that the racialized outcomes of the modern-day system are no accident of history. Nor is the targeting of immigrants with criminal records an inevitable aspect of immigration regulation.

In this essay, I explore the racialized origins of crime-based deportation, which I define to include the development of criminal grounds of removal and immigration status based crimes. As I argue below, the linkage between animus against immigrants and animus against people with criminal records is not a modern phenomenon. Rather, racialized animus towards immigrants triggered the criminalization of actions that had been legal, which in turn provided the desired justification to deport immigrants from the United States. This interconnected, symbiotic relationship between racism, criminalization, and deportation pervades the earliest origins of the crime-based deportation grounds that many people take for granted as legitimate parts of our immigration system today.

Part I sets forth the early development of crime-based deportation in the late 1800s and early 1900s. It describes in further detail why most scholarly accounts pay little attention to the consistent thread of racial animus undergirding these laws.

Parts II-IV then look at three specific areas of development in crime-based deportation to demonstrate the critical role that racial animus played in these early examples of the immigration-criminal law merger.

Part II looks at the first federal law barring immigrants from the United States based on purported criminality, the 1875 Page Act.

Part III looks at the first federal laws barring and deporting immigrants from the United States based on drug offenses. It ties these laws to the racial animus that criminalized drug offenses during those same periods. Part IV looks at the first federal laws creating immigration status based crimes, which begin in the late 1800s and flourish into the criminalization of unauthorized entry and reentry into the U.S. Each of these major developments in the merger of immigration and criminal law demonstrate that the criminalization of immigrants took root a century prior to where most discussions begin.

I conclude with some thoughts about how this history may help us better build an inclusive immigrant justice movement today.

. . .

Throughout the earliest chapters of federal immigration law in the United States, racial animus has played a significant role in the creation and development of crime-based deportation. Modern laws to identify, convict, incarcerate, detain, and deport immigrants rest on these racially oppressive foundations, which must be understood in order to be deconstructed.

This understanding is particularly important in light of the scapegoating that immigrants with criminal records suffer today in political debates around immigrant justice. When people denounce the criminalization of immigrants, they often do so by creating a line between "legitimate" and "illegitimate" crimes. Federal and state initiatives to criminalize undocumented status of immigrants currently living in the U.S. garnered massive protests on the streets. Yet, few people protest the deportation of immigrants who have criminal records for drug offenses and other crimes. Many immigrant rights activists denounced President Donald J. Trump's executive order expanding crime-based deportation priorities to reach people who have never been convicted of a crime. Yet, few critiqued President Barack Obama's immigration enforcement memorandum which prioritized immigrants with criminal records for deportation.

These fault lines betray a misunderstanding of how layered the process of criminalizing immigrants has been over time. As described above, immigrants have been criminalized throughout U.S. history by policies that first associate immigrants with criminality and then penalize immigrants for that association. The early years of American history involve the criminalization of acts that we take for granted as crimes--prostitution, drug use and sale, evading border inspection--which might have been treated very differently in our regulatory system had the supposed perpetrators not been people of color in this country. Yet we forget that history when we look at our immigration policies today and doubly condemn immigrants who violate criminal laws with incarceration and deportation.

Reclaiming this history of racialized oppression and its role in the criminalization of immigrants may set us on a better path. Rather than draw lines between good and bad immigrants, we can instead focus on restoring rights to all immigrants, regardless of the reasons they face deportation or incarceration in the current system. While we fight for a broader abolition of detention and deportation policies as punitive measures, a first step would be to hold basic rights that exist in other punitive systems sacred for all immigrants. This should include, at minimum, a right to a day in court on the harms of deportation, a right to see a judge and to have government-appointed counsel, a right to bail hearings and community alternatives to detention. To do that, we must reject carve-outs that categorically make immigrants with criminal records ineligible for these basic rights. If those of us in the immigrant rights community cannot champion rights for all immigrants, then we are simply building upon the legacy of racism and oppression that led us to this massive deportation system in the first place.

Professor of Clinical Law, New York University School of Law.