In June of 2012, five months before he would be re-elected to the presidency, Barack Obama announced that his administration would no longer seek to deport undocumented migrants who had come to the United States as children. Obama was specific about which classes of people would benefit from his new policy: to be “immune” from deportation, migrants must be between the ages of 16 and 30, must have lived in US for five continuous years, and must have graduated from an American high school, received a high school equivalency degree, or served in the military. Even if they satisfy these criteria, however, migrants who have any sort of criminal record are ineligible for deportation immunity. Obama’s decree thus drew a hard line between “deserving” migrants and those to whom harsh deportation policies still apply.

At the time, commentators hailed Obama’s executive order as “major immigration policy shift” which would affect more than 800,000 people living in the United States (Voorhees 2012; Preston and Cushman 2012). Those with an eye on November polls also noted the timing of the announcement, which came just a week before the President was slated to address the National Association of Latino Elected and Appointed Officials (ibid.). Ultimately, it appears, this election strategy paid off. Pew Hispanic Center polls found that Obama captured 71% of the Latino vote, the highest figure seen by a presidential candidate since 1996 (Lopez and Taylor 2012). Hispanic voters turned out for Obama in the key battleground states of Colorado, Florida, and Nevada, each of which the President carried on November 6. In the wake of the election, pollsters and political analysts agreed that Obama’s immigration policies had buoyed his campaign and propelled him to victory (ibid.). Barack Obama was, it seemed, the candidate who cared about serious immigration reform.

This election narrative belies a more concerning reality. Barack Obama is not a bold pioneer of progressive migration policy; in fact, he is in many respects more aggressive and regressive than his predecessors, including George W. Bush. Obama’s immigration policies rely heavily, perhaps more than ever before, on the deportation of “foreign criminals” and on the practice of immigration detention. In the first four years of his presidency, Obama announced that he would prioritize the deportation of undocumented immigrants with serious criminal records (Navarette 2012). He then oversaw the expulsion of 1.5 million migrants, many of whom were held under immigration powers in jails and detention centers before being deported (ibid.). Since 2008, the U.S. Immigration and Customs Enforcement Agency (ICE) has expanded its network of unmarked subfield offices, where detainees are held both secretly and indefinitely, often without access to legal counsel (Stevens 2009). In practice, Obama’s immigration policy is not “fairer and gentler” (Navarette 2012). It is simply more deliberate about which migrants—namely, young, noncriminal, educated ones—deserve a fair and gentle approach. The remaining people, who number in the hundreds of thousands, are being detained and deported at record rates (Bosworth and Kaufman 2011).

The problem with this approach, as both political writers and criminologists have pointed out, is that the line between criminal and non-criminal conduct is far from clear (Sklansky 2012). The criminalization of immigration offences and the re-categorization of criminal misdemeanors as “aggravated felonies” has led to the drastic expansion of the number of people identified as “foreign criminals” (ibid.). Today, forgery, non-violent theft, and some forms of tax evasion can give rise to detention and deportation (8 U.S.C. § 1101(a)(43)). People like Juana Reyes, a migrant with two American-born sons who was arrested for selling homemade tamales in a WalMart parking lot, are often the “serious criminals” the Obama administration seeks to deport (Navarette 2012). The concept of a “foreign offender,” which underlies so many of Obama’s claims about immigration, is both counterintuitive and vastly over-inclusive.

More to the point, the distinction between criminal and non-criminal migrants, no matter how serious the conduct in question, enables the expansion of legally dubious incarceration regimes. The idea of the “foreign criminal” has paved the way for the rapid growth of prison-like immigration detention centers, many of which are run by private and highly profitable companies (Bosworth and Kaufman 2011). The threat of crime from “illegal immigrants” has also propelled restrictive legislation, such as the Illegal Immigration Reform and Responsibility Act (IIRIRA) of 1996, and immigration prosecutions, which increased more than tenfold between 1997 and 2009 (Sklansky 2012). These prosecutions have filled prisons with foreign nationals, who today constitute between 6 and 7 per cent of total population in American prisons and jails (Bosworth and Kaufman 2011). Ultimately, the “foreign criminal” is less a real person than a structural link between the systems of criminal justice and border control.

President Obama is not altogether responsible for this link. Crime and migration control have long been intertwined in the American imagination, and have since 1929 been connected in the country’s criminal law (Ngai 2003). The annual number of deportations and immigration prosecutions began to skyrocket in the mid-1990s, well before President Obama took office (Sklansky 2012). But these trends do not change the fact that Obama’s recent practices and rhetoric have made the problem worse. Obama’s “gentle” approach to migration relies upon and reifies the same folk devils—foreigners and criminals—that have always propelled exclusionary, marginalizing social policies. Criminologists concerned with these patterns, particularly those of us who are optimistic about the President’s second term, should take note. We should resist the appeal of policies and legislation that suppress the darker realities of contemporary American immigration practices. In doing so, we can insist on truly comprehensive and inclusive approach to immigration reform.


References

Bosworth, M. and E. Kaufman (2011), ‘Foreigners in a Carceral Age: Immigration and Imprisonment in the United States’, Stanford Law and Policy Review, 22(1): 429-454.

Lopez, M. H. and P. Taylor. (2012), Latino Voters in the 2012 Election, Washington, DC: Pew Hispanic Center.

Navarette Jr., R. (2012), ‘Don’t Deport the “Tamale Lady”’, CNN Online.

Ngai, M. (2003), ‘The Strange Career of the Illegal Alien: Immigration Restriction and Deportation Policy, 1921-1965’, Law and History Review, 21(1): 69-107.

Preston, J. and J. Cushman Jr. (2012), ‘Obama to Permit Young Migrants to Remain in the U.S.’, The New York Times.

Slanksy, D. (2012), ‘Crime, Immigration, and Ad Hoc Instrumentalism’, New Criminal Law Review, 15(2): 157-223.

Stevens, J. (2010), ‘America’s Secret ICE Castles’, The Nation.

Voorhees, J. (2012), ‘Obama Announces Major Immigration Policy Shift’, Slate.