Guest post by César Cuauhtémoc García Hernández, visiting professor at the University of Denver Sturm College of Law, and author of the crImmigration.com blog.

Crimmigration is now a fact of life and law in the United States. It is hard to deny that the consequences for migrants of getting caught up in the criminal justice system have never been greater. Every day unprecedented numbers of people are criminally prosecuted for having violated immigration law. Every night tens of thousands of migrants are holed up behind bars in a county jail or stand-alone immigration prison waiting to learn whether they will be allowed to remain in the United States.

It is equally difficult deny that immigration law enforcement and criminal law enforcement have become a single messy policing entanglement. Secure Communities and 287(g) programs have oiled the sanctioning pipeline from an initial encounter with a local cop to a final encounter with an Immigration and Customs Enforcement (ICE) agent. Meanwhile, Operation Streamline and fast-track plea agreements have created a highly efficient and extraordinary apparatus that, unlike immigration law formally deemed civil, does not even have to pretend to be non-punitive.

It may have taken us some time, but scholars have finally begun to catch on to these developments. A growing group of academics around the world have started to identify crimmigration law’s contours. In the United States, for example, Juliet Stumpf detailed in her landmark article The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power the creation of “parallel systems in which immigration law and the criminal justice system are merely nominally separate” (p. 376), and Jennifer Chacón has described efforts to “handle [...] migration control through the criminal justice system” (p. 137). Meanwhile, in Europe criminologists Maartje van der Woude and Joanne van der Leun have noted “the intertwinement of crime control and migration control” (p. 43), including, as Izabella Majcher chronicled, the use of detention as a means of enforcing immigration law.

Missing from this expanding literature, though, is an explanation of why crimmigration law happened now. Why didn’t it happen in the late 1800s when Congress introduced the crime involving moral turpitude provision into immigration law, or in 1922 when it added narcotics offenses to the list of reasons justifying deportation? What about in the early twentieth century when there was rampant hatred of southern and eastern European migrants and the radical leftist politics that was frequently associated with them?

In Creating Crimmigration, an article published in the Brigham Young University Law Review, I explain why crimmigration law in the United States developed in the closing decades of the twentieth century. Unlike prior periods when xenophobia and racism had led to anti-immigrant policies but not to the institutions and practices that we now know as crimmigration law, the late twentieth century United States had a unique and previously unknown fondness for criminal law’s coercive power. Specifically, the civil rights movements of the mid-twentieth century had made overt racism culturally disdained and facially racist laws impermissible. That cultural and legal shift, however, did not eliminate the derision of people of color that had been an overt, central marker of social organization in the United States.

Deep-seated derision of people of color found a new outlet in facially neutral rhetoric and laws penalizing criminal activity. Prominent policymakers touted the dangers of crime—illicit drugs especially—creating a perception that criminals were everywhere and that threats to the innocent lurked around every corner. In response, state and federal lawmakers launched their infamous “wars” on crime and drugs. Police officers were dispatched and prosecutors were armed with an expanded array of criminal penalties, leading to the imprisonment boom that has come to define the United States in the late twentieth and early twenty-first centuries.

This phenomenon may have remained limited to the world of criminal law and procedure had it not been for an overlapping concern about unauthorized migration. The Immigration Act of 1965, frequently lauded as a liberal reform because it finally eliminated the blatantly racist national origins quotas, imposed per-country caps on lawful immigration that immediately converted embedded migration patterns from lawful to unlawful. By framing its formal equality regarding the number of people from a given country who could lawfully immigrate each year as a gesture of fairness, immigration law pinned the onus of unauthorized immigration on the migrants themselves. The per-country ceiling’s disconnection from the economic, political, and social forces affecting migration, however, meant that migration didn’t suddenly stop. Indeed, Mexicans in particular were turned into the picture of illegality because they kept coming in numbers similar to before imposition of the ceiling, only now their travels were unauthorized.

When immigration became a national political concern in the 1980s, policymakers turned to criminal law and procedure to do what race had done in earlier generations: sort the desirable from the undesirable. Congress, working with multiple presidential administrations, adapted the punitive trends of the war on drugs to immigration law by enacting increasingly strict immigration laws that emphasized a noncitizen’s involvement in criminal activity. Investigations of potential immigration law violations began to resemble criminal policing operations, and decisions about who to admit into or deport from the United States more and more often turned on criminal histories. The ostensibly race-neutral application of criminal law framed migrants who violate immigration law as moral outlaws deserving of removal. Despite the facial neutrality of these enactments, however, the people most adversely affected were nonwhite newcomers. In the post-civil rights period, it seems, crime effectively became a proxy for race.

Ezekiel Hernández, Jr.
Soon the strong-armed tactics that the state had deployed in the war on drugs became features of immigration policing. Immigration law enforcement agencies were showered with money and resources—between 1981 and 1988 the Immigration and Naturalization Service, for example, saw its funding increase by 130% and staff by 41%. The nation’s detention capability grew dramatically, going from approximately 1,700 beds in 1982 to 7,400 in 1988. Under the guise of anti-drug activity, the military even became involved in immigration regulation by helping the Border Patrol capture clandestine entrants. In 1997 this relationship proved fatal when Marines patrolling the Texas border shot and killed Ezekiel Hernández, Jr., an eighteen-year-old United States citizen who was tending to his family’s livestock when the Marines mistook him for a drug trafficker.

The merger of criminal law and immigration law allowed for a unified front against the threat ostensibly facing the law-abiding public. Police agents of all variety were sent into the streets to watch, identify, and apprehend outlaws of multiple sorts—the kind selling drugs, working without authorization, present without permission. Unlike before, when undesirability was explicitly determined by race, in the age of metaphorical wars against crime and drugs, undesirability became pegged to criminality. In turn, criminality became tied, implicitly, to race and immigrants were raced as nonwhite. Law enforcement agents were given the task of physically removing from the body politic unwanted elements. Given the nation’s appreciation of confinement, law enforcement authorities were thought to be successful if the lawbreakers were in the prisons, excluded from the law-abiding community and under the government’s control. And so they have, launching the age of crimmigration.

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How to cite this blog post (Harvard style): Hernández C (2014) Creating Crimmigration. Available at: http://bordercriminologies.law.ox.ac.uk/creating-crimmigration (accessed [date]).