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date: 05 March 2021

The Criminalization of Immigrationfree

  • Jennifer M. ChacónJennifer M. ChacónSchool of Law, University of California, Los Angeles

Summary

The regulation of immigration in the United States is a civil law matter, and the deportation and exclusion of immigrants from the United States are matters adjudicated in civil, administrative courts operated by the federal government. But migration in the United States is increasingly managed not through the civil law system, but through the criminal legal system, and not just at the federal level, but at all levels of government. The most obvious example of the management of migration through the criminal law in the United States occurs through the federal prosecution of immigration crimes. In the 2010s, federal prosecutions of immigration crimes reached all-time record highs, as immigration offenses became the most commonly prosecuted federal criminal offenses. But it is not just the federal government, using federal criminal prosecutions, that has moved criminal law and criminal law enforcement agents to the center of immigration enforcement in the United States. The federal government relies on state and local police to serve as front-line agents in the identification of noncitizens potentially subject to removal. Everyone arrested by state and local law enforcement for any reason has their fingerprints run through federal law databases, and this has become the leading screening mechanism through which the federal government identifies individuals to target for removal. Federal law also relies on state law convictions as one of the primary means through which federal immigration enforcement officials determine which noncitizens to remove. This means that state legislatures and state and local governments have the power to shape both their criminal laws and their discretionary enforcement choices to either enhance or mitigate the scope of federal immigration enforcement in their jurisdictions.

The problems of racial inequity in the U.S. criminal legal system are both exacerbated by and fuel the centrality of immigration enforcement to the nation’s law enforcement agenda. Racial profiling is broadly tolerated by law in the context of immigration enforcement, making it easy for officials at the state and federal level to justify the targeting of the Latinx population for heightened surveillance on the theory (often incorrect) that they are unlawfully present. At the same time, the overpolicing of Black communities ensures that Black immigrants as well as Latinx immigrants are disproportionately identified as priorities for removal. Immigration enforcement is frequently written out of the story of racial inequality in U.S. policing, but the criminalization of migration is a central architectural feature of this inequitable system.

Introduction: The Shifting Grounds of U.S. Immigration Enforcement

In the United States, the enforcement of the nation’s civil immigration laws is formally separate from criminal law enforcement. Immigration enforcement is a federal prerogative, while criminal legal systems—and criminal law enforcement agents—exist at both the federal and subfederal levels. Throughout history, the lines between the systems of criminal and immigration law, and between the agents charged with their enforcement, have sometimes been blurred, often to facilitate the targeting of undesirable racial groups. During the 1920s, for example, federal criminal law was expanded to include unauthorized immigration as a criminal offense and by 1930, U.S. attorneys had prosecuted more than 44,000 cases of improper entry (Hernández Lytle, 2016). This occurred as state and local law enforcement agents separately played a leading role in the widespread removal to Mexico of tens of thousands of Mexican and Mexican American residents deemed threatening to U.S. economic interests (Balderrama & Rodriguez, 1995; Rosales, 1997).

But as a formal matter, immigration enforcement was understood to be the responsibility of federal immigration agents. Historically, most immigration enforcement occurred through civil channels in the form of administrative removal proceedings. Though federal immigration crimes have long been on the books, their enforcement constituted a very small share of overall federal criminal prosecutions. And while state and local law enforcement agents often shared information or otherwise cooperated in federal immigration enforcement efforts, such efforts were seen as outside their core law enforcement responsibilities.

The situation has changed since the turn of the century. States and localities have increasingly used their own criminal legal systems to target immigrant residents on the basis of their crimes of migration—whether real or perceived. The federal government has increased its reliance on criminal prosecution as a migration management tool, even as the features of civil immigration enforcement have taken on increasingly punitive characteristics. The federal government has also integrated state and local law enforcement agents deeply into the fabric of federal immigration enforcement. In these systemic ways, immigration has become increasingly criminalized in the United States.

This article maps out the important shifts in immigration law, criminal law, and law enforcement that have combined to generate an unprecedented criminalization of immigration.1 The section “The Decline of Federal Exclusivity in the Regulation of Immigration” discusses the rise of state and local criminal regulations aimed at controlling migration. The next section, “Increased Federal Enforcement,” discusses the expansion of federal immigration enforcement efforts and the dramatic rise in the use of federal criminal sanctions as a means of enforcing immigration laws. The third section, “Declining Federal Exclusivity in the Enforcement of Immigration Laws,” discusses the relatively recent but now pervasive integration of state and local law enforcement agencies and actors in the enforcement of federal immigration laws.

Immigration control objectives are now woven into the fabric of criminal law enforcement at all levels of government. As a discursive matter, this has fed an erroneous understanding of immigration control as linked to public safety, and it has fueled a problematic social construction of immigrants—and particularly Latinx immigrants—as linked to criminality. President Donald Trump famously stoked and benefitted from these fears when he kicked off his successful presidential campaign with the warning that “when Mexico sends its people, they’re not sending their best. They’re sending people that have a lot of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.” It is a sentiment that he has continued to express (Mark, 2018). Consequently, immigrants—and particularly Black and Latinx immigrants, who are disproportionately targeted by the criminal and immigration enforcement systems—have been subjected to harsher and more punitive treatment almost across the board. Long-term residents who lack legal immigration status, lawful permanent residents with prior criminal records, asylum seekers, and highly skilled workers seeking admission as lawful permanent residents have all been on the receiving end of harsher and more punitive policies justified by the logics of criminalized migration.

The Decline of Federal Exclusivity in the Regulation of Immigration

The Supreme Court has long held that direct regulation of immigration is a power reserved to the federal government. Yet, since the early 2000s, states and localities have become increasingly active in regulating immigration. In addition to legislation that furthers states’ longstanding role in integrating and otherwise regulating their immigrant residents (Burch Elias, 2013; Chen, 2018), states and localities have enacted a number of criminal law provisions that effectively allow them to police migration indirectly.

The Rise of Federal Exclusivity

The notion that the federal government has the power to regulate immigration is fairly well established as a matter of U.S. constitutional law; in 2012 the Court reaffirmed the federal government’s “broad, undoubted power over the subject of immigration” and the status of noncitizens (Arizona v. United States, 2012). This has not always been the case. In the early days of the nation, including for much of the 19th century, subfederal entities actively regulated immigration. Many states had laws barring entry to “paupers,” to individuals with certain diseases, and to racially undesirable groups (Neuman, 1993). States also sought to control the composition of their populations in other ways, including through the imposition of head taxes on immigrants (Abrams, 2009; Neuman, 1993).

After the Civil War, however, the Supreme Court began to chip away at subfederal immigration regulation, declaring, for example, that only Congress could impose head taxes on immigrants (Henderson v. Mayor of New York, 1876). States continued to regulate their residents, including their immigrant residents, pursuant to their broad police powers. The Court made clear that such state regulations, including employment regulations, were permissible, but only to the extent that any resulting, indirect regulation of immigration did not conflict with the federal immigration scheme (De Canas v. Bica, 1976). Even when state policies aimed at noncitizens did not expressly contravene federal immigration law, the Court sometimes struck down state efforts to regulate noncitizens deemed insufficiently compatible with federal law (Hines v. Davidowitz, 1941). In the 2010s, however, the Court has signaled greater tolerance for subfederal immigration regulations, including regulations that are not completely harmonious with federal regulations and enforcement priorities.

The Decline of Federal Exclusivity

Federal laws trump state laws under Article VI of the Constitution (U.S. Const. art VI, § 2), but that only matters when state law is expressly or implicitly prohibited by federal law (Gade v. National Solid Wastes Management Ass’n, 1992). In 2011, in Chamber of Commerce v. Whiting, the Court rejected the argument that federal law preempted an Arizona law that allowed for the revocation of the business licenses of Arizona businesses that hired immigrants unauthorized to work under federal law. The license revocation penalty went well beyond the penalties authorized by federal law for similar violations. In Whiting (2011), the Court focused on the text of the 1986 Immigration Reform and Control Act (IRCA) to answer the question of whether this state regulation of immigration was precluded by federal law. The Court held that IRCA’s express prohibition of certain state regulations regarding immigrant employees did not prohibit the Arizona law because the Act’s restrictions on states did not apply to state “licensing laws.” But the opinion more broadly suggested that unless Congress has clearly barred states from enacting particular immigration control provisions, the Court would be disinclined to invalidate such laws. This was tested the next year, in the 2012 case of Arizona v. United States.

In 2010, the Arizona legislature ignited a national firestorm when it enacted a bill that greatly expanded the role that Arizona’s state and local officials play in the enforcement of immigration law (Archibold, 2010). The Support Our Law Enforcement and Safe Neighborhoods Act (2010), also known as S.B. 1070, sought to impose criminal liability for undocumented presence and unauthorized work in the United States and empowered Arizona officials to arrest removable immigrants. Although proponents of the law argued that it mirrored federal immigration law, this was clearly not the case (Chin & Miller, 2011). Among other things, the law criminalized conduct that is neither a civil nor a criminal violation under federal law (Ariz. Rev. Stat. Ann. § 13-1509, Supp. 2011; 8 U.S.C.§§1304(e), 1306(a), 2006).2 Opponents of the law, including the federal government, argued that the law was therefore preempted by federal immigration law. Major provisions of the Arizona law were temporarily halted by a U.S. district court in 2010, preventing them from going into effect pending further litigation, and the district court’s decision was upheld in 2011 by the Ninth Circuit Court of Appeals in United States v. Arizona, 641 F.3d 339. The Supreme Court largely upheld this injunction as well (Arizona v. United States, 2012). But the Supreme Court reversed the lower court injunction of S.B. 1070’s Section 2(B), allowing to go into effect the provision of the law that required law enforcement officials to investigate a person’s immigration status upon arrest and, when practicable during a lawful stop, upon reasonable suspicion of an immigration violation. This provision arguably contravened Congress’s intent—captured in section 287(g) of the Immigration and Nationality Act—to limit state and local investigations of immigration status to agents trained and supervised by federal officials (8 U.S.C. § 1357(g), 2006). But the Court construed broadly the power of state and local police to investigate immigration status during the course of otherwise lawful investigative stops. This was a particularly significant decision because federal immigration agents have been empowered to rely on racial profiling in their policing in ways that are increasingly impermissible outside the immigration context (see, for example, United States v. Brignoni-Ponce, 422 U.S. 873 [1975]). By allowing states to engage in frontline immigration policing without addressing these expansive profiling powers, the Court implicitly opened the door to much greater profiling by state and local officers as well (Chacón, 2012).

S.B. 1070’s Section 2 ultimately ran into further legal trouble, and Arizona officials have since settled a case with civil rights organizations limiting its implementation to avoid prolonged stops and racial profiling (Kiefer, 2016). But the example set by the state of Arizona, and the Court’s tacit encouragement of immigration investigation as part of ordinary policing efforts, opened the door for an unprecedented wave of state-level immigration policing laws. States took advantage of this apparent increase in their latitude to engage in immigration policing, even as they continued to regulate other aspects of the lives of immigrant residents. From 2015–2020, lawmakers enacted more than 1,700 state laws relating to the regulation of immigration (National Conference of State Legislators, 2019; Williams, 2019), including laws designed to regulate the employment of, housing for, policing of, and benefits available to undocumented immigrants. Many of these, like Arizona’s law, amplify the role of state and local actors in immigration enforcement.

Subfederal Criminalization of Migration

Arizona v. United States (2012) established some important limits on state efforts to use their own criminal laws as migration management tools. Efforts to directly criminalize undocumented labor and the failure to carry registration papers clearly are now barred in the wake of the Supreme Court’s decision in that case. Similarly, states’ efforts to prosecute unauthorized migration indirectly through charges of “self-smuggling” under state human smuggling laws such as those contained in Alabama’s 2011 law, HB 56, have failed to withstand judicial scrutiny where those prosecutions were clearly part of a strategy to criminalize migration indirectly. A federal district court enjoined Alabama’s antismuggling provision, stopping it from going into effect, and the Eleventh Circuit upheld that portion of the district court’s order (United States v. Alabama, 691 F. 3d. 1269, 2012). An Arizona district court that heard a challenge to Arizona’s antismuggling law in 2010 initially declined to invalidate it but revisited that decision in 2012. At that time, a federal district court stopped Arizona’s antismuggling law from going into effect, citing the reasoning of the Eleventh Circuit’s 2012 decision in United States v. Alabama (Valle del Sol v. Whiting [D. Ariz. Sept. 5, 2012]). By that time, Arizona had been using its antismuggling law for years to prosecute migrants for conspiring to smuggle themselves (Eagly, 2011).

But other state efforts to use their own criminal codes to enable local enforcement of immigration restrictions have continued. For example, a number of states have enacted legislation purportedly aimed at preventing human trafficking. Some of these laws effectively allow state officials to enforce immigration laws indirectly (Chacón, 2010). Identity theft is another crime with which prosecutors frequently charge and seek to punish unauthorized migrants—often bringing charges almost exclusively against undocumented residents. And this is an easy way to get around the Court’s prohibition on criminalizing working without authorization. A Kansas identity theft statute, for example, criminalizes “using” any “personal identifying information” belonging to another person with the intent to “defraud that person, or anyone else, in order to receive any benefit” (Kan. Stat. Ann. §21–6107(a)(1)). Kansas prosecutors have been using this provision to target undocumented immigrant workers, criminally prosecute those who use other people’s social security numbers on the immigration forms required for employment, known as the I-9, as well as on state and federal tax forms. The Supreme Court recently upheld this application of Kansas criminal law against a preemption challenge in Kansas v. Garcia (2020). Although IRCA contains a provision prohibiting states from imposing state law penalties for falsities in the I-9, the Court concluded that IRCA’s limitations on state law penalties did not apply to identity theft prosecutions based on documents other than the I-9, such as state tax forms. The Court reached this conclusion in spite of a substantial factual record clearly establishing that Kansas was using its identity theft statute to target and prosecute unauthorized immigrant workers—something that Congress deliberately sought to avoid when it drafted IRCA.

The Supreme Court’s decisions in Arizona (2012) and Garcia (2020) evince growing judicial tolerance for subfederal participation in immigration enforcement efforts. Unsurprisingly, states interested in controlling migration policy are now using their own criminal law as a tool to punish noncitizens. Some state efforts have simply avoided court scrutiny, but others, as in the recent case of Kansas v. Garcia (2020), have survived preemption challenges.

State and local officials have sought to justify the use of their criminal legal systems to control migration on public safety grounds. Jan Brewer, the governor of Arizona at the time of the passage of S.B. 1070, infamously and falsely alleged that the law was necessary to combat dangerous beheadings in the Arizona desert (Farley, 2010). But state legislation drafted or used to criminalize migrants does not enhance public safety. Higher rates of immigration do not correlate with higher rates of violent crime (Ousey & Kubrin, 2018). In Arizona at the time S.B. 1070 was enacted, for example, crime rates were actually falling even as the unauthorized migrant population was growing (Grega, 2016). States and localities use criminal law not only because it is a tool that seems likely to avoid legal scrutiny, but also because it is the tool that most closely resonates with the public discourse around migration, which is dominated by the trope of migrant criminality (Chacón, 2007; Haney López, 2010). Unfortunately, this creates a self-perpetuating phenomenon where migrants are increasingly subject to criminal law sanctions.

The Court’s decisions in Arizona v. United States (2012) and Kansas v. Garcia (2020) clarified the extent to which the Court is willing to allow states to police migration within their own borders. But even before those decisions were handed down, many states were already taking the position that they have significant power to regulate immigration indirectly. This trend, particularly in conjunction with the Court’s decision to affirm the constitutionality of investigations into immigration status by state and local law enforcement, provides legislators with ample tools to achieve what the Arizona legislature labeled immigration “enforcement through attrition.”

Increased Federal Enforcement

At the same time that some state and local governments were increasing the reach of their efforts to regulate migration through their own criminal laws, the federal government was also increasing its criminal enforcement of immigration law. This criminalization of immigration has been one aspect of a larger, unprecedented expansion of immigration enforcement.

The Many Faces of Federal Immigration Enforcement

Since 2001, the federal immigration enforcement apparatus has ballooned in size, and the effects of this expansion are widespread. In fiscal year 2019, the U.S. government spent billions of dollars on immigration enforcement activities (American Immigration Council, 2019b). Immigration and Customs Enforcement (ICE), the agency responsible for immigration enforcement activities in the interior of the country, had a budget of just over $7.5 billion. Customs and Border Protection (CBP), which includes the Border Patrol, had a budget of just over $17 billion, bringing the combined total operating budgets for the two to over $24.5 billion in fiscal year 2019 (American Immigration Council, 2019b; Congressional Research Service, 2019). By way of comparison, in 1998, the budget for the Immigration and Naturalization Service (INS) was just under $3.7 billion (Department of Justice, 2003). Ten years earlier, it was less than $1 billion (Department of Justice, 2003). This figure includes immigration services that are now provided by Citizenship and Immigration Services (CIS) and are not included in the $24.5 billion figure from 2019.

The number of individuals removed from the United States annually has increased from about 18,000 in 1980 to about 30,000 in 1990 and about 188,000 in 2000, reaching about 337,000 in 2018 (Department of Homeland Security, 2019, table 39).3 Many of these individuals are identified because of their contact with criminal law enforcement agents at all levels of government. If they lack legal immigration status, they can be removed whether or not they have actually committed any crime. And if they possess legal immigration status, criminal convictions—even very minor ones—often serve to justify their removal regardless of the length of their stay or the equities of their individual case.

Another significant transformation in immigration enforcement is in the rise of immigration detention. Largely as a result of mandatory detention provisions enacted by Congress in 1996, hundreds of thousands of people who are arrested for immigration offenses are detained each year as they await trial or removal proceedings. Regarding the immigration detention landscape, Anil Kalhan (2010) observed the following:

in 1994, officials held approximately 6,000 noncitizens in detention on any given day. That daily average had surpassed 20,000 individuals by 2001 and 33,000 by 2008. Over the same period, the overall number of individuals detained each year has swelled from approximately 81,000 to approximately 380,000. (pp. 44–45)

Those trends continued over the next decade. In 2019, about half a million people were held in either ICE or CBP detention for some period of time, with the daily average of individuals detained being upwards of 50,000 (U.S. Immigration and Customs Enforcement, 2019). This explosion in immigration detention that has been costly for taxpayers and lucrative for private contractors (Bernstein, 2008, 2011; García Hernández, 2019).

Although civil immigration detention technically is not a part of the criminal justice system, as a practical matter, many noncitizens in immigration detention are subject to the same kinds of punitive detention as criminal defendants—and some are actually housed in jails.

Prosecuting Federal Immigration Crimes

The growth of federal immigration enforcement efforts is also manifested clearly in the rise in prosecutions of immigration crimes. In 1993, the number of suspects in matters received by U.S. Attorneys’ Offices for immigration offenses was 5,934, of whom 5,400 were prosecuted or disposed of by a magistrate (Bureau of Justice Statistics, 1996, pp. 15–16). This was only 5.4% of the total number of cases investigated in that year (Bureau of Justice Statistics, 1996).

The effects of the draconian 1996 changes in the immigration laws were felt in the years that followed. By 2000, the number of individuals investigated for immigration offenses was 16,495 (Bureau of Justice Statistics, 2002, p. 1). This was a significant increase, but still only 13.4% of the total number of federal cases investigated in that year (Bureau of Justice Statistics, 2002, p. 1). The true explosion in criminal immigration enforcement came in the years following the September 11 attacks. Once the INS had been reorganized into three separate agencies under the auspices of the Department of Homeland Security (DHS) and the money for immigration enforcement began pouring in, arrests and prosecutions for immigration crimes skyrocketed. This trend has continued year after year, no matter who is in the White House and who controls Congress.

At the time of writing, the number of immigration convictions occurring each month outstripped the annual total of immigration prosecutions in 1993. Between September 2018 and September 2019, conviction rates were always in excess of 7,000 per month and approached numbers upwards of 10,000 per month (TRAC Immigration, 2019). This has been the norm for several years. Immigration prosecutions take many forms. As federal prosecutions of immigration crimes have mounted, the most numerous prosecutions have been for simple misdemeanor improper entry (American Immigration Council, 2020). But prosecutions for felony reentry have also ballooned. These two offenses have dominated the federal criminal docket for well over a decade (American Immigration Council, 2020), though in recent years, the federal government also has brought an increasing number of charges against people for “harboring” unauthorized migrants (TRAC Immigration, 2020). In 2018, misdemeanor improper entry and felony illegal reentry constituted 65% of all federal criminal charges (American Immigration Council, 2020). And prosecutions for these entry-related offenses reached an all-time high of 106,312 in fiscal year 2019 (American Immigration Council, 2020). By this metric, it is not just DHS but also the federal Department of Justice that is operating primarily as an immigration enforcement agency in the United States. The remainder of prosecutions for immigration offenses—including crimes such as human smuggling and immigration fraud offenses—have constituted a very small portion of the overall federal criminal docket (TRAC Immigration, 2020). Most criminal immigration prosecutions are focused squarely on direct migration management through the prosecution of immigrants for their cross-border movement.

As a result of these efforts, “federal arrests of noncitizens more than tripled from 1998 to 2018 (rising 234%), while federal arrests of U.S. citizens rose a mere 10% over the same period” (Bureau of Justice Statistics, 2019, p. 2). In 2018, 85% of federal arrests of non-U.S. citizens were for immigration offenses (Bureau of Justice Statistics, 2019). The federal government is enforcing immigration law as never before and is relying on the criminal justice system in unprecedented ways to do so. As the federal government ramps up its enforcement effort, it is being joined by state and local law enforcement agencies that are now expending their own law enforcement resources to enforce federal immigration laws.

Declining Federal Exclusivity in the Enforcement of Immigration Laws

During the 20th century, state and local governments participated in a number of high-profile attempts to rid their borders of individuals who were (or were perceived to be) undocumented. As previously mentioned, local officials actively participated in the “repatriation” of Mexicans—and many Mexican Americans—during the 1930s (Balderrama & Rodriguez, 1995).4 And in the course of the federally orchestrated immigration policing action known as “Operation Wetback,” local governments acted in cooperation with the federal government in detaining undocumented noncitizens—as well as U.S. citizens of Mexican descent and Mexican migrants lawfully present—and removing them to Mexico (Garcia, 1980).

In spite of the frequent interventions on the part of state and local actors in immigration enforcement, formal legal authority for such interventions did not exist. In response to confusion on this point, the Department of Justice issued a 1996 memorandum (U.S. Department of Justice, 1996) outlining the limits of state and local authority to enforce immigration laws (Wishnie, 2004). The memorandum concluded that a state or local police officer had the authority to conduct arrests for immigration crimes such as felony reentry or human smuggling, but not for the civil offense of being present in the country without current legal authorization.

In two major pieces of legislation enacted in 1996, Congress expanded the power of state and local law enforcement to enforce federal immigration law in three specific ways (Wishnie, 2004). First, the Anti-Terrorism and Effective Death Penalty Act (AEDPA) of 1996 formally authorized subfederal law enforcement officers to arrest and detain unlawfully present noncitizens who had “previously been convicted of a felony in the United States” upon confirmation of status by DHS (8 U.S.C. § 1252(c), 2006). Second, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) empowers the Secretary of Homeland Security to authorize local officials to enforce civil immigration laws when “an actual or imminent mass influx of aliens … presents urgent circumstances requiring an immediate Federal response” (8 U.S.C. § 1103(a), 2006).5 Finally, IIRIRA added § 287(g) to the Immigration and Nationality Act to allow the Department of Homeland Security to delegate immigration enforcement authority to state and local police pursuant to a formal agreement between the state or local agency and Homeland Security provided the state or local officers have undergone adequate training to enforce the immigration laws (8 U.S.C. § 1357(g), 2006). Such agreements, now common, are often referred to as “287(g) agreements” after the section of the immigration code in which they appear. Notably, none of these provisions would have been necessary if state and local governments actually had “inherent authority” to enforce immigration laws, which suggests that Congress did not believe they did.

Nevertheless, in 2002, the Office of Legal Counsel under Attorney General John Ashcroft revised the 1996 memorandum regarding the role of state and local police in immigration enforcement, concluding that state and local law enforcement had “inherent authority” to arrest and detain immigration violators, including civil immigration violators (Office of Legal Counsel, 2002). This new policy—which contravened conventional scholarly opinion and prior legal opinions—created a new source of confusion concerning the scope of state and local power to enforce immigration law.

Given new leeway, some law enforcement agencies began asserting their “inherent authority” to conduct arrests to effectuate both federal civil and criminal immigration laws. Although this position is difficult to reconcile with the narrow and specific congressional grants of power to states and localities in the 1996 legislation, the notion gained a surprising degree of currency (Chin & Miller, 2011). As a consequence, state and local law enforcement agents have engaged in policing immigration at unprecedented levels, sometimes without the express authority of the federal government (Starr, 2009). Often, this has included the racial profiling of Latinx residents by law enforcement agents eager to use the immigration enforcement authority that they have never actually been trained to exercise (Surana, 2019). Subfederal immigration laws such as Arizona’s S.B. 1070 and similar state laws further encourage state and local law enforcement to engage in immigration enforcement.

As previously noted, 1996 legislation did empower the federal government to enter into contractual arrangements with subfederal entities to enforce immigration laws. Although the federal government did not begin entering into such agreements in the 1990s, many states and localities entered into these agreements after 2000. These 287(g) agreements proliferated during the administration of President George W. Bush (2000-2008). President Barack Obama then terminated a number of these agreements in his second term. President Trump resuscitated the program. Even under President Trump, federal spending on 287(g) programs has never rebounded to pre-2014 levels but the federal government simply may be spending less on training participating agents, because the number of agreements has risen in recent years. (American Immigration Council, 2019a, table 1). As of April 2020, ICE had jail enforcement agreements (allowing local officials to screen jail inmates for immigration violations) with 77 law enforcement agencies in 21 states, and more expansive, warrant-serving authorization agreements with 57 law enforcement agencies in nine states (U.S. Immigration and Customs Enforcement, 2020). Scholars have identified troubling racial profiling practices in jurisdictions with these agreements (Armenta, 2017), which is one of the reasons they were scaled back for a time under President Obama before being embraced again by the Trump administration.

But the federal government has done more than simply invite a limited number of state and local participants to share immigration enforcement duties. With the rollout of the Secure Communities program, the federal government mandated the participation of state and local officials in federal immigration enforcement. Pursuant to the Secure Communities program, ICE screens the biometric information gathered by state and local law enforcement to identify noncitizens in state prisons and local jails who are potentially subject to removal. As of January 22, 2013, the biometric information-sharing capability of the Secure Communities program was active nationwide, in “3,181 jurisdictions within 50 states, the District of Columbia, and five U.S. Territories” (United States Citizen and Immigration Services, 2018). In these jurisdictions, any individual who is arrested has her or his identifying information run through the DHS’s database so that the federal government can determine whether the individual is in violation of immigration laws. If ICE officials are interested in pursuing an enforcement action, they issue a request to the local agency holding the individual, asking them to detain the individual for 48 hours and to notify ICE of the person’s release.

The Secure Communities program generated a number of concerns from the earliest days of operation. First, inaccuracies in the DHS database resulted in a number of false arrests, including the arrest and detention of thousands of U.S. citizens and noncitizens lawfully present (Kohli, Markowitz, & Chavez, 2011). Early studies of the Secure Communities program also suggest that discriminatory policing of Latinos has tended to increase in certain jurisdictions when they begin their participation in the program (Kohli et al., 2011). A second concern was that hold requests generally did not supply the necessary probable cause to justify additional detention above and beyond what is authorized by state law (Lasch, 2013; Miranda-Olivares v. Clackamas County, 2014). A number of jurisdictions ceased to honor detainer requests, citing the risk that an additional hold in the absence of probable cause supported by a warrant constitutes an unreasonable seizure under the Fourth Amendment (California Trust Act, 2013; Eagly, 2017). Indeed, detainer resistance has been a key component of efforts on the part of state and local governments to limit their own cooperation with federal immigration enforcement efforts (Lasch et. al., 2018).

Ultimately, concerns about and sustained criticisms of Secure Communities led the Obama administration to roll back the program, replacing it with a modified Priority Enforcement Program (Chacón, 2017). That program continued to rely on arrest fingerprinting data but allowed local governments a say in the setting of enforcement priorities and focused removal efforts on individuals deemed enforcement priorities. But President Trump immediately reversed course upon entering office; the original Secure Communities program has now been fully restored (Chacón, 2017). This, in turn, has caused some states and localities to minimize, to the extent possible under federal law, their cooperation with federal immigration enforcement efforts (Chacón, 2019; Lasch et al., 2018). This wave of state and local resistance is a source of significant local variability in the policing conditions that immigrants experience on the ground (Chacón, 2019; Provine et al., 2016).

Still, even in jurisdictions that are resisting full cooperation with detainer requests, arrest data is still shared automatically with DHS under the fully reinstated Secure Communities program (U.S. Citizen and Immigration Services, 2018). And all jurisdictions still allow some information sharing between state and local officials and federal immigration enforcement agents (Chacón, 2019). In short, state and local governments are now actively participating in the enforcement of federal immigration law to a greater or lesser extent, depending on local preferences, but every jurisdiction is participating in some form. Even states such as California and New York, and cities such as San Francisco and Los Angeles, which have sought to minimize their participation in federal immigration enforcement to varying degrees, are structurally bound to participate in some ways with the federal enforcement process. In short, during the 2010s, federal immigration enforcement was woven into the basic fabric of U.S. criminal law enforcement and policing, resulting in the mutual reinforcement of the deep racial pathologies of both the immigration enforcement system and the criminal legal system.

Conclusions

The foregoing discussion lays out the mechanisms through which immigration has been criminalized in the United States in recent years. The process of criminalization has taken many forms. Some states and localities have attempted to regulate immigration indirectly through the crafting and application of their own criminal laws. The federal government has used criminal enforcement resources to attempt to control immigration, too. Federal prosecutions of immigration are at all-time record highs, with immigration offenses now the single most commonly prosecuted federal criminal offenses. And state and local governments now actively assist in federal immigration policing through automated information sharing, the exercise of their purported inherent authority to investigate immigration law, and voluntary cooperation with federal detainer requests.

The resources meted out to achieve the criminal punishment of immigrants are disproportionate to whatever ill-specified problem these resources are designed to solve. It is relatively easy to imagine how immigration law could be reformed to bring many immigrant residents within the bounds of the law without any resort to the criminal law. It is also easy to imagine how the many billions of dollars spent on criminal immigration enforcement could have been put to effective use in addressing the needs of asylum seekers and other immigrants for safe and fair adjudication and resettlement in the United States. Instead, the U.S. government and many state and local agencies have spent billions of dollars treating immigration as a crime problem and attacking it with the full might of their collective and substantial criminal enforcement systems.

Unsurprisingly, this has not ended unauthorized migration, nor has it resolved the situation of the large population of long-time U.S. residents lacking legal status—estimated to be over 10 million people (Passel & Cohn, 2019). Migration choices are shaped and constrained by many factors, and U.S. criminal justice policy is only a tiny piece of that equation. But this shift toward criminalization—which casts immigration as a public safety threat and immigrants themselves as a racialized, dangerous, invading criminal class (CNN, 2016)—has made it even more politically difficult to achieve either a generous legalization program or the systemic reform of the immigration enforcement system. Yet both these changes are necessary to resolve the human suffering generated by the outdated and ill-tailored system of U.S. immigration controls. After the expenditure of hundreds of billions of dollars on immigration control efforts, both seem further away than ever.

Further Reading

  • Armenta, A. (2017). Racializing Crimmigration: Structural Racism, Colorblindness, and the Institutional Production of Immigrant Criminality. Sociology of Race and Ethnicity, 1.
  • Chacón, J. M., & Coutin, S. (2018). Racialization through immigration enforcement. In M. Bosworth, A. Parmar, & Y. Vázquez (Eds.), Enforcing the boundaries of belonging: Race, criminal justice and migration control. Oxford, UK: Oxford University Press.
  • Eagly, I. (2020). The movement to decriminalize border crossing. Boston College Law Review, 61, 1967.
  • García Hernández, C. (2018). Deconstructing crimmigration. University of California Davis Law Review, 52, 197.
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References

Notes

  • 1. The organization and structure of this article draw upon the language and structure of Overcriminalizing Immigration (Chacón, 2012). Those arguments have been streamlined, updated, and supplemented for the purposes of this article.

  • 2. The Arizona Revised Statutes criminalized the “willful failure to complete or carry an alien registration document” (Ariz. Rev. Stat. Ann. § 13–1509 (Supp. 2011), a similar violation to those violations already criminalized as federal misdemeanors (8 U.S.C.§§1304(e), 1306(a) 2006). As previously noted, the Supreme Court found previous state efforts to enact such registration schemes that run parallel to the federal scheme unconstitutional (Hines v. Davidowitz, 1941).

  • 3. Between 2013 and 2019, these numbers fluctuated—falling over President Obama’s second term before rising again in the second and third years of President Trump’s administration. Notably, the overall number of people “returned” at the border without formal processing has fallen substantially when compared with figures from the 1990s. From a high of 1.676 million in 2000, that number was 109,083 in 2018 (Department of Homeland Security, 2019), suggesting a preference on the part of the past three administrations to issue formal removal orders against a much higher percentage of immigrants arriving at the border, even as the overall number of immigrants arriving at the border has fallen significantly (Lind, 2014). In 2020, however, the Trump administration made a return to heavy reliance on informal returns. The administration has claimed this is a response to the coronavirus (Department of Homeland Security, 2020). But in fact, the practice began months before the virus struck and was implemented primarily to avoid compliance with federal statutory provisions requiring credible fear determinations for people arriving at the border (Sacchetti & Miroff, 2019).

  • 4. Balderrama and Rodriguez (1995) estimate that during the 1930s, about one million individuals of Mexican descent were forced to move from the United States to Mexico, with 400,000 leaving from California alone. The term “repatriation” is often used to describe these forced migrations, but the term is misleading for two reasons. First, it suggests a voluntary movement, when in fact much of the relocation was generated by legal coercion by federal, state, and local actors, in connection with threats of violence and virulent discrimination by private actors (Balderrama & Rodriguez, 1995). Second, it suggests that those being “repatriated” were returning to their native land—a situation that was not the case for the many U.S. citizens of Mexican ancestry who were sent to Mexico during this time (Johnson, 2005) (it is estimated that 60% of the “repatriated” Mexicans were U.S. citizens).

  • 5. At the time of the legislation, the statute delegated this authority to the Attorney General, but after intervening legal changes, this responsibility was shifted, along with many others, to the Secretary of Homeland Security. See 8 U.S.C. § 1103(a)(1), (10) (2006 & Supp. IV 2010).