The U.S. criminal-immigration convergence and its possible undoing.

• Author: McLeod, Allegra M.
• Position: Introduction to III. Casualties of the U.S. Criminal-Immigration Convergence A. Concern for Membership 1. Lawfully Present Persons, p. 105-143

ABSTRACT

The intensifying convergence of U.S. criminal law and immigration law poses fundamental structural problems. This convergence--which manifests in the criminal prosecution of immigration law violators, in deportation of criminal law violators, and in a growing immigration enforcement and detention apparatus-distorts criminal law incentives and drains enforcement resources, misguides immigration regulation, and undermines efforts to implement alternative immigration regulatory frameworks. This Article offers an account, informed by social psychological and literary theory, of why this convergence persists notwithstanding these problems, as well as how the convergence (and inherently associated problems) might be undone. The U.S. criminal-immigration convergence holds powerful sway, despite the fact that it does much harm and relatively little good, because it serves to relieve pervasive cognitive dissonance in the United States regarding immigration, specifically in relation to economic and racial concerns. Drawing on previously unexamined Immigration and Customs Enforcement memoranda, legislative history, and empirical studies of criminal-immigration enforcement, this Article critically engages the primary justifications of the convergence in immigration scholarship and policy discourse. Finally, it assesses two approaches to undoing the convergence.

TABLE OF CONTENTS INTRODUCTION I. ASCENDANCY OF THE U.S. CRIMINAL-IMMIGRATION CONVERGENCE A. Definition 1. Institutional Resemblance and Overlap 2. Criminal Law as Immigration Proxy 3. Criminal-Immigration Prosecutions 4. Immigration as Criminal Law Adjunct B. Context 1. Changes in U.S. Immigration Law 2. Institutional Repurposing 3. Conceptual Shift II. JUSTIFICATIONS OF THE U.S. CRIMINAL-IMMIGRATION CONVERGENCE III. CASUALTIES OF THE U.S. CRIMINAL-IMMIGRATION CONVERGENCE A. Concern for Membership 1. Lawfully Present Persons 2. Unauthorized Immigrants B. Misguiding Crime Control 1. Distorting Crime Control 2. Unnecessary Prosecutions 3. Diverting Resources to Minor Crimes 4. Diverting Resources to Demographic with Low Crime Rate C. Institutional Pathologies D. Considering Objections IV. PERSISTENCE OF THE U.S. CRIMINAL-IMMIGRATION CONVERGENCE A. Immigration Cognitive Dissonance 1. Cognitive Dissonance Theory 2. Two Forms of Immigration Cognitive Dissonance B. Dissonance Deferred V. UNDOING THE U.S. CRIMINAL-IMMIGRATION CONVERGENCE A. A Procedural Fix? B. Centering Development Economics and Human Rights 1. Economic Dissonance, Immigration, and Development 2. Racial Dissonance, Immigration, and Human Rights CONCLUSION INTRODUCTION

Jose Angel Carachuri-Rosendo, a lawful permanent resident who has lived in the United States since he was five years old, faced deportation under federal law after he committed two misdemeanor drug possession offenses in Texas. For the first, possession of less than two ounces of marijuana, he received 20 days in jail. For the second, possession without a prescription of one tablet of a common antianxiety medication, he received 10 days in jail. After this second offense, the Federal Government initiated removal proceedings against him. (1)

Jose Padilla, a native of Honduras, has been a lawful permanent resident of the United States for more than 40 years. Padilla served this nation with honor as a member of the U.S. Armed Forces during the Vietnam War. He now faces deportation after pleading guilty to the transportation of a large amount of marijuana in his tractor-trailer in the Commonwealth of Kentucky. (2)

It is hard to think of any public policy that is less controversial than the removal of criminal aliens. (3)

In courtrooms, jails, and police stations across the United States, criminal law and immigration law converge with unprecedented intensity. (4) Between 1990 and 2010, immigration offenses became the most common federally prosecuted crimes in the United States. (5) In a separate manifestation of the convergence of criminal and immigration law, since 1997, when the executive branch began to enforce major new criminal-immigration legislation, (6) approximately one million immigrants have been deported or removed (7) from the United States as a consequence of a criminal conviction. (8) Approximately twenty percent of those deported due to a criminal offense were in the country lawfully, many having lived in the United States for decades; most of the relevant violations involved only minor, nonviolent crimes. (9) Noting this increasing integration of U.S. criminal and immigration law, the U.S. Supreme Court in Padilla v. Kentucky (10) remarked that:

The landscape of federal immigration law has changed dramatically.... While once there was only a narrow class of deportable [criminal] offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation. The "drastic measure" of deportation ... is now virtually inevitable for a vast number of noncitizens convicted of crimes. (11) This far-reaching interpretation of criminal and immigration law--the de facto use of criminal law as an immigration regulatory proxy--raises a set of fundamental questions: Does this convergence embody a desirable framework for immigration regulation? How well does criminal law capture relevant characteristics signaling un-belonging or undesirability? Moreover, what does criminal-immigration enforcement portend for criminal law administration? And why has immigration enforcement come to rely so heavily on criminal law as a proxy enforcement regime? (12)

Although at first blush, immigration enforcement focused on "criminal aliens" (13) may seem eminently reasonable--after all, criminal law presumably identifies relatively undesirable noncitizens engaged in bad (i.e. criminal) behavior--this Article challenges that assumption through an account of the failings, persistence and possible undoing of the convergence of U.S. criminal and immigration law. This Article elucidates the reasons why, contrary to what is commonly thought to be the case, criminal law serves as a poor immigration regulatory proxy. It then explores the motivations for the intertwining of U.S. criminal and immigration enforcement despite profound limitations and associated harms. Finally, it examines available approaches to addressing harms generated by the convergence of U.S. criminal and immigration law.

Toward these ends, this Article engages the most significant justifications of the convergence presented in previously unexamined policy directives by U.S. Immigration and Customs Enforcement ("ICE"), as well as in a small corpus of immigration law scholarship. Dominant justifications of criminal-immigration enforcement may be classified in terms of efficient allocation of limited resources, as proposed by high-ranking ICE officials; (14) in reference to political palatability, as elaborated by Professor Peter H. Schuck; (15) or on a legal economic theory of informational advantage, as suggested by Professors Adam B. Cox and Eric A. Posner. (16) Also implicit in explanations of the wisdom of criminal-immigration enforcement, though seldom if ever expressly articulated, are a constellation of ideas about the nature of immigration as a form of trespass or privilege, or as a contractual relationship (17) subject to retaliatory termination and possibly criminal punishment in the event a noncitizen becomes subject to criminal law enforcement. (18) A spokesperson for the immigration agency put it this way: "If you haven't become a citizen, you are here as a privilege. And, if you commit a crime, you lose that privilege." (19) In sum, these ideas--sounding alternately in the register of efficient resource allocation, political palatability, informational advantage, trespass, contract violation, and punishment--seek to justify criminal law administration as a proxy immigration regulatory regime.

This Article challenges these justificatory accounts, demonstrating that the convergence of U.S. criminal and immigration law in action--as embodied in U.S. government practice and largely embraced in U.S. public discourse--does not represent a defensible immigration law enforcement approach. To the contrary, this convergence has brought about devastating effects: misapprehending the range of complex legal and social concerns to be managed in the immigration and criminal law contexts; harming U.S. citizens, lawful residents, refugees, and undocumented persons alike; and undermining efforts to implement alternative immigration regulatory frameworks.

So again, the question: Why has the convergence of U.S. criminal and immigration enforcement effectively captured the field of immigration law enforcement when it so poorly addresses immigration regulatory concerns and undermines criminal law enforcement? In contrast to existing explanatory accounts regarding the convergence of U.S. criminal and immigration law, this Article contends that this capture has little to do with efficient resource allocation or informational advantage--in fact, the analysis to follow will demonstrate that criminal law contact offers information often inapposite to immigration regulatory decision-making--and much to do with the ambivalent social, political, and psychological place of immigration in the U.S. national imagination. (20)

In short, the core argument of the analysis to follow is that the convergence of U.S. criminal and immigration enforcement has persisted, despite the fact that it does much harm and relatively little good, because it serves to alleviate two forms of pervasive cognitive dissonance in the United States regarding immigration and immigrants--one form of dissonance involves economic unease, and the other, racial anxiety. (21) Drawing on a stock crime narrative framework developed originally in the context of...