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

• Author: McLeod, Allegra M.
• Position: III. Casualties of the U.S. Criminal-Immigration Convergence A. Concern for Membership 2. Unauthorized Immigrants through Conclusion, with footnotes, p. 143-178

2. Unauthorized Immigrants

   Another category of persons with compelling membership claims targeted for criminal-immigration enforcement is that of immigrants who are undocumented or have overstayed a temporary visa, but nonetheless have accumulated a long period of residence and substantial ties to the United States. Some of these persons have strong membership claims: they may have lived in the United States for much of their lives, attended school in this country, speak English as their primary language, and may be husbands or wives, parents, or children of U.S. citizens or legal residents. (225) In fact, the membership claims of certain undocumented residents may be as strong if not stronger than certain lawful permanent residents or citizens.

   Removal of long-term unauthorized residents on the basis of criminal law contact may result in forcible family separation. The forcible physical separation of U.S. citizen children from their parents--impacting many thousands of children since 1997 (226)--causes enormous suffering for those children, and possible economic devastation for the entire family when the deportee is the primary income earner. (227) In this regard, the large-scale family separation effected by U.S. criminal-immigration enforcement runs contrary to one of the most significant motivating principles of the post-1965 framework of U.S. immigration law: family unity. (228) Reflecting this commitment, immigration by immediate relatives of U.S. citizens--spouses, parents, and children--is not subject to the numerical limitations that govern other types of immigration. (229)

   Just as with lawful residents, U.S. citizens, asylees and refugees, criminal law contact serves as a poor proxy for un-belonging in the case of undocumented residents with strong membership claims. From the standpoint of a contract (230) or punishment justificatory theory, (231) for those individuals with strong membership claims, permanent banishment from the United States as a result of minor criminal law contact offends similar principles regarding proportionality as does the banishment of U.S. citizens or lawful permanent residents. Although other undocumented residents may have only recently arrived in the United States and possess weaker membership claims, to the extent the U.S. criminal-immigration regime targets these individuals for federal criminal prosecution, a crime-centered framework distorts the complicated circumstances of poverty and disadvantage that shape migration flows. A trespass justification (232) is limited as applied even to unauthorized immigrants, because at least for many, the circumstances that drove them to immigrate render their presence somehow less than purely voluntary. The functional invitation extended to unauthorized migrants for employment, and their contribution through taxation, contradicts a conception of their presence as a forced intrusion, hence undermining a trespass theory of criminal-immigration enforcement as applied to this group. (233)

   If the four categories of persons with strong claims to U.S. membership who are unjustifiably targeted by the convergence of U.S. criminal and immigration enforcement are removed as legitimate targets--the many thousands of lawful permanent residents, U.S. citizens, refugees and asylees, and long-term undocumented residents---criminal law contact on the part of noncitizens can no longer serve as a ready proxy for deportation processing. Even if the foregoing analysis only persuades as to U.S. citizens, asylees or refugees, or lawful permanent residents, and not as to unauthorized immigrants, it remains the case that criminal law contact cannot then serve, on its own, as a basis for identifying immigrant targets for removal, because the sorting of lawful and unlawful immigrants, refugees and those without claims to asylum, is itself a legally and factually complicated task. This weakens considerably the efficiency rationale for relying upon criminal law as an immigration screen as any concession regarding the unsuitability of U.S. citizens, lawful residents, asylees or refugees as legitimate targets would require substantial additional procedural protections to differentiate appropriate from inappropriate targets. (234) If criminal law is to function as an immigration screen on a large scale, nothing short of universal and immediate access to counsel would suffice to protect the interests of vulnerable populations given the complexity of the provisions, defenses, and forms of relief at stake. Even that might ultimately prove inadequate as will be explored infra in Part V, but only such a dramatic procedural rights reform would potentially be adequate to identify that more limited number of cases in which criminal law contact serves as a minimally defensible proxy for un-belonging, trespass, or a trigger for proportional immigration consequences.

   2. Misguiding Crime Control

   Not only does criminal law function poorly as a screen for membership or belonging, but criminal-immigration enforcement is also flawed as a crime control strategy or screen for criminal threat. Accordingly, in integrating criminal and immigration enforcement, the administration of criminal law is undermined. At the outset, a critical problem with criminal-immigration enforcement is that when criminal law enforcement's function extends to immigration enforcement, it can no longer be assumed that criminal law contact is initiated due to an individual's priority as a criminal concern rather than on the basis of (possibly misguided) immigration concerns. So, criminal law administration is refocused from an emphasis on crime control to a dual function of immigration regulation and crime control, potentially distorting both. Separately, insofar as criminal-immigration enforcement focuses on criminally prosecuting immigration offenses, it allocates crime control resources to an unnecessary prosecutorial program--one which is difficult to justify either on a deterrence or retributive approach. Further, as a broader crime control strategy, criminal-immigration enforcement is misguided because it focuses resources intensively on immigrant communities, thereby catching immigrants committing minor crimes, when serious crimes are likely being committed elsewhere. (235)

1. Distorting Crime Control

   The incentives and conduct of criminal law enforcement officers are shaped by knowing that the U.S. government has set out to regulate immigration in significant part by targeting immigrants who come into contact with criminal law enforcement. Criminal law enforcement officers have enormous discretion and a great span of substantive criminal law violations they may pursue. (236) The criminal law is not a perfectly insulated screen that functions independently as a proxy for immigration decision-making. Rather, with immigration officers and criminal law enforcement personnel working cooperatively, and with explicit instruction to utilize criminal law as an immigration screen, an expected outcome would be that immigrants would be targeted for criminal-immigration enforcement because that is how the state has resolved to regulate migration, not because the affected immigrants are in most instances particular priorities for criminal law enforcement due to the danger they pose to the public. (237) Broad discretionary criminal law enforcement authority makes it relatively easy for an officer so inclined to arrest and book a suspected immigrant for the short period required to perform an immigration screen. The availability of federal reimbursement to state governments for incarcerating foreign-born noncitizens further incentivizes state law enforcement agencies to target such persons quite apart from their priority as criminal suspects. (238)

   Initial empirical research on the outcomes associated with ICE's screening in jails and prisons supports the distortion of crime control administration predicted by merging criminal and immigration enforcement activity. When law enforcement in Irving, Texas began to have 24-hour access (via telephone and video teleconference) to ICE in the local jails, discretionary arrests of Latinos for petty offenses rose immediately and substantially. (239) The dramatic rise in low-level arrests of Latinos particularly impacted arrest levels for minor traffic offenses. (240) This arrest data provides strong evidence that the increase in arrests was attributable not to an increase in lawless behavior among Latinos, but to police engagement in immigrant profiling tied to the ICE screening program. (241)

   All of the prevailing justifications of the U.S. criminal-immigration convergence overlook the likelihood that the government's determination to regulate immigration through criminal law enforcement will impact the way in which criminal law administration itself functions, distracting efforts from a focus on other priorities towards immigration regulation. When criminal law acts as an immigration screen, it does not identify independently criminal wrongdoers but reshapes criminal law administration into, in part, an immigration regulatory regime. Suspected noncitizens become more likely targets of criminal law enforcement even when those noncitizens, all things considered, are not otherwise a pressing crime control concern.

2. Unnecessary Prosecutions

   Insofar as criminal-immigration enforcement is directed towards criminally prosecuting undocumented persons for immigration-related offenses, it results in enormous, unnecessary financial burdens to the impacted enforcement and punishment apparatuses. These costs are unnecessary because much of the targeted population is already deportable absent the criminalization of their infractions. (242) Undocumented persons are in most cases subject to removal from the United States whether or not they have committed any crime, such as illegal entry, reentry, or another offense. (243)

   The justifications for these criminal-immigration...