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The intersection of criminal law and immigration law

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After regularly updating crimmigration.com from January 2009 until November 2022, I have stopped doing so. I hope you continue to benefit from the blog as an archive. For up-to-date information about my work, visit ccgarciahernandez.com. – César

Time to Rethink Immigration Detention

Last month’s release of immigrants from immigration detention centers brought praise from immigrants’ rights advocates and impassioned criticism from conservative politicians. House Speaker John Boehner decried the decision to “let criminals go free” and chairman of the House Judiciary Committee Bob Goodlatte added, “By releasing criminal immigrants onto the streets, the administration is needlessly endangering American lives.”

It was no surprise that the White House quickly distanced itself from last month’s events. The Obama Administration has expanded the immigration detention population like no other. Last year’s 429,247 detainees represent the highest number of people ever detained in a single year by the Immigration and Customs Enforcement Agency, the Department of Homeland Security unit responsible for detaining people who are waiting to learn whether they will be allowed to remain in the United States. With a population of this size under its control ICE is the largest imprisoning agency in the country and spends about $2 billion a year doing that.

Meanwhile ICE explained that it vetted the 2,228 released individuals to ensure that they did not pose a danger to the public or flight risk. Everyone released remains in deportation proceedings and must keep in close contact with ICE agents.

Unprecedented numbers of immigration prisoners didn’t arise accidentally or even because of any increase in criminal activity by immigrants. In fact, foreign-born individuals tend to commit less crime than native-born individuals. Instead, these eye-popping numbers developed because the Obama Administration, building off a trend that began in the last years of the Bush Administration, decided it need to be tough on immigrants to convince skeptical lawmakers to come around on comprehensive immigration reform. Whether that calculation will pay off or whether the cost will end up being worth it remains to be seen.

What we do know is that the rise in immigration imprisonment has caught up hundreds of thousands of people who pose no particular danger to society. An immigrant convicted of possessing a handful of marijuana joints, for example, must be imprisoned while an immigration judge decides whether this is enough to deport him. The same goes for a business owner who lies on income tax returns or a young man who jumps a turnstile to get onto the subway. None of these acts inspire much fear, but all are subject to mandatory detention. No judge gets to consider whether these people are dangerous or present a risk of not showing up for their court dates.

People who commit these types of offenses aren’t unusual. Of the 188,382 people deported last year with some type of criminal record 23% had been involved in a drug offense and 22.8% of a traffic crime. Another 19.9% were deported because they were convicted of an immigration crime, activity like entering the country clandestinely that the Obama Administration has increasingly addressed through criminal courts rather than civil immigration courts–again departing from the historical norm.

A 2009 analysis by President Obama’s immigration detention reform point person revealed that a mere 11% of immigration detainees had been convicted of a violent crime. Many of these have lived in the United States for years as permanent residents (green card holders) with permission to live and work here indefinitely. During that time they have developed roots in their communities making them less likely to skip a hearing.

What’s more, many people subjected to detention haven’t been convicted of any crime. People who are caught in the United States without permission to be here are frequently detained. The same goes for people who come to the United States to flee persecution; according to DHS, 15,769 asylum-seekers were detained in 2010, the last year for which statistics are available. Indeed, DHS has no authority to detain anyone on suspicion of having committed a crime or to punish a convicted individual. No matter how much it looks like criminal confinement, immigration detention is recognized by law to be “civil” detention, thus many of the constitutional limitations on the government’s power to deprive a person of his liberty don’t apply (e.g., the Fourth Amendment prohibition against unreasonable searches and seizures, and the Sixth Amendment right to counsel).

To assume that everyone in an immigration prison is a criminal or dangerous, as Boehner and Goodlatte did, is factually incorrect. Immigration prisons reflect the rest of our society: many have committed crimes and a small percentage has actually committed dangerous crimes. But to cast a broad-stroked denunciation that they are all criminals or dangerous, as conservative politicians and commentators did last month, is misinformed.

They alone, however, are not to blame. Putting people in jumpsuits, locking them behind bars, or surrounding them with barbed wire leads to the conclusion that those people must be dangerous. Why else would the government go to the trouble and expense? Comments like Boehner’s and Goodlatte’s suggest an unmistakable logic: If we treat them like criminals, it’s because they must be dangerous. Such reasoning, however, doesn’t match the reality of immigration detention today.

The only way to avoid this is to stop treating immigrants as if they are dangerous when they are not. If last month’s surprise move by ICE accomplishes nothing more, hopefully it will prompt us to ask whether we want to continue relying so heavily on confinement as a tool for enforcing immigration law.

This essay originally appeared on NACLA’s Border Wars blog on March 27, 2013. It’s reposted with permission.

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