Every day, roughly 33,000 people spend the night imprisoned while waiting to learn whether they will be allowed to remain in the United States. Thousands more are confined on charges of having committed an immigration crime. Others are behind bars because they were already convicted.
The substantive law that applies to people in each of these categories differs: civil law governed by the Immigration and Naturalization Act for those in removal proceedings, and criminal law governed by the federal penal code (and, to a smaller degree, its state counterparts). That is largely where the differences end and the similarities begin.
Today, the line between civil and criminal immigration law is blurrier than ever. Many of the same law enforcement actors investigate alleged civil or criminal violations of immigration law. It’s not uncommon for the Department of Homeland Security’s Customs and Border Protection officers to arrest individuals who soon thereafter find themselves in criminal proceedings. It’s similarly common for such people to end up in civil removal proceedings. Indeed, CBP and DHS’s Immigration and Customs Enforcement unit together give federal criminal prosecutors much of their work. At last count (fiscal year 2010), 53.8% of matters referred to U.S. Attorneys for possible criminal prosecution came from DHS. Mark Motivans, Federal Justice Statistics, 2010, at 12 tbl. 5 (2013). Needless to say, DHS is heavily involved in identifying potentially removable individuals as well.
More importantly, individuals alleged or found to have violated immigration law—whether through civil or criminal process—frequently wind up confined. DHS reported confining 477,523 people in fiscal year 2012 (which I blogged about here), the most recent year for which data are available and the largest civil immigration detention population since the government has kept reliable data (and, I suspect, the largest such population ever). John F. Simansky & Lesley M. Sapp, Immigration Enforcement Actions: 2012 Annual Report 5 (2013). Meanwhile, the U.S. Marshals Service, the federal agency charged with holding pretrial criminal detainees, arrested and booked 82,438 people suspected of an immigration criminal violation in fiscal year 2010. Motivans, Federal Justice Statistics, 2010, at 3 tbl. 2. Upon conviction, federal prisoners are turned over to the federal Bureau of Prisons. Approximately 12% of federal inmates in recent years—numbering roughly 23,700 people in fiscal year 2012—have been sent there because of an immigration crime conviction. E. Ann Carson & Daniela Golinelli, Prisoners in 2012: Trends in Admissions and Releases, 1991-2012, at 43 appx. tbl. 10 (2013). Whatever one thinks of the wisdom of such a practice, it is undeniably historically anomalous.
Moreover, the practice and effect of imprisonment is the same whether characterized as civil or penal. Both depend on a rhetoric of criminality that has overtaken immigration law discussions among policymakers. Both are intended to segregate people deemed dangerous from the public. And both have corrosive effects on the people detained, their communities, and the legitimacy of the immigration law system itself.
For some time now, I’ve been interested in understanding why and how immigration imprisonment came to occupy such an enormous presence in modern immigration law enforcement. Why and how did we get to the point where imprisonment is such a central feature of civil and criminal immigration law enforcement? In Immigration Detention as Punishment (UCLA Law Review 2014), I tackled the why through the lens of statutory development and construction. Federal statutes authorizing detention as a means of enforcing immigration law, I showed, were heavily intertwined with anti-crime legislation during the 1980s and 1990s, specifically anti-drug initiatives that formed the early “war on drugs” legislation. Because Congress and the president approached immigration detention as a means of targeting illicit drug activity, I argued, we need to rethink law’s mantra that detention meted out as part of the civil removal process is necessarily civil.
In my latest article, Naturalizing Immigration Imprisonment (California Law Review forthcoming 2015), I turn to the how question: how did we get to the point where migrants are imprisoned in record numbers by civil and criminal authorities for doing nothing more than violating immigration laws? The answer, I argue, lies in numerous legislative and policy decisions that have “naturalized” immigration imprisonment. Confinement isn’t just common. To describe it as normal would be accurate, but incomplete. Instead, it has become its own legal creature standing alongside but apart from other aspects of immigration law enforcement—in particular forcible removal. It is periodically fueled by broader legislative authority to confine, nurtured by countless interested parties, and supported by vast amounts of money. It has, in effect, come to be self-sustaining. Its existence demands its existence.
Much of the article details this process of naturalization. As I explain at the beginning of the section titled “Entrenching Immigration Imprisonment,”
There are three primary phenomena that constantly drive immigration imprisonment. First, having thoroughly embraced the rhetoric of criminality and its view of migrants as threatening, government authorities have repeatedly adopted policy choices that expand imprisonment even in the face of reasonable alternatives. They have in effect become locked into imprisonment as a policy. Second, immigration-policing agencies, as institutions are prone to do, consistently interpret imprisonment imperatives in such a way that expands their own power. Federal and state authorities have created an immigration imprisonment dragnet out of a modicum of statutory authority to imprison. Third, a host of third parties have developed to facilitate immigration imprisonment. In their own way, each of these institutions pressure legislators to maintain and expand imprisonment.”
Policymakers, this section suggests, can’t imagine a functioning immigration law enforcement regime without imprisonment.
Because of the rhetoric of criminality, federal, state, and local government officials have worked—in most instances together, but with a few notable exceptions—to develop a massive pipeline into immigration imprisonment. The criminal justice system relies on initiatives such as Operation Streamline and increased attention to illegal entry and illegal reentry prosecutions. The civil immigration law regime depends heavily on the INA’s mandatory and discretionary detention provisions, INA § 236(c) and (a), respectively, an often-overlooked initiative called the National Fugitive Operations Program. Other initiatives are more difficult to characterize using our standard criminal or civil binary, but are no less important. From Secure Communities to the Criminal Alien Program and ICE’s rampant use of immigration detainers, these blended criminal-civil enforcement tactics are best viewed as crimmigration imprisonment initiatives. This picture of the immigration imprisonment pipeline is the first attempt at a systematic mapping of the many ways migrants wind up imprisoned.
The silver lining I offer is twofold, with the first being somewhat counterintuitive. The article illustrates the fact that immigration imprisonment did not become naturalized through accident or preordained fate. It became naturalized through a series of deliberate choices made by numerous actors over many decades. Undoing immigration imprisonment is likewise possible through deliberate measures. State and federal penal populations are leading the way by reducing their prison populations, my second silver lining. Only a handful of years ago it was impossible to imagine that prison population growth would slow then reverse in the United States. The impossible, data from some states and the federal government in recent years indicate, is becoming possible.
Restructuring immigration policing could take a similar trajectory. I don’t develop this idea in Naturalizing Immigration Imprisonment. Instead, I leave it to my next article to do that.
Given the delayed publication schedules of many academic journals, I have some time before Naturalizing Immigration Imprisonment goes to the editors at the California Law Review. I invite any comments that I could incorporate into the final version.
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