Criminal law and immigration law both have long lineages and robust bodies of authority defining their contours. In recent years, many people, including me, have argued that the boundary between the two has become increasingly blurred into the crimmigration phenomenon. Coined by legal scholar Juliet Stumpf in 2006, crimmigration has quickly developed as a distinct line of inquiry in multiple disciplines—sociology, criminology, political science, and, of course, law.
Despite the growing body of case law and scholarly commentary, few of us who regularly use the term crimmigration have attempted to define just what we mean. But before we can talk about crimmigration law’s substance, we need to be clear about what the term even means. In my book Crimmigration Law, I set out to do just that for law in the United States.
At bottom, crimmigration analyzes the merging of criminal and immigration norms that have marked various legal regimes worldwide during the last two or three decades. In its identity as a legal phenomenon in the United States, crimmigration law consists of three strands. First, there is the expanded number of crimes that can lead to immigration problems. Second, there is the increasing amount of migration-related activity that can and does lead to criminal prosecution. And third, there are unique or uniquely harsh methods of regulating the lives of migrants that can not realistically be described as criminal law enforcement or civil immigration law enforcement techniques as we’ve traditionally understood those categories.
Crimmigration Law devotes a part of the book to each one of those sections. Beginning today, I’ll spend the next week describing each aspect of crimmigration law.
The book begins where crimmigration law begins: an expanded appetite to remove migrants who have committed a remarkably large number of crimes. Historically crime was punished through the criminal justice system. Even for migrants, legal troubles usually ended there. All that changed beginning in the mid-1980s. As part of the war on drugs, Congress and multiple presidents steadily added to the list of crimes that could result in removal: what Justice Brandeis once described as losing “all that makes life worth living.” Ng Fung Ho v. White, 259 U.S. 276, 284 (1922).
No statute better illustrates this change than the Anti-Drug Abuse Act of 1988. As its name suggests, it was intended to target illicit drug activity. It also added two little words to the Immigration and Nationality Act that have changed the fortunes of millions of migrants: aggravated felony.
While I go into a bit of this history in the book’s Introduction, Part I begins the book’s substantive section with a focus on the current state of the law about aggravated felonies and other types of crimes that result in removal. The following chapter involves a discussion of ways that migrants who have been caught up in the criminal justice system can nonetheless avoid removal. Part I closes by turning to the legal authority ICE relies on to detain more than 400,000 people every year and, importantly, limits to that power.
These are not minor issues for migrants today. Close to 200,000 people who have been convicted of a crime are removed every year, depicted by the upper portions of the columns in the chart above (click on the chart to enlarge). Of course, not all crimes are made the same. Murder is not jaywalking. It’s also not equivalent to entering the United States without the federal government’s permission. People who have been convicted of federal immigration crimes make up roughly a third of the so-called criminal aliens removed every year. Another 15% or so were convicted of drug crimes, including the kind of activity that’s regulated, taxed, and sold during business hours at the store a block from my house in Denver.
All of this entails in-depth discussions of some of the thorniest doctrinal questions making their way through the courts with immense consequences for migrants. When, for example, is it appropriate to move from the categorical approach to the modified categorical approach? The Supreme Court’s decision in Descamps v. United States (which I previously blogged about here) has given defense attorneys very strong legs to stand on, but removal risks are nonetheless everywhere. Relatedly, the Court has found itself repeatedly dealing with the government’s adamant desire to remove a broad swatch of minor drug offenders. Despite being characterized as politically conservative, the Roberts Court has actually provided migrants with a remarkable amount of breathing room. In that same vein, how do courts unravel the aggravated felony, controlled substance offense, or crimes involving moral turpitude provisions, all of which are constant players in immigration courts?
Regular crImmigration.com readers know that I discuss these topics regularly. Each make major appearances in Part I of my book as well. They do so because they occupy a principal feature of the merging of criminal law and immigration law that defines crimmigration law.
Next week I’ll turn to the other two aspects: how migration-related activity has increasingly been criminalized and unique enforcement measures.