A working conceptualization of crimmigration law, at least as it plays out in the United States, must start with the radical changes to substantive law that I’ve described in parts I and II of this series of essays on defining crimmigration law. But it can’t end there. As an emergent area of law, crimmigration law is highly functional. Consequently, one of its lasting—and, frankly, devastating—impacts, enforcement, merits as much attention as the substantive law previously discussed. Indeed, I give enforcement methods special attention in Part III of my book Crimmigration Law.
Crimmigration law hasn’t simply developed in statutes or judicial decisions. It’s not just words on paper. It is also, to borrow the tired phrase, boots on the ground. There are more than 20,000 Border Patrol officers alone today, most stationed across the Southwest. Of course, the federal government has policed the border since the 1800s when it first returned to the business of immigration law. And the states had done this to a limited extend for about a century before that.
That historical practice illustrates immigration law enforcement rather than crimmigration law enforcement. The latter develops when we begin to see the strong-armed tactics typically associated with criminal law expand well beyond those confines, and when we begin to see the lax procedural protections traditionally associated with civil immigration law become the norm in criminal proceedings.
Traveled down Highway 281 or Highway 77 to the Río Grande Valley of South Texas, where I was born and raised, provides a glimpse of watered down procedures making their way into criminal processes in the name of migrant policing. The Fourth Amendment’s clear demand that law enforcement officials provide objective, articulable indicators of suspicion before justifying a stop are loosened quite dramatically when the border is a mere 100 miles south.
The threat of cross-border traffic only grows in the modern era, to paraphrase two Supreme Court decisions from the mid-1970s, when the threat that Mexicans riding in a northbound vehicle are carrying drugs or lacking authorization to be there in the first place is too serious to demand of police what we do in the rest of the country. No wonder that the Border Patrol’s historical responsibility to police immigration was expanded in the early 1990s to include a central role in the burgeoning war on drugs. Or that immigration law and anti-drug activity became so intertwined in the late twentieth century that President George H.W. Bush described the Immigration Act of 1990 as “improve[ing] this Administration’s ability to secure the U.S. border—the front lines of the war on drugs….”
That’s not the only way standard constitutional norms get watered down. In federal district courts across the Southwest it has become commonplace to see migrants processed en masse during criminal proceedings for entering the United States without authorization or doing that after having been removed—10, 20, as many as 75 defendants all brought up at once under the auspices of an initiative called Operation Streamline. This despite the very clear statement in Rule 11 of the Federal Rules of Criminal Procedure that the judge must address each defendant “personally” and ensure that a plea is entered voluntarily.
I speak to large groups fairly regularly. Indeed, many of my classes have as many students enrolled as defendants brought before a federal judge in an Operation Streamline proceeding. If I ask a question to a class of students as a whole I’m likely to get some murmur of “yes” or “no” back. I have no idea if some students kept their mouths closed. This is not a particularly strong pedagogical move, but the stakes are fairly low.
That “murmur or medley” of indistinct responses is much more problematic when the stakes are much greater: the possibility of conviction followed by the likelihood of removal. And yet this kind of exceptional plea process has become so routine that it emblematizes crimmigration law. After a lot of litigation, the Ninth Circuit finally took issue with this practice at its most extreme, but it goes on, including in the Ninth Circuit, only with a minor twist: judges inform defendants of their rights en masse and hear “yes” or “no” individually.
That state of exceptionalism doesn’t end there. It goes on to make the Fourth Amendment exclusionary rule an afterthought in removal proceedings—relegated to situations in which the Fourth Amendment wasn’t just violated, but was violated egregiously or systematically.
This same exceptionalism helps explain why the vast civil immigration detention center archipelago that ICE runs isn’t subject to a single set of federal oversight standards—it’s subject to three different standards—all of which are modeled on penal norms. As the U.S. Commission on Civil Rights recently put it, “immigration detention centers were built, house detainees, and operate like criminal penitentiaries.”
The state of exceptionalism also helps explain why private prison companies and local governments reap millions upon millions of dollars annually in revenue from ICE for renting out bed space in jails and other secure facilities even though the inmates are ostensibly not being punished. Even the most humanitarian efforts to gain traction among prominent policymakers, including presidential candidate Senator Bernie Sanders, would push private prison corporations out of the business of commodifying human bondage, but wouldn’t do anything about the fact that governments are also economically invested in imprisonment. Nor would it do anything to curtail private profiteering off delivery of prison services.
Combined, these and similar enforcement mechanisms have reshaped policing and had profound, life-altering impacts on migrants. All while blurring the boundary between what constitutes civil and criminal enforcement. Instead, these practices emblematize crimmigration law enforcement.