By Emily Torstveit Ngara
In announcing his run for President of the United States, Donald Trump brought anti-immigrant rhetoric back into the national spotlight by proclaiming that “[w]hen Mexico sends its people, they’re not sending their best…They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.” Trump’s vitriol is nothing new. Throughout the history of U.S. immigration, the same themes recur in cycles. One prominent theme is “immigrants are immoral, dangerous criminals.”
This rhetoric does more than promote a hostile environment for the estimated 22.5 million noncitizens living in the U.S. It also shapes policies and laws with far-reaching effects.
The “immigrants are immoral, dangerous criminals” theme has surfaced many times over the course of U.S. history. Resurgence of this rhetoric frequently precedes changes in law and policy designed to exclude or expel larger numbers of immigrants, particularly those who have had contact with the criminal justice system.
The first official statements about immigrants as dangerous criminals stemmed from reports in the 1850’s that European countries were offering pardons to serious offenders if they promised to emigrate to the U.S.: “A policy has long prevailed on the continent of Europe to transport paupers and criminals to this country.” Edward P. Hutchinson, Legislative History of American Immigration Policy: 1798-1965, 66 (University of Pennsylvania Press, 1981). In response, the Page Act was passed in 1875. The Act excluded individuals serving felony sentences from entering the U.S.
In the wake of World War I and the Russian Revolution, fears arose that immigrants are more likely to commit violent crimes and bring their Bolshevist ideology to corrupt Americans. The Immigration Act of 1917 introduced removability for “crimes involving moral turpitude.” In a 1920 House debate on a complete moratorium on immigration one representative quoted from a New York grand jury report that had been published in the New York Times: “A study of the record of our proceedings shows that all of the homicides and most of the graver, most desperate, and heinous crimes were committed by foreigners, who palpably have no understanding of the genesis or genius of American institutions.” Cong. Rec., H.133 (Dec. 9, 1920). While the moratorium on immigration did not pass, the following year the Johnson Quota Act did succeed in severely restricting immigration from Eastern and Southern Europe, Asia, and Africa.
A tactic that has been successful in boosting crime statistics is to blame immigrants for crimes committed both by and against them. For example, a 1954 Stanford Law Review article addressed the “problem” of Mexican immigrants for law enforcement in the Southwest:
Reliable statistics on Wetback contribution to criminal activity are not available. But reports of individual enforcement officers indicate that it is substantial. The Yuma County, Arizona, court records for a six-month period show that 75 percent of the crimes committed were by or against Wetbacks. Similarly, the district attorney of Hidalgo County, Texas, stated that aliens committed 75 percent of felonies in his county, 95 percent of the burglaries, and that 50 percent of the murder cases were those of aliens. To such statements can be added a flood of newspaper reports tending to show that the Wetback has aggravated problems of law enforcement wherever he has been encountered.
Wetbacks: Can the States Act to Curb Illegal Entry?, 6 Stan. L. Rev. 287, 291 (1954).
That same year, the quasi-military “Operation Wetback,” (recently lauded by Mr. Trump) resulted in the deportation of approximately 3.7 million individuals of Mexican heritage, including U.S. Citizens. Yolanda Vázquez, Perpetuating the Marginalization of Latinos: A Collateral Consequence of the Incorporation of Immigration Law into the Criminal Justice System, 54 HOW. L.J. 639, 653 (2011).
1980 again saw fears of criminals being “sent” from other countries with the arrival of the Mariel Cubans. The head of the House Subcommittee on INS activities stated that “as many as 700 ex-convicts had been rounded up by the Cuban government and given a choice of going to the United States or back to jail.” Mark S. Hamm, The Abandoned Ones: The Imprisonment And Uprising Of The Mariel Boat People 55 (Northeastern University Press, 1995). The Mariel Cubans were detained in makeshift refugee camps during the lengthy process of case-by-case review and medical screenings. Some of the released Mariel Cubans were taken back into custody and detained indefinitely for non-criminal parole violations or criminal offenses. These detainees were described by the INS district director in Atlanta as extremely dangerous individuals:
We’ve got everything from skyjackers, arsonists, rapists, murderers, aggravated assaults, crimes of virtually every type you can think of. A couple hundred are hard-core deviates that do strange things. They are psycho cases. I would be for keeping these people in jail for the rest of their lives before I would take a chance of letting one harm your child.
Id. at 80.
The arrival of the Mariel Cubans coupled with the following year’s arrival of Haitians brought about a change in U.S. refugee detention policy. The 1980 Refugee Act established admission procedures for standard refugees or those of “special concern,” but President Carter elected not to follow those procedures, stating that “[o]ur laws never contemplated and do not adequately provide for people coming directly to our shores the way the Cubans and the Haitians have done recently.” Peter T. Moore, Developments: The Refugee Act of 1980, 10 Denv. J. Int’l L. & Pol’y 155, 157-8 (1980). In 1982, the INS promulgated a rule providing for the detention of all arriving noncitizens without travel documents, including asylum seekers. 8 C.F.R. §§ 212.5, 235.3 (1983).
Even tragic incidents unconnected to immigration can reinvigorate fear-mongering about dangerous criminal immigrants. Although the perpetrators of the 1995 Oklahoma City Bombing were Americans, there was a rise in concern about domestic terrorism and immigrant crime following the attack. At a rally in Washington, D.C. shortly after the bombing, one protestor claimed “[t]here’s a lot of crime going on (that) is committed by immigrants … There are many cases of immigrants murdering our children.” Immigrants Blamed For U.S. Crime ‘Murdering Our Children,’ Washington Protest Rally Told, The Globe and Mail (Canada) (May 10, 1995).
Congress was gripped by the same concerns. A letter from the Salt Lake City Police Department read on the House floor not only blamed immigrants for crimes committed both by and against them, it also assumed that suspects were guilty: “Of the 27 homicides, 14 of the victims were undocumented aliens (52%) and 8 of the suspects were undocumented aliens (30%). These statistics clearly show that criminal undocumented aliens are violent and dangerous to our community.” 142 Cong. Rec. H2449 (daily ed. March 19, 1996). Representative Lamar Smith of Texas was one of the sponsors of 1996’s Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). In support of his bill, Representative Smith told the House:
Over one-quarter of all Federal prisoners are foreign born, up from just 4 percent in 1980. Most are illegal aliens that have been convicted of drug trafficking. Others, like those who bombed the World Trade Center in New York City or murdered the CIA employees in Virginia, have committed particularly heinous acts of violence. Illegal aliens are 10 times more likely than Americans as a whole to have been convicted of a Federal crime.
142 Cong. Rec. H.2379-80 (daily ed. March 19, 1996).
IIRIRA expanded the term “aggravated felony” by reducing the required length of sentence imposed to classify several non-violent offenses as aggravated felonies. This meant that many misdemeanor convictions would now be considered aggravated felonies for immigration purposes. At the same time the Act eliminated discretionary relief available to individuals convicted of aggravated felonies.
Concerns regarding border security and dangerous immigrants increased substantially in the years following September 11, 2001. The years 2004 and 2005 saw a dramatic increase in federal criminal prosecutions for entry without inspection. Legislation was introduced to address these concerns because “ICE needs help in capturing the thousands of convicted aliens now loose on the streets of America-including convicted murderers, rapists, drug dealers and child molesters…” Jerry Seper, Immigration Bill’s Author Says Foes Favor Criminals, The Washington Times, Sept. 23, 2004, at A06.
In 2005, the House passed the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005. H.R. 4437, 109th Cong. (2005). The bill criminalized unlawful presence and the provision of medical and other humanitarian aid to migrants crossing the Southern border, strengthened ICE relationships with local law enforcement, and required that individuals who had violated certain civil immigration laws be included in the National Crime Information Center database. The bill did not pass the Senate.
The 2008 election of Barack Obama ignited fears that the son of an immigrant may be soft on criminal immigrants. Despite the fact that the Obama administration has now deported more people than any other administration in history, President Obama is frequently criticized as having an “anti-enforcement agenda.” In 2010, in response to a perceived failure of the federal government to satisfactorily enforce immigration laws and protect the interests of its citizens, Arizona passed S.B. 1070, the Support Our Law Enforcement and Safe Neighborhoods Act. The law became known as the “show me your papers” law and was quickly challenged in federal court. In the ensuing media coverage, then-Governor Jan Brewer stated that undocumented immigrants “are coming here and they’re bringing drugs, and they’re doing drop houses and they’re extorting people and they’re terrorizing families. That’s the truth.” State Senator Sylvia Allen claimed that “in the last few years 80 percent of our law enforcement that have been killed or wounded have been by an illegal.” Neither assertion was supported by statistics.
In 2012, a House Judiciary Committee report analyzed the number of individuals identified by the Secure Communities program who the administration declined to remove and were subsequently arrested. Committee Chairman Lamar Smith blamed the administration for the subsequent criminal activity, stating that “[t]he Obama administration could have prevented these senseless crimes by enforcing our immigration laws… But President Obama continues to further his anti-enforcement agenda while innocent Americans suffer the consequences. His unwillingness to enforce immigration laws puts our communities at risk and costs American lives.”
As has been seen most recently, the theme of “immigrants are immoral, dangerous criminals” has been used to goad the Obama administration into ever-higher removal numbers. The administration’s stated focus for enforcement resources is on “felons, not families, criminals not children.” However, the continued detention of women and children fleeing violence in Central America, the removal of unaccompanied minors to perilous conditions, and orchestrated raids on refugee families belie that focus.
The “immigrants are dangerous criminals” rhetoric is a powerful force in the development of immigration law and policy. It triggers basic human instincts such as survival, self-preservation, and fear of the “other.” This rhetoric inflames the underlying xenophobic fears in a segment of the American public. It also inspires elected officials to draft increasingly harsh and overbroad measures in response. Perhaps most distressingly, however, it also drives would-be allies of the immigrant rights movement into making policy choices with devastating impacts on families and individuals seeking safe haven in the United States.
Emily Torstveit Ngara is a Clinical Teaching Fellow in the University of Baltimore Immigrant Rights Clinic. Her forthcoming article Aliens, Aggravated Felons, and Worse: When Words Breed Fear and Fear Breeds Injustice, discusses how the language of immigration law manipulates public perceptions of noncitizens.
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