By Beth Caldwell
In the context of the current presidential debate, the hate that invoking the term “criminal alien” evokes for a large segment of the U.S. population is tangible. In his immigration speech in Arizona, Donald Trump repeated the term “criminal alien” over and over again. Mike Pence followed suit in the October 4 vice presidential debate, using the term three times in a relatively brief response to a question about immigration policy.
But the Trump campaign is not alone in invoking the “criminal alien” term. President Obama too has framed his immigration policies using this label. He has explained that his Administration is going after “criminals, gang bangers, people who are hurting the community, not after folks who are just here because they’re trying to figure out how to feed their families.” Similarly, when he announced his plans for executive action on immigration, he boasted that deportations of “criminals” had increased 80 percent and explained that he would continue to focus immigration enforcement “on actual threats to our security. Felons, not families. Criminals, not children. Gang members, not a mom who’s working hard to provide for her kids.”
Hundreds of thousands of U.S. citizens whose family members have been deported are painfully aware of the obvious fallacy of positioning immigrants as either criminals or people with families. Yet dismissing “criminal aliens” as undeserving allows the President to reconcile his support for progressive immigration reform with his responsibility for deporting record-setting numbers of people.
This demonization of “criminal aliens” as lacking family times, bad, and worthy of permanent banishment obscures the harms that deportation causes. Labeling migrants as “criminal aliens” overshadows the complicated experiences that cause people to migrate to the U.S. or the strong ties they develop once here. Similarly, the “criminal alien” label eclipses the personal crises that often lead people to break the law, or the racial profiling that drives the disproportionate arrests of immigrants of color. The term implicitly justifies deportation regardless of its impact on people’s mental health, their children, and their futures.
Immigrants with criminal convictions are so demonized that they are categorically excluded from reforms in both criminal and immigration law. Reminiscent of the “superpredator” label now widely criticized for fueling the passage of draconian criminal justice reforms in the 1990s, the “criminal alien” term implicitly justifies inhumane policies. The fear the term evokes bolsters the idea that certain people deserve to be permanently removed from the United States regardless of their circumstances.
People with criminal convictions have largely been left out of recent immigration reform efforts. The DREAM Act—which would have created a path to citizenship for young people who came to the U.S. without authorization as children if it had been passed—employed a narrative of innocence to garner support. The legislation would have excluded most people with criminal convictions from relief, even if they had grown up in the United States. Similarly, under DACA (Deferred Action for Childhood Arrivals), people with a felony or “significant misdemeanor” conviction are ineligible for the meaningful if temporary relief that deferred action status offers.
In the 2013 comprehensive immigration reform bill proposed by the bipartisan “Gang of Eight,” immigrants with criminal convictions were not just excluded from most of the reforms; the bill provided provisions to make things worse for this segment of the immigrant population. According to the American Immigration Council, the proposed legislation would have made it “more difficult or impossible to become a legal resident due to drunk-driving convictions, gang activity, domestic violence, passport fraud, and identity theft.”
Immigrants with criminal convictions are also excluded from the benefits of recent criminal justice reforms. The same justifications driving sentencing modifications for people incarcerated for drug-related convictions should also support the reconsideration of deportations based on drug convictions. Current reforms focus on releasing people serving time for drug offenses because the government has realized that it is unnecessary to incarcerate people for nonviolent drug offenses that, in many cases, occurred years earlier. However, noncitizens are still routinely deported for the same behavior. For example, when 6,000 federal prisoners were released in 2015 due to retroactive sentence reductions approved by the U.S. Sentencing Commission, 2,000 faced immediate deportation upon their release. Just as President Obama has commuted the sentences of 348 drug offenders, he could also deprioritize deportations based on drug offenses. Instead, people are routinely deported on the basis of drug-related convictions.
Similarly, in the federal criminal justice system, the U.S. continues to prosecute the immigration crimes of illegal entry and illegal re-entry at high rates although these too are nonviolent offenses. In 2015, 29.3% of all federal criminal convictions were for nonviolent immigration offenses, most often for illegally entering or re-entering the United States. In the past, the government did not prioritize prosecuting this conduct. Between 1993 and 2013, prosecutions for immigration offenses increased 1,420%.
State level reforms that allow parole boards and courts to release people from prison based on their rehabilitation are chipping away at prison populations. However, even when people are released from prison because they have proven they no longer pose a threat to society, the law does not allow immigration judges to consider whether deportation is warranted in light of this rehabilitation. Thus, in California, the first person released under the state’s new laws for juveniles previously sentenced to Life Without Parole was deported upon his release even though the Board of Parole Hearings and Governor Jerry Brown both concluded he no longer presented a danger to society. Under a recent change to California’s Three Strikes Law, Sergio Ayala was ordered released after serving seventeen years in prison for stealing a leaf blower. He had been a legal resident, not a citizen, so he too was deported when released.
Given its power, challenging the “criminal alien” construct is essential in moving towards inclusive immigration and criminal justice reforms that recognize the humanity of all people, even those who have made mistakes in the past.
Beth Caldwell is a professor at Southwestern Law School in Los Angeles. She is a former Soros Justice Media Fellow whose research examines the consequences of mass deportation from the United States to Mexico.