“Immigrants are not criminals.” This was a frequent refrain of the mass mobilizations of 2006 that put a stop to the harshest immigration legislation to win widespread congressional support in a decade. Many immigrants’ rights advocates continued using a form of this narrative frame in the years that followed. So too did Obama Administration officials. Under his watch, ICE repeatedly touted its prioritization of “criminal aliens.” Indeed, President Obama famously described his Administration’s immigration law enforcement focus as “felons, not families.”
Whatever the rhetoric’s value, the on-the-ground reality was always messier than the narrative let on. Many migrants are, of course, criminals. No population of tens of millions of people can consist only of angelic souls. And no demarcation between criminal and non-criminal can withstand the messiness of human complexity. We are all criminals. The difference is that some of us have enough luck or privilege to escape investigation, prosecution, and conviction for driving too fast or too drunk, hitting a loved one, assaulting a classmate, smoking marijuana, or any of the other crimes that regularly go unmentioned.
Besides, migrants in the United States live under a legal regime that has long associated criminality with dark skin. From the moment that United States legality committed its original sin—the embrace of slavery—criminality has always been tied to blackness. The enslaved dissenter, the free black person, is at best surveilled skeptically and at worst targeted by the state’s coercive instruments: jails, nooses, law enforcement personnel, vigilantes. Mobility was regulated, identity controlled, life commodified, survival imperiled. All triggered, justified, demanded by the marker of criminality. The criminal must be watched lest he come for you, the victim, the soon-to-be victim, the white-skinned victim.
For much of the nation’s history, watching occurred organically. Slave overseers replaced by the diffused oversight of whites watching racialized others. After the civil rights movement sidelined explicit racism—temporarily we now know thanks to Donald Trump—crime took its place. Beginning in the 1980s, the ideological descendants of white supremacy retooled the criminal justice system for the post-civil rights era. Instead of an explicit use of race as a means of social control, the political right adopted crime-control and its close kin, security, as watchwords upon which to build the modern regime of social control. Launched by the Reagan Administration, the War on Drugs reshaped the fabric of United States society. We became a people enamored by the power of policing. We learned to fetishize imprisonment as the remedy for almost any ill—violence, illicit drug activity, mental illness, immigration.
As the United States built its legal culture of hyperincarceration, the many tentacled giant grew in multiple directions. When it did, recounts Patrisia Macías-Rojas in her excellent From Deportation to Prison: The Politics of Immigration Enforcement in Post-Civil Rights America (NYU Press 2016), it tapped the federal government’s immigration policing powers from the start. At the same time that it was pushing into law the early pieces of the burgeoning War on Drugs, the Reagan Administration created the little-known Criminal Alien Program (CAP) to free up prison beds for the African Americans and Latinos who were in the drug war’s crosshairs. CAP was intended to push imprisoned migrants out of the country by moving them into immigration detention. During the same period, Congress busied itself expanding the range of crimes that could result in deportation. Before long, the federal government found itself with a shortage of immigration detention beds. Congress responded in 1996 by making it easier to deport migrants, especially the long-term residents that previously had legitimate options for challenging crime-based deportation attempts. It created legal avenues to avoid the immigration courts altogether and curtailed options for relief from removal. All the while, Congress devoted an ever-increasing amount of money, personnel, and advanced technologies to the cause of policing, apprehending, and imprisoning migrants. Macías-Rojas tells this story brilliantly.
CAP surveils and confines, but it also criminalizes. By expanding the federal government’s ability to deport, CAP sets into motion the inevitable return of migrants who have already been marked by the stigma of illegality. Upon return, many are captured. And when they are, they are marked not simply as “illegal;” they are marked as criminal (128).
At times Macías-Rojas ventures into the poetic. Describing her fieldwork by pairing a scholar’s perspective with an empathetic pen, she writes “Without shade, the Sonoran desert can feel like a vast ocean in reverse. There is a complete absence of water. The diverse vegetation and wildlife give a false impression of habitability. But the West Desert is more like the ocean’s depth. A still, penetrating heat, not water, engulfs you. It suffocates you, slowly and naturally, drying up every fluid in your body” (98). She acknowledges her privileged position, while nonetheless evoking the immense presence of death along this route onto which migrants have been forced. Not by accident, as she notes. But by design.
Immigration law enforcement isn’t broken. It’s working as intended. A racially-targeted anti-drug crime-fighting system led to a racially-targeted deportation regime that in turn led to a massive detention and deportation of migrants of color, especially those who hail from Latin America. That detention and deportation pipeline backed up by robust boder policing led to more violations of immigration law, which in turn led to more prosecutions for criminal immigration offenses. And to more deaths as a heavier immigration policing presence along the Southwest border’s urban areas pushed migrants deeper into the desert and brushland. All made possible by Congress’s willingness to appropriate huge sums of money to police and imprison.
This is the reality that migrants and border communities have known for decades. For many, the division between criminal law and immigration law has blurred to the point of irrelevance. In the age of Trump, it is possible that the generations-old distinction will become nothing more than a historical relic.
All hope is not lost. Advocates would do well to embrace the criminalization frame—not as a means of differentiating good from bad immigrants, but as the centerpiece of a diverse resistance effort. “[W]hat if the mainstream movement put ‘mass criminalization’ at the center of its analysis and directly challenged criminal enforcement priorities?,” Macías-Rojas asks (168). This approach would allow for a broad-spectrum antiracist opposition to form that acknowledges the important role that anti-blackness has and continues to play in visions of danger and criminality. In that way, resistance centered on criminalization could potentially align the fights for immigrants with the contemporary struggles by African Americans, Muslims, and Arabs, and other outsider groups, all of whom bear the heavy weight of policing and imprisonment.