The boundary between criminal law and immigration law has been blurring for decades. The Anti-Drug Abuse Act of 1988, for example, formed a core part of the early war on drugs, as its title suggests. It also introduced the aggravated felony into immigration law, altering the lives of hundreds of thousands of migrants in the three decades that followed. Two years later, the Immigration Act of 1990 revamped immigration law. Yet when he signed it, President Bush declared it to be a central component of his administration’s attempt to curtail illicit drug activity.
But it wasn’t until 2006 that this phenomenon had a name. In her hugely influential article published that year, Juliet Stumpf articulated a trend and launched a disciple. “[I]mmigration law and the criminal justice system,” she wrote, “are merely nominally separate.” Where one begins and another ends becomes ever more difficult to identify. What was then “uncharted territory,” has become a flowering area of discussion, debate, analysis, and resistance. At once epistemological and in-the-weeds practical, crimmigration law reifies exclusion, privileges membership, and naturalizes violence.
Immigration imprisonment illustrates crimmigration law and policy’s worst excesses. Tucked behind steel doors, surrounded by barbed wire, half a million people see the inside of an immigration prison in the United States every year. Most are held under the auspices of the Immigration and Customs Enforcement division of the Department of Homeland Security. Others are escorted into confinement by the United States Marshals Service or the federal Bureau of Prison, the two agencies that oversee confinement related to federal criminal proceedings. Still others are held by state jail or prison authorities on criminal charges inextricably linked to migration—from Arizona’s infamous “self-smuggling” offense to folks denied bail because ICE lodged an immigration detainer against them.
For the many actors who play a role in the nation’s immigration prison regime, the last five months have been good. But so were the previous eight years. Year-after-year, the Obama administration presided over an expansive immigration prison network that stretched from major urban centers to dots on the most rural parts of Texas, Arizona, and elsewhere. Men, women, and children were locked up. For a time, the Obama administration claimed that imprisoning migrants who came here seeking safety would deter others from coming.
Perhaps inadvertently, the Obama administration’s lawyers dismissed what remained of the fiction that ICE detention is a form of civil law. Deterrence is an accepted rationale for punishment-through-imprisonment. Civil confinement is justifiable, the courts like to tell us, because of dangerousness or flight risk. Back in 2006, Stumpf presciently theorized this development. Ostensibly civil detention justified by criminal law norms smacks of “[i]mmigration law…clothed with so many attributes of criminal law that the line between them has grown indistinct.” So indistinct, it seems, that even government attorneys struggle to perceive it in the darkness of crimmigration law.
I can’t blame them. How could they possibly perceive the imperceptible? In New Mexico, travel west of Albuquerque by an hour-and-a-half and you reach Milan. Nothing like it’s more famous Italian counterpart, Milan’s residents can enjoy the Wow Diner’s green chili chicken rangoons or the Kiva Café’s tamales smothered in New Mexican red chili.
Or they can try whatever is on offer at the Cibola County Correctional Center. The privately owned and operated prison employs about 300 people to watch over another 3,000 residents. For a time, money for paychecks came from the Bureau of Prisons. The BOP’s prisoners were people convicted of federal immigration crimes. Then, in July 2016, the BOP announced it would not renew its contract with CoreCivic, the private prison corporation that owns and operates the prison. Immediately, the town panicked. Acknowledging the prison’s role in the town’s economy, one elected official described the situation matter-of-factly: “My first option is for it to stay private because of the revenue the prison produces for the city of Milan.”
And so it did. Within a few months, ICE had stepped in promising to replace the Bureau of Prisons. The town’s lifeline would remain. Prison beds would continue to be occupied. Migrants would continue to be locked up.
Crimmigration law is full of Cibolas. Under this banner, state violence is routinely wielded in the name of security and legality.
But for all its Cibolas, crimmigration law is also a site of innovative rights-enhancements. Its newness presents the opportunity for interventions in the generations-old tradition of allocating power along axes of wealth, race, and gender. Disruptions to the criminal-alien, good migrant versus bad migrant binary, are one example. Creative in their advocacy, spectacular in their courageousness, these subversions of the demonizing rhetoric that dominates crimmigration law and policy frequently illustrate the power of bottom-up organizing. And in embracing the least sympathetic among crimmigration law’s targets, disruptions of the criminal alien paradigm honor Mari Matsuda’s admonition to “look to the bottom” for intellectual direction.
As a creature of law and policy, crimmigration law also emanates from the top. There, a recent Iowa Supreme Court decision illustrates the scholar’s role in expanding rights and disturbing exploitative norms. In a decision about the proper constitutional role of criminal defense counsel for migrants, the court held that “to counsel”—“the very name the profession has appropriate”—is to look beyond legal fictions of civil and criminal. It means instead to recognize the crimmigration scholar’s insight. “Defense counsel,” wrote the court, “must embrace his or her new role as a ‘crimmigration’ attorney’ if counsel is to provide effective assistance,” referencing not only Stumpf, but Ingrid Eagly and my University of Denver colleague Christopher Lasch who has previously written about the crimmigration defense attorney.
Cloaked with judicial recognition, armed with constitutional provenance, the crimmigration attorney is obligated to fight back and push forward because there is no alternative. “[T]he responsibility to protect immigrants from potential inequities in the immigration system” now lays on the shoulders of criminal defense counsel. Like the blurring of boundaries between criminal law and immigration law gave way to crimmigration law, the merging of immigration consequences with criminal proceedings has birthed the crimmigration attorney.
Let the next generation go forward equipped to engage and counsel accordingly.