Crimmigration, or the convergence of immigration law and criminal law, has allowed an infusion of criminal norms in migratory policy without the procedural safeguards that would be afforded to a citizen under criminal law.

By Nancy Landa

In the United States (U.S.), immigration continues to be a central issue debated in this year’s presidential campaign as candidates seek the nomination of their political parties in pursuit of winning the highest political office in the upcoming November general elections. Donald Trump is the right-wing populist candidate for the Republican Party expected to clinch his party’s nomination. Although much of the focus has been on the open anti-immigrant policy Trump and the Republican Party have championed in this election cycle, there has been very little discussion on the progressively restrictive immigration policies that have been in place since the 1990s, supported by both Republicans and Democrats, which have created the immigration crisis that the U.S. faces today. 

There is much at stake for the more than 11 million undocumented immigrants who live under the constant fear of falling prey to the massive detention and deportation system that has grown in the past 20 years. A system that will be hard to dismantle regardless of who sits in the Oval Office next term unless structural reform of this system is included in immigration reform proposals and negotiations. One step forward in the direction to reverse the policies of crimmigration is the “Fix96 Resolution”. Introduced in Congress this past April, the Fix96 Resolution calls for immigration policies to reduce automatic deportation and detention, restore due process for immigrants, and repeal unnecessary barriers to legal immigration. 

Crimmigration, or the convergence of immigration law and criminal law, has allowed an infusion of criminal norms in migratory policy without the procedural safeguards that would be afforded to a citizen under criminal law. Developments in immigration policy in the past two decades have allowed the U.S. to be guided by crimmigration as principle to immigration control and enforcement. From the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) to the 2001 Patriot Act have been part of the legislative framework that has created immigration policy as we know it today  - one that is exhibiting a widespread “perversion of the criminal law” resulting in the erosion of rights for immigrants.

In 1996, Congress approved legislative changes to the Immigration and Nationality Act (INA) to curtail unauthorized immigration by establishing criminal penalties for immigrants who entered unlawfully. Additionally, undocumented migrants face civil sanctions including detention, deportation after a hearing, and automatic inadmissibility to re-enter the U.S. within a ten-year period. The adoption of the Patriot Act after the September 2001 attacks has allowed for an expansion of the category of offenses that are considered security threats. The Patriot Act provided a justification to criminalize immigrants based on terrorism suspicions and to expand the government’s capabilities to detain and deport them. U.S. immigration proceedings exhibit a disconnect with constitutional protections as evidenced by the large number of removals, bypassing procedural safeguards through the expedited removal mechanisms that have been legitimized. 

U.S. immigration law has effectively infused punitive measures and criminal sanctions as tools of migration control while at the same time reducing judicial oversight of immigration proceedings. Limiting the use of deportation waivers and increasing the reliance on mandatory detention in removal proceedings reflect the reduction in the application of judicial review and access to constitutional protection. Most notably, there has been an increase in criminal prosecutions for unauthorized entry in cases of previously removed individuals who are apprehended upon return to the U.S. as they are charged with felony re-entry, and in certain cases, prosecution can result in 20-year prison sentences. In effect, undocumented migrants are placed in proceedings that operate in the criminal realm to expedite their detention and removal, while at the same time, they are denied the constitutional protections of criminal proceedings due to the longstanding constitutional maxim that deportation is not deemed a punishment. Some of the key constitutional protections that have been excluded from civil immigration matters include proportionality and legal counsel at government expense. 

Immigrant rights advocates have highlighted the devastating effects of current immigration laws. Prolonged detention of migrants, separation of families, U.S. citizen children who are growing up without their parents, permanent residents who are stripped of their legal status, and the deportation of millions who have long been integrated in American society and are displaced from their homes and communities. Since the introduction of the Fix96 Resolution, various grassroots pro-immigrant organizations have joined to support the effort to roll back the 1996 laws and have immigration policy take a step towards restoring the rights that have been taken from immigrants.

It is unlikely the Fix96 Resolution will gain the support necessary for approval in a divided and polarized Congress. However, it signals the beginning of a meaningful conversation on what a just immigration policy should take into account. It also is a shift from the empty public discourse that has allowed for the surge of immigration reform proposals that have been labeled as “fair and comprehensive”, but in reality, they are a continuation of the wave of crimmigration policies in the 1996 laws - the legacy of the Bill Clinton era that most Democrats and their supporters are unlikely to acknowledge.