The Criminalization of Immigration

Abstract

The regulation of immigration in the United States is a civil law matter, and the deportation and exclusion of immigrants from the United States are matters adjudicated in civil, administrative courts operated by the federal government. But migration in the United States is increasingly managed not through the civil law system, but through the criminal legal system, and not just at the federal level, but at all levels of government. The most obvious example of the management of migration through the criminal law in the United States occurs through the federal prosecution of immigration crimes. In the 2010s, federal prosecutions of immigration crimes reached all-time record highs, as immigration offenses became the most commonly prosecuted federal criminal offenses. But it is not just the federal government, using federal criminal prosecutions, that has moved criminal law and criminal law enforcement agents to the center of immigration enforcement in the United States. The federal government relies on state and local police to serve as front-line agents in the identification of noncitizens potentially subject to removal. Everyone arrested by state and local law enforcement for any reason has their fingerprints run through federal law databases, and this has become the leading screening mechanism through which the federal government identifies individuals to target for removal. Federal law also relies on state law convictions as one of the primary means through which federal immigration enforcement officials determine which noncitizens to remove. This means that state legislatures and state and local governments have the power to shape both their criminal laws and their discretionary enforcement choices to either enhance or mitigate the scope of federal immigration enforcement in their jurisdictions. The problems of racial inequity in the U.S. criminal legal system are both exacerbated by and fuel the centrality of immigration enforcement to the nation’s law enforcement agenda. Racial profiling is broadly tolerated by law in the context of immigration enforcement, making it easy for officials at the state and federal level to justify the targeting of the Latinx population for heightened surveillance on the theory (often incorrect) that they are unlawfully present. At the same time, the overpolicing of Black communities ensures that Black immigrants as well as Latinx immigrants are disproportionately identified as priorities for removal. Immigration enforcement is frequently written out of the story of racial inequality in U.S. policing, but the criminalization of migration is a central architectural feature of this inequitable system.