Reviewed by Kevin R. Johnson, School of Law, University of California, Davis. Email: krjohnson[ at] ucdavis.edu
For several years, immigration scholars have criticized the increasing reliance on the criminal law (and criminal penalties) to enforce the U.S. immigration laws, which historically have been enforced through civil sanctions. Juliet Stumpf encapsulated the growing body of scholarly criticism in her seminal work “The Crimmigration Crisis,” a path-breaking article reprinted in Governing Immigration Through Crime.
The criminalization of U.S. immigration law has proceeded relatively quickly through a variety of steps. Congress in the last 25 years has systematically reformed the immigration laws so that increasing numbers of crimes can result in the removal of lawful permanent residents from the country. Exhibiting an Alice in Wonderland-like quality, the immigration laws today frequently classify misdemeanors as “aggravated felonies,” thus subjecting a lawful permanent resident to near-mandatory removal from the United States. The harshness of the removal grounds has led a conservative Supreme Court on several occasions to intervene; for example, the Court in 2013 halted the virtually mandatory removal of a long term resident of the United States guilty of possession of a few grams of marijuana for personal use (Moncrieffe v. Holder). Congress also has required the mandatory detention of the ever-expanding category of “criminal aliens,” which has created a huge, and growing, immigrant detention industry (McLeod 2012).
Beginning in earnest during the George W. Bush administration, U.S. immigration authorities have worked increasingly closely with state and local law enforcement authorities to remove noncitizens from the United States. The Obama administration has enlisted state and local police in efforts to enforce the U.S. immigration laws. Many states have passed immigration enforcement laws relying on the criminal law ostensibly designed to encourage undocumented immigrants to “self deport.” In addition to extension of an expensive fence along the U.S./Mexico border, U.S. immigration authorities have dramatically increased enforcement operations to levels never previously seen before in U.S. history. Last but not least, the crime of “illegal re-entry” into the United States has been prosecuted ever-aggressively by the U.S. government, contributing to docket congestion in the federal courts and a large increase in the number of Mexican nationals imprisoned in the United States.
The increased use of the criminal law to regulate immigration has had dramatic impacts. In President Obama’s first five [*209] years in office, his administration set records by removing roughly 400,000 immigrants from the United States annually; he has by a large margin deported more noncitizens than any President in U.S. history. It is noteworthy that removals have not been limited to undocumented immigrants but include many lawful permanent residents who have lived in the country for many years. Hundreds of thousands of removals have resulted in the destruction of hundreds of thousands of families, communities, and lives. Although the administration claims to focus on serious criminal offenders, many of those caught in the enforcement net are at best small time criminals, including persons arrested for traffic infractions such as lacking driver’s licenses for which undocumented immigrants are not eligible in most states.
Governing Immigration Through Crime collects in one reader important contributions to the scholarly literature on the use of the criminal law in immigration enforcement. The previously-published works were written by influential scholars from law and the social sciences, including anthropology, sociology, ethnic studies, criminology, urban planning, communication, and political science. The stated aim of this book “is to provide an interdisciplinary introduction to the governing of immigration through crime” (p.38). Fulfilling that aim, the editors’ selection and organization of the book results in a concise and thoughtful reader, with the pieces offering important perspectives from a variety of vantage points.
The volume begins with an extended introduction to “Governing Migrant Illegality” that sets the stage for the subsequent readings. The editors “broadly (but not exhaustively) map the governing of immigration through crime in the contemporary United States” (p.3, footnote omitted). As the editors state, “in the contemporary United States, undocumented immigration has come to be seen largely as a law and order issue” (p.5, footnote omitted). Much of the public and many political leaders characterize undocumented immigrants as social, economic, political, and national security threats to the nation. In response, the U.S. government has adopted an array of criminal measures to deter undocumented immigration, such as criminalization of immigration violations, increased enforcement (at the border and beyond), immigration raids, additional technology, detention and deportation, and more.
The introduction starts by briefly summarizing the much-publicized 2008 raid at a meat processing plant in rural Postville, Iowa in which most of the immigrant workers were charged criminally for identity theft. The focus on this incident indirectly demonstrates just how quickly immigration enforcement has changed in the last five years. Unlike the Bush administration, the Obama administration is not focusing its interior enforcement efforts on workplace raids. Rather, it has relied heavily on a new “Secure Communities” program, which requires state and local law enforcement agencies to share information about persons arrested with federal immigration authorities. In 2013, it is Secure Communities, not workplace raids, which results in the mass removals of “criminal aliens.”
Importantly, because of the disparate impacts of immigration enforcement on [*210] Latinos, Governing Immigration Through Crime conceptualizes “immigration enforcement as a form of racial governance” (p.18). These impacts can be seen most clearly at the U.S./Mexico border, with deaths of Mexican migrants resulting from border enforcement operations on a regular, predictable basis. Similarly, enforcement measures in the interior of the United States have had disparate impacts on Latinos, who represent approximately 75-80 percent of the persons annually deported from the United States.
Governing Immigration Through Crime recognizes that Latinos and immigrants have contested racialized immigration enforcement. In 2006, tens of thousands of people marched in the streets of cities across the United States in protest of – and ultimately defeated – a tough-as-nails immigration bill passed by the House of Representatives. Since them, undocumented college students known popularly as the DREAMers have pressed the nation for justice, eventually pushing the Obama administration to establish the Deferred Action for Childhood Arrivals program.
The book is divided into five parts. Each part of the book has a short description of the chapters in that section.
Part I, “Law and Criminalization”, outlines in general terms the criminalization of U.S. immigration law. It includes chapters offering insights on Mexican migration to the United States (Nicholas DeGenova), the emergence of the “crimmigration crisis” (Juliet Stumpf), and the national security focus on migration since September 11, 2001 (Jennifer Chacón).
Part II, “Managing Borders”, has chapters on the physical and symbolic meanings of the growing U.S./Mexico “border wall” (Josiah McC. Heyman), the Minuteman Project’s vilification of Mexican migrants (Leo Chavez), and border-crossing deaths (Roxanne Lynn Doty). This part nicely links various enforcement measures, such as the border fence and the growing death toll of migrants in the U.S./Mexico border region.
Part III, “Policing the Interior”, includes chapters on the rise and fall of employer sanctions under U.S. immigration law (David Bacon and Bill Ong Hing), the human and civil rights impacts of Arizona’s immigration enforcement landmark S.B. 1070 (Rogelio Sáenz, Cecelia Menjívar, and San Juanita Edilia Garcia), and local immigration enforcement (including analysis of the passage of Hazleton, Pennsylvania’s much-publicized anti-immigrant ordinance) (Liette Gilbert). Added to the immigration laws in 1986, employer sanctions, which allow for the imposition of civil penalties on the employers of undocumented workers, has to this point failed to deter the employment of undocumented immigrants, thus contributing to political movements favoring state and local immigration enforcement measures.
Part IV, “Detention and Deportation”, includes chapters on the detention of Latinos as part and parcel of immigration enforcement (David Manuel Hernández), deportation and return to the United States of transnational Mexicans (Deborah A. Boehm), and the deportation of immigrants who had made the United States their true homes, aptly termed [*211] “exiled by law” by Susan Bibler Coutin.
Part V, “Immigrant Contestations”, includes chapters analyzing the mass immigration protests, or “La Gran Marcha”, of 2006 (Josue David Cisneros), the undocumented student movement (Robert G. Gonzales), and the use of surveillance strategies by groups seeking to ensure the protection of human rights and security (James P. Walsh).
The various chapters touch on the central issues raised by regulating immigration through deployment of the criminal laws. All of the chapters directly or indirectly criticize the use of the criminal law to regulate immigration to the United States. Their shared conclusion is that Governing Immigration Through Crime is a bad idea. Supporters of the current use of the criminal law to regulate immigration – and even its possible expansion – are not the intended audience of Governing Immigration Through Crime.
Space limitations necessarily require omissions in coverage. However, a few omissions deserve comment. The reader might have benefited from analysis of the most significant criminal immigration program currently in existence – the Obama administration’s Secure Communities program, which has culminated in more deportations than ever in U.S. history. Secure Communities requires state and local law enforcement to share information about persons arrested with U.S. immigration authorities. The program has generated considerable criticism from state and local law enforcement as well as immigrant rights’ advocates. It arguably undermines local law enforcement efforts to obtain the support of the immigrant community in ordinary law enforcement.
In addition, the chapter on Arizona’s S.B. 1070 would have benefitted – perhaps in a postscript, another chapter, or otherwise – from further analysis of the U.S. Supreme Court’s decision in Arizona v. United States (2012). Although striking down three core provisions of S.B. 1070, the Court left intact the law’s most controversial provision, Section 2(B), which requires state and local police to assist in the enforcement of the U.S. immigration enforcement laws. Activists have voiced serious concerns that Section 2(B)’s implementation will result in increased racial profiling of Latinos – U.S. citizens, legal immigrants, and others – in law enforcement.
More generally, one might have thought that a volume on the use of the criminal law in immigration enforcement would have considered the day-to-day immigration enforcement, namely the widespread practice of racial profiling of Latinos. The Supreme Court in 1975 held that “Mexican appearance” could be one of many factors in an immigration stop, a holding that has resulted in the legal sanction of racial profiling in immigration enforcement (United States v. Brignoni-Ponce). Such profiling helps account for the disproportionate stops and arrests of Latinos for immigration (and other law enforcement) violations as well as disparate detention and removal rates (Johnson 2010).
Last but not least, one is left to wonder what impact comprehensive immigration reform might have on the general [*212] phenomenon of governing immigration through crime. Immigration reform has been percolating in Congress for well over a decade. Unfortunately, current proposals on the table would increase, not decrease, the criminal law’s regulation of immigration with, for example, efforts to exclude and remove alleged “gang members.” At the same time, employers could be required to use a computerized database known as E-Verify to check the employment eligibility of all employees, which could make employer sanctions more enforceable and diminish the need for criminal measures.
In conclusion, Governing Immigration Through Crime offers important readings from influential legal and social science scholars critically analyzing the efforts of the United States to regulate immigration through the criminal laws. Although a few recent developments are not covered in the reader, the chapters aptly outline and succinctly criticize the increasing criminalization of immigration law in the United States.
Johnson, Kevin R. Johnson. 2010. “How Racial Profiling in America Became the Law of the Land: United States v. Brignoni-Ponce and Whren v. United States and the Need for Truly Rebellious Lawyering.” Georgetown Law Journal, 98:1005.
McLeod, Allegra M. 2012. “The U.S. Criminal-Immigration Convergence and Its Possible Undoing.” American Criminal Law Review, 49: 105.
Arizona v. United States, 567 U.S. ____, 132 S. Ct, 2492 (2012).
Moncrieffe v. Holder, 11-702, 185 L. Ed. 2d 727 (2013).
United States v. Brignoni-Ponce, 422 U.S. 873 (1975).
Copyright 2013 by the Author, Kevin R. Johnson.