Hayes Mann Law



What is Crimmigration Law?

Volume 17 Issue 3

By César Cuauhtémoc García Hernández

César Cuauhtémoc García Hernández is an assistant professor of law at the University of Denver. He publishes the crimmigration.com blog and is the author of Crimmigration Law (2015).

Historically, criminal law and immigration law have operated as separate spheres. On the one hand, people who are not United States citizens were subjected to federal laws determining who is admitted into the country and who is excluded. If the government learns that a migrant who is in the United States has violated some provision of immigration law, federal immigration officials initiate the process of forcible removal from the United States. On the other hand, anyone accused of having committed a crime is apprehended by police officers, put through the criminal justice system, and, if convicted, punished. This is true of United States citizens as it is of people who are not United States citizens. For most of the nation’s history, people were punished according to the laws enacted by legislatures, but they were punished identically regardless of citizenship status.

Beginning in the mid-1980s, the stark separation between criminal law and immigration law shifted quickly and dramatically. Two centuries into the nation’s life, the gap between these areas of law began to blur. Today, it is often hard to explain where the criminal justice system ends and the immigration process begins. The single most common type of crime prosecuted in federal courts is about immigration. Meanwhile, people facing the possibility of removal from the United States are frequently locked behind steel doors and surrounded by barbed wire.

This is crimmigration law. In the groundbreaking article coining the term, Juliet Stumpf, a professor at Lew-is & Clark University Law School, not-ed that the division between criminal law and immigration law “has grown indistinct” such that the two “are mere-ly nominally separate.” Since the 2006 publication of Stumpf’s article, crimmigration law has expanded. Today, it can be thought of has having three features. First, it is easier than ever for the federal government to exclude or deport (legally referred to as “removal”) a migrant from the United States. Second, the criminal justice system has increasingly become focused on immigration activity. Third, law enforcement agencies and prosecutors have tailored their enforcement tactics to raise the stakes of a person’s status as a migrant.

Immigration-related Consequences of Conviction

Legal proceedings in which removal is decided are treated by law as nothing more than administrative hearings in which a federal government employee decides whether a particular per-son merits permission to enter into or remain in the United States. These hearings take place in immigration courts operated by the Justice Department. They are presided over by immigration judges who work for the attorney general, not the federal judiciary. Time and again, the United States Supreme Court has concluded that forcible removal from the country is not punishment. These conclusions about the legal character of immigration law mean that there is no right to appointed counsel in immigration court. Other features associated with legal proceedings in the United States are also absent. There is no right to confront witnesses, no protection against self-incrimination, no presumption of innocence, and only an exceedingly limited ability to toss out evidence obtained by illegal law enforcement activity.  

Until the last decades of the twentieth century, few people were removed from the United States due to involvement in criminal activity. For the 92 years from 1892 to 1984, only 14,287 people were excluded from the country because of criminal activity. During that same period, 56,669 were deported for that reason. In total, 70,956 people experienced some immigration con-sequence during this span because of criminal activity. By contrast, in 2013 alone, the Immigration and Customs Enforcement agency (ICE) reported removing 216,810 people with a criminal conviction on their record. Put another way, there were more than three times as many people removed from the United States due to criminal activity in 2013 alone than in most of the twentieth century combined.  

The quarter-million people removed annually due to a criminal activity are a diverse bunch. Some are lawful permanent residents. As people who are entitled to live and work in the United States indefinitely so long as they comply with immigration law requirements, they are the most privileged type of migrant. Others are people with permission to come here temporarily—say students enrolled in an academic program. Still others lack the federal government’s authorization to be here.  

More significantly, the type of crime these individuals commit varies dramatically. To be sure, some commit the most heinous of actions. Most, how-ever, do not. In 2013, for example, fully 31% of the 216,810 people removed with a criminal record had been convicted of nothing worse than a federal immigration crime (usually entering the United States without the federal government’s permission, one of two commonly prosecuted federal crimes). Another 16% had been convicted of drug crimes. Though some of these include major drug trafficking offenses, most involve simple possession of small amounts of drugs. In effect, most involved the kind of drug activity that is now legal in 26 states plus the District of Columbia. The next most common category of crime that got people into immigration law troubles in 2013 was motor-vehicle traffic offenses. Clocking in at 15% of the total, traffic offenses still outnumbered assault crimes, which accounted for 10% of criminal removals.