Making Immigrants into Criminals: Legal Processes of Criminalization in the Post-IIRIRA Era

Abstract

Executive SummaryDuring a post-election TV interview that aired mid-November 2016, then President-Elect Donald Trump claimed that there are millions of so-called "criminal aliens" living in the United States: "What we are going to do is get the people that are criminal and have criminal records, gang members, drug dealers, we have a lot of these people, probably two million, it could be even three million, we are getting them out of our country or we are going to incarcerate." This claim is a blatant misrepresentation of the facts. A recent report by the Migration Policy Institute suggests that just over 800,000 (or 7 percent) of the 11 million undocumented individuals in the United States have criminal records.1 Of this population, 300,000 individuals are felony offenders and 390,000 are serious misdemeanor offenders -tallies which exclude more than 93 percent of the resident undocumented population (Rosenblum 2015, 22-24). Moreover, the Congressional Research Service found that 140,000 undocumented migrants -or slightly more than 1 percent of the undocumented population -are currently serving time in 1 These numbers are based on the assumption that "unauthorized immigrants and lawful noncitizens commit crimes at similar rates" (Rosenblum 2015, 22). However, there is research that provides good support that criminality among the undocumented is lower than for the foreign-born population overall (Rumbaut 2009;Ewing, Martínez, and Rumbaut 2015).

Relational Legal Consciousness of U.S. Citizenship: Privilege, Responsibility, Guilt, and Love in Latino Mixed-Status Families

“…The convergence of immigration law (which historically has been determined through civil and administrative law) with criminal law has opened the door to various structural and symbolic forms of violence against immigrants. In the context of an expanding network of immigrant detention centers, including many run by for‐profit prison corporations (Montange ), as well as record numbers of deportations, fear and blocked access to mechanisms of social mobility harm immigrants' short‐ and long‐term well‐being (Abrego et al ).…”

“…To examine the processes of relational legal consciousness of U.S. citizens, it is necessary to first provide the mixed‐status family context in which these U.S. citizens live. In a historical moment marked by record numbers of deportations, immigrants live with great fear of deportation and family separation (Abrego et al ). Because citizenship is the only status that can best protect them from forced expulsion, the value of this juridical category is heightened.…”

The expansion of “crimmigration,” mass detention, and deportation

“…Starting in the 1980s, immigration laws (in the United States and elsewhere, including Europe, Australia, and Canada) have shifted towards the criminalization of certain immigrants under ideologies of securing the nation from outside threats. Following this trend, growing scholarly attention has been placed on the criminalization of immigration law (Abrego, Coleman, Martinez, Menjívar, & Slack, ; Coutin, ; Ewing, Martinez, & Rumbaut, ; Kubrin, Zatz, & Martínez Jr., ; Menjívar & Kanstroom, ; Provine & Doty, ; Salinas, ; Stumpf, ; van der Woude, Barker, & van der Leun, ; Welch, ) and its effects on immigrants, their families, and their communities (Abrego, ; Bean, Brown, & Bachmeier, ; Brabeck & Xu, ; Gonzales, ; Martin, ; Menjívar & Abrego, ; Menjívar, Abrego, & Schmalzbauer, ; Suárez‐Orozco, Yoshikawa, Teranishi, & Suárez‐Orozco, ; Yoshikawa, ; Yoshikawa & Kalil, ).…”

“…Finally, some scholars have noted that much of the research on crimmigration underemphasizes the specific contexts (social, legal, and historical) where immigrants are criminalized. Without adequately specifying these contexts, there is potential to “normalize the linkages between human mobility and crime” (Abrego et al, ); thus, the term itself may further cement the link between immigration and crime (Melossi, ).…”

“…With these points in mind, there are three aspects to the move to criminalizing immigration law that we address here. First, more behaviors have been categorized as criminal offenses for immigrants, but not for non‐immigrants, ultimately leading to immigrants' surveillance, apprehension, detention, and deportation (Abrego et al, ; Kubrin et al, ; Provine, Varsanyi, Lewis, & Decker, ). Second, the expansion of immigration enforcement has involved local jurisdictions, thus, federal immigration law is also enforced at the local level through criminal justice agencies (Aranda & Vaquera, ; Armenta & Alvarez, ; Dowling & Inda, ; Kubrin et al, ; Menjívar, ).…”