A recent article published in USA Today that features criticism of the Obama administration for misrepresenting the criminal records of immigrants released from custody is misleading in its own right. While acknowledging some of the complexity of the situation, the article stokes fear and offers little in terms of clarity. Both in public discourse, and in immigration law, criminal records have long been used to justify discriminatory policy and panic, and the USA Today piece contributes to this biased discourse.
In the last three decades, the criminal legal system has become increasingly intertwined and inseparable from immigration enforcement. And it has replaced more explicitly racist forms of confinement and exclusion within the broader architecture of immigration policy.
In February 2013, in the midst of the sequester, 2,200 detained immigrants were released over a period of three weeks. Most of those released were in deportation proceedings, and were placed on electronic monitoring. At the time, officials said that none of those released had serious criminal records. USA Today filed a Freedom of Information Act request, and obtained information from ICE that revealed that, contrary to official statements, a small number of those released had been charged with violent crimes.
Setting the Record Straight
The article’s reporter, Brad Heath, acknowledges that “ICE’s records do not indicate whether the detainees were convicted of those crimes or merely charged with them,” yet dedicates much of the article to the presumption that those released did commit violent crimes.
This is a crucial detail.
We do not know, and ICE has not revealed, whether the people discussed in this article were convicted of the crimes they were charged with. Other news sources picked up the story and more explicitly misrepresented or further obfuscated that detail. For example, Breitbart published their version under the title, “Obama Administration Lied About Crimes Committed By Released Illegal Immigrants.”
Further underscoring the importance of that detail, individuals do not enter into immigration proceedings until their criminal cases have been resolved. This means that those who were in immigrant detention centers were either found not guilty or had already served their time before being turned over to ICE. In these cases, detention and deportation become a second punishment, piled on top of a previous sentence and on top of an already unjust system.
The Real Crime
More broadly, a wider conversation is needed about criminalization. Those who are charged and convicted with more violent crimes are often upheld as the rationale for the exponential expansion of incarceration, along with drastic increases in detention and deportation. As the Black Alliance for Just Immigration explains, the real crime is the criminalization of communities of color:
“There is a pandemic of mass criminalization that is ravaging our neighborhoods and our society. Structural racism and oppression would have us believe that we are inherently flawed, that we are criminals. However, the real crime is demonizing, criminalizing and imprisoning millions of young men and women, relegating them to the margins of society as disenfranchised, unemployable pariahs. African Americans and other communities of color, including immigrants are being profiled, surveilled, locked up and locked out of society.”
In the last three decades, the criminal legal system has become increasingly intertwined and inseparable from immigration enforcement. And it has replaced more explicitly racist forms of confinement and exclusion within the broader architecture of immigration policy.
“Crimmigration” and Racialized Exclusion
Earlier this year, Professor César Cuauhtémoc García Hernández wrote about the increasing entanglement of these two law enforcement apparatuses, calling it the rise of “crimmigration.” He writes about how criminal records have become a key facet of racialized exclusion:
“Since the civil rights movement had rendered it culturally and politically infeasible to enact blatantly racist immigration policies similar to those adopted in past generations, policymakers sought a different method of regulating immigrants. The new willingness to punish that was sweeping criminal law and procedure soon reached immigration law. Instead of adopting explicitly race-based considerations to keep out entire racial groups as was frequently done prior to the civil rights movement, Congress and multiple presidential administrations enacted increasingly strict immigration laws that emphasized a noncitizen’s involvement in criminal activity. Investigations of potential immigration law violations began to resemble criminal policing operations, and decisions about who to admit into or deport from the United States more and more often turned on criminal histories. Despite the facial neutrality of these enactments, however, the people most adversely affected were nonwhite newcomers just as was often the case prior to the civil rights era. In the post-civil rights period, crime effectively became a proxy for race.”
Contrary to such fearmongering, the Black Alliance for Just Immigration calls for an end to this mass criminalization: “We should all discourage policies that target our neighbors, our community and lowers our collective standard of life.”
It’s time we heed their call.