(Third in Restoring Integrity to Immigration System series.)


In its study of the application of the “aggravated felony” provision in immigration law, the Transactional Records Clearinghouse (TRAC) at the University of Syracuse found that from 1992 to 2006 more than 300,000 immigrants were removed using this provision and that the numbers steadily increased annually over this period.[1]

Perhaps most striking about TRAC’s findings was that 55% of the aggravated felony removals were by an ICE/INS administrative order rather than a court order. In these administrative removals – amounting to nearly 23,000 in 2006 -- the deported immigrants did not have the benefit of any hearing or adjudication of their removal orders. ICE agents alone were responsible, as the TRAC study noted, for all steps in the process – from apprehension and detention to issuing the order and deporting the individual. Administrative orders for removal for immigrants charged with aggravated felonies have steadily increased as a percentage of all such mandated deportations.

Criminal aliens that have been detained and removed under the aggravated felony statutes are oftentimes longtime U.S. residents who have been in the country since their childhood and don’t even know the language of their birth countries. On the average, immigrants processed by EOIR from 1997 to 20006 for aggravated felonies were in the U.S. for fifteen years before they were deported. For 25%, the average time between their original date of entry to this country and when deportation proceedings were started in immigration court was 20 years or longer, and for 10 percent it was more than 27 years.[2]

TRAC cited the case of Carlos Pacheco who entered the US with a green card as a 6-year old child. He was judged an aggravated felon based on his misdemeanor conviction for stealing some Tylenol and cigarettes. An appeals court that heard the case agreed that he was an aggravated felon and removable but expressed its “misgivings” that Congress equated misdemeanors with felonies in its zeal to deport criminal aliens. Pacheco’s case is now one of tens of thousands in which the immigration consequences were much more severe than the criminal consequences.

Jailed Without Justice: Immigration Detention in the United States, a March 2009 report by Amnesty International USA, observed: “Lawful permanent residents can be placed in "mandatory detention" with no right to a bond hearing before an immigration judge or judicial body. It is believed that thousands of individuals are subject to mandatory detention every year. The categories of crimes that trigger mandatory detention include minor, non-violent crimes (such as receiving stolen property) committed years ago, and are broad and difficult to define.”[3]

Of those immigrants, legal and illegal, removed because of a prior criminal charge other than “aggravated felony,” the most frequent of the charges cited are those involving "moral turpitude" and use of "controlled substance violations." The new criminal context for immigration law means that there are major “immigration consequences” of a criminal plea. Most criminal defense lawyers advise their clients to enter pleas that result in minimal or no jail time with little concern for the nature of the crime for which they plead guilty.

As immigration law expert Ira Kurzban points out: “A plea to a wrong charge could mean a long-term lawful permanent resident was subject to mandatory detention and was deported without relief.”[4] In other words, a legal immigrant might plead guilty to a crime for which he spends no jail time but years later finds that he or she is detained by ICE agents, spends months or years in an immigrant prison, and then is deported and banished permanently from the United States.
Zero Tolerance in Immigration Enforcement

Beginning in 2007 DHS embarked upon another paradigm shift in immigration law. Not only would it continue to target noncitizens that it categorized as “criminal aliens,” DHS also decided that it was also necessary to criminalize the conduct of immigrants who previously would not have been criminally charged. Borrowing a phrase from law-and-order theory, DHS launched a “zero tolerance” program called Operation Streamline.

Under this pilot program, which has since been expanded, illegal border crossers picked up by the Border Patrol are not, as traditionally been the case, turned over to ICE for detention but rather to the U.S. Marshals Service (USMS) for pre-trial custody. Instead of being simply “illegal aliens” these immigrants become “criminal aliens” under the new “zero tolerance” regimen. Immigrants crossing illegally are now routinely being sentenced to jail terms of fifteen days, while those who reenter after having been deported now face ten to twenty years in prison.

DHS hasn’t limited its criminalization of immigrants to the border. As part of the expansion of its “interior enforcement,” ICE in 2007 also began treating falsely documented or undocumented workers as criminal aliens. The mass arrest of mainly Guatemalan workers at the Agriprocessors slaughterhouse and meatpacking plant in Postville, Iowa on May 12, 2008 marked in tragic fashion the extent to which DHS was willing to go to demonstrate its commitment to enforce the rule of law – as DHS interpreted it. Of the 389 immigrants detained, 307 were criminally charged with using false Social Security numbers and aggravated identity theft (which carries a minimum two-year sentence). Offered a plea deal, most pled guilty to the false social security charge and received a five-month sentence.

Reflecting on the shifting paradigm in immigration law toward “criminalizing civil conduct,” Kurzban observed that “immigration lawyers must be educated in issues concerning traditional criminal law questions, such as unlawful search and seizure, rights against self-incrimination, plea bargaining, and statutory and constitutional defenses for certain federal crimes.”[5]

Crime and Immigration

Juliet Stumpf of Lewis and Clark Law School points out in “The Crimmigration Crisis: Immigration, Crime, and Sovereign Power” that both criminal and immigration law primarily regulate the relationship between the state and individual, the line separating criminal and immigration law has blurred. Not only does the substance of immigration and criminal law increasingly overlap, but immigration enforcement by DHS and DOJ also increasingly resembles criminal law enforcement as seen perhaps most clearly in massive imprisonment of immigrants. “The rapid importation of criminal grounds into immigration law,” notes Stumpf, “is consistent with a shift in criminal penology from rehabilitation to retribution, deterrence, incapacitation, and expressive powers of the state.” [6]

Stumpf makes the argument that the merger of the immigration and criminal systems is, at least partly, the result of a newly restrictive sense of the social contract in America. Like criminals, immigrants are increasingly being treated as if they have few rights and have no claim to government protection because they aren’t members of our society. Not only has society since the 1970s adopted an increasingly punitive rather than rehabilitative criminal system that physically excludes them from society but in many cases also denies them benefits such as social services and rights such as the right to vote, serve in public office or serve on a jury.

Similarly, recent trends in immigration law and policy build on the assumption that immigrants have little claim to membership in society and can therefore can be excluded and denied basic rights. “When membership theory is at play,” she writes, “whole categories of constitutional rights depend on the decisionmaker’s vision of who belongs.”

Aside from the resulting increase in the imprisonment and deportation of noncitizens, a little considered result of this so-called “crimmigration” is that criminal aliens in the immigration system lack the constitutional protection of anyone in the criminal justice system. Although treated as criminals they don’t enjoy the protections of the Eighth Amendment against cruel and unusual punishment.

While immigrants have the right to counsel in immigration court, they don’t have the right to a government-provided attorney if they can’t afford to hire an attorney. When in the immigration system, criminal aliens are protected by the Fifth Amendment’s due process clause, but they aren’t protected by the criminal process rights in the Fourth, Fifth, and Sixth Amendments.[7]

[1] TRAC, “New Data on Processing of Aggravated Felons,” 2007, online at: http://trac.syr.edu/immigration/reports/175/
[2] TRAC, “How Often is the Aggravated Felony Statute Used?” 2006, online at: http://trac.syr.edu/immigration/reports/158/
[3] Jailed Without Justice: Immigration Detention in the United States, Amnesty International USA, March 26, 2009, online at: http://www.amnestyusa.org/uploads/JailedWithoutJustice.pdf
[4] Ira J. Kurzban, “Criminalizing Immigration Law,” Presented at 2008 Immigration Law Conference, San Antonio, Texas, Oct. 23-24, 2008, p. 2, online at: http://www.utcle.org/eLibrary/preview.php?asset_file_id=17604
[5] Kurzban, “Criminalizing Immigration Law,” p. 3.
[6] Juliet Stumpf, “The Crimmigration Crisis: Immigration, Crime, and Sovereign Power,” Bepress Legal Series, Paper 1635, 2006, p. 31., online at: http://law.bepress.com/cgi/viewcontent.cgi?article=7625&context=expresso
[7] Stumpf, “The Crimmigration Crisis,” p. 21.

(Next in Restoring Integrity Series: Expanding Immigration Enforcement Appartus)

Photo: Border Port of Entry at El Paso/Juarez