Inclusive Immigrant Justice: Racial Animus and the Origins of Crime-Based Deportation
Alina Das*

The merger of immigration and criminal law has transformed both systems, amplifying the flaws in each. In critiquing this merger, most scholarly accounts begin with legislative changes in the 1980s and 1990s that vastly expanded criminal grounds of deportation and eliminated many forms of discretionary relief. As a result of these changes, immigrant communities have experienced skyrocketing rates of detention and deportation, with a disparate impact on people of color. Despite increasing awareness of the harshness of the modern system, however, many people still view criminal records as a relatively neutral mechanism for identifying immigrants as priorities for detention and deportation. Drawing on the early history of crime-based deportation, this essay argues that criminal records have never been a neutral means for prioritizing immigrants for detention and deportation from the United States. Rather, as this essay sets forth, racial animus has driven the creation and development of crime-based deportation from the beginning.

INTRODUCTION
The merger of immigration and criminal law has had a transformative effect on both systems in the United States. Immigration law and enforcement relies heavily on determinations made in the criminal legal system to identify targets for deportation. In FY 2017, federal immigration agents within the U.S. Department of Homeland Security (“DHS”) Immigration and Customs Enforcement deported over 127,000 people from the United States on criminal grounds — fifty-six percent of all individuals deported. Moreover, immigration status and immigration-related violations are playing an increasingly significant role in the criminal legal system. Criminal immigration violations, including “illegal entry” and “illegal reentry” at U.S. borders, represented the largest percentage of crimes prosecuted in the federal system. In many ways, the two systems have merged to create a two-way pipeline for deportation — such that criminal records easily lead to deportation, and lack of immigration status increasingly factors into whether one may get a criminal record.

As scholars have written, the merger of the immigration and criminal systems has amplified the flaws in each. The longstanding racial disparities in the criminal legal system have led to similarly racialized effects in detention and deportation based on crime. The lack of due process in the immigration system has perverted the criminal legal system, limiting the impact of criminal law reforms aimed at reducing the harshest criminal penalties. Thousands of people who find themselves at this intersection between immigration and criminal law — labeled as so-called “criminal aliens” — are left vulnerable to political scapegoating and hyperenforcement.

In pursuing these rich and important critiques, scholars have explored the modern manifestations of the immigration-criminal law merger, focusing largely on 1996 laws that transformed our current immigration system. This focus makes sense given how these laws both dramatically expanded criminal grounds of removal and mandatory detention, and eliminated previously longstanding options for relief from removability. Those of us who study this area of law and work closely with people directly impacted by these changes denounce the scapegoating of individuals with criminal records. We call for inclusive immigrant justice — a reframing of the immigrant rights debate away from the good-versus-bad, criminal versus non- criminal immigrant narrative, and towards principles that honor each immigrant’s human dignity and right to due process. By necessity, we focus on the modern impact and harms of the criminal immigration system.

Because of this modern focus, the story of the criminalization of immigrants often begins with discussion of federal legislation in the 1980s and 1990s that criminalized certain acts and vastly expanded the criminal grounds of deportability and exclusion (known as inadmissibility) in the United States. One recent article, for example, described this legislation as “the specific laws that first linked and then solidified the association between undocumented immigrants and criminality.” It goes on to provide a rich and helpful critique of that linkage, as do many other articles that begin their story of the merger of criminal and immigration law in the 1980s and 1990s.

The benefits of a modern-day focus are clearly reflected in the massive changes that the wave of anti-immigrant legislation of the 1980s and 1990s brought to the current system. The Immigration Reform and Control Act introduced new federal immigration crimes, criminalizing the hiring of undocumented workers and smuggling offenses. The 1988 Anti-Drug Abuse Act gave birth to the immigration law term “aggravated felony” — which in turn ushered in bars to discretionary relief from deportation, bars to bond hearings for the detained, and sentencing enhancements for illegal reentry. The 1996 Illegal Immigration Reform and Immigrant Responsibility Act and the 1996 Antiterrorism and Effective Death Penalty Act led to an explosion in the criminal grounds of removal. These laws created even more draconian bars to discretionary relief, expanded no-bond detention, and increased criminalization overall. Moreover, these laws came during the same period when reliance on mandatory minimums and harsh drug laws were transforming the criminal legal system as well. A vastly expanded role in immigration enforcement at the state and local level has also contributed to further criminalization. Thirty years later, we are still reeling under the weight of these draconian changes to the system, and attention to these developments is well- deserved.

The danger of a modern-day focus, however, is that it creates room for a relatively sanitized view of our history. It assumes that the criminalization of immigrants began in the 1980s and 90s, and that the systems that existed prior to this time were free from the flaws that came with this more recent merger. But criminalization and the subsequent targeting of immigrants as “criminals” goes much further back in time than these more recent draconian policies and legal overhauls. One must look back further into our history to understand that criminal records have never been a neutral means for prioritizing immigrants for deportation from the United States.

For these reasons, the success of any call for inclusive immigrant justice requires more than a critique of the modern merger of the immigration and criminal legal systems. It requires a deeper dive into the historical antecedents of this merger. Despite an increasingly nuanced public understanding of the ills of the criminal system, many people still view criminal records as a reasonable, racially-neutral mechanism for identifying immigrants as priorities for detention and deportation. By examining the origins of crime-based deportation, we begin to see that the racialized outcomes of the modern-day system are no accident of history. Nor is the targeting of immigrants with criminal records an inevitable aspect of immigration regulation.

In this essay, I explore the racialized origins of crime-based deportation, which I define to include the development of criminal grounds of removal and immigration status based crimes. As I argue below, the linkage between animus against immigrants and animus against people with criminal records is not a modern phenomenon. Rather, racialized animus towards immigrants triggered the criminalization of actions that had been legal, which in turn provided the desired justification to deport immigrants from the United States. This interconnected, symbiotic relationship between racism, criminalization, and deportation pervades the earliest origins of the crime-based deportation grounds that many people take for granted as legitimate parts of our immigration system today.