Immigrant rights activists are challenging mass incarceration and the US government's increasing reliance on deportation due to the devastating effects of both on communities of colour.
The neologism ‘crimmigration’ crept into the vocabulary of activists and researchers in 2010, a year that saw widespread, migrant-led activism and civil disobedience against Arizona’s Senate Bill 1070. In the name of ensuring public safety, the bill encroached on immigration legislation that has long been the prerogative of the US federal government. The bill created crime categories at the state level that targeted undocumented migrants and authorised the enforcement of federal immigration law by local police. Two years later the US Supreme Court struck down several of these new categories of crime and certain police powers as unconstitutional. However, its decision let stand a key measure authorising local police to arrest and detain a person if they had reasonable grounds to suspect that the person was undocumented.
Cooperation among different levels of law enforcement on immigration matters long pre-dates SB 1070, and many federal incentives exist to bring local police departments and Immigration and Customs Enforcement (ICE), an agency created in 2003, closer together. The 287(g) delegated authority programme and the discontinued Secure Communities programme depended on local law enforcement to hand over “criminal aliens” to ICE. They could be legal permanent residents or undocumented migrants. Current immigration laws also permit ICE agents to identify non-citizens incarcerated for ‘aggravated felonies’ and then transfer them to immigration detention after they complete their sentence in order to be deported.
At the heart of these enforcement strategies lies a reliance on criminal law and prisons, which have disproportionately criminalised and incarcerated men of colour. These institutions drive mass incarceration and the record number of deportations in the United States in the 21st century. Like over-policed minority groups, migrant men of colour and their loved ones pay the price of this entwinement. This realisation is instructive not only when thinking about deportation, but also when considering criminal law-driven anti-trafficking regulatory regimes. Human trafficking abolitionists, who back criminal penalties for traffickers, rely on criminal law and immigration controls to provide a ‘solution’ to the problem of trafficking. What this position neglects, as other contributors to Beyond Trafficking and Slavery have argued, is how this same problem is created by the efforts of nation-states to keep out migrants deemed undesirable.
Exposing the lie of ‘families not felons’
The evolution of enforcement policies has increasingly alerted the US immigrant rights movement to the consequences of migrant encounters with the criminal legal system. One of these groups is Families For Freedom, a New York City-based, anti-deportation organisation comprised entirely of deportees and their loved ones. A striking feature of FFF’s work is that it puts working-class and low-income men, many of them legal permanent residents who have been convicted of a criminal offense, at the centre of its anti-deportation work. In FFF’s view, the predominance of men among deportees and the visibility of male deportees in its campaigns mirror the demographics of mass incarceration.
The numbers of such men have grown, in large part due to three key pieces of federal legislation passed in 1996. Combined, these greatly expanded the number of crimes for which documented and undocumented non-citizens could be mandatorily and permanently deported. These laws furthermore classified unauthorised re-entry as a felony and eliminated the discretionary power of immigration court judges to reconsider the removal of ‘criminal aliens’ who fulfilled certain eligibility criteria.
Immigrant rights activists decry this escalation of deportations, which reached a record high of two million in the first five years of the Obama Administration. Many organisers argue that innocent undocumented migrants are being arrested by local law enforcement for minor infractions—driving with a broken car tail light is a favourite example—only to be put into deportation proceedings. The success of this argument is reflected in President Obama’s prioritisation of “felons not families” for deportation in a November 2014 executive order. This introduced changes to immigration enforcement and has led to the new Priority Enforcement Program, which will replace Secure Communities. However, the testimonies that FFF has collected since 2002, in addition to its analysis of data on ICE apprehensions, document the devastating effects of mandatory deportation reserved for “criminal aliens” on families, and productively confounds the “families not felons” distinction made by Obama.
In a marked departure from the exemplary images of hardworking, family-centred, law-abiding migrants held up by those pushing for comprehensive immigration reform, FFF publicly supports migrants with criminal records. This stance allows it to expose the pipeline that connects immigration courts and detention centres to police stations, jails, criminal courts, prisons, and the probation system. Based on ICE’s data between 2005 and 2010, a report co-written by FFF and other immigrant advocates reveals that the federal Criminal Alien Program accounted for more than 26,000 of the 34,000 arrests (77 percent) made by ICE in New York City during this time period. Of all those arrested by ICE, approximately 31,000 (91 percent) were deported and an estimated 7,200 residents (21 percent) were legal permanent residents.
Consequently, FFF sees little utility in the distinctions made between criminal and non-criminal deportees, violent and non-violent crimes, and documented and undocumented migrants. They and their allies, therefore, argue that merely faulting these programmes for not going after the ‘real criminals’ will not achieve meaningful progress. The government must instead end programmes that allow for dangerous cooperation between law and immigration enforcement.
The analysis that FFF has developed—along with a handful of allied organisations like the Northern Manhattan Coalition for Immigrant Rights, the Immigrant Defense Project, Homies Unidos, the Detention Watch Network, and the National Day Laborer Organizing Network— expands the parameters within which immigration reform is conceptualised and debated. They argue that the demand for legalisation of undocumented migrants remains limited without a concomitant demand to sever the link between deportation and the war on crime, which targets both documented and undocumented non-citizens. They provoke us to ask why deportation is an acceptable punishment for those branded as criminal aliens, particularly in light of the long history of racial bias embedded in the structure of the US criminal legal system (a history that has powerfully re-surfaced with the recent coverage of police brutality in communities of colour across the United States). The increasingly hard-line, ‘tough on criminal aliens’ approach that we see in the United States today reinforces the urgency of tackling the cozy relationships between immigration and criminal law, on the one hand, and prisons and detention centres on the other. Ultimately, this small segment of anti-deportation organisations aims to dismantle detention centres and end mass incarceration, as FFF’s active involvement in the Private Prison Divestment Campaign and its new coalition to end mass deportation attests.
Criminalisation: the intersection of anti-trafficking and immigration law
Federal anti-trafficking laws intersect with immigration and criminal laws in several ways, including attempts to use ‘victims’ to catch ‘criminals’. For example, federal immigration policies offer those labelled as ‘victims’ of cross-border human trafficking, as well as migrant survivors of rape and domestic violence, non-immigrant legal status in exchange for their cooperation in tracking down and prosecuting traffickers and domestic violence perpetrators. These ‘victims’ are imagined by abolitionists and law enforcers alike to be women, while the perpetrators are assumed to be men. This condition keeps intact the criminalisation of cross-border movement.
More disturbingly, the conceptualisation of trafficking as the clandestine movement of people from one national space to another has allowed these punitive legal regimes to become internationalised. Human trafficking records of nations in the so-called industrialising world have become a way to discipline governments or induce them to open up their economies to direct foreign investments. Most recently, Malaysia’s human trafficking rating got upgraded as a way to bring Malaysia on board as a signatory to the Transpacific Trade Pact (TPP), despite protests from human rights groups about its dismal record.
Instead of pushing for open borders, fair labour laws, worker safety, the right of workers to organise, and the legalisation of sex work, those pushing for anti-trafficking laws use the highly inflammatory rhetoric of slavery to convert political-economic issues into moral crusades. But to think critically about criminalisation requires a fundamental questioning of our reliance on the criminal legal system to deal with a range of problems that are structural rather than individual.
Anti-trafficking laws are often associated with social justice because they purport to end human suffering. Conversely, deportation laws are associated with practices that create immense suffering. Yet both set of legal approaches draw their authority and effectiveness from an uncritical acceptance of borders, and cement the collaborative relationship between immigration enforcement and criminal law enforcement. To think about the underlying logic of these laws together would mean bringing within a single analytical framework the mechanisms of law enforcement, criminal (in)justice, mass incarceration of citizens and non-citizens, the routine detention and deportation of migrants, and the internal displacement and eventual cross-border migration of thousands of people in structural distress.
Disclaimer: The position on human trafficking expressed here are the author’s and does not reflect the views of Families For Freedom or the other organisations mentioned.