Criminalizing Migration: How We Got Here

This ideological movement that brings migration and crime closer results in a political and legal framework that, instead of allowing migrants to transcend their worst moments, comes increasingly to limit them to one opportunity to restart life in a new country.

Exclusion or deportation policies and migrant involvement in criminal activity are two paths that got closer from the 1980s in the United States. To contextualize, for the nine decades spanning from 1892 to 1984 only 15,824 people were excluded from the country due to crime or drug activity. Between 1908 to 1990 another 56,669 people were deported for the same reasons. Hence, it took approximately ninety years for the government to complete more than 72,000 legal proceedings against migrants with criminal histories or for involvement with drugs. In the fiscal year 2002, immigration officials did that in a single year. In the fiscal year 2012, the federal government hit a high-water mark of removing 200,039 migrants with a criminal history (HERNÁNDEZ, 2021, p. 108). These increasing numbers denote a gradual change to enforcement trends, policy and law toward a complex framework of criminalizing migration.

The truth is that this process is not a product of the last few years. The Trump era brought to the surface decades-long trends and represented them as a novelty and momentary plan against migrants. In fact, current issues preserve similarities with past events in world history. The “Evil May 1517” as became known the May 1st when London witnessed riots against Flemish, German and Italian merchants and craftsmen accused of ruining the local economy and harassing women and girls, was an episode of violent, widespread xenophobia. Migrants were labeled as cheats and criminals in a wave of violence that erupted after a local parish vicar issued xenophobic propaganda publicly. Despite of the centuries that break apart this case and the circulating xenophobic propaganda during the campaign of Donald Trump, they are very similar. (KOSTER; REINKE, 2017, p. 63-64).

 The remarkable relationship between migration and crime appears in different periods and geographical locations. In the United States, the increasing number of migrants deported for criminal reasons is a result of a series of laws enacted to raise the consequences of criminal activities and to enlarge imprisonment’s role in enforcing immigration law.

The Anti-Drug Abuse Act, enacted by Congress in 1986, permitted the Immigration and Naturalization Service (INS) to request that local law enforcement agencies detain anyone arrested for a drug crime. Two years later, Congress created a category of crime called “aggravated felony” that demanded the INS take custody of migrants convicted of such an offense. Three crimes were incorporated by the concept that time (murder, drug trafficking, and firearms trafficking). Today, the label attaches to twenty-one categories of offenses (HERNÁNDEZ, 2021, p. 109).

Even nonviolent offenses like perjury and passport counterfeiting entered the list of aggravated felony in 1996, when the Antiterrorism and Effective Death Penalty Act was enacted. Before long, the list was extended to all crimes resulting in conviction to a sentence of more than one year. Further, in the same year, the Illegal Immigration Reform and Responsibility Act (IIRRA) imposed which migrants federal officials, including immigration judges, are barred from releasing from custody (HERNÁNDEZ, 2021, p. 109).

It’s clear how official and public discourses on “crimmigrant bodies” are reflected in migration policies and migrants’ everyday life experiences and vice versa (AAS, 2011, p. 332). This ideological movement that brings migration and crime closer results in a political and legal framework that, instead of allowing migrants to transcend their worst moments, comes increasingly to limit them to one opportunity to restart life in a new country.

The crimmigration theory explains that the increasing criminalization of migrant behavior operates a double and simultaneous effect. On one side occurs the application of criminal law to migrants – who did not commit crimes -, on the other, there is enforcement of immigration law to those convicted of crimes – resulting in the permanent repulse of the territories where they committed the crime. As a consequence, the migrants face a progressive loss of rights.

In this sense, Stumpf (2006, p. 377) specifies crimmigration policy as the convergence between criminal law and immigration law, characterizing it by high intransigence towards non-national individuals, which implies a stratification of access to rights, including the right to exercise citizenship. In the first place, the connection implies a physical exclusion, further, the imposition of laws that establish stratified levels of citizenship. “Outsider” individuals suffer restrictions concerning access to certain rights or privileges that “insiders” can enjoy aplenty. In fact, the convergence enables authorities to punish migrants twice for the same action, resulting in the accumulation of criminal and immigration sanctions (GUIA; PEDROSO, 2015, p. 133).

 The manner of law and policies tie migrants to criminal conduct reflect an ideological commitment to categorizing people on a spectrum of desirability. In the view of membership theory, there is a permission given to members of the social contract. Then, when all context of constitutional rights passes depending on this decision maker allowance, notice the emptying of the dignity of all human beings as citizens (DEMLEITNER, 2004, p. 561). For the government, it is politically and logically attractive to distinguish who is worthy of inclusion in the United States political community based on criminal status, mainly using attractively simple rhetoric around ‘dangerous offender’ versus ‘innocent potential victim’. For the migrants, this paradigm of crimmigration leads to severe social and political restrictions.

            The crimmigration policy observed in the United States transforms this simplistic ideological rhetoric into substantive laws of a juridical category built and maintained at the time. The law words are strong enough to propagate a stigma and, beyond that, convert into the drama and trauma of human experience. According to Hernández (2021, p. 115-116), “whatever value there is in casting aside felons, there is less in relying on a troubled criminal justice system to decide who is allowed to make a life in the United States and who is not”.

Therefore, as the membership theory explains, it is harmful to believe in the possibility of neatly categorizing people as fit or unfit for membership. Segregation caused by crimmigration leads to several human rights violations. Reinforcing xenophobic narratives that migrants are criminals and migration itself is a threat to their lives. This context results in discriminatory profiling, arbitrary arrest and detention, family separation, and the inability to access health care, housing, education or other rights. Modifying this trend requires radically changing current policies and laws to finally leave the migrant-sorting exercise in the past.

REFERENCES

AAS, K.F. Crimmigrant bodies and bona fide travelers: surveillance, citizenship and global governance, Theoretical Criminology, 15, p. 331-346, 2011. Available from: https://doi.org/10.1177%2F1362480610396643.

DEMLEITNER, Nora. Misguided Prevention: The War on Terrorism as a War on Immigrants Offenders and Immigration Violators. Crim. Law Bulletin, v. 40, n. 6, 2004, p. 550-575. Available from:

https://heinonline.org/HOL/LandingPage?handle=hein.journals/cmlwbl40&div=60&id=&page=.

GUIA, Maria João; PEDROSO, João. A insustentável resposta da “crimigração” face à irregularidade dos migrantes: uma perspetiva da união europeia. REMHU: Revista Interdisciplinar da Mobilidade Humana, v. 23, p. 129-144, 2015. Available from: https://www.scielo.br/j/remhu/a/BqMJgwkHB6QnxWgdryfDVBc/?lang=pt&format=pdf.

HERNÁNDEZ, César Cuauhtémoc García. Criminalizing Migration. Daedalus, v. 150, n. 2, p. 106-119, 2021. Available from:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3876368.

KOSTER, Margo De; REINKE, Herbert. Migration as crime, migration and crime. Crime, Histoire & Sociétés/Crime, History & Societies, v. 21, n. 2, p. 63-76, 2017. Available from: https://journals.openedition.org/chs/1793.

STUMPF, Juliet. The Crimmigration Crisis: Immigrants, Crime & Sovereign Power. American University Law Review, v. 56, n. 2, 2006, p. 368-419. Available from: https://digitalcommons.wcl.american.edu/aulr/vol56/iss2/3/.

Emilia Mendes is bachelor of Laws (LL.B.) from the State University of Vale do Acaraú. Born and living in Brazil, Emilia developed several internships in justice bodies of her country, including the Public Ministry, where stayed for two years. Young student and human rights advocate engaged with the United Nation Agenda for Sustainable development, her research and professional interests include human rights, especially in its connection with environmental issues, international law, sustainability and development.

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