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What’s Behind the Criminalizing of Immigration?

Immigration issues often evoke strong reactions among modern policymakers. On the one hand, the United States is a nation consisting of and built by immigrants, and its reputation as the “Golden Door” is a cherished national institution. On the other hand, many fear that open borders are a threat to national security and that those who enter the country in violation of federal law display a dangerous disregard for its authority.

These issues and more were covered in “Crimmigration Law,” a February 4 event at BC Law sponsored by the Immigration Law Society. It featured Professor César Cuauhtémoc García Hernández ’07 (above, center) from the University of Denver Sturm College of Law, who spoke about his recent book of the same name.

Hernandez said that during the 1980s the government changed how it dealt with migrants, moving from traditional criminal punishments to immigration punishments, usually resulting in deportation. The Anti-Drug Abuse Act of 1988 allowed the charge of “aggravated felony” to apply to criminal cases involving migrants, and has since been used to design the policies and programs that are invoked to detain more than 400,000 migrants per year. Such policies, called by many “crimmigration law,” have made the distinction between criminal and immigration law increasingly indistinct, Hernandez said.

He posed further thorny doctrinal questions making their way through the courts, such as “when is it appropriate for immigration judges to use the analytical approach vs. the modified categorical approach when deciding whether deportation is a good option.” Despite the current US Supreme Court’s reputation for conservatism, he argued, it has given a “remarkable amount of breathing room for migrants convicted of minor drug offenses.” Further, recent decisions require that counsel provide advice to their clients about the immigration consequences of their criminal charges.

Conversely, emphasizing the current state of exceptionalism in immigration law, Hernandez detailed the areas of constitutional uncertainty upon which current policy rests, especially on Fourth Amendment and due process grounds. For example, focusing on the illegality of migrants has allowed federal officials to set up permanent roadblocks nearly 100 miles from the border in some areas, meaning that the mere presence in a region will lead to a traffic stop.

Further, many migrants are processed en masse in federal courts, despite very clear statements in Rule 11 of the Federal Rules of Civil Procedure that require judges to address each defendant personally and ensure that pleas are entered voluntarily, Hernandez argued. Such confusion guarantees that enforcement is not subject to a uniform set of oversight standards, opening opportunities for abuse and inefficiency.

Hernandez concluded by saying that many of the issues resulting from crimmigration entanglement are rooted in political fear-mongering. Race, he held, is an intrinsic element behind this often unfair system.

He said that he hoped his book would be used as a tool to best promote a client’s interest to counteract the doctrine and practice of crimmigration law until changing social norms toward accepting migrants inspires a relaxation of criminal charges leveled against migrants.

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