Does Racial Bias Criminalize Immigrants?

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A “two-way pipeline for deportation” has effectively merged the immigration and criminal justice systems and “amplified the flaws in each,” according to a forthcoming paper from the New York University School of Law Immigrant Rights Clinic.

As a result, thousands of individuals who find themselves at the intersection between immigration and criminal law—under the label of “criminal aliens”—are “vulnerable to political scapegoating and hyper-enforcement,” wrote Alina Das, author of the paper.

Das, arguing that a criminal record should not be the sole basis for deportation, said policymakers should work towards “reframing…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.”

Some 58 percent of deportations during 2016—affecting an estimated 130,000 people—were based on criminal grounds, a legacy of Clinton-era laws which provided for mandatory detention and removal of undocumented immigrants, wrote Das.

The consequence, she added in her paper, “Inclusive Immigrant Justice: Racial Animus and the Origins of Crime-Based Deportation,” has been that undocumented immigrants have less resource to due process of the law.

Although it is a commonly held belief that immigration and immigrants are the backbone of this country’s origin story, the truth is more complicated, Das wrote.

Reviewing the history of immigration and immigrants in the US, Das said deportation has periodically been deployed as a race-based policy tool, starting with the arrival of the European colonizers in the 16th century.

The 1830 Indian Removal Act, for example, “forced American Indians from their ancestral lands by violence and coercion.”

“The new conquests of land led to a nearby unquenchable thirst for free labor,” which in turn gave way to the “legitimating theories” in which those slaves who had fled the South and sought refuge in Northern states could be physically transported back to the South, she wrote.

The history of deportation in the US or, as Das describes it, “the regulation of movement,” has always targeted “those most vulnerable in society.”

Such measures continued throughout US history, most infamously with acts such as the Chinese Exclusion Act of 1882 and the National Origins Act of 1924, which was supported by eugenicists and “restricted immigration outside the Western hemisphere to 155,000 persons annually,” while also imposing a strict immigration quota for each country.

The informally dubbed “Operation Wetback,” which deported over a million people of Mexican origin, started during the Depression and continued up into the 1950s. The National Origins Quota was upheld up until 1965, the same year that the Immigration and Naturalization Act passed, which “repealed the most overly racist screening requirements.”

However, the progress made in 1965 was only a slight respite from the “draconian” policies to follow, Das wrote.

The passage of both the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and the Antiterrorism and Effective Death Penalty Act (AEDPA) in 1996 coincided with the “tough-on-crime” era, which saw the introduction of mandatory-minimum sentencing laws, and other harsh approaches to criminal offenders.

Even though the link between criminality and immigration predates the 1996 laws and legislation from the 1980s and 1990s that expanded on the “criminal grounds of deportability and exclusion” —for instance, with the 1986 passage of the Immigration Reform and Control Act which “criminaliz[ed] the hiring of undocumented workers and smuggling offenses”—Das cites the explosion of the drug trade as a major turning point.

Das argued the 1988 Anti-Drug Abuse Act paved the way for stricter laws for deportation and reentry, but noted that the connection between “racialized animus and crime-based deportation” reached as far back as the 19th century, when the association between opium and Chinese immigrants generated “anti-Chinese hysteria.”

Ultimately, Das concluded, “racial animus” has been an integral factor in deportation enforcement since the nation’s founding.

The paper said immigration advocates have also in effect used the same framework by acknowledging that some immigrants must be treated differently because of their criminal behavior.

“Immigrants have been criminalized throughout U.S. history by policies that first associate immigrants with criminality, and then penalize immigrants for that association,” the paper said.

Das added: “If those of us in the immigrant rights community cannot champion rights for all immigrants, then we are simply building upon the legacy of racism and oppression that led us to this massive deportation system in the first place.”

The full study can be downloaded here.

Julia Pagnamenta is a TCR news intern. Readers’ comments are welcomed.

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