Turning families into felons
argues that the Trump administration’s new border policies are the latest injustice in this country’s long history of criminalizing immigrants.
IN EARLY April, the Trump administration announced two new measures to crack down on undocumented immigrants.
First, Trump called for an end to “catch and release,” the long-standing practice of releasing undocumented immigrants from custody until their hearings. Instead, Trump demanded that additional facilities be made available so that all those who are waiting for hearings will remain in detention once apprehended.
Second, Attorney General Jeff Sessions announced a “zero-tolerance policy” of criminally prosecuting all illegal border crossings “to the extent practicable.” This includes Sessions’ already infamous promise to separate child from parent as punishment for “smuggling children over our border.”
To summarize the twisted logic: On the grounds that we’re in danger of being overrun by “criminal aliens,” the Trump administration will make criminals out of thousands of people who it might previously have merely sent away.
While bemoaning the backlog and lack of efficiency in immigration proceedings, the administration would further burden an already badly overtaxed immigration court system with many more cases.
But as horrific as Trump’s new policies are, they aren’t a uniquely “un-American” moment in an otherwise noble national history of immigration policy.
On the contrary, these latest efforts to criminalize — and thereby dehumanize — immigrants have many legal and political precedents in a system that’s always operated on the assumption that immigrants are morally suspect and inclined to criminality.
This supposed criminality of immigrants is a myth that persists despite study after study showing that immigrants are, if anything, less likely than the general population to be involved in criminal activity.
But it’s not merely a myth. U.S. immigration law does all it can to make immigrant criminality a self-fulfilling prophecy.
Trump’s rhetoric about the millions of undocumented “criminals” living in this country today, and the millions more trying to get in, is even more troubling because he’s in command of a vast bureaucracy with the power to brand many immigrants as precisely that — and often on the flimsiest of pretexts.
THROUGHOUT THE history of this country, noncitizens have been scrutinized for supposed “moral” failings that would render them unfit to be here. Those who apply to become citizens, for instance, are required, as they have been since 1795, to satisfy the authorities that they are people of “good moral character.”
The question of what precisely constitutes “good moral character” is left largely to the judgment of the authorities, although current U.S. law does list a number of conditions under which a person can’t be found to have a good moral character. Noteworthy among these are being a “habitual drunkard,” having been convicted of two or more gambling offenses, and being a noncitizen who was previously deported.
Without belaboring the point, we should note that alcoholism and gambling addiction are medical conditions, not moral failings — and also that it’s unclear what is immoral about being deported and later attempting to re-enter the country in which you wish to live.
Another disqualifying condition is having committed a “crime involving moral turpitude.” Crimes of moral turpitude also come up frequently in immigration proceedings, where they can be grounds both for inadmissibility (denial of entry to an immigrant seeking to come to the U.S.) or removal (deportation of a noncitizen already residing in the U.S.).
This standard applies not just to undocumented immigrants, but also to other noncitizens, including permanent residents.
But what precisely is “moral turpitude”? Although it has been part of U.S. immigration law since 1891, the term has never been precisely defined. This vagueness has not, so far, bothered the Supreme Court, which argued in 1951 that “the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.”
In other words: We’ll know it when we see it.
Thus, a “crime of moral turpitude” can be pretty much anything the authorities choose to regard as one. The term needn’t even imply a serious crime: possession of stolen property, for example, may be regarded as a “crime of moral turpitude,” even when the items stolen are nothing more valuable than bus transfers.
Again, we must point out that such crimes are mostly motivated by poverty and need, not fundamental character flaws.
In any case, this focus on “morality” can scarcely be a matter of preserving the character of the nation as it stands — or else current citizens would be held to the same standard. Instead, the issue of morality provides a convenient — and conveniently vague — basis for excluding or expelling unwanted immigrants.
U.S. IMMIGRATION law also provides for deportation — again, not just of undocumented immigrants, but any noncitizens, including permanent residents — on the grounds of having been convicted of an “aggravated felony.”
The list of aggravated felonies is long and, as David Weissbrodt and Laura Danielson write, “run[s] the gamut from very serious offenses to relatively minor ones.” In the case of U.S. v. Pacheco, the theft of a $10 video game was considered an aggravated felony for immigration purposes.
Such absurdities arise from the fact that any criminal offense carrying a sentence of one year or more, even if it is categorized under state law as a misdemeanor, counts as an aggravated felony under federal immigration law. Worse yet, since 1996, removal orders based on aggravated felony convictions aren’t subject to judicial review.
The upshot of all this is that any noncitizen who runs afoul of the law, even in the most trivial way, faces not only whatever penalties the justice system may have in store for them, but the possibility of deportation as well.
And if they do find themselves being dragged into immigration proceedings, they may well have to fight that long, complex, and costly battle without the benefit of a lawyer. Because immigration hearings are categorized as civil rather than criminal proceedings, the right to counsel, guaranteed by the Sixth Amendment, doesn’t apply.
The Study Group on Immigration Representation gave a vivid example in a 2011 report:
A noncitizen arrested on the streets of New York City for jumping a subway turnstile of course has a constitutional right to have counsel appointed to her in the criminal proceedings she will face, notwithstanding the fact that it is unlikely she will spend more than a day in jail.
If, however, the resulting conviction triggers removal proceedings, where that same noncitizen can face months of detention and permanent exile from her family, her home and her livelihood, she is all too often forced to navigate the labyrinthine world of immigration law on her own, without the aid of counsel. This is the current state of the law and has been for over a century.
THIS IS the legal and administrative framework which Trump inherited. Within days of taking office, he sought to make it even worse.
Under Executive Order 13768, issued on January 25, 2017, Trump directed the DHS to prioritize for deportation not only those “removable aliens” who have been “convicted of any criminal offense,” but also those who have charged with such an offense (if their cases are still open), and even those who have merely “committed acts that constitute a chargeable criminal offense” — whether or not they’ve been charged at all.
The executive order also included a catchall, prioritizing for deportation any other “removable alien” who, “in the judgment of an immigration officer, otherwise pose[s] a risk to public safety or national security.”
In other words, every immigration officer now has the power to decide on their own who constitutes a “risk to public safety or national security.” This is nothing less than an invitation from the president of the United States to deport more or less whomever they please.
As Nicole Colson reported in January for Socialist Worker, Immigration and Customs Enforcement (ICE) has been busy doing just that:
The White House is intent on sending a message to undocumented immigrants that no one is safe. It doesn’t matter how long they have lived in the U.S., whether they have families or ties to their communities, whether they face the threat of repression and violence in their countries of origin if deported...
ICE claims that arrests and deportations are about removing “individuals who threaten public safety, national security and border security.” But officials have offered zero explanations for which of those categories people like Jorge Garcia or Al Adi Othman [two noncitizens who had received repeated stays of removal under the Obama administration, but were facing deportation under Trump] fall into.
Stories like those of Garcia or Othman — people whom the authorities were previously content to monitor, but who suddenly find themselves facing imminent deportation, despite the fact that nothing at all in their circumstances has changed — are appallingly common in the era of Trump.
But they are by no means unique to Trump’s administration.
TAKE THE case of Ramesh Palaniandi, a permanent resident who was apprehended by ICE in 2015 and detained for 18 months, with the threat of deportation hanging over his head all the while.
The reason? ICE had decided to take a renewed interest in Palaniandi’s 2008 guilty plea to charges of attempted burglary. Despite the fact that Palaniandi had served his time (six months of a longer sentence) and maintained a spotless record ever since, his seven-year-old conviction was now being resurrected as grounds for deportation.
As Public Radio International explained:
Palaniandi was one of 2,059 immigrants detained across the US as part of an annual enforcement operation that lasted five days. It was called “Operation Cross Check” and many of those arrested had multiple convictions. ICE said then that they were successful in detaining “convicted criminal aliens who pose the greatest risk to our public safety.” They said that the operation was consistent with President Barack Obama’s priorities for immigration enforcement.
The Homeland Security press release describing the 2015 Cross Check operation included some revealing statistics:
The 2,059 individuals with prior criminal convictions who were arrested include more than 1,000 individuals who have multiple criminal convictions. More than 1,000 of those arrested have felony convictions, including voluntary manslaughter, child pornography, robbery, kidnapping and rape.
Of the total 2,059 criminals arrested, 58 are known gang members or affiliates, and 89 are convicted sex offenders.
The phrase “more than 1,000” suggests that the total number of convicted felons apprehended was actually not much higher than 1,000 — in other words, that roughly half of the people caught up in Cross Check had nothing worse than misdemeanors on their records. And as Palaniandi’s case demonstrates, even the convicted felons weren’t necessarily hardened criminals.
It is, to put it mildly, a bit of a stretch to characterize this group of people as posing “the greatest risk to our public safety.”
The point here isn’t to draw a false equivalency between Obama and Trump, but to shine a light on a system that, regardless of who is in power, is set up in such a way that even the most trivial infractions, years in the past, can lead to arrest and deportation for noncitizens.
In 2014, Obama vowed to focus “enforcement resources on actual threats to our security. Felons, not families. Criminals, not children. Gang members, not a mom who’s working hard to provide for her kids.”
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With these dehumanizing dichotomies, Obama didn’t just overlook the fact that people convicted of felonies also have families and loved ones, or that children (particularly children of color) are all too often treated as criminals from a very young age.
He also ignored the fundamental injustice of a system in which noncitizens may be branded as criminals for the most trivial offenses, or rebranded as criminals even years after they have fully “paid their debt to society” — and then face expulsion from the country on this basis.
While we organize against Trump’s latest horrible additions to this system, we should be clear that the entire framework of immigrant criminalization must be dismantled.