Editor’s Note: This is the first in a series of three pieces on immigration law which will be published on Sidebar in the coming months.
In recent years, an increasing number of scholars and
commentators have turned their attention to the criminalization of migration in
the United States.1
These scholars have focused on three distinct trends: the increasingly harsh criminal consequences
attached to violations of laws regulating migration,2 the use of removal as an adjunct to
criminal punishment in cases involving noncitizens,3 and the rising reliance on criminal law enforcement actors and mechanisms in
civil immigration proceedings.4 One major effect of these three trends has
been the incorporation of criminal law methodologies into the realm of civil
immigration enforcement and adjudication.
Recently, Stephen Legomsky has theorized the asymmetric nature of this
incorporation.5 As he explains, the “theories, methods,
perceptions, and priorities” of criminal law enforcement have been incorporated
into immigration proceedings, while the procedural protections of criminal adjudication
have been explicitly rejected.6 His analysis focuses on how the
criminalization of migration is reshaping the realm of civil immigration
proceedings.
In contrast, this Essay centralizes and attempts to theorize
the criminal prosecutions of migration-related offenses.7 Part I of this Essay describes this
trend. Specifically, Part I.A highlights
the ways in which the regulation of migration has increasingly become a subject
of the criminal law. Part I.B discusses
the explosion of migration-related criminal prosecutions over the past few
years.
Part II of this Essay provides several examples of the use of
criminal prosecutions in the migration context in order to explore an
undertheorized effect of this trend, namely, that the protective features of
criminal investigation and adjudication are melting away at the edges in
certain criminal cases involving migration-related offenses. Part II.A explores the border-centered
prosecutions of Operation Streamline and the more geographically diffuse Fast
Track program aimed at felony reentries.
Part II.B focuses upon the use of criminal prosecutions in worksite
immigration enforcement efforts. Part
II.C diagnoses the ways in which these proceedings reflect declining procedural
protections in the realm of criminal prosecutions for immigration-related
offenses.
As these examples make clear, not
only are we seeing what Stephen Legomsky has termed the asymmetric
incorporation of criminal justice norms into civil removal proceedings, but we
are also witnessing the importation of the relaxed procedural norms of civil
immigration proceedings into the criminal realm.
I. Regulating
Migration Through Crime
The regulation of migration has
long taken place primarily in the civil sphere.8
In recent years, however, the U.S. government has increasingly handled
migration control through the criminal justice system. Part I.A discusses the legislation that
Congress and various state legislatures have enacted to criminalize acts associated
with migration. Part I.B. describes the
recent upward spike in prosecutions of these migration-related offenses.
A. Creating and Enhancing Criminal Sanctions for
Offenses Relating to Migration
Since the 1980s, Congress has passed legislation subjecting
more and more acts associated with migration to criminal penalties, or
increasing the severity of criminal sanctions imposed for the commission of
those acts.9 Criminal offenses newly created in the 1980s
included the hiring of unauthorized noncitizen workers,10 reliance on false documents to evade employer sanctions laws,11 and marriage fraud.12 In the late 1980s and the 1990s, illegal
reentry provisions were added and strengthened,13 as were various fraud provisions relating to the processes of seeking
immigration benefits and citizenship.14 And in 2000, penalties were raised for
various offenses relating to trafficking in persons.15
Although the criminalization of
migration-related offenses used to be entirely federal in nature, in recent
years, states and localities have added a host of anti-loitering laws and other
similar ordinances that are clearly intended to—and have been used to—facilitate
the criminal prosecution of unauthorized migrants at the state and local level.16
One example is Arizona’s version of the identity theft law. The crime—entitled “Taking identity of
another person or entity”—creates criminal culpability for the use of an
alternate identity whether or not the defendant knows that he is using the
identity of an actual person and whether or not another person with such an
identity actually exists.17 This offense, which does not require
theft of an actual identity, can be deployed as a means of prosecuting
noncitizens who have used false identities to obtain employment in cases where
there is no loss to anyone as a result of the use of that identity. Several other states have also enacted
provisions that mirror federal prohibitions on immigration crimes like
smuggling and harboring of unauthorized migrants and false proof of citizenship
or immigration status.18 These statutes take advantage of federally
created immigration categories to create a space for local enforcement.19
B. Increasing Prosecutions for Immigration
Offenses
Related to, but even more striking than the steady increase
in migration-related criminal offenses is the rising tidal wave of
immigration-related criminal prosecutions of the past decade. After remaining relatively flat in the period
from 1986 to 1996, the number of immigration prosecutions almost quadrupled over
the next ten years.20 The prosecution of migration-related offenses
exploded in the wake of September 11, 2001.
In 2004, U.S. magistrates convicted 15,662 noncitizens of immigration
crimes, and U.S. district court judges convicted another 15,546.21 The numbers continued to climb thereafter.22 Since 2004, immigration prosecutions have
topped the list of federal criminal prosecutions, outstripping federal drug and
weapons prosecutions, and dwarfing many other forms of federal criminal
prosecutions.23 This trend has continued even with the change
in presidential administrations.24 And, as previously noted, states and
localities—long thought to be excluded from the enforcement of immigration law—have
found ways to use their own criminal laws to supplement these federal
prosecutions.
These trends have attracted the notice of immigration
scholars,25 but have not received much concerted attention from criminal law scholars. Indeed, the restoration of some semblance of
rationality to the discourse on the war on crime has perhaps drawn attention
away from the parallel trend whereby the tools formerly used to fight the war
on crime are increasingly put to use against noncitizens.26
The lack of attention to the unprecedented criminalization of migration
by scholars of criminal law and procedure is unfortunate because, like the war
on drugs that preceded it,27 the emerging use of the criminal justice system to attack the social problem of
unauthorized migration carries with it distinct procedural and social
consequences that are worthy of sustained attention. In the next Part, I provide a few examples
to illustrate this point.
II. Declining Procedural Protections in
the Criminal Sphere
The well-known constitutional maxim that deportation (now
“removal”)28 is not punishment provides longstanding precedent for important legal
distinctions between civil immigration proceedings and criminal proceedings.29 Noncitizens in removal proceedings are not
entitled to counsel at the government’s expense.30 Evidence obtained in violation of a
noncitizen’s constitutional rights generally is not subject to suppression in
civil removal proceedings.31 And immigration detention—which is also not legal “punishment”—is not
subject to the same constitutional constraints as criminal detention.32 These distinctions have frequently caused
immigration attorneys to yearn for the constitutional protections of criminal
proceedings,33 even while acknowledging the inadequacies of those protections.
Unfortunately, recent developments
suggest that the lower standards of procedural protections that apply in
removal proceedings have made ultra vires incursions into the criminal realm.
For purposes of this Essay, a few examples suffice to illustrate the
problem. Part II.A outlines two programs
aimed at addressing the crimes of entry without inspection and felony
reentry. Part II.B discusses
prosecutions arising out of a worksite raid.
Part II.C addresses the declining procedural protections in the realm of
criminal prosecutions for migration-related offenses.34
A.
Criminal Prosecutions for Unlawful Entries
Because there are hundreds of thousands of unauthorized
border crossings each year,35 prosecuting every misdemeanor
unlawful border crossing would require a prohibitive outlay of additional
governmental resources. Nevertheless, in
recent years the Department of Justice (DOJ) has made an effort to
significantly increase the number of immigration prosecutions.36 Consequently, the number of such prosecutions
ballooned—from just over 18,000 in 2001 to over 35,000 in 2007.37
1.
Operation Streamline. — A significant portion of these
prosecutions have taken place under the auspices of Operation Streamline.38 Under the Operation Streamline program, all
unlawful entrants interdicted by Customs and Border Protection (CBP) in a
designated sector of the border region are criminally prosecuted.39
In Tucson, Arizona, for example, about fifty to one hundred defendants
are prosecuted for illegal entry every single day.40
The picture is similar in other jurisdictions where Streamline has been
implemented.41
During these proceedings, defense counsel represents anywhere from six
to eight defendants to as many as thirty or forty defendants.42 Defense counsel typically converses briefly
with each defendant to establish whether they might have any defenses (such as
citizenship, authorization to enter, or claims of entering pursuant to a lawful
inspection), but if no such issue is raised, counsel generally participates in
the entry of mass pleas on behalf of his or her multiple clients.43
2. “Fast
Track” Proceedings. — Illegal entry cases are not the only cases
fueling the upward spiral in immigration-related prosecution. Previously removed individuals who are
apprehended after returning to the United States can be charged with felony
reentry—a crime that now carries a sentence of up to twenty years if the prior
removal was a result of conviction for an aggravated felony.44 Felony reentry prosecutions and convictions
are already rapidly on the rise throughout the United States.45 In districts that demonstrate to the DOJ that
they have “an exceptionally large number” of illegal reentry cases that will “significantly
strain[]” prosecutorial resources, the DOJ can authorize prosecutors to offer “Fast
Track” sentences in illegal reentry cases that are significantly below the
federal guidelines.46 As in the Streamline context, the relatively
light sentences generate ready pleas from the vast majority of those
apprehended and charged with felony reentry.
B.
Postville: Aggravated Identity
Theft Pleas
The routinized mass plea agreements that characterize border
justice are not limited to the southern border.
Attorneys from ICE and CBP who have been cross-designated as “Special
Assistant United States Attorneys” (SAUSAs) have been assigned to the southern
border regions to assist with illegal entry and felony reentry prosecutions,
but they have also been dispatched to assist in criminal prosecutions at the
sites of interior workplace raids47 like the one that took place at the Agriprocessors plant in Postville, Iowa on
May 12, 2008.48
Of the approximately 1,000 workers in the Postville plant,
ICE officers arrested about 390 workers on the day of the raids.49
A number of these arrestees were released for humanitarian reasons, but
the rest—just over 300 people—were detained for prosecution.50 Over the course of the next few days, 297 of
them pled guilty to aggravated identity theft based on their use of false
documents to obtain employment.51
In reality, many of those who pled guilty to aggravated
identity theft probably did not satisfy the mens rea requirement of the charge
because they had no knowledge that they were taking the identity of an existing
person. The legal soundness of charging
identity theft in cases where there is no evidence of such knowledge was in
doubt even at the time of the Postville raids, and less than two years after
these events, the Supreme Court affirmed the lower courts that had required
such knowledge as an element of the federal identity theft provision.52
As with the border prosecutions,
however, the government proceeded on the theory—in hindsight, a seemingly
erroneous one—that few of the arrestees would have valid legal defenses to the
charges. Yet the combined threat of
lengthy pretrial detention, coupled with the threat of a two-year prison
sentence, prompted almost all of the arrestees to plead guilty in exchange for
a five-month sentence.53
The defendants who pled guilty were also ordered removed by the same
judge even though the provisions of immigration law allowing for such judicial
orders of removal did not actually apply in these cases.54 The Postville prosecutions are the clearest
example to date of the ways in which mass plea agreements can be deployed in
immigration-related prosecutions even outside of the border context.
C. Diagnosing the Harms
Arguably, the mass plea agreements used as a means of
migration control can do little harm since many defendants probably have no
good legal defenses to the charges, particularly in cases involving entry
without inspection or felony reentry.
Moreover, most defendants who have valid defenses such as derivative
citizenship or an invalid prior removal order will presumably be identified by
the defenders who meet briefly with the client prior to entry of the plea.55 Nevertheless, even if these assumptions are
true, these mass plea proceedings have a corrosive effect on the administration
of justice. I address three specific
problems here, but there are many others.56
First, this approach ensures that abuses that take place at
the stage of investigation and detention are not addressed by the courts. For example, with regard to Operation
Streamline, it may be fair to assume that many of the arrests made by CBP
officials comport with CBP’s internal regulations and the requirements of the
Fourth Amendment, but that is certainly not always the case.57 Yet, when allegations of misconduct surface
in the context of Streamline’s mass plea agreements, the affected migrant is
generally released and charges dropped—otherwise, the government has to take a
border patrol officer off the line to testify.58 With thousands of potential defendants
crossing the border each day, it is simply easier to drop charges against one
migrant than defend against allegations of constitutional violations.59 From a resource perspective, this makes
perfect sense. The problem is that it
removes any possibility of deterrence through suppression in the course of
criminal proceedings. Rogue agents have
a much greater chance of non-detection in this system, particularly because
there is almost no chance of an impoverished migrant bringing—much less winning—a
civil suit from outside of the country after removal.
Second, the proceedings engage the justice system in a
process that is, at best, tremendously dehumanizing. Individuals picked up along the border, many
of them who have been in the elements for some time, are brought in shackles en
masse to a courthouse after a period of detention (usually overnight), often in
the same clothes they wore over the course of their journey.60 Their only individualized contact in a
foreign criminal justice system is a very brief conversation with a public
defender. These prosecutions have
already changed the face of federal prisons.
As a result of aggressive immigration prosecutions, Latinos are increasingly
overrepresented in U.S. prisons.61
The “browning” of federal prisons62 ironically feeds the erroneous but
rampant perception that immigrants have a higher propensity to commit crimes,63 thus generating a feedback loop of popular pressure that drives even more
aggressive immigration enforcement.64
Finally, the group setting of the
Streamline and Postville style processes creates an inherently pressured
situation where individuals may well be reluctant to speak up to raise
individual concerns. Such an effort
would be an aberration and would seem to run contrary to the preferences of
judges seeking to run expedient proceedings.65 Moreover, even if most pleas are legitimate,
serious questions remain as to whether all of these pleas are actually “considered
and intelligent.”66
On December 2, 2009, the Ninth Circuit recognized some of these problems, concluding that the mass plea agreement procedures of Operation Streamline violated Federal Rule of Criminal Procedure 11, which requires the court to “address the defendant personally in open court . . . and determine that the plea is voluntary.”67 Reviewing the mass plea bargaining practice of Operation Streamline, the court concluded that “[n]o judge, however conscientious could have possessed the ability to hear distinctly and accurately fifty voices at the same time.”68 Nevertheless, in the absence of a finding of prejudice, the convictions on appeal were sustained.69 So while an appellate court has recognized that Rule 11 violations are taking place on a massive scale, it has concluded that, absent a showing of individual prejudice, the court will not intervene to correct the problem.
Even by the low standards of the American plea bargaining system, the proceedings discussed in this Essay seemingly lack the indicia of basic fairness that the Constitution and federal procedural rules purport to provide in criminal prosecutions. Yet these proceedings have endured a change in administration, and have reshaped the federal criminal docket. Now, courts are showing little inclination to upset these practices, despite their acknowledged procedural flaws.
Conclusions: A Cause
for Concern
The
retooling of the criminal justice system to manage migration has resulted in
some troubling trends. In this brief
Essay, I have discussed some features of the plea bargaining systems by which
immigration convictions are obtained.
Regardless of what one thinks of current restrictions on legal
immigration, the wholesale retooling of the criminal justice system to manage
migration that is evinced in these examples should raise a host of questions
that deserve serious and immediate attention:
Is this an effective deterrent to migrants?70 Is it worth the monetary price tag? Is it worth the procedural consequences?
The
ongoing erosion of the procedural rights of these criminal defendants thus far
has been effectively normalized. Such
procedural moves can be framed as nothing more than an extension of
long-standing limitations on the due process rights of noncitizens in
immigration proceedings. However, it is
important not to lose sight of the legal distinctions that separate the
criminal from the civil realm. The
prosecution of these offenses should not be allowed to reshape the criminal
sphere to look more like the less rights-protective civil system where
immigration enforcement has typically been centered. Unfortunately, at the moment, this is exactly
what is happening.
* Professor of Law, University of California,
Irvine, School of Law. My thanks to Marc
Miller, Jack Chin, Kathie Barnes, Don Dripps, Carissa Hessick, Art LaFrance,
Doralina Skidmore and the other participants of the 2009 Southwest Criminal Law
Workshop for their useful comments on a sprawling piece that included this Essay, and to Law Librarians Adam Sexton and Dianna Sahar for their speedy
responses to my many requests. Thanks to Dean Erwin Chemerinsky for his support of my research. Finally, thanks to Jonathan Simon, whose book, Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (2007), is an obvious influence on this Essay.
1See, e.g., Jennifer M. Chacón,
Unsecured Borders: Immigration
Restrictions, Crime Control and National Security, 39 Conn. L. Rev. 1827, 1827–32
(2007) [hereinafter Chacón, Unsecured Borders] (outlining “origins and
consequences of the blurred boundaries between immigration control, crime
control, and national security”); Daniel Kanstroom, Criminalizing the
Undocumented: Ironic Boundaries of the
Post-September 11th “Pale of Law,” 29 N.C. J. Int’l L. & Com. Reg. 639, 640
(2004) [hereinafter Kanstroom, Criminalizing the Undocumented] (considering “convergence
between the immigration and criminal justice systems”); Stephen H. Legomsky,
The New Path of Immigration Law:
Asymmetric Incorporation of Criminal Justice Norms, 64 Wash. & Lee
L. Rev. 469, 471–72 (2007) [hereinafter Legomsky, Asymmetric Incorporation]
(describing “growing convergence” of criminal justice and immigration control
systems); Teresa A. Miller, Blurring the Boundaries Between Immigration and
Crime Control After September 11th, 25 B.C. Third World L.J. 81, 83–86 (2005)
(describing consequences of interaction between criminal justice and
immigration law); Teresa A. Miller, Citizenship & Severity: Recent Immigration Reforms and the New
Penology, 17 Geo. Immigr. L.J. 611, 616–20 (2003) [hereinafter Miller,
Citizenship & Severity] (describing criminalization of immigration law);
Juliet Stumpf, The Crimmigration Crisis:
Immigrants, Crime, and Sovereign Power, 56 Am. U. L. Rev. 367, 376–77
(2006) [hereinafter Stumpf, Crimmigration Crisis] (noting “intense interest” in
“crimmigration law”).
2 See, e.g., Chacón, Unsecured
Borders, supra note 1,
at 1844 (noting 1996 immigration laws “impos[ed] a system of tough penalties
that favor removal even in cases involving relatively minor infractions or very
old crimes”); Kanstroom, Criminalizing the Undocumented, supra note 1,
at 640 (noting post-9/11 push to criminalize “unlawful presence in the United
States”); Legomsky, Asymmetric Incorporation, supra note 1,
at 476–82 (describing expansion of immigration-related criminal offenses);
Miller, Citizenship & Severity, supra note 1, at 617 (describing “stiff
criminal penalties” for immigration violations); Juliet P. Stumpf, States of
Confusion: The Rise of State and Local
Power Over Immigration, 86 N.C. L. Rev. 1557, 1589–92 (2008) [hereinafter
Stumpf, States of Confusion] (describing imposition of criminal penalties for violations
of immigration-related laws).
3 See, e.g., Jennifer M. Chacón,
Whose Community Shield?: Examining the
Removal of the “Criminal Street Gang Member”, 2007 U. Chi. Legal F. 317, 321–24
[hereinafter Chacón, Whose Community Shield?] (describing use of revised
immigration laws and removal proceedings to disrupt gangs); Kanstroom,
Criminalizing the Undocumented, supra note 1,
at 653 (“After the criminal justice system has completed its work, the removal
system begins.”); Legomsky, Asymmetric Incorporation, supra note 1,
at 482–86 (describing “proliferation of new crime-related deportation
grounds”); Miller, Citizenship & Severity, supra note 1,
at 614 (“[C]riminal grounds for deporting non-citizens
that were previously quite limited and enforced with laxity have been greatly
expanded in scope and are now strictly enforced through a variety of mechanisms
and institutional arrangements that have produced unprecedented cooperation
between criminal and immigration law enforcement.”).
4 See, e.g., Chacón, Whose
Community Shield?, supra note 3, at 339–43 (describing participation of
criminal enforcement officers in immigration proceedings); Anil Kalhan, The
Fourth Amendment and Privacy Implications of Interior Immigration Enforcement,
41 U.C. Davis L. Rev 1137, 1161–63 (2008) (describing increased role of state
and local officials in enforcement of immigration laws); Legomsky, Asymmetric
Incorporation, supra note 1, at 489–500 (describing importation of criminal law
enforcement strategies to immigration law); Stumpf, States of Confusion, supra
note 2, at 1595 (“Several post-September 11, 2001 federal actions have had the
effect of drawing state and local police into indirectly enforcing immigration
law.”); Michael J. Wishnie, State and Local Police Enforcement of Immigration
Laws, 6 U. Pa. J. Const. L. 1084, 1084–88 (2004) (discussing entry of civil
immigration violations into NCIC database).
5 See generally Legomsky,
Asymmetric Incorporation, supra note 1.
6 Id. at 472.
7 Legomsky discusses these
prosecutions, but they are not central to his analysis. Id. at 481.
8 See Daniel Kanstroom,
Deportation, Social Control, and Punishment:
Some Thoughts About Why Hard Laws Make Bad Cases, 113 Harv. L. Rev.
1890, 1899–913 (2000) [hereinafter Kanstroom, Hard Laws] (discussing early
history of migration regulation).
9 See sources cited supra note 2;
see also Hiroshi Motomura, Immigration Outside the Law, 108 Colum. L. Rev.
2037, 2087–88 (2008) (“Criminalization has been the trend since the 1990s, when
Congress increased penalties for existing immigration-related crimes, such as
smuggling and various types of document fraud, and added several new
immigration-related crimes.”).
10 Immigration Reform and Control
Act (IRCA) of 1986, 8 U.S.C. § 1324a (2006).
11 IRCA § 103(a).
12 Immigration Marriage Fraud
Amendment of 1986 § 2(d), 8 U.S.C. § 1325(c) (2006).
13 See, e.g., Anti-Drug Abuse
Act of 1988 § 7345, 8 U.S.C. § 1326 (2006) (increasing criminal sentences
for unlawful reentry); Violent Crime Control and Law Enforcement Act of
1994, Pub. L. No. 103-322, § 130001(b), 108 Stat. 1796, 2023 (codified as amended at 8 U.S.C. § 1326(b)(1) (2006))
(criminalizing reentry after commission of three or more enumerated
misdemeanors).
14 Illegal Immigration Reform and
Immigrant Responsibility Act (IIRIRA) of 1996, Pub. L. No. 104-208, Div. C. §§ 213–215, 110 Stat.
3009 (codified at 8 U.S.C. § 1324c(e) (2006), 18 U.S.C. §
1546(a) (2006), and 18 U.S.C. § 1015(e)–(f) (2006)).
15 See Jennifer M. Chacón, Misery
and Myopia: Understanding the Failures
of U.S. Efforts to Stop Human Trafficking, 74 Fordham L. Rev. 2977, 2992–93
(2006) [hereinafter Chacón, Misery and Myopia] (discussing criminal provisions
added or enhanced by Trafficking Victims Protection Act (TVPA) of 2000).
16 See Legomsky, Asymmetric
Incorporation, supra note 1, at 496–98 (discussing IIRIRA encouragement of “use
of state and local criminal enforcement machinery to bolster the INS civil
immigration enforcement efforts”); Karla Mari McKanders, Welcome to
Hazelton! “Illegal” Immigrants
Beware: Local Immigration Ordinances and
What the Federal Government Must Do About It, 39 Loy. U. Chi. L.J. 1, 6–13
(2007) (discussing municipal legislation in Hazelton, PA, Altoona, PA, and San
Bernardino, CA); Michael A. Olivas, Immigration-Related State and Local
Ordinances: Preemption, Prejudice, and
the Proper Role for Enforcement, 2007 U. Chi. Legal F. 27, 31–33 (“[F]rom
January through June, 2006, almost 500 immigration-related bills had been
introduced in state legislatures, and 44 had been enacted, in 19 states.”);
Christina M. Rodríguez, The Significance of the Local in Immigration
Regulation, 106 Mich. L. Rev. 567, 581–90 (2008) (discussing examples in
Illinois, North Carolina, and Iowa); Stumpf, States of Confusion, supra note 2,
at 1596–600 (discussing examples of local criminal enforcement in North
Carolina, Illinois, Oklahoma, California, Wyoming, New York, and Pennsylvania);
Rick Su, A Localist Reading of Local Immigration Regulations, 86 N.C. L. Rev.
1619, 1642–49 (2008) (using Town of Hazelton in Eastern Pennsylvania to discuss
theory of indirect regulation at local level).
17 See Ariz. Rev. Stat. Ann. §
13-2008 (Supp. 2008) (criminalizing “Taking identity of another person or
entity; knowingly accepting identity of another person; classification”); §
13-2009 (criminalizing “Aggravated taking identity of another person or entity;
classification”); § 13-2010 (criminalizing “Trafficking in the identity of
another person or entity; classification”).
18 See Stumpf, States of
Confusion, supra note 2,
at 1599 n.224 (citing examples from Oklahoma, Tennessee, California, Oregon, and
Wyoming). An expanding number of states
and localities have also targeted employers and landlords who hire or enter
into contracts with unauthorized migrants.
See id. (discussing ordinances in Escondido, California, Suffolk County,
New York, and Hazleton, Pennsylvania); see also McKanders, supra note 16,
at 6–13 (discussing ordinances in Hazelton, PA, Altoona, PA, and San
Bernardino, CA).
19 See Su, supra note 16,
at 1642 (describing trend as “indirect regulations of immigration”).
20 TRAC, Graphical Highlights: DHS
Criminal Enforcement Trends (2005), at
http://trac.syr.edu/tracins/highlights/v04/dhstrendsG.html (on file with the Columbia Law Review).
21 TRAC, Graphical Highlights:
Offenses Differ by Court (2005), at
http://trac.syr.edu/tracins/highlights/v04/dhsoffcourtG.html (on file with the Columbia Law
Review). The vast majority of these
prosecutions are for illegal entry and illegal reentry. Id.
22 Spencer S. Hsu, Immigration Prosecutions Hit New High, Wash.
Post, June 2, 2008, at A1.
23 TRAC, New Findings: Department of
Homeland Security (2005), at http://trac.syr.edu/tracins/latest/131/ (on file with the Columbia Law Review)
(“[I]mmigration matters now represent the single largest group of all federal
prosecutions, about one third (32%) of the total. By comparison, narcotics and drugs, for many
years the government’s dominant enforcement interest, dropped to about a
quarter of the total (27%) and weapons matters to slightly less than one out of
ten (9%).”).
24 TRAC, ICE Criminal Prosecutions Continue
to Rise Under Obama (2009), at
http://trac.syr.edu/immigration/reports/216/ (on file with the Columbia Law Review) (“[A]t least
through the first five months of the Obama Administration there has been no let
up in the increase in criminal prosecutions as a result of ICE’s enforcement
activities.”).
25 See, e.g., Chacón, Unsecured
Borders, supra note 1,
at 1847 (describing “new enforcement actions that . . . feed and
fuel the notion of dangerous classes of aliens”); Legomsky, Asymmetric
Incorporation, supra note 1,
at 479 (noting escalation of immigration-related criminal prosecutions
beginning in 1980s); see also Stumpf, The Crimmigration Crisis, supra note 1,
at 388 (“For the first time, immigration prosecutions outnumber all other types of
federal criminal prosecutions, including prosecutions for drugs and weapons
violations.”); Abby Sullivan, Note, On Thin ICE: Cracking Down on the Racial Profiling of
Immigrants and Implementing a Compassionate Enforcement Policy, 6 Hastings Race
& Poverty L.J. 101, 117 (2009) (providing statistics showing “notable leap”
in immigrants serving federal prison terms).
26 For examples of literature
that examine the former phenomenon, see After the War on Crime 2 (Mary Louise
Frampton, Ian Haney López & Jonathan Simon eds. 2008).
27 For discussion of the
procedural and social consequences of the war on drugs, see, e.g.,
Erik Luna, Drug
Exceptionalism, 47 Vill. L. Rev. 753, 754–57 (2002) (discussing
procedural consequences of war on drugs); Tracey Maclin, Race and the Fourth Amendment, 51 Vand.
L. Rev. 333, 340–42 (1998) (addressing social impact of procedural
changes); William J. Stuntz, Local Policing After the War on Terror, 111 Yale
L.J. 2137, 2160 (2002) (noting war on crime transformed criminal procedure and
hypothesizing that war on terror will do same); Loïc Wacquant, The Place of the
Prison in the New Government of Poverty, in After the War on Crime, supra note 26,
at 27 (discussing social consequences of mass incarceration).
28 Until 1996, immigration
proceedings to prevent noncitizens from entering the country were termed “exclusion”
proceedings, while proceedings to remove a noncitizen that had already entered the
country were termed “deportation” proceedings.
See Stephen H. Legomsky, Immigration and Refugee Law and Policy 420–21
(5th ed. 2009). IIRIRA, Pub. L. No.
104-208, 110 Stat. 3009-546, Title III (1996), consolidated exclusion and
deportation, and labeled the resulting proceedings “removal” proceedings. IIRIRA, Pub. L. No. 104-208, §§ 304, 308, 110 Stat. 3009, 3009–597 (codified at 8 U.S.C. § 1324c(e) (2006), 18 U.S.C. § 1546(a) (2006), and 18 U.S.C. § 1015(e)–(f) (2006)) §§ 304, 308. Now, 8 U.S.C.
§ 1229a(3) indicates that the removal proceedings defined in that section are for determining “whether an alien may
be admitted to the United States or, if the alien has been so admitted, removed
from the United States.”
29 See Wong Wing v. United
States, 163 U.S. 228, 237 (1896) (distinguishing hard labor, which is
punishment, from deportation, which is not); Fong Yue Ting v. United States, 149 U.S. 698, 713 (1893) (suggesting congressional
power with regard to deportation is virtually limitless); see also
Kanstroom, Hard Laws, supra note 8,
at 1895 (discussing and contesting maxim).
30 INS v. Lopez-Mendoza, 468 U.S.
1032, 1038 (1984).
31 See id. at 1050 (holding
exclusionary rule generally does not apply in deportation proceedings, but
could apply if constitutional violations were “egregious”). The Court also discussed the possibility of
applying the exclusionary rule in removal proceedings if violations became “widespread.” Id.
For arguments that this threshold has been reached, see Stella Burch
Elias, Good Reason to Believe:
Widespread Constitutional Violations in the Course of Immigration
Enforcement and the Case for Revisiting Lopez-Mendoza, 2008 Wis. L. Rev. 1109,
1109 (arguing that “constitutional violations by immigration officers have
become . . . geographically and institutionally widespread in
the years since Lopez-Mendoza“);
Michael J. Wishnie, State and Local Police Enforcement of Immigration Laws, 6
U. Pa. J. Const. L. 1084, 1114 (2004) (noting that “[u]nder the logic of
Lopez-Mendoza itself, the exclusionary rule may now be appropriate in
immigration proceedings” given widespread evidence of racial profiling in
immigration enforcement).
32 Margaret H. Taylor, Dangerous
by Decree: Detention Without Bond in
Immigration Proceedings, 50 Loy. L. Rev. 149, 150 (2004) (discussing uses of
immigration detention since September 11, 2001 to circumvent constitutional
limitations on detention).
33 See, e.g., Burch Elias, supra
note 31,
at 1114 (arguing for adoption of exclusionary rule in removal proceedings);
Wishnie, supra note 31,
at 1114 (same).
34 Not discussed here, but also
relevant, is the development of case law concluding that certain undocumented
migrants in the United States—such as felony reentrants—are not entitled to the
protections of the Fourth Amendment at all.
See, e.g., United States v. Esparza-Mendoza, 265 F. Supp. 2d 1254, 1273–74
(D. Utah 2003) (denying motion for suppression of evidence under Fourth
Amendment due to alien defendant’s “lack of substantial sufficient connection”
to United States); see also M. Isabel Medina, Exploring the Use of the Word “Citizen”
in Writings on the Fourth Amendment, 83 Ind. L.J. 1557 (2008) (discussing
Fourth Amendment jurisprudence that incorrectly suggests right is limited to
citizens).
35 Jeffrey S. Passel & D’Vera
Cohn, Pew Hispanic Ctr., Trends in Unauthorized Immigration: Undocumented Inflow Now Trails Legal Inflow,
at i (2008), available at http://pewhispanic.org/reports/report.php?ReportID=94 (on file with the Columbia Law Review)
(“[I]nflows of unauthorized immigrants averaged 800,000 a year from
2000 to 2004, but fell to 500,000 a year from 2005 to 2008 with a decreasing
year-to-year trend”).
36 John Grasty Crews, II, The
Executive Office for United States Attorneys’ Involvement in Immigration Law
Enforcement, U.S. Attorney’s Bull., Nov. 2008, at 1, 2, available at
http://www.usdoj.gov/usao/eousa/foia_reading_room/usab5606.pdf (on file with
the Columbia Law Review) (describing “increase[d]
misdemeanor prosecutions along the southwest border”).
37 Id.
38 See, e.g., Press Release, U.S.
Customs & Border Prot., Operation Streamline Nets 1,200-Plus Prosecutions
in Arizona (June 24, 2007), available at http://www.cbp.gov/xp/cgov/newsroom/news_releases/archives/2007_news_releases/072007/07242007_3.xml (on file with the Columbia Law Review)
(noting 1,200 of 2,800 immigration prosecutions in Yuma sector of Arizona took
place under auspices of Operation Streamline).
39 The designated sector is not
fixed, but changes over time, and usually covers a fifteen to twenty mile
stretch of the border region. The notion
is that all entrants in that sector will be prosecuted, but because available
criminal detention facilities (and the courts) are not designed to accommodate
such a mass of pretrial inmates, apprehended individuals who pose particular
challenges (such as women and individuals who speak languages other than Spanish)
are often released without being prosecuted.
Telephone Interview with Jon Sands, Fed. Pub. Defender, Dist. of Ariz.
(Oct. 21, 2009) [hereinafter Sands Interview] (notes on file with the Columbia Law Review).
40 Id.; see also United States v. Roblero-Solis, No.
08-10396, 2009 WL 4282022, at *1 (9th Cir. Dec. 2, 2009) (describing one particular mass
plea agreement and noting that “in twelve months’ time the court has handled 25,000″ of these pleas);
Brief of Defendant-Appellants at 6,
United States v. Roblero-Solis, Nos. 08-10396, 08-10397, 08-10466, 08-10509,
08-10512, 08-10543 (consolidated) (9th Cir. Apr. 6, 2009) (on file with the Columbia Law Review) [hereinafter Roblero-Solis Brief] (describing
Streamline plea proceeding); Oversight
Hearing on the Executive Office for United States Attorneys, Before the H.R. S.
Comm. on Commercial & Admin. Law of the H. Comm. on the Judiciary, 110th
Cong. 10 (2008) (Statement of Heather E. Williams, Federal Public Defender,
District of Arizona), available at http://judiciary.house.gov/hearings/pdf/Williams080625.pdf (on file with the Columbia Law Review)
[hereinafter Williams Testimony] (tracking prosecution caseloads after
implementation of Operation Streamline); David Bacon, Railroading Immigrants, The Nation,
Oct. 6, 2008, at 20 (same).
41 See Williams Testimony, supra
note 40, at 5–7 (discussing developments in Del Rio, TX, Laredo, TX, and
Yuma, AZ); see also David McLemore, Border Patrol Gets Tough in Laredo,
Dallas Morning News, Nov. 1, 2007, available at
http://www.dallasnews.com/sharedcontent/dws/news/world/mexico/stories/110207dntexlaredo.3584a01.html
(on file with the Columbia Law Review)
(describing twenty-seven defendants in South Texas Streamline prosecution “lined
up three deep” and entering plea in unison after brief discussion with federal
defender).
42 Sands Interview, supra note
39.
43 Id.; see also Roblero-Solis, 2009 WL 4282022, at *2 (describing
one such mass plea agreement);
Roblero-Solis Brief, supra note 40,
at 10–14 (describing mass plea system).
Sentencing also takes place en masse, in smaller groups of fifteen or
twenty. Id. at 15.
44 8 U.S.C. § 1326 (2006).
45 See, e.g., TRAC, Immigration
Convictions for July 2009, at
http://trac.syr.edu/tracreports/bulletins/immigration/monthlyjul09/gui/ (last
visited Nov. 13, 2009) (on file with the Columbia
Law Review) (noting convictions under § 1326 comprise about ten percent of
convictions by magistrate judges for immigration violations).
46 See Alison Seigler,
Disparities and Discretion in Fast-Track Sentencing, 21 Fed. Sent’g Rep. 299,
299, 303 (2009) (noting DOJ arguments in favor of Fast-Track program). One result of the program is massive
sentencing disparities between Fast-Track and non-Fast-Track
jurisdictions. Id at 299.
47 Crews, II, supra note 36, at 3.
48 Nigel Duara, William Petrosky
& Grant Schulte, Claims of ID Fraud Lead to Largest Raid in State History,
Des Moines Reg., May 12, 2008, available at
http://www.desmoinesregister.com/apps/pbcs.dll/article?AID=/20080512/NEWS/80512012/1001 (on file with the Columbia Law Review).
49 Erik Camayd-Freixas,
Interpreting After the Largest ICE Raid in US History: A Personal Account, 7 J. Latino Stud. 123,
125 (2009). Warrants existed for an
additional 300 workers who were not present at the time of the raid and were
not arrested. Id.
50 Id.
51 See Julia Preston, 270 Illegal
Immigrants Sent to Prison in Federal Push, N.Y. Times, May 24, 2008, at A1 (“The
unusually swift proceedings, in which 297 immigrants pleaded guilty and were
sentenced in four days, were criticized by criminal defense lawyers, who warned
of violations of due process.”).
52 Flores-Figueroa v. United
States, 129 S. Ct. 1886, 1888 (2009) (holding aggravated identity theft statute
requires showing that defendant knew identification used belonged to another
person).
53 Camayd-Freixas, supra note 49,
at 5. But cf. Peter R. Moyers,
Butchering Statutes: The Postville Raids
and the Misinterpretation of Federal Criminal Law, 32 U. Seattle L. Rev. 651,
673-74 (2009) (taking issue with Camayd-Freixas’s conclusion that pleas were “coerced,”
noting that this was not true in strict legal sense, although pleas “were the
product of a subtle systemic coercion”).
54 Moyers, supra note 53,
at 688 (noting entire plea arrangement relied upon misinterpretations of
federal identity theft provision and relevant removal provisions); see also
Sioban Albiol, R. Linus Chan & Sarah J. Diaz, Re-Interpreting Postville: A Legal Perspective, 2 DePaul J. Soc. Just.
31, 64 (2008) (arguing reliance on judicial removal provision of
immigration law was inappropriate in these cases).
55 The amount of time spent by an
attorney with a particular client varies.
In Arizona, public defenders typically represent six or seven defendants
at each Streamline hearing and are able to spend around fifteen minutes talking
to each client before a plea is entered.
Williams Testimony, supra note 40, at 4; Sands Interview, supra note 39. Resources are stretched more thinly in places
like the Southern District of Texas, where there are fewer panel lawyers to
represent Streamline defendants, and defense counsel can represent as many as
thirty to forty defendants in a proceeding.
See Sands Interview, supra note 39; see also McLemore, supra note 41 (“27 people were brought before U.S. Magistrate Adriana Arce-Flores to enter a
plea for misdemeanor illegal entry. A
federal public defender visited briefly with each one as they lined up three
deep . . . .”).
56 See Williams Testimony, supra
note 40, at 10–16
(listing numerous administrative costs, health risks and potential
constitutional violations resulting from Streamline system).
57 See, e.g., United States v.
Rangel-Portillo, No. 08-40803, 2009 WL 3429563, at *5 (5th Cir. Oct. 27, 2009)
(holding CBP lacked reasonable suspicion to stop defendant’s car and therefore
conducted illegal search).
58 Sands Interview, supra note 39.
59 Id.
60 One visitor to the courthouse
recalls being told by the bailiff to sit far away from the mass of defendants
because of “the smell.” Interview with
Doralina Skidmore, President, Immigration Law Student Ass’n, Univ. of Ariz., in
Tucson, Ariz. (Oct. 3, 2009). Defendants
“can smell pretty ripe.” Sands
Interview, supra note 39.
61 Mark Hugo Lopez & Michael
T. Light, Pew Hispanic Ctr., A Rising Share:
Hispanics and Federal Crime, at i (2009), available at
http://pewhispanic.org/files/reports/104.pdf (on file with the Columbia Law
Review) (noting by 2007, Hispanics accounted for forty percent of
federal prisoners, which was triple their representation in general population,
and tracing trend to rise in immigration prosecutions).
62 Ian Haney-López, Post-Racial
Racism: Policing Race in the Age of
Obama 133 (U.C. Berkeley Pub. Law Research Paper No. 1418212, 2009),
available at http://ssrn.com/abstract=1418212 (on file with the Columbia Law
Review).
63 See, e.g., Ruben G. Rumbaut et
al., Debunking the Myth of Immigrant Criminality: Imprisonment
Among First- and Second-Generation Young Men, Migration Information Source,
June 2006, at http://www.migrationinformation.org/Feature/display.cfm?ID=403 (on file with the Columbia Law Review)
(finding immigrants have lower rates of criminal convictions than
native-born Americans).
64 See Chacón, Whose Community
Shield?, supra note 3, at 348–49 (discussing ways in which migrants are
perceived as criminals and how those perceptions increase support for harsh
immigration laws); see also Legomsky, Asymmetric Incorporation, supra note 1, at
507 (describing disconnect between reality of immigrant propensity toward
criminal behavior and public opinion polls).
65 Williams Testimony, supra note
40, at 4.
66 Id. at 11.
67 United States v. Roblero-Solis, No. 08-10396, 2009 WL 4282022, at *7 (9th Cir. Dec. 2, 2009) (discussing requirements of Federal Rule of Criminal Procedure 11).
68 Id. at *8.
69 Id. at *9 (requiring showing of prejudice and finding “[n]one of these defendants has made such a showing or even attempted it”).
70 Although there are reports
that crossings are less numerous since the initiation of efforts like Operation
Streamline and the proliferation of workplace raids, see, e.g., Passel &
Cohn, supra note 35,
at i, the extent to which this is actually driven by enforcement-as opposed to
the economic downturn, or the rise in migrants who stay in the United States
without authorization once they have entered rather than risking multiple
border crossings-is difficult to ascertain.
Id. at ii. Given the fact that
Streamline, Fast Track, and the workplace prosecutions in raids like Postville
rely on vastly reduced sentences (in the case of Streamline, often
approximating time served) to induce plea agreements, it is not exactly clear
what deterrent effect is served by incarceration. See also Williams Testimony, supra note 40,
at 17–22 (questioning Operation Streamline’s deterrent effect).
Preferred Citation: Jennifer M. Chacón, Managing Migration Through Crime, 109 Colum. L. Rev. Sidebar 135 (2009), http://www.columbialawreview.org/Sidebar/volume/109/135_Chacon.pdf.