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Making Migration Criminal

by Jennifer Chacon
August 24, 2021

This interview with Jennifer Chacon, professor at Berkeley Law, was conducted and condensed by franknews.

Jennifer | My focus is on migration, really law at the intersection of constitutional law, administrative law, criminal law, criminal procedure, and immigration law. A lot of my work has focused on issues of immigration and criminal law enforcement and the way they intersect. 

I decided on this field of study in law school. In the summer before my second year of law school, I went to Guatemala and was doing work around criminal procedure in Guatemala. I really started to think about how criminal law is this site for repression, and often racialized repression. I came back to the US for my second year of law school and was studying and working in the immigration clinic when president Clinton signed really harsh and repressive immigration and criminal laws — The 1994 Crime Bill, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and the Antiterrorism and Effective Death Penalty Acts of 1996. I watched how those directly intersected in the lives of clients in the Yale immigration clinic, and that is really when I was like, “Oh, this is what I'm interested in.” That became the focus of my work. And from the time I was a law student, up until now, that's been the path I've followed.

So much happened policy-wise in the 90s. Can you talk about what the policies were and how they shaped the way the U.S. thinks about criminalizing immigration? 

We saw a series of immigration laws that increasingly criminalized migration prior to the nineties. Probably the most notable is the 1986 Immigration Reform and Control Act, which was the great compromise signed by President Reagan. The idea was that U.S. law would provide a path to citizenship for a pretty large number of people who were present in the country without authorization (ultimately about 3 million), but, at the same time, would try to proactively address the problem of unauthorized migration. The primary tool for this was the criminalization of the hiring of unauthorized workers. 

Theoretically, that criminal sanction applies to employers, but in reality, employers are seldom penalized for hiring unauthorized workers. What actually happens is that workers’ lack of work authorization becomes a point of vulnerability that employers now can leverage. Employers continued to recruit from Mexico for workers throughout the 1990s and to use contractors and other means to finesse their own legal paperwork requirements. So you continue to have people who are coming to the United States because jobs were available and they're being recruited for these jobs. But employers can also use the threat of immigration enforcement against these workers to exploit them.  And since the government largely declined to enforce the law against employers, it was as if the workers’ work had been criminalized. 

In short, although it's the employers whose actions had been criminalized in 1986, the rhetoric really focused on the people who were coming to work, treating them as if they were the criminal violators.

In the 1980s and 1990s, this really amplified the rhetoric that links migration to crime, and this is where the 1996 laws come from. 

Interestingly, the 1996 laws are in response to the terrorist attack on the Oklahoma City Federal building, which was attacked by white nationalists. Congress's response was to decrease procedural protections for people on death row, to make it increasingly difficult to challenge criminal convictions, and to simultaneously crackdown on immigration and increase the range of conduct that would subject individuals to removal.  There was no fit between these “solutions” and the problems that gave rise to the Oklahoma City bombing, but that didn’t matter to Congress.

Screen Shot 2021 08 24 at 12.20.06 PM

The remaining portion of the Alfred P. Murrah Federal Building in downtown Oklahoma City falls in a cloud of dust as it was demolished by explosives more than a month after a deadly car-bomb attack April 19, 1995. A memorial to the bombing’s victims now sits on the former site of the federal building, and a nearby building that was damaged in the bombing houses an interactive museum. 

Under the 1996 immigration laws, whether a person was undocumented, a lawful permanent resident, or here on a non-immigrant visa, if that person engaged (or had already engaged) in a broad range of criminalized conduct, that conduct made them removable. Among other things, that law did that by expanding a category of crimes called “aggravated felonies.” Aggravated felonies sound bad when you hear it, but in fact, the aggravated felonies definition spans pages of the Immigration and Nationality Act. It encompasses a broad range of conduct, including a lot of conduct that's not aggravated and a lot of conduct that's not a felony.  And the law was retroactive, applying deportation consequences to past conduct and convictions. 

As a result, people are removed from the country for shoplifting offenses and bar fights, and for offenses that happened years ago, sometimes before the conduct was even an immigration violation. 

The consequence for an aggravated felony is mandatory removal, which means it doesn't matter how long you've been here, if you have family members here, if you served in the U.S. military, or if you have a job here. None of those factors matter at all once the government establishes a conviction for an aggravated felony.  You are subject to mandatory removal and mandatory detention through your immigration proceedings. That helps to account for this huge increase in the detention system in that period.  Additionally, you lose the ability to return to the United States, ever.

 NBC 5/KXAS Television News Collection (AR0776), University of North Texas Special Collections

This expansion in “aggravated felonies” is just one piece of a really aggressive expansion of the range of conduct that will subject people to very severe immigration consequences.  And remember that this is in response to a white nationalist attack that had nothing to do with immigration. We see repeated themes of scapegoating immigrants here. We see that with COVID. We look for scapegoats and look to punish people who actually are not responsible for the ills of the moment. 

How did migration and criminalization get tied together so easily? What were the feelings of the public and how did they get weaponized in this era?

I'll start with a longer story, which is that there's a long history in the United States of treating people coming to the United States as lawbreakers, or as racialized others who are likely or have the propensity to commit crime. We see this in the late 19th century, even before the Chinese Exclusion Act

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US Archives. Chinese Exclusion Act case file for Jay Poy. 

The Page Act of 1875 criminalized the immigration of Chinese women and, in many ways, treated immigrating Chinese women as immediately suspect for the crime of prostitution.  These exclusions were broadened with the Chinese Exclusion Act.  And in upholding the Chinese Exclusion Act, the Supreme Court gave legal legitimacy to the idea that some group of people could not assimilate to U.S. ways. The Supreme Court’s analysis in evaluating those laws reifies racial categories. The courts and Congress say, “These people are inherently not like us.”

You can also see, very early on in our history, the way that racialized fear becomes embedded in the criminal law;  we target a problem that we associate with some group, and then we target that group for prosecution.

Then criminal law looks like the natural solution to the problem, and it reinforces the image in the public mind that ties racialized groups to crime. The problem reinforces itself. 

Alina Das has written about this. We see the evolution of laws that target opium and opium use. It's very clearly aimed at a particular segment of the population. It's not all drug use and not all kinds of drug use, but particular people using particular kinds of drugs — very specifically focusing on Chinese immigrants. 

We see this again in the early 20th century with other drug crimes, and notably with the crime of unauthorized migration. In the 1920s, Congress wanted to control immigration from a number of places. They put quotes on who could migrate from Europe, favoring Northern Europe over Southern Europe. They didn't put a quota on Mexican or Western hemispheric migration, in part because of labor needs.  But in order to control that flow of workers, they criminalized unauthorized entry. Kelly Lytle Hernandez has written about the fact that you see the first federal prison in the west, built in El Paso to accommodate these flows of Mexican workers who are being prosecuted for unauthorized migration. The federal prison system is really amplified in order to make room for people who are newly criminalized by this crime of migration.

If you look at the legislative record, it's very clear that the legislatures who are drafting and supporting, and passing this law are racist. When the law was reauthorized in the 1950s, you see the persistence of this racism. This too reinforces the association between Mexican migration and crime. Because now we have criminalized the act of migrating to work, and the only people who are going to be criminalized for this crime are this group. It reinforces that specious linkage between Mexican migration and crime. 

And looking again at the 1986 immigration law signed by President Reagan, as we discussed the employment of unauthorized workers is criminalized, but it is the workers themselves who become the focal point of this notion of criminality. Leo Chavez has written about this hysterical media coverage about Mexican migrants crossing the Southern border. There is this sense that there's an uncontrolled wave of migration that is inherently criminal. That is the rising rhetoric of the 1980s. 

And the 1986 law failed to dry up the jobs magnet. In fact, large numbers of people are still migrating from Mexico, in part because of the devastation of the Mexican economy due to NAFTA. That's driving more people to look for work. All of this is happening at once. 

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US Archives. Photograph of President William J. Clinton and Vice President Albert Gore Watching the Results of the North American Free Trade Agreement (NAFTA) Vote in the Private Residence at the White House.

So the flow has already been criminalized, practically as well as rhetorically and in the popular imagination. And then you have an increase in people who are trying to come and the responses are racialized panic, right. And, unsurprisingly, the tool is criminal law, linked with immigration law. What else was happening in the 1990s? The Crime Bill. The rhetoric around super predators. We are primed to think hysterically about crime and to think about crime in a heavily racialized way. 

It is not surprising that we see enhanced criminal penalties and decreased procedural protection coupled with making almost all contact with the criminal legal system into removable offenses.

If we think about the mid-1960s as a period of the Civil Rights Act and the Immigration Nationality Act of 1965 as a high watermark of efforts to achieve equality, the mid-1990s as the opposite of that. There was an effort to use tools of crime and immigration control to do very racialized work. The 1994 Crime Bill, the Antiterrorism and Effective Death Penalty Act of 1996, and the Illegal Immigration Reform and Immigrant Responsibility Act. All of these laws did similar work.

It's so circular. From NAFTA to migration to search for work to the criminalization of undocumented labor – at some point, there fails to be any logic. 

And we could throw the Central American component in there too, where we see U.S. interventions that drive instability. Rather than say, “Oh, people are coming to the U.S. we've been strongly involved in creating instability in these countries”, the response, instead, is always one of complete surprise.

There is no accountability or recognition of the interdependencies of economies and political systems. 

You can even see that in the past few days with Afghanistan.


We've spoken to a couple of different people, both academics and people unionizing immigrant farmworkers, who have spoken to this idea that there isn’t political will around figuring out how to enforce immigration law, particularly in the labor sector, because people are so addicted to this cheap food system. Is that the case? And if so, is this the area that our immigration reform should hinge upon? 

You've already put your finger on the heart of the political problem, which is that this system works for a lot of people. It works well for the largest growers. It works well for meatpacking industry execs. It works well for consumers, who get cheaper meat and produce as a consequence of this labor force. The people it doesn’t work for are the workers who are systematically kept out of the political system — the undocumented workers and low-wage workers in situations of precarity. 

For the most part, people with political power don't bear the brunt of the harm and feel no urgency. At various points in time, there is some momentum that seems to be driven by concerns about an industry that might not actually have access to a stable and reliable workforce. That is a potential lever. We have also seen attempts to link agricultural work reform with the DREAM Act. 

But even that...I mean, at this point there's wild and widespread national support for a path for citizenship for childhood arrivals. DACA recipients are the low-hanging fruit of immigration reform. Yet, we have no movement. Given the politics of Washington, and the over-representation of conservative voting blocks, the fact that you have widespread popular support for an immigration form measure does not mean that you get any action. 

We have seen this play out year after year. I marched in 2006. We were on the cusp of a major immigration breakthrough in September of 2001. You can see the way in which the momentum was lost for that. There has been talk almost every year since about getting something through, and even popular bills get stymied. The way forward might not be to focus on agricultural workers or childhood arrivals, but instead to try to bundle immigration with other things that people care about. Currently, some people are thinking about immigration as part of the budget reconciliation process, which is filibuster-proof.

Some mechanism that avoids, or eliminates, the filibuster seems like the only feasible way to move pieces of immigration reform across the finish line. 

It is disheartening, considering that widespread support, and considering the fact that Democrats have control over Congress. 

Right. What's going on? But our Congress is structured in a way that is not actually representative of the population, and Senate rules amplify the skew.

What do you see affecting rhetoric and immigration reform momentum now? 

I feel like in many ways the election of Donald Trump was a fulfillment of the vision that was given legislative form in the mid-1990s. We think about the mid-1990s as the time that Democrats had power, but, in many ways, it was a time that was much more continuous with Reagan than it was a break from Reagan.

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US Archives. 

Donald Trump's election is the fulfillment of the vision. 

When Donald Trump rode down the elevator and talked about Mexicans and crime, the public had already naturalized that linkage in their own mind. Of course, this rhetoric found fertile ground, given the way the law had been operating in the 20 years since 1996. By the time he rides the elevator, treating migration as crime and treating the border as a disordered area in need of a solution is the norm. That rhetoric came out of the Obama administration as well. The “unsecured border”, the notion of border cities as a chaotic, ungovernable space, when we know that our border cities are some of the safest cities in the country. 

Trump really was speaking to an audience that was ready to hear that message, because that has always been the message that our laws have been creating. Nonwhite immigrants are vilified and blamed for everything. We see that right now with COVID. Greg Abbott and Ted Cruz and Sean Hannity are blaming the surge of COVID on migrants. There is zero evidence of that. But, again, this falls into fertile territory because this is the story we've always told about migration. It is the one that has been given operation through the way that our laws are structures. 

The scapegoats once again. Do you have any recommendations for what to advocate for at a local or state level to offset whatever does or does not happen at a federal level?  

I think we need to recognize the political situation that we're in. If we had passed something like the Dream Act that was proposed in 2009, all of those people would be citizens and voters now. That would have changed some political dynamics. So yes, any legislation should be widely inclusive, but on the other hand, given the politics of the moment, we need to think about a long-term strategy that moves us toward bringing more people into the political system over time.

We've been insisting on everything and we have nothing to show for that insistence.

We may need to start thinking about how we can do this one chunk at a time, while recognizing the dangers, and resisting the impulse to throw those excluded from the law’s protection under the bus. Regardless, I would encourage people to push their senators for whatever those senators might move on, even if it’s not perfect.

And then there's this non-elected official piece, which I think is super important. A lot of positive change has been spurred by small grassroots, local work — whether that is stopping individual removals through public campaigns or advocating for protection within local jurisdictions or working to increase access to education and healthcare and housing and safe workplaces for all residents. 

Even while the federal piece is hard to move, there is space at the local level and sometimes at the state level. People have been making effective use of the space to create more inclusive communities. Those leavers remain open and we shouldn't forget about them. That was one mistake of many advocates during the Obama administration that shouldn’t be repeated. There was a tendency to shift perhaps too much focus to the federal government, once there was a Democrat in the White House. In fact, the state and the local remain vital and, in some ways, perhaps the only moveable piece.