Roberto Cuellar-Gomez’s narrative highlights the central problem facing undocumented individuals accused of minor crimes because of the ambiguous relationship between immigration law and criminal charges.
Cuellar-Gomez immigrated to the United States from El Salvador in 1992 and was approved as a lawful permanent resident on April 4, 1992 (I. Dec. 850, B.I.A. 2012).Without any assistance of a lawyer, on January 3, 2008, he was convicted, of misdemeanor possession of marijuana (I.
Dec. 850, B.I.A. 2012). After a second conviction for marijuana possession about a year later, the Department of Homeland Security (DHS) decided that Cuellar-Gomez had committed a “drug trafficking crime,” and thus an “aggravated felony” (I. Dec.
2012 as cited in Harvard Law Review, 2015). As a result, they started deportation proceedings against him. The connection between immigration detention and prison can be analyzed through Foucault conceptualizations of power becuase both systems classify individuals as worthy and unworthy in our society. As a result of this analysis, undocumented immigrants experience similar legal and physical violence by the state because of the overlap of immigration law and criminal law that in turn removes the rights of many non-citizens that are offered by the Sixth Amendment. CrimmigrationIn our current system, Immigration and Customs Enforcement (ICE) uses the logic of criminal law to enforce immigration law. Historically, immigration law and criminal law have operated in different areas.
When people who are undocumented commit a crime, they are subjected to state, local, and federal laws. If the government finds out that an individual violated immigration law, the accused person is given a court hearing before a federal immigration judge to determine whether or not they have the right to remain in the United States with documentation (Hernandez, 2015). On the other hand, anyone accused of having committed a crime is put through the criminal justice system, and, if convicted, punished (Hernandez, 2015). Starting in the 1980s, the gap between criminal law and immigration began to blur. Even though these two areas are inherently related due to their connection to the punishment paradigm, “scholars of criminal and immigration law have tended to stay on their own sides of the fence” (Stumft, 4). They instead tend to focus “on developments within their fields rather than examining the growing intersections between these two areas” (Stumft, 4).
More recently though, “it is often hard to explain where the criminal justice system ends and the immigration process begins” (Hernandez, 2015). As a result of this merger, the term crimmigation was coined by Juliet Stumpf, a professor at Lewis & Clark Law School. She noted that the division between criminal law and immigration law “has grown indistinct” such that the two “are merely nominally separate” (Hernandez, 2015).The link between criminal law and immigration intersects in three different ways; policing, prosecution, and punishment. The first is that “immigration enforcement has come to resemble criminal law enforcement” (Stumft, 6). New legislation like ones that Trump has implemented that expanded the Secure Communities Act which allow police officers to act like ICE officers and detain individuals who are suspected of immigration violations are examples of this police-like enforcement. The second is that immigration law and criminal law are similar in the fact that “the procedural aspects of prosecuting immigration violations have taken on many of the earmarks of criminal procedure” (Stumft, 6). Both contain similar procedures like the right to have their case heard before a judge to decide the punishment of the crime.
Lastly, “the substance of immigration law and criminal law increasingly overlaps” (Stumft, 6). This means that there are more and more similarities between the punishment in both arenas, namely imprisonment. This overlap has been used to “increased use of an immigration sanction – detention – that parallels the criminal sanction of incarceration” (Stumft, 9). Membership Theory and Foucault Foucault’s analysis of power relationships can be useful for understanding the relationship between immigration detention centers have with prisons. In Security, Territory, Population—Lectures at the College De France, Foucault makes a distinction between “the population” and a “multiplicity of individuals” (Foucault 2004:42). A multiplicity of individuals “refers to those who do not belong to the population, those who disrupt, or threaten to disrupt, the system and thus must be properly managed” (Doty, 2013). The proper management in the case of undocumented immigrants, takes the form of “detention and the threat of detention, which functions as a discipline exercised upon the entire body of undocumented residents.” (Doty, 2013).
Once the individual is deemed unworthy of membership, “the consequences are very similar in both realms. The state treats the individual – literally or figuratively – as an alien, shorn of the rights and privileges of membership” (Stumft, 17). Similarly, the warehousing of undocumented immigrants is consistent with Foucault’s conceptualizations of how power functions in society.
The massive detention of undocumented immigrants “works to set apart those who are physically present in a territory but not deemed legitimate members of the population” (Doty, 2013).At their core, immigration law and criminal law are both systems that determine the inclusion and exclusion of individuals in a nation. Even though Foucault was talking about prisons, detention centers and prison are “similarly designed to determine whether and how to include individuals as members of society or exclude them from it. Both create insiders and outsiders” (Stumft, 5).
Both of these systems were designed to create distinct categories between people, namely “innocent versus guilty, admitted versus excluded or, as some say, ‘legal’ versus ‘illegal’ ” (Stumft, 5). With the help of Foucault, we are able to understand that these two systems act as a gatekeepers and subscribe memberships to individuals. There are positive rights that arise from a contract between the government and the people and”only members of the social contract are able to make claims against the government and are entitled to the contract’s protections” (Stumft, 10). Sixth Amendment Because the merger of the two bodies of law, immigrants, documented or not, have the right to due process, a speedy and public trial. The Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state….and to have the assistance of counsel for his defense” (Harvard Law Review). Essentially, it ensures that anyone charged with a jailable offense who is too poor to hire an attorney will be provided with one at the government’s expense.
This amendment is based on the idea that no person should lose their rights given to them by the Constitution just because they are poor. In a earlier Supreme Court decision, Gideon v. Wainwright, they state that “in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him” (372 U.S. 335, 1963). The issue of the Sixth Amendment becomes harder to understand for non-citizens because immigration proceedings are matters of administrative law, not criminal law. As a result, the consequence of violating an individual’s immigration status is not jail but deportation.
The vast number of non-citizens “convicted of minor crimes are subject to mandatory detention, with no bond hearing or other review to evaluate the necessity of detention in each individual case” (Harvard Law Review). In a nutshell, “a detained non-citizen is entitled to a hearing to determine whether the crime asserted as a basis for removal falls within the mandatory detention provision, but beyond this there is no room for discretion. (Harvard Law Review). Padilla v.
Kentucky was a groundbreaking Supreme Court decision in 2010 that acknowledged the changed landscape of immigration law and the merger between criminal law and immigration law. The Padilla decision concluded that “the Sixth Amendment requires that criminal defense attorneys advise their clients who are not United States citizens about the immigration-related consequences of conviction” (Hernandez, 2015). Because immigration is considered a matter of national security and foreign policy, the Supreme Court has long held that immigration law is immune from judicial review. Because there is no constitutional right to counsel in immigration proceedings, the end result is that undocumented immigrants may be detained for months or years, tried, convicted, and finally deported without the right to the assistance of counsel at any point.Privatization of Prisons Once an undocumented individual is detained, they most likely to enter into a privately-owned prison. The United States holds one of the “largest immigration detention infrastructure in the world, detaining as many as 400,000 immigrants each year” (Detention Watch Network). Persons, including legal permanent residents with longstanding family and community ties, asylum-seekers, and victims of human trafficking, are detained for weeks, months, and sometimes years. People held in immigration detention “have committed no crime, let alone been convicted by trial and sentenced to imprisonment” (Groves, 228).
The 1980s gave rise to two major private prison corporations, GEO Group and Corrections Corporation of America, that lobbied the government for laws that expanded detention and other forms of incarceration. The 1990’s also brought a paradigm shift in immigration policy, leading to detention being a primary means of immigration enforcement. In 1996, the U.S. enacted legislation like the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA) that dramatically expanded the use of detention (Detention Watch Network).
Northwest Detention Center (NWDC) in Tacoma, Washington, is a symbol of this larger national system of immigration detention. The NWDC was founded in 2004 and is privately owned by GEO Group. There are roughly 1,600 people detained at a time, and right now, they are at their maximum capacity. Many of those who are held at the NWDC are not entitled to an attorney at government expense, which means that, approximately 90 percent of them move forward in their cases unrepresented (Wellek, 2016). The average length of detention at NWDC is 35 days, with the longest period being 4 years awaiting their trial. The reason some have to wait this long is because there are only three judges in the entire facility that process cases. Since these detention centers are privately owned, these two corporations work their prisons like hotels; seeking out people to fill the beds inside the detention center. Silky Shah, a legal advocate in the Seattle area, stated that “the immigration is run as a police force, as an enforcement operation, it is not run as a system to support in getting status” (Díaz, 2017).
As a result, Immigration and Customs Enforcement (ICE) patrols communities, looking for people to detain, often for broken tail lights and racially profiling immigrants in order to put more money in their pockets. Once inside the detention center, immigrants experience inhumane living and working conditions. Like prisoners in the criminal legal system, “immigration detainees are denied freedom, shackled during visitation and court appearances, imprisoned in cells, surveilled, strip searched, and subject to solitary confinement, abuse, and inadequate medical treatment” (Wellek, 2016). People detained work for a dollar a day managing the entire operations of the facility to in turn make more profit and not spend additional funds on the maintenance of the building.
The food is entirely soy-based and and people detained rarely fresh fruits or vegetables. Those who have been detained has stated that the food is usually expired and contain magots. Some individuals have been on the brink of death due to the lack of medical attention like who Angel Padilla was detained at the NWDC on January 2016. After released from jail, Angel, ICE authorities immediately detained him in the facility. He was denied a life or death surgery that he required to remove a cancerous tumor in his left kidney. Padilla states, “I was literally dying at that moment and I was not going to go without a fight” (Díaz, 2017).
Foucault argues that the prison system and immigration detention system both conceptualize power by classifying individuals as worthy and unworthy in our society. As a result of this analysis, non-citizens experience similar legal and physical violence because immigrants are denied right to counsel offered by the Sixth Amendment. While my goal is not to legitimize or invalidate the experiences of people incarcerated, it is important to understand the intersections and overlaps that legitimise the continuation of both of these systems.