Doubling Down on Racial Discrimination: The Racially Disparate Impacts of Crimmigration Law

The U.S. immigration removal system targets noncitizens who are involved in criminal activity. Relying on state and local police action, which many claim is racially biased due to such practices as racial profiling, the U.S. government removes nearly 400,000 noncitizens a year, with more than 95 percent from Mexico and Latin America (even though the overall immigrant population is much more diverse). State and local governments have resisted some of the federal government’s aggressive removal efforts through “sanctuary laws,” which are designed to build the trust in immigrant communities necessary for effective law enforcement by local police. Reforms in the immigration laws are necessary to reduce the racially disparate impacts of reliance on the criminal justice system for immigration removals.

The Modern Immigration Removal System

The Obama administration’s signature immigration enforcement program, Secure Communities, proved to be highly efficient at facilitating removals of large numbers of noncitizens, including lawful permanent residents as well as undocumented immigrants, arrested for minor, as well as more serious, crimes. Indeed, the program was so effective that removals spiked to record highs in the neighborhood of 400,000 noncitizens a year.

Total removals of noncitizens by the U.S. government reached an all-time high of 438,421 in 2013: “Mexican nationals accounted for 72% of all aliens removed in 2013. The next leading countries were Guatemala (11 percent), Honduras (8.3 percent), and El Salvador (4.7 percent). These four countries accounted for 96 percent of all removals in 2012.” Dep’t of Homeland Security, Office of Immigration Statistics, Immigration Enforcement Actions: 2013, at 6 (Sept. 2014) (emphasis added). From 2003-13, men accounted for 91% of all deportees. These statistics are consistent with an immigration removal system that relies primarily on the criminal justice system and its racial profiling of Latino males by state and local police.

Simultaneous with ending Secure Communities, the Obama Administration announced the creation of the “Priority Enforcement Program” (PEP) with the stated intent of re-focusing removal efforts on serious criminal offenders; PEP changed federal policy to restrict requests for immigration “holds” to noncitizens actually convicted of crimes rather than merely arrested for them. Memorandum dated November 20, 2014 to Thomas S. Winkowski, Acting Director, U.S. Immigration and Customs Enforcement, Megan Mack, Officer Office of Civil Rights and Civil Liberties, Philip A. McNamara, Assistant Secretary for Intergovernmental Affairs, from Jeh Charles Johnson, Secretary, U.S. Department of Homeland Security, at 2-3. PEP continues to target “criminal aliens” for removal.

One commentator aptly summarized contemporary developments in American immigration enforcement as in effect creating “a criminal removal system.” Ingrid V. Eagly, Criminal Justice for Noncitizens: An Analysis of Variation in Local Enforcement, 88 NYU L. Rev. 1126, 1128 (2013). Police in traffic stops and other law enforcement activities rely on race. And, because immigration enforcement today relies increasingly on state and local criminal arrests, removals have fallen overwhelmingly on Latina/o immigrants.

Race-Based Law Enforcement and Immigration Enforcement in Action

In many parts of the country, state and local police target Latina/os for criminal law enforcement efforts. Those efforts include racial profiling of Latina/os in ordinary traffic stops, a phenomenon that has been referred to as “driving while brown.” Latinos are especially vulnerable to arrest for minor traffic violations, such as driving without a license. (Until recently, few states permitted undocumented immigrants to obtain driver’s licenses.). Consequently, it should not be surprising that, during the Obama presidency, the vast majority of the persons removed from the country consistently have been from Mexico and Central America, comprising a significantly higher percentage than those groups’ representation in the overall immigrant population in the United States.

Two relatively recent decisions in which the Supreme Court rejected removal orders involving efforts to deport lawful permanent residents from Mexico provide an indication of the impacts of the state and local “war on drugs” on lawful immigrants from Mexico. In Lopez v. Gonzales, the Supreme Court rejected the Obama administration’s claim that a drug conviction of a lawful permanent resident from Mexico for aiding and abetting another person’s possession of cocaine was an “aggravated felony” under the immigration laws, thereby triggering mandatory detention and removal. Similarly, in Carachuri-Rosendo v. Holder, the Court rejected a removal order of a lawful permanent resident from Mexico who had two drug convictions, one for simple possession of a small amount of marijuana and one for unlawfully possessing a single tablet of a prescription drug. Both cases involved long term lawful residents of the United States from Mexico who were what can be reasonably characterized as small time drug offenders caught up in local enforcement of the “war on drugs.”

“Sanctuary”: The Resistance of State and Local Governments to Unlimited Cooperation with U.S. Immigration Authorities

In response to the perceived unfairness of many removals of long-term, lawful residents arrested for relatively minor crimes, some states and localities passed laws that restrict state and local law enforcement cooperation with U.S. immigration authorities with respect to non-serious criminal offenders. For example, the California Trust Act, A.B. 4, 2013-14 Cal. Legis., limits state and local law enforcement cooperation with the U.S. government with respect to noncitizens arrested for minor crimes. State and local resistance to federal immigration removals ultimately contributed to the Obama administration’s decision to end Secure Communities and replace it with a more narrowly-tailored program that is directed at noncitizens actually convicted of serious criminal offenses, rather than merely arrested for any crime.

In 2015, laws of this type, often referred to as “sanctuary laws,” made the national news after the San Francisco Sheriff’s Office released an undocumented immigrant under a local ordinance. The San Francisco “Sanctuary Ordinance” provides that:

No department, agency, commission, officer or employee of the City and County of San Francisco shall use any City funds or resources to assist in the enforcement of federal immigration law or to gather or disseminate information regarding the immigration status of individuals in the City and County of San Francisco unless such assistance is required by federal or State statute, regulation or court decision.

City and County of San Francisco Sanctuary Ordinance, originally passed in 1989.

Under the ordinance, the San Francisco Sheriff’s Office in one instance released an undocumented immigrant from Mexico with many criminal convictions and previous deportations and illegal re-entries into the United States; after his release, he allegedly killed a woman. The incident attracted press coverage from coast to coast, with Republican presidential candidate Donald Trump making headlines by claiming that the tragedy supported his claim of the need to better secure the U.S./Mexico border and otherwise bolster border enforcement.

One cannot deny the racially disparate impacts of the contemporary reliance of criminal convictions on removals. However, the political challenges by legal scholars and activists to the criminal grounds for removal and enforcement programs such as Secure Communities have tended to focus primarily on the unfairness of removals of long term resident immigrants arrested for minor criminal offenses, not specifically challenging the racially disparate impacts of directing removal efforts at noncitizens with criminal records. Race generally finds itself be submerged in the public debate over removals in a way that it is not with respect to criticisms of the racial impacts of ordinary criminal law enforcement.

Possible Reforms

A few relatively modest changes to the U.S. immigration laws that might reduce state and local concern with zealous federal efforts to remove noncitizens and lessen the racially disparate impacts of the removal system’s reliance on the criminal justice system.

For the time being, efforts to minimize the taint of race from law enforcement will more likely come from legislation and policy changes than through legal challenges in the courts. That stems from the fact that, in both ordinary criminal and immigration enforcement efforts, the Supreme Court has in effect authorized racial profiling in modern law enforcement. That endorsement has made litigation a relatively ineffective tool for challenging the reliance on race in law enforcement. Put differently, existing law makes it extremely difficult to prevail in legal actions challenging race-conscious law enforcement. Given the existing limitations on legal challenges to race-based law enforcement, litigation is likely to put an end to only the most egregious patterns and practices of racial discrimination.

There are indications that political activism calling for criminal justice and immigration reform is a distinct possibility. Political engagement in recent years has had an impact on immigration legislation and enforcement measures. For example, the nation saw mass marches in cities across the United States in 2006 effectively kill a punitive immigration reform proposal passed by the House of Representatives. Capturing the national imagination, the DREAMers, college students advocating fairer immigration laws and enforcement, have become a potent political force with which to be reckoned. Political activism by the DREAMers helped convince the Obama administration to adopt the Deferred Action for Childhood Arrivals program and propose an expanded deferred action proposal.

In addition, public opinion to a certain extent questions the reliance on race in law enforcement. Policy changes have sought to limit racial profiling in ordinary law enforcement. Racial profiling arguably serves to undermine cooperation of minority communities with law enforcement in ways similar to how police involvement in immigration enforcement may inhibit noncitizen cooperation with police. State and local resistance, as well as effective immigrant advocacy in opposition, to federal removal efforts without doubt contributed to the U.S. government’s decision to eliminate the overbroad Secure Communities program and to adopt a narrower approach targeting noncitizens actually convicted of serious crimes as opposed to simply being arrested for any crime.

Efforts can and should be made to minimize, not maximize, those racial impacts on the removal of immigrants. This Essay does not contend that the removal of noncitizens based on criminal convictions should be eliminated in its entirety. Rather, it merely suggests that greater attention be paid to the racial consequences of the linkage of the contemporary criminal justice and immigration removal systems and calls for incremental changes in law and policy. Some crimes – for example, drug crimes – have a well-recognized relationship to race-based criminal law enforcement. To make matters worse for immigrants, the removal provisions based on criminal convictions for drug offenses are among the most unforgiving in the U.S. immigration laws. See, e.g., Immigration and Nationality Act § 237(a)(2)(B), 8 U.S.C. § 1227(a)(2)(B). One concrete reform possibility might be to return greater discretion to immigration judges in deciding which noncitizens to order to be removed from the country for drug convictions (and possibly other crimes), as generally was the case before immigration reforms passed by Congress in 1996.

In addition, narrowing the definition of “aggravated felony,” Immigration and Nationality Act § 101(a)(43), 8 U.S.C. § 1101(a)(43), which relegates noncitizens convicted of a plethora of crimes (many of which are neither felonies or particularly serious) to mandatory detention and removal, is another possibility. To this point in time, however, Congress has been moving in the opposite direction and has regularly expanded the definition of aggravated felony for removal purposes.

Because of the adverse consequences of a criminal conviction for an “aggravated felony,” including mandatory detention and removal of lawful permanent residents and making them ineligible for most forms of relief from removal, the issue is hotly litigated in removal proceedings. It has been addressed by the Supreme Court on numerous occasions in recent years; immigrants regularly have convinced the Court to set aside removal orders based on minor drug crimes.

The possible reforms suggested here to reduce the racial impacts of the removal system are not meant to be exhaustive. Legislative and policy efforts also might be directed at eliminating racial profiling, a prevalent practice in modern criminal and immigration enforcement. Immigrant detention, often focused on immigrants convicted of crimes, also has adverse impacts on Latina/os. Congressional quotas for immigrant detentions known as the “bed quotas,” which encourage immigration arrests and detentions, could be eliminated. Other law and policy changes also might reduce the racial disparities in removals.

This essay is an adapted version of a forthcoming article by the same title in a symposium issue of the Case Western Law Review.