Will CIR treat criminals as a sacrificial lamb?

Talk of comprehensive immigration reform has found new life since last month’s election results came in. Given President Obama’s recent statements about pushing immigration law reform in his second term and overtures by members of Congress, it’s worth asking at what cost CIR might occur. In an essay I wrote for the British advocacy group Migrants’ Rights Network, I expressed a concern that post-election rhetoric seems focused on securing the border without regard to the fact that the border is as secure as it’s ever been and safer than many communities in the nation’s interior.

Last week’s introduction of the ACHIEVE Act by Republican senators added an additional concern: will the crime-based grounds of removal expand, in particular the all-important aggravated felony, and will immigration policing rely more heavily on criminal prosecutions rather than civil removal proceedings? If the ACHIEVE Act is any indication, the answer to both questions is yes. Tucked into the final section of the proposed statute is a new immigration-related federal crime—one reserved for fraud related to obtaining a benefit under the ACHIEVE Act that comes with a potential prison term of up to five years. But the act doesn’t stop there. It expands the list of aggravated felonies included in the INA to make room for this new crime. The scariest of scary crimes—if we were to follow the logic of the rhetorical device at play in the locution that implies an aggravated form of the worst type of crime we know—would include lying to get permission to stay here temporarily.

Immigration law aficionados, of course, know that this is not a new phenomenon. Congress has regularly expanded the crime-based grounds of removal, especially since the late 1980s when it introduced the aggravated felony concept into immigration law through the Anti-Drug Abuse Act of 1988, then dramatically expanded the concept in the 1990s. More recently, the Department of Homeland Security has vigorously prosecuted immigration-related crimes that have been on the books for decades but that weren’t usually a criminal priority. The Obama Administration has gone a long way to deviate from this history as part of an effort to out-enforce every other presidential administration when it comes to immigration. And, as I’ve chronicled on my blog, crImmigration.com, it has succeeded: a rise in the number of prosecutions of immigration-related crimes and more noncitizens in federal prisons.

It’s of course too early to know what, if any, immigration law reform proposals Congress will hammer together in the next year. But it’s not too early to acknowledge the political ease with which people convicted of a crime can be vilified. There is always a tragedy to be found that can dispel any amount of social science research suggesting that foreign-born individuals are less likely than the native-born to commit crime. And when no tragedy comes to mind, there’s always a symbol: witness President Obama’s claim that his administration has targeted “criminals, gang bangers, people who are hurting the community, not after students, not after folks who are here just because they’re trying to figure out how to feed their families.” No need to acknowledge that, according to DHS figures, of the 392,000 people removed in fiscal year 2011, only 188,000 had been convicted of any crime and 20% of those had been convicted of an immigration crime and another 23% of traffic crimes.

It’s easy to vilify people who have committed a crime while forgetting that crime is as American as baseball and apple pie. The longer you’re here, the more likely you are to commit crime—or at least get arrested and incarcerated. As Jeffrey D. Morenoff and Avraham Astor put it in their study of multiple generations of Chicagoans, “subjects who immigrated to the United States at younger ages were more likely to engage in most acts of violence during adolescence than those who arrived at later ages.” See “Immigrant Assimilation and Crime” in Immigration and Crime 45 (Ramiro Martinez, Jr. and Abel Valenzuela, Jr. eds. 2006).

Some of the ease with which immigrants who commit a crime are framed as threats may be changing, however, in part because of congressional overreach and in part because of demographics. In the last quarter-century, Congress has enacted statute after statute widening the reach of the federal government’s deportation apparatus to include people who aren’t particularly threatening. As DHS, following Congress’s dictates, identifies more and more longtime permanent residents with old convictions and places them in removal proceedings, friends and coworkers who know these individuals as ordinary neighbors or colleagues learn about the lunacy that characterizes much of the modern focus on so-called criminal aliens. Likewise, when 43% of the “criminal aliens” that DHS removed in FY 2011 had been convicted of an immigration or traffic offense, it becomes more difficult for the people who have a personal connection to these deportees to continue to believe in the immigration system’s basic legitimacy.

Will Congress and the president craft immigration reform legislation that pretends that everyone convicted of a crime is undeserving of this country’s hospitality, as if criminality was itself a foreign concept? The last 25 years or so of immigration policymaking suggest that they will. So too does the post-election rhetoric coming from Washington. Only time will tell whether anything has changed.

crImmigration.com was ranked among the 100 best law blogs of 2012 by the ABA Journal. Take a minute to vote for crImmigration.com as your favorite source of legal information by going to the ABA Journal’s web site and finding crImmigration.com listed in the “niche” category. A version of this article appeared on the Immigration Law Professors Blog.