The Criminalization of Migration and Its Implications for Social Movements

By Christ-Shamma Matalbert, Resident Editor & Columnist


For decades, laws, such as the 1996 Illegal Immigration Reform and Immigration Responsibility Act (IIRAIRA), have created a social construction that labels immigrants to the United States as criminal aliens. The IIRAIRA made more immigrants eligible for deportation, including legal green-card holders. Under that law, Congress expanded which offenses made an immigrant eligible for arrest and deportation, and it made these changes retroactive. These changes reduced the discretion that immigration judges and the executive branch have when deciding to deport an immigrant. It also became harder to process unauthorized immigrants. In particular, the IIRAIRA dehumanizes and criminalizes immigrants, causing the expansion of border protection, detention centers and deportation, while also affecting social movements surrounding immigration. 

The idea that the IIRAIRA has fueled prejudice against immigrants in the U.S. is supported by immigration researcher Leisy Abrego and her colleagues, whose work is featured in the Journal of Migration and Human Security. Abrego et al. review the legislative changes, beginning in the 1980s, that led to the implementation of IIRAIRA, and they scrutinize specific events and laws in history that have targeted immigrants. One of these precursors, the Immigration Reform and Control Act of 1986, criminalized the hiring of migrant workers and increased border patrol.

The purpose of the Immigration Reform and Control Act was to associate immigrants with criminality and increase incarceration. Because of this policy, numerous institutions have partaken in the scandalization of immigrant-related cases and arrests. This then allowed the state to exploit incarcerated immigrants through forced prison labor. Additionally, America’s economic and social disparities have stigmatized immigrants because of the societal belief that detainees search for opportunities through drug smuggling. Critically, the IIRIARA has punished U.S. naturalized citizens and non-citizens of all statuses. It also undermined the rule of law by eliminating due process in most removal cases, decreasing equitable relief from removal and mandating detention without individualized custody determinations. Furthermore, this Act is still in force and systemically deprives migrant communities of their human rights.

Without a doubt, the IIRIARA has led to the detention of both documented and undocumented immigrants, specifically those with a criminal history, without considering the severity of an offense. Imprisonment is mandatory even if the immigrant poses no danger to society, forcing them to perform free labor. For the last twenty-five years, the IIRIARA has stimulated the prison industry and separated immigrants from their families and communities, with no apparent gains to public safety.

Mandatory detention and deportation need to cease immediately. The government has used taxpayers’ money to fund a system that continues to ruin the lives of immigrants who come to America for a better chance at life. Nearly four in five families screened in family detention centers have a “credible fear” of persecution should they be forced to return to the countries from which they migrated. Most family members are left to cope with multiple psychosocial consequences, such as separation from their children, economic hardship, housing instability and food insecurity, which is a repetition of history that unequivocally hurts the dignity of America.

Despite the overwhelming evidence showing that immigration is not associated with criminality, criminalizing immigrants remains prominent based on biases rooted in the social constructions of fear and inferiority. Professor Judith Ann Warner statistically examined the underlying issues that immigrants encounter due to the social construction of criminalization and law enforcement. She found that the primary factor was the societal belief that immigrants are depriving citizens of jobs and tax dollars as welfare seekers. There are often misinterpretations of immigrant crime that support these beliefs. Computerized statistical data often incorrectly perceives immigrants as undocumented, which inflates criminal alien deportation statistics.

The politics of immigration also interact with and fuel social movements in America. The reoccurring protests that happened during the summer of 2020 in the heat of police brutality were viewed as the true awakening of Black people’s often traumatic and dehumanizing experience with the criminal justice system. Black people protesting in the streets had to worry about violence, and international students and other immigrants had to worry about violence and deportation.

The Trump Administration openly welcomed xenophobia to the extent that immigrant and international students constantly looked over their shoulders. Per the State Department’s request, academic institutions advised international students to refrain from exercising their first amendment rights during the protests for racial justice in the summer of 2020. While it is expected that schools and students on student visas are given strict rules and regulations to adhere to, immigration status should not have affected the students’ right to protest issues that affect them or loved ones. Moreover, I am not an international student, but I’ve lived many of those same experiences. It is very disheartening to see rules, regulations, and policies being drafted by people who are often not the ones impacted by them, and also might not know anyone personally who could share their lived experience. For this reason, I am grateful that COVID-19 was able to expand digital activism in such a way that allowed everyone, no matter how they identify, to participate.

Although the history of immigration is well-documented, many do not know the depth of its untreated trauma that still influences our policy implementation today. Migrants do have human rights; they are humans, and their rights derive from their humanity. Nevertheless, the stigmatization of immigrants continues to create a considerable disadvantage in several aspects. The immigration policies and systems in place continue to threaten the safety of migrant communities. To my understanding, there is no other immigration provision as dramatic as the IIRAIRA. Following the IIRAIRA, deportation from the U.S. went from a rare phenomenon to a relatively common one. The IIRAIRA’s increase in U.S.–Mexico border enforcement and other immigration enforcement policies make legal immigration more difficult, which results in the many undocumented immigrants in the U.S. today.

Because of party polarization, it is challenging to discuss prominent issues without implicit bias, which results in more negatively impacted communities. The dehumanizing aspect of IIRAIRA—through border protection, deportation and detention, as well as other social complications prohibiting progress—exemplifies how the American political system has implemented socially constructed biases to criminalize immigrants. Although some may attempt to justify the inhumane treatment of immigrants, they fail to realize that undocumented immigration is a civil matter, not a criminal offense, which means the government should not aggressively enforce deportation. Society must understand that immigrants deserve to obtain the American dream without fear of exclusion and the deprivation of their human rights. Therefore, the American political system should create tangible citizenship initiatives for undocumented immigrants and increase their equitable opportunity in society.

Featured Image by Miko Guziuk on Unsplash.

The Public Purpose

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