Crimmigration: The Convergence of the Criminal Justice and Immigration Enforcement Systems

By Haley Son

Over the past decades, U.S. immigration enforcement law and criminal justice law have come to more strongly promote the concept of 'other', resulting in increasingly racialized policies. Amidst the intensifying criminalization of immigrants, there has been a growing overlap between the criminal justice and immigration system — a phenomenon known as 'crimmigration'. The two systems have come to depend on and resemble each other regarding substance and enforcement tactics. 

The U.S. is no stranger to anti-immigrant rhetoric: Republican candidates' campaigns this past midterm election promoted a more harmful mix of conspiracy theories, falling back on the familiar claim of "immigrants are criminals" [1]. And yet, the connection between increased immigration and rising crime rates has been disproved repeatedly — one Texas study concluded that U.S.-born people were twice as likely as undocumented immigrants to be arrested for violent crimes between 2012 and 2018. Still, immigrants remain disproportionately vulnerable to arrests, detentions, and deportations [2].
 
The development in American immigration policies can be traced to the negative public perception of undocumented immigrants as well as a lack of public awareness about immigration courts. As new immigration legislation has developed, scholars have noticed an increasing trend in the criminalization of immigrants through "crimmigration'.

By definition, immigration law determines who may cross the border and stay, and who must leave. On the other hand, criminal law is meant to prevent and address harm to individuals and society from violence, fraud, or evil motives [3].

However, over the past 10 years, the substance of immigration law has come to resemble criminal law. For one, there has been a drastic increase in both the number and types of crimes that result in deportation. According to crimmigration scholar Juliet Stumpf, "almost every immigration statute passed [for the past two decades] has expanded the list of crimes leading to exclusion and deportation." Furthermore, the penalties used by the immigration system have been co-opted by the criminal system. For example, if an immigrant is charged with an "aggravated felony," which includes murder, drug trafficking, and firearms trafficking, they will be automatically considered for deportation rather than detention [4].
 
A second feature of crimmigration’s convergence is the enforcement of the two systems. As of 2021, the immigration enforcement divisions of the Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) are not only vastly similar in their powers and actions, but they also constitute the largest armed federal law enforcement body [5]. In 2019, arrests of non-citizens accounted for 64 percent of all federal arrests, with most of the charges for immigration offenses [6].
 
Perhaps most alarmingly, local and state police officers currently have the power to act like ICE officers under 287(g) agreements [7]. These agreements, launched in 1996, expand the reach of ICE to local communities — a police officer has the power to arrest a person for an immigration violation in the regular course of their duties [8]. 

These 287(g) agreements work in tandem with the Secure Communities program (S-Comm), which is run by the Department of Homeland Security [9]. S-Comm is designed to "identify immigrants in U.S. jails who are deportable under immigration law" and link local prisons to federal criminal databases. Recently, ICE has been using S-Comm to hold detainees in local jails until ICE agents can formally arrest and deport them. According to a report published by ICE, S-Comm resulted in the deportation of almost 400,000 people between 2009 and 2014 [10]. 

Both the 287(g) agreements and S-Comm drastically increase the number of people funneled into the detention and deportation machine. The close relationship enjoyed between ICE and local police has established a flow from immigration agents to police as well as police to immigration agents. 

Through "crimmigration", the day-to-day operations of the criminal justice system have become intertwined with the immigration enforcement system. Crimmigration and the negative public perception of immigrants have continued to reinforce each other in a never-ending cycle: negative public opinion allows for increasingly racialized immigration enforcement policies, and crimmigration exacerbates the notion that immigrants are “criminals.”

[1] Hernández, Kristian. “Dangerous Anti-Immigrant Rhetoric Spiked This Election Season.” Truthout, Truthout, 4 Nov. 2022, https://truthout.org/articles/dangerous-anti-immigrant-rhetoric-spiked-this-election-season/. 
[2] Light, Michael T., et al. “Comparing Crime Rates between Undocumented Immigrants, Legal Immigrants, and Native-Born US Citizens in Texas.” Proceedings of the National Academy of Sciences, vol. 117, no. 51, 2020, pp. 32340–32347., https://doi.org/10.1073/pnas.2014704117. 
[3] Vazquez, Yolanda. “Crimmigration: The Missing Piece Of Criminal Justice Reform.” 51 U. Rich. L. 
Rev. 1093 (2017).
[4] Stumpf, Juliet. The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power.” American 
University Law Review 56, no. 2. (December 2006): 367-419.
[5] Tosh, Sarah. 2022. “ Mandatory Detention for Criminal Convictions: The Reproduction of Racial Inequality through U.S. Immigration Law.” Law & Policy 44( 1): 70– 97. https://doi-org.proxy.library.upenn.edu/10.1111/lapo.12179
[6] Williams, Pete. “Noncitizens Account for 64 Percent of All Federal Arrests, Justice Department Says.” NBCNews.com, NBCUniversal News Group, 22 Aug. 2019, https://www.nbcnews.com/politics/justice-department/non-citizens-account-64-percent-all-federal-arrests-justice-department-n1045286. 
[7] “The 287(g) Program: An Overview.” American Immigration Council, 9 July 2021, https://www.americanimmigrationcouncil.org/research/287g-program-immigration. 
[8] Paik, A. Naomi. “Abolishing Police Includes Abolishing ICE and Border Protection.” Truthout, Truthout, 13 July 2020, https://truthout.org/articles/abolishing-police-includes-abolishing-ice-and-border-protection/. 
[9] “Secure Communities: A Fact Sheet.” American Immigration Council, 9 June 2017, https://www.americanimmigrationcouncil.org/research/secure-communities-fact-sheet.
[10] “Secure Communities. Monthly Statistics through August 31, 2014.” U.S. Immigration and Customs Enforcement. 
[11] Hernández, César Cuauhtémoc García. “Defunding the Police Would Limit Their Cooperation with ICE. ”Prism, 19 Mar.2021, https://prismreports.org/2020/08/24/defunding-the-police-would-limit-their-cooperation-with-ice-helping-immigrant-communities/. 

The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.



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