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The Criminalization of Immigration and the International Norm of Non-Discrimination: Deportation and Detention in U.S

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Minnesota Journal of Law & Inequality Volume 29 Issue 2 Article 1 December 2011 The Criminalization of Immigration and the International Norm of Non-Discrimination: Deportation and Detention in U.S. Immigration Law Barbara A. Frey X. Kevin Zhao Follow this and additional works at: https://lawandinequality.org/ Recommended Citation Barbara A. Frey & X. K. Zhao, The Criminalization of Immigration and the International Norm of Non- Discrimination: Deportation and Detention in U.S. Immigration Law, 29(2) LAW & INEQ. 279 (2011). Available at: https://scholarship.law.umn.edu/lawineq/vol29/iss2/1 Minnesota Journal of Law & Inequality is published by the University of Minnesota Libraries Publishing. 279 The Criminalization of Immigration and the International Norm of Non-Discrimination: Deportation and Detention in U.S. Immigration Law Barbara A. Freyt & X. Kevin Zhaott Introduction The Law and Inequality Fall 2010 Symposium focused on the growing use of criminal prosecutions to end impunity for human rights violations. This Article takes a different look at the intersection between criminal justice and human rights law-not a view of the criminalization of human rights violations, but criminalization as a human rights violation. We review the human rights implications of U.S. immigration law as it is currently codified and enforced, focusing specifically on two aspects of the immigration law regime: the use of deportation and mandatory detention against non-citizens.' Although we believe that these practices in particular, and the treatment of non- citizens in general, fall short of several of the United States' international human rights obligations, this Article makes a more general claim: the selective convergence of criminal and immigration law contributes to a violation of a broader human rights norm-that citizens and non-citizens alike are entitled to equal dignity and inalienable rights, and that any discriminatory treatment of non-citizens must be proportional to achieving a legitimate state objective.2 This Article proceeds as follows. Part I explores the growing t. Barbara A. Frey, J.D., is Director of the Human Rights Program at the University of Minnesota and serves as the Convener of the Midwest Coalition for Human Rights. Professor Frey participated in the Law & Inequality Symposium "International Wrongs, International Rights: The Use of Criminal Law to Protect Human Rights," September 28, 201, University of Minnesota Law School, as a panelist discussing the modern manifestations of international human rights law. tt. X. Kevin Zhao is an associate at Faegre & Benson LLP. He graduated from Harvard Law School, magna cum laude, in 2010. He would like to thank his parents, who immigrated to the United States when he was a child, for their sacrifices over the years, and his wife, Michelle Collins Zhao, for her insights and support. 1. See infra Parts III-IV. 2. See infra Part II. 280 Law and Inequality [Vol. 29:279 convergence between criminal and immigration law, noting the "asymmetrical" character of this trend. Part II reviews important international human rights instruments elaborating the rights of non-citizens, and sets forth what we believe to be a broad normative obligation of general equality between citizens and non- citizens. We call this obligation the "non-discrimination norm." Part III discusses the non-discrimination norm in the context of the current deportation regime, which is both categorical and harsh. Continuing this idea, Part IV analyzes another important manifestation of the growing convergence between criminal and immigration law: mandatory immigration detention. Although we review statutory authority for detention and Supreme Court jurisprudence, our principal objective is to demonstrate how mandatory detention violates the non-discrimination norm emanating from international law. I. The Criminalization of Immigration The nativist sentiments in U.S. culture have arisen with particular fervor in the past two decades. The rise in anti- immigrant rhetoric, trumpeted by interest groups and sympathetic media, has all but solidified the ideological construction of large groups of immigrants as "illegal" with all of the moral stigma that accompanies that term.' National security fears and economic instability have increased demands for more aggressive enforcement of immigration laws, not only to prevent more 3. See Stephen H. Legomsky, The New Path of Immigration Law: Asymmetric Incorporationof Criminal Justice Norms, 64 WASH. & LEE L. REV. 469, 500 (2007) ("Much of the recent immigration enforcement-related activity at the federal, state, and local levels reflects ... perceived associations of immigrants with criminals."); see also Jennifer M. Chac6n, Unsecured Borders: Immigration Restrictions, Crime Control and National Security, 39 CONN. L. REV. 1827, 1835-39 (2007) [hereinafter Chac6n, Unsecured Borders] (discussing the construction of the "illegal alien" in public discourse). Public perception on this issue is wrong. Most immigration into the United States occurs through legal channels. See U.S. DEP'T OF JUSTICE, 1999 STATISTICAL YEARBOOK OF THE IMMIGRATION AND NATURALIZATION SERVICE 14, 241 (2002), available at http://www.dhs.gov/xlibrary/assets/statistics/yearbook/ 1999/FY99Yearbook.pdf (reporting that in 1999, 646,568 immigrants were admitted for legal permanent resident status compared to an annual estimated increase of 275,000 undocumented immigrants). Studies have consistently found that crime rates of the immigrant population are substantially lower than those of the native-born population, despite the immigrant population being younger and less educated. See Rubdn G. Rumbaut et al., Debunking the Myth of Immigrant Criminality: Imprisonment Among First- and Second-Generation Young Men, MIGRATION INFO. SOURCE (June 2006), http://www.migrationinformation.org/ Feature/display.cfm?id=403. This conclusion holds true even if one does not control for age, gender, or educational attainment. See Kristin F. Butcher & Anne Morrison Piehl, Cross-City Evidence on the RelationshipBetween Immigration and Crime, 17 J. POL'Y ANALYSIS & MGMT. 457, 483-84 (1998); Rumbaut et al., supra. 2011] THE CRIMINALIZATION OF IMMIGRATION 281 immigrants from arriving, but to drive away the ones who are here.' Given this context, it should not be a surprise that the landscape of immigration law has changed dramatically as the traditional boundaries between the criminal and immigration spheres have eroded.' Legal scholars have termed this once gradual but now accelerated blurring as the "criminalization of immigration law."' The convergence of criminal and immigration law has occurred on at least three fronts as Congress has (1) increased the number of immigration-related criminal offenses as well as the severity of punishment, (2) expanded the number of criminal offenses that require deportation, and (3) delegated more immigration enforcement to state and local law enforcement officers. A. Immigration-RelatedCriminal Offenses Violations of immigration law were historically civil offenses.' Until 1929, when Congress made illegal entry into the United States a misdemeanor and illegal re-entry a felony, the violation of immigration laws was not a crime.' Beginning in the mid-1980s, with the Immigration Reform and Control Act (IRCA), Congress began to increase the number of immigration-related criminal offenses.' For the first time, IRCA imposed criminal penalties on employers who engage in a "pattern or practice" of knowingly hiring non-citizens who are unauthorized to work.o Congress also created criminal sanctions for employees who use fraudulent documents to secure employment." The Immigration Marriage Fraud Amendments criminalized marriages that are entered into for the purpose of gaining immigration status." Subsequent congressional enactments criminalized unlawful re-entry following 4. Chac6n, Unsecured Borders, supra note 3, at 1830. 5. Id. at 1839-43. 6. See, e.g., Daniel Kanstroom, Criminalizing the Undocumented: Ironic Boundaries of the Post-September 11th "Pale of Law," 29 N.C. J. INT'L L. & COM. REG. 639, 640 (2004); Legomsky, supra note 3, at 476; Teresa A. Miller, Citizenship and Severity: Recent Immigration Reforms and the New Penology, 17 GEO. IMMIGR. L.J. 611, 617 (2003). 7. Juliet Stumpf, The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, 56 AM. U. L. REV. 367, 384 (2006) [hereinafter Stumpf, Crimmi- gration Crisis]. 8. Id. 9. Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359. 10. 8 U.S.C. § 1324a(a)(1)-(2) (2006). 11. 18 U.S.C. § 1546(b) (2006). 12. Immigration Marriage Fraud Amendments of 1986 § 2(d), 8 U.S.C. § 1325(c) (2006). 282 Law and Inequality [Vol. 29:279 three or more enumerated misdemeanors (generally drug crimes or crimes against persons)," entrepreneurship fraud in the immigration setting," traffic offenses while evading immigration checkpoints," failure to disclose one's role in assisting fraudulent immigration applications," and falsely representing oneself to be a U.S. citizen to obtain certain immigration benefits." Congress also increased the severity of punishments, both fines and length of imprisonment, for existing immigration-related crimes. For example, the maximum prison sentence for persons who unlawfully re-enter the United States following deportation increased from two years to twenty years as Congress revisited the issue three times in less than a decade (1988, 1994, and 1996)." Immigration-related prosecutions quadrupled from 1996
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