Criminalizing Migration

César Cuauhtémoc García Hernández

Beginning in the 1980s, the United States embarked on a decades-long restructur-
ing of federal laws criminalizing migration and increasing the consequences for mi-
grants engaging in criminal activity. Today, the results are clear: a law enforcement
apparatus and immigration prison system propelled by a vast infrastructure of laws
and policies. The presidency of Donald Trump augmented this trend and brought
it to public attention. But lost in President Trump’s unique flair is an ideological
commitment shared by multiple presidential administrations and legislators from
both major political parties to use the criminal justice system and imprisonment to
sift migrants. Examining these ideological attachments reveals Trump-era policies
to be the outer edge of decades-long trends rather than extreme and momentary de-
viations from the norm.

J erry Armijo does not remember his move to the United States. He was about

one year old at the time, so that is to be expected. After a few years in Florida,
his parents moved the family to South Texas when he was eight years old. They
settled there and have not moved since. Jerry–his actual name is Gerardo, but he
goes by the Anglicized version–grew up in South Texas. He finished elementary
school there, then middle school and high school. After that, he set his sights on
exploring the world. Like many young people in the Rio Grande Valley, the south-
eastern tip of Texas, Jerry’s ticket to the world came courtesy of the United States
military.

With a high school diploma in hand, he joined the Army. In Kosovo, he re-
ceived a Bronze Service Star. NATO recognized his contributions to the organi-
zation’s peacemaking efforts. From a military base in Germany, he started the
long process of applying for naturalization, his only option for obtaining Unit-
ed States citizenship. Having been born in Mexico, Jerry was not a citizen of the
country whose uniform he wore. Instead, he had been a lawful permanent res-
ident of the United States–a green-card holder–since the age of thirteen. Be-
fore then he was in the country on a long-expired tourist visa. Overwhelmed by
obstacles he ran into trying to get fingerprinted for the citizenship application’s
background check, he eventually gave up. He planned to do it after leaving Ger-
many, he told me when I spoke with him at my family’s law firm years later. That
day never came.

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For the Army, it was not a problem that Jerry was not a United States citizen.
Lawful permanent residents are welcomed to enlist. In 2015, years after Jerry had
left the service, there were 7,926 troops in the Army who did not claim United
States citizenship.1 To the military, Jerry’s willingness to put his life on the line for
the United States was more important than his citizenship. To Jerry, the Army’s
willingness to place in him the responsibility to protect the only country he had
ever called home was just as important.

Eventually, Jerry became a tank commander. And later the Army sent him to
Iraq. He quickly got used to avoiding improvised explosive devices (IED). It was
easier to spot them on the road, he recalled. In the undulating sands of the desert
floor, however, it was hard to see a hidden lump. Leading a group of tanks through
the sand one day, Jerry suddenly felt the tank shake, his spine compress, and
around him he heard steel reach its breaking point. Jerry’s tank had passed over
an IED that blasted through the armored vehicle’s bottom.

With an injured leg and traumatized psyche, he was sent back to South Tex-
as. Instead of receiving the care that he needed, Jerry found his way to drugs. It
would not take long for the police to find their way to Jerry. Going through the
criminal justice system, it seemed like he might be able to get his life on track. The
court was supporting his rehabilitation and Jerry was doing as asked. After a dif-
ficult few years since that fateful moment in Iraq, things seemed to be improving.
Then Jerry suddenly stopped showing up for court dates. The Immigration and
Customs Enforcement (ICE) agency had arrested him and was holding him in a
nearby immigration prison. Part of the Department of Homeland Security, ICE
is responsible for managing the federal government’s network of prisons where
people who are suspected of violating federal immigration law are held. While Jer-
ry sat inside the immigration prison, ICE attorneys started the process of forcibly
removing him from the United States.

This time, Jerry had some luck on his side. His parents managed to gather up
enough money to hire a lawyer. In immigration courts, there is no right to govern-
ment-paid legal counsel. Except for those people who are able to find pro bono as-
sistance, representation comes at a cost. In the immigration courts of South Tex-
as, very few are so lucky. One study, published in 2015 but still the best available,
found that in cases at two South Texas courts, Los Fresnos and Harlingen, only 18
and 14 percent, respectively, of detained migrants were represented, approximat-
ing the national average of 18 percent.2 Thanks to a media campaign and legal ar-
guments, ICE released Jerry.

As a lawyer, Jerry’s story is relevant to me because he was a client of my fami-
ly’s law firm. My brother, also a lawyer, did most of the work to release him. But
as a researcher interested in the expanding willingness of U.S. law and policy
to criminalize migration, Jerry’s experience illustrates the blurry boundaries in
which lawyers, judges, and, most important, migrants live. Though immigration

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law is formally classified as a type of civil law, imprisonment takes a central role
in enforcing immigration law. People like Jerry regularly find themselves locked
up in facilities ringed with concertina wire that resemble state prisons or county
jails. Often, they are held in facilities that are nothing more than county jails from
which ICE has a contract to use a certain number of beds. In other instances, im-
migration law transgressions are in fact handled through the formal criminal jus-
tice system. Two federal crimes in particular–unauthorized entry and unautho-
rized reentry–dominate dockets in many federal criminal courts. These trends
have received heightened attention under the administration of President Donald
Trump, but neither comes out of a vacuum. On the contrary, both present-day re-
alities flow neatly from developments in law and policy stretching back decades.

F or most of the twentieth century, few people suffered adverse immigra-

tion consequences due to involvement in criminal activity. In the ordi-
nary course, criminal activity was investigated, prosecuted, and punished
through the criminal justice system, if at all. Typically, law enforcement agencies
are not required to explore the possibility that a crime was committed. Likewise,
prosecutors are not usually obligated to pursue criminal charges against anyone
even if the evidence of guilt is strong. Bending to the reality that resources are fi-
nite and decisions to lodge the power of the criminal justice system against some-
one are meant to invoke the stigmatizing power of the community, courts defer
decisions about investigation and prosecution of crime to police and prosecutors.
Prior to the 1980s, concerns about the exchange and use of illicit drugs was
only an infrequent cause of exclusion or deportation from the United States. For
the nine decades spanning 1892 to 1984, only 15,824 people were excluded from the
United States due to crime or drug activity.3 Another 56,669 people were deported
for the same reasons across the different, but mostly overlapping period of 1908
to 1990.4 Cumulatively, it took approximately ninety years for the government to
complete slightly more than 72,000 legal proceedings against migrants with crim-
inal histories or for involvement with drugs. In fiscal year 2002, immigration offi-
cials did that in a single year.5 What had taken almost a century suddenly became
the annual norm. In fiscal year 2012, the federal government hit a high-water mark
of removing 200,039 migrants with a criminal history. Federal officials have yet
to match that figure, but through the 2019 fiscal year, they have never failed to re-
move at least 100,000 people with criminal histories.6

Between the mid-1980s and the early years of the twenty-first century, far more
than statistics changed. To dramatically alter enforcement trends, law and policy
had to change, too. And so they did. Starting with President Ronald Reagan’s elec-
tion to the White House, Congress and multiple administrations have expanded
the criminalization of migration, setting a trend that has evolved but not stopped.
Early in Reagan’s tenure, the federal government adopted a categorical policy of

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Dædalus, the Journal of the American Academy of Arts & SciencesCriminalizing Migration

detaining Haitians who arrived in the United States intent on requesting asylum.
Explaining the administration’s rationale in a 1981 speech, Reagan’s attorney gen-
eral claimed detention of asylum-seekers was necessary to discourage people from
coming to the United States.7 The following year, a Justice Department lawyer
named Rudolph Giuliani pitched to Congress a $35 million proposal to build two
prisons. The federal government needed the additional space, he told the House
Judiciary Committee, “if we are to adequately enforce our immigration laws.”8
Giuliani’s request met stern resistance that year and failed to convince the House
to go along, but Congress would not take long to follow the administration’s lead.
Starting in the mid-1980s, Congress would enact a series of laws that raised the
consequences of criminal activity and expanded imprisonment’s role in enforc-
ing immigration law. In 1986, for example, Congress enacted the Anti-Drug Abuse
Act, empowering the Immigration and Naturalization Service (INS) to request
that local law enforcement agencies detain anyone arrested for a drug crime.9 Two
years later, Congress enacted the identically named Anti-Drug Abuse Act of 1988,
creating a category of crime called “aggravated felony” that required the INS to
take custody of any migrant convicted of such an offense.10 At the time, only three
crimes–murder, drug trafficking, and firearms trafficking–fit the definition of an
aggravated felony. Today, the label attaches to twenty-one categories of offenses.
A change in presidential administration would not change the course that
President Reagan set by intertwining criminal justice practices and laws regu-
lating migrants’ ability to remain in the United States. On the contrary, trends
brewing in the criminal justice realm would quickly make their way into immi-
gration law. In 1990, President George H. W. Bush signed the Immigration Act,
a bill that he referred to as “meet[ing] several objectives of my Administration’s
war on drugs and violent crime.”11 As President Bush suggested, the law increased
the consequences of engaging in illicit drug activity. Specifically, it expanded le-
gal authority to deport migrants convicted of a broad range of drug crimes.12 His
successor, President Bill Clinton, would likewise approve of laws increasing the
penalties for migrants who commit crime. In 1994, Clinton supported the Vio-
lent Crime Control and Law Enforcement Act, a law that authorized construction
of INS prisons and created a federal program that reimburses local law enforce-
ment agencies for detaining certain migrants.13 Two years later, a pair of laws that
Clinton signed just months apart dramatically revamped federal law and policy-
making. The Antiterrorism and Effective Death Penalty Act, adopted in April
1996, added nonviolent offenses like perjury and passport counterfeiting to the
aggravated felony definition.14 In September of that year, the Illegal Immigration
Reform and Immigrant Responsibility Act (IIRIRA) added to federal immigra-
tion law the statutory provision that to this day dictates which migrants federal
officials, including immigration judges, are barred from releasing from custody.
It also created the 287(g) programs that ICE would favor in the early years of the

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150 (2) Spring 2021César Cuauhtémoc García Hernández

Obama administration.15 In their own way, each amendment represents the war
on drugs’ entry into immigration law and law enforcement.

Perhaps more important than piecemeal ratcheting up of the consequences
awaiting migrants who got caught in drug activity, several of these laws reflected
ideological trends sweeping criminal justice circles. In particular, the 1990s wit-
nessed multiple measures that took power away from judges. Through the 1990
immigration law, immigration judges saw their power to issue waivers of depor-
tation limited; it would be eliminated entirely when IIRIRA was enacted in 1996.
Separately, the 1990 law repealed a decades-old power that federal judges had used
to bar federal immigration officials from using a specific criminal conviction to
detain or deport a migrant. Called a judicial recommendation against deportation
(JRAD), the special procedure essentially let judges give migrants a second chance
at remaining in the United States, even after a conviction. They could use their
sentencing authority to put the conviction off-limits to immigration officials.
Both the waiver power taken from immigration judges and the JRAD stripped
from judges in criminal cases allowed ostensibly neutral arbiters to forgive past
transgressions.

Congress’s decision to eliminate both authorities reflected an ideological
transformation. Instead of allowing migrants to transcend their worst moments,
immigration law came increasingly to limit migrants to one opportunity at mak-
ing a life in the United States. While it was not categorically impossible to receive
a pardon either in immigration court or in a criminal proceeding, it became in-
creasingly difficult to do so. These shifts in law reflected a growing skepticism of
judicial neutrality. A decades-long political milieu that framed judges as biased in
favor of defendants reflected “the diminishing role of the judge” that Jonathan
Simon chronicled in Governing through Crime.16 While Simon focused on crimi-
nal laws, traditional criminal policing, and criminal courtrooms, the 1990s saw
numerous instances in immigration matters of the judicial backlash that he de-
scribed. Instead of deferring to judges, whether in immigration courts or federal
districts courts, Congress and multiple presidential administrations legislated a
more constrained willingness to forgive migrants’ errors.

Since the turn of the century, migration has only become more enmeshed with
criminal policing practices. When immigration duties were reorganized in the af-
termath of the September 11, 2001, attacks, the Department of Homeland Securi-
ty’s ICE was given responsibility for enforcing immigration laws in the nation’s
interior, and its counterpart Customs and Border Protection, which includes the
Border Patrol, was given similar duties along the border. Under President George
W. Bush, Congress enacted the Secure Fence Act in 2006, which required the
federal government to build 850 miles of fencing along the border with Mexico,
though two years later, Congress reduced that requirement to 700 miles.17 By the
time Bush left office, the Border Patrol had built 306 miles of fencing intended to

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Dædalus, the Journal of the American Academy of Arts & SciencesCriminalizing Migration

stop pedestrians from crossing into the United States and another 301 to stop ve-
hicles.18 As a backup to the steel and concrete of border walls, the Bush adminis-
tration also began to rely on federal prosecutors to increase the consequence of vi-
olating immigration law. Tapping the power of two federal crimes, unauthorized
entry and unauthorized reentry, the Bush administration turned federal criminal
dockets into fast-paced immigration processing centers. In the last fiscal year fully
under President Bush, federal prosecutors convicted 21,054 people of immigration
crimes in federal district courts, one-quarter of the total number of people con-
victed of all crimes in all federal courthouses that year.19

Bush’s successor, President Barack Obama, shied away from wall-building
along the border, but his administration relied heavily on the walls of prison
buildings to enforce immigration laws. President Obama oversaw the growth of
ICE’s population of prisoners to as many as 478,000 in a single year. Among that
large group were parents held with their children in closed-access facilities called
“family residential centers.” After shuttering a notorious center reserved for fam-
ilies in 2009, the administration opened two similar sites in 2014, both of which
remain operational today. To detain such a large number of people, the adminis-
tration relied heavily on information-sharing agreements between state and lo-
cal law enforcement agencies and their counterparts with the federal immigra-
tion services. For roughly the first six years of President Obama’s tenure, ICE op-
erated Secure Communities, an initiative that sifted identification information
gathered by on-the-ground police and sheriff’s deputies through DHS databases
containing information about citizenship and immigration status. The adminis-
tration touted the initiative as a means of identifying and apprehending danger-
ous individuals only to reel when public attention focused on numerous instances
of people with minor infractions caught up in its policing web. DHS did itself no
favors by first suggesting that participation was voluntary, then explaining that
state and local law enforcement agencies could not back out. By late 2014, criti-
cism had become so intense that Jeh Johnson, at the time Secretary of Homeland
Security, announced its repeal. In the same memo, Secretary Johnson described
a new initiative: the Priority Enforcement Program (PEP). Though the two pro-
grams differed markedly in scope, PEP, like Secure Communities, also used an
information-sharing model between state and local law enforcement agencies
and their federal counterparts.

Meanwhile, the Obama administration continued President Bush’s empha-
sis on unauthorized entry and unauthorized reentry prosecutions. Prosecutors
charged so many people with federal immigration crimes that, in 2011, an admin-
istrative unit of the U.S. Court of Appeals for the Ninth Circuit said that the situa-
tion in Arizona was “crushing” the courts.20 To move large numbers of immigra-
tion crime cases through the federal courts, Operation Streamline–started in Del
Rio, Texas, in late 2005–spread across Southwestern federal courthouses during

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the Obama years. In Operation Streamline proceedings, migrant defendants are
processed en masse, sometimes as many as several dozen at a time.

President Trump’s policies took his predecessors’ positions and highlight-
ed their sharpest edges. Having carried himself into the White House in part on
the strength of racist taunts and claims to build a border wall, he spent consid-
erable energy launching or promoting attacks on migrants. Most of the time, he
laced accusations with fear-mongering rhetoric that echoed the criminal justice
conversations of recent decades: innocent White victims pitted against merciless
perpetrators, almost always People of Color, and the legions of White elitists who
facilitate their violence. When a jury acquitted Mexican citizen José Inés García
Zarate of murder in the death of Kate Steinle, a young White woman, for exam-
ple, President Trump quickly released a video criticizing the outcome. In the style
of George H. W. Bush’s 1988 Willie Horton campaign attack against Michael Du-
kakis, President Trump then blamed Steinle’s death on his political opponents,
Democrats, accusing them of favoring dangerous migrants over blameless U.S.
citizens.21

Aside from inflammatory rhetoric, the Trump administration also targeted
migrants and their allies. Days into his presidency, President Trump issued an ex-
ecutive order prioritizing immigration policing against migrants who have been
convicted of, charged with, or merely “committed acts that constitute a charge-
able criminal offense.”22 A few months later, his first attorney general, Jeff Ses-
sions, delivered a strident speech before a crowd of Border Patrol officers accusing
“criminal aliens” of “seek[ing] to overthrow our system of lawful immigration.”
He promised the agents assembled in Nogales, Arizona, directly on the Mexican
border, “It is here, on this sliver of land, where we first take our stand against this
filth.”23 Soon federal prosecutors in nearby Tucson seemed to follow the attorney
general’s suggestion by targeting border activists like Scott Daniel Warren for hu-
manitarian activities that have long been common in harsh borderlands terrain.
In 2017, prosecutors accused Warren of providing, at no cost, “food, water, beds,
and clean clothes” to two Mexican “illegal aliens” who approached him deep in
the Arizona desert.24 This, they claimed, constituted conspiracy to harbor mi-
grants, a federal crime punishable by up to twenty years imprisonment.25 Two tri-
als later, the first ending with jurors unable to reach agreement and the second in
acquittal by a unanimous jury, in early 2020, prosecutors finally ceased their ef-
forts to convict him.26 Despite that prosecutorial setback, unauthorized entry and
unauthorized reentry have continued to have a large presence in federal courts.

W riting in the late nineteenth century, the legal scholar and future Su-

preme Court Justice Oliver Wendell Holmes Jr. lifted the cloak of neu-
trality that often characterizes conversations about the courts. “The
life of the law has not been logic: it has been experience. . . . [T]o know what it is,

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Dædalus, the Journal of the American Academy of Arts & SciencesCriminalizing Migration

we must know what it has been, and what it tends to become,” he wrote in the
opening passage of his influential assessment of the U.S. legal tradition, The Com-
mon Law.27 To Holmes, the law is the product and the result of human activity.
Thought of another way, the law responds to the politics of a particular moment
as much as it influences the politics of the moment.

Since the 1980s, a political project of regulating the lives of migrants through
demonizing rhetoric and hard-edged laws has blossomed. President Trump is cer-
tainly explicit when it comes to creating and fanning fears of migrants. Beneath
his bombast and racism, Trump’s efforts to tie migrants to criminal activity are
not new. In a primetime address in November 2014, President Obama pitted mi-
grant criminals against families. “[W]e’re going to keep focusing enforcement re-
sources on actual threats to our security,” he said. “Felons, not families. Crimi-
nals, not children. Gang members, not a mom who’s working hard to provide for
her kids.”28 Like in every diverse group of people, some migrants of course com-
mit crimes, from the least objectionable to the most despicable. For almost a cen-
tury, most empirical studies have found that migrants tend to commit less crime
than people who are born in the United States. Associating migrants with crimi-
nality creates a false impression that there is greater criminality occurring within
these communities than empirical reviews support.

The varying forms in which policy-makers tie migrants to criminal conduct
reflects an ideological commitment to categorizing people on a spectrum of desir-
ability. To President Obama, families are welcomed, but felons are not. To Presi-
dent Trump, Norwegians are desirable, but Mexican “rapists” are not. These bi-
naries reveal two important assumptions. First, that it is possible to identify rele-
vant contrasts: families versus felons, Norwegians versus Mexicans. Second, that
it is possible to identify who should fit into which pole. Despite their differences,
the binaries chosen by Presidents Obama and Trump equally reveal the fallacies
of this enterprise.

Distinguishing who is worthy of inclusion in the U.S. political community
based on criminal status is politically and logically attractive. There is little to lose
politically from stigmatizing people associated with criminality. In early 2020, the
campaign manager for Senator Bernie Sanders, at the time one of two leading con-
tenders for the Democratic Party’s presidential nomination, described the sena-
tor’s willingness to deport some “violent criminals.”29 A few weeks later, Presi-
dent Trump’s campaign released a Twitter advertisement featuring dark-skinned
tattoo-faced men next to words of mock appreciation, “MS-13 Gang Members:
Thanks for pledging to not deport us!”30

What these distinctions offer in attractively simple rhetoric–dangerous of-
fender versus innocent potential victim–they lose when mapped onto real peo-
ple. The difficulty is that, regardless of the basis for categorization, the distinc-
tion between who is desirable and who is not falls apart quickly after piercing the

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surface. Neither Senator Sanders nor President Trump seemed to leave room for
rehabilitation. President Obama’s emphasis on felons was similarly facile. Fel-
ons are not divorced from families. Families do not excise relatives upon the con-
clusion of a criminal proceeding. On the contrary, many families attempt, often
at great cost, to maintain a meaningful relationship with convicted offenders.
Indeed, Jerry Armijo fits the description of President Obama’s felon, yet it was
his family that hired a lawyer to help him. In the simplicity of political rhetoric,
there is no room for nuance. Lamentably, immigration law is similarly myopic.
Just about any drug conviction is “a violation of . . . any law . . . relating to a con-
trolled substance” opening up the possibility of deportation.31 Many drug crimes
also constitute “illicit trafficking in a controlled substance,” a type of aggravated
felony that comes with mandatory confinement and few avenues for avoiding de-
portation.32 Immigration law makes no allowance for Jerry’s time in the military.
Congress’s stark pronouncements have rendered irrelevant his willingness to die
on behalf of the United States.

President Trump’s embrace of Europeans and denigration of Latin American
and African migrants is equally simplistic. Is it possible, for example, to disentan-
gle the bulk of Mexicans living today from the grandchildren of Norwegians who
settled in Veracruz, on Mexico’s Gulf Coast, prior to 1940?33 Where to place some-
one like Leonora Carrington, the surrealist painter and writer born in England but
whose professional life was anchored in Mexico City for fifty years (after stops in
France, Spain, and the United States)?34 And just as it is impossible to disentan-
gle Jerry’s two momentous statuses, veteran and felon, President Trump’s pejo-
rative description of an Indiana-born federal judge as a “Mexican” is a reminder
that criminal status, like citizenship, race, and ethnicity, are socially constructed
markers to which privilege is attached. I am a child of Mexicans born in a Tex-
as county named after the Mexican revolutionary hero Miguel Hidalgo y Costilla
and I insist on using four names, including one that harkens to the last Aztec em-
peror. But to President Trump, I am simply a Mexican. To President Obama, re-
flecting the substance of present-day immigration law, it is the fact that Jerry was
unable to avoid criminal investigation, prosecution, and conviction that matters.
It is that stain that makes Jerry a felon rather than a family member.

Even if it were possible to readily identify felons, linking juridical demerits to
a malleable legal construction breathes substance into a fictional vessel. Crimi-
nality is created as much by the conduct of individual people who do what the law
prohibits as it is by the political process that bars certain activities and not others.
Immigration law, for example, imposes a heavy toll on all migrants who possess
a small quantity of marijuana: imprisonment is required during the pendency of
immigration court hearings and deportation is possible.35 For U.S. citizens, buy-
ing marijuana in broad daylight is an important source of economic activity in
communities around the country. As a result, the young couple Nate and Claudia

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Dædalus, the Journal of the American Academy of Arts & SciencesCriminalizing Migration

could be split by the same visit to a Colorado marijuana dispensary. While U.S. cit-
izen Nate was unaffected, his on-and-off-again girlfriend Claudia, not a U.S. citi-
zen, was detained by immigration officials, then barred from the country.36

Assigning important legal consequences to the outcomes of police activity also
ignores the unequal distribution of policing resources. Along the U.S. border with
Mexico, the federal government deploys tens of thousands of Border Patrol agents
to identify people who are committing an immigration crime. Whereas in 1980,
the Border Patrol employed approximately 2,500 agents total, by 2019, it had al-
most 17,000 stationed along the Southwestern border alone.37 By contrast, vio-
lent crime is committed on college campuses daily, but few perpetrators are inves-
tigated. Put another way, the public spaces of the overwhelmingly Mexican and
economically impoverished borderlands are heavily policed for nonviolent crime,
but the closed spaces of overwhelmingly White and wealthy college dormitories
receive little attention despite well-documented patterns of violence.

L aw’s role in disbursing policing to some people and privilege to others high-

lights the importance of the legal system’s political dimensions. Across the
last four decades in the United States, the ideological commitment to stig-
matize migrants through the use of criminal law has enjoyed bipartisan support.
The criminalization of migration–indeed, the criminalization of migrants’ bod-
ies–has not been driven by partisan disagreements. Rather, what started with
President Reagan has slowly evolved into reality under President Trump. To be
sure, there are differences between the two major political parties in the United
States, just as there are differences that appear across decades and from one pres-
idential administration to another. Still, what the law bars today, as much as what
it permits or encourages, reflects a shared ideological commitment to control mi-
grants through the allure of categorization: desirable migrants on one side of the
prison fence or border wall, undesirable migrants on the other. Whether promot-
ed by Republicans or Democrats, this is an exercise in political judgment masquer-
ading as pseudoscientific objectivity. Through its command of policing and pros-
ecution resources, law turns a label’s symbolic denigration–criminals, felons,
rapists, Mexicans–into reality. Through that storytelling-turned-public-policy,
simplistic political calculations have been converted into the drama and trauma
of human experience one juridically constructed category at a time.

This is a vision of morality premised on the impossible search for a clean cleav-
age. Simplistic political rhetoric transformed into substantive laws and policies
is ill-equipped to capture the complexity of the human experience that Holmes
wrote about. It is worse yet at assigning privilege and penalty to the bureaucratic
sorting that necessarily happens when Congress bends to the temptation to ig-
nore the nuances that Holmes alluded to. Whatever value there is in casting aside

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150 (2) Spring 2021César Cuauhtémoc García Hernández

felons, there is less in relying on a troubled criminal justice system to decide who
is allowed to make a life in the United States and who is not.

Future attempts to sort people into camps of desirables and undesirables, like
today’s efforts, will inevitably fail. Embracing these attempts to categorize re-
quires shutting our eyes to the inherent fallacy that any small collection of factors
can reflect a person’s worth for making a life in the United States. If we are going
to continue asking the law to assess worth myopically, then we should at least ac-
knowledge that the law is turning ideological commitments into policing com-
mands. Current laws that criminalize unpermitted human mobility across inter-
national boundaries privilege Canadians and Western Europeans who have easy
access to formal permission to travel to the United States and ignore the daily real-
ity that many of them will later violate immigration law by not leaving the country
when required.38 On the flip side, current laws that allow or require confinement
and forcible removal based on criminality privilege the entrenched biases of the
criminal justice system.

We can continue fantasizing that it is possible to neatly categorize people as fit
or unfit for membership or we can own up to the reality that the pursuit of that goal
is like a mythical quest. To assume that it is possible to neatly categorize people as
fit or unfit for membership in the political community that is the United States re-
quires faith in legislators’ ability to identify suitable markers of undesirability and
an equally powerful belief that, even if they could do that, they could also then cre-
ate a bureaucracy that boxes people accordingly. Imperfect legislatures and fallible
bureaucracies are unlikely to ever reach those high bars. Alternatively, the second
option requires accepting that this goal is impossible to achieve but refusing to de-
viate. To accept this path requires concluding that Jerry Armijo is a felon first and
an Army veteran second. To some, that is satisfactory. To others, it raises ethical
doubts about the proper weight to give criminality versus military service.

Since the 1980s, the United States has committed itself to drawing lines between
migrants based on criminal conduct ferreted out by state, local, and federal police
forces. This is nothing more than sorting migrants based on politically palatable
characteristics flagged through problematic policing practices. Even if the sorting
criteria were to change, continuing the present-day quest to categorize would in-
evitably require similarly dubious decision-making processes. Altering course re-
quires radically changing existing laws and policies to leave the migrant-sorting
exercise in the past. Anything less would simply reshuffle priorities just enough
so that faith can once more become the overriding phenomenon that law boosts.

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about the author

César Cuauhtémoc García Hernández is Professor of Law at the University of
Denver. He is the author of Migrating to Prison: America’s Obsession with Locking Up Im-
migrants (2019) and has published in such journals as California Law Review, UCLA Law
Review, and Boston University Law Review.

endnotes

1 Che T. Arosemena, Immigrants and the U.S. Army: A Study in Readiness and the American Dream
(Fort Leavenworth, Kans.: United States Army Command and General Staff College,
2016), 55, Table 2, https://apps.dtic.mil/dtic/tr/fulltext/u2/1021804.pdf.

2 Ingrid V. Eagly and Steven Shafer, “A National Study of Access to Counsel in Immigration

Court,” University of Pennsylvania Law Review 164 (1) (2015): 38, Table 10a.

3 U.S. Immigration and Naturalization Service, 1996 Statistical Yearbook of the Immigration and
Naturalization Service (Washington, D.C.: U.S. Government Printing Office, 1997), 175,
Table 60.

4 Ibid., 183, Table 65.

5 U.S. Department of Homeland Security, 2005 Yearbook of Immigration Statistics (Washing-
ton, D.C.: U.S. Department of Homeland Security, Office of Immigration Statistics,
2006), 101, Table 41.

6 U.S. Department of Homeland Security, 2019 Yearbook of Immigration Statistics (Washington,
D.C.: U.S. Department of Homeland Security, Office of Immigration Statistics, 2020),
Table 41d, “Aliens Removed by Criminal Status and Region and Country of Nationality:
Fiscal Years 2009 to 2019,” https://www.dhs.gov/sites/default/files/publications/
immigration-statistics/yearbook/2019/yrbk_2019_enf_excel_final.zip.

7 Mark Dow, American Gulag: Inside U.S. Immigration Prisons (Berkeley: University of Califor-

nia Press, 2004), 7.

8 Detention of Aliens in Bureau of Prisons Facilities: Hearing Before the Subcomm. on Courts,
Civil Liberties and the Administration of Justice of the House Comm. on the Judiciary,
97th Congress 3 (1982) (statement of Rudolph W. Giuliani, Associate Attorney Gener-
al, United States Department of Justice).

9 Anti-Drug Abuse Act, Pub. L. No. 99-570, § 1751(d), 100 Stat. 3207, 3207-47 (1986) [amend-

ing INA § 287, 8 U.S.C. § 1357].

10 Anti-Drug Abuse Act, Pub. L. No. 100-690, §§ 7342, 7343, 102 Stat. 4181, 4469-70 (1988)

[amending INA § 101(a), 8 U.S.C. § 1101(a) and § 242(a), 8 U.S.C. § 1252].

11 George H. W. Bush, Presidential Statement on Signing the Immigration Act of 1990, Novem-
ber 29, 1990, https://www.presidency.ucsb.edu/documents/statement-signing-the
-immigration-act-1990#axzz1OsUYZ1gw.

12 Immigration Act of 1990, Pub. L. No. 101-649, § 508, 104 Stat. 4978, 5051.
13 Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 20301,

§ 130007(b), 108 Stat. 1796, 1823, 2029.

14 Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 440(e), 110

Stat. 1214, 1277-78 (1996).

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15 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-

208, § 133, § 303, 110 Stat. 3009-563, 3009-585 (1996).

16 Jonathan Simon, Governing through Crime: How the War on Crime Transformed American Democ-

racy and Created a Culture of Fear (New York: Oxford University Press, 2007), 128.

17 Michael John Garcia, Barriers Along the U.S. Borders: Key Authorities and Requirements (Wash-

ington, D.C.: Congressional Research Service, 2017), 9.

18 Chad C. Haddal, Yule Kim, and Michael John Garcia, Border Security: Barriers along the U.S.
International Border (Washington, D.C.: Congressional Research Service, 2009), 9.
19 Administrative Office of the U.S. Courts, 2008 Annual Report of the Director: Judicial Business
of the United States Courts (Washington, D.C.: U.S. Government Printing Office, 2009),
244–247, Table D-4.

20 In re: Approval of Judicial Emergency Declaration in District of Arizona, 639 F.3d 970,

979 (9th Cir. 2011).

21 “Trump Blames ‘Sanctuary Cities’ for Death Even Though Jury Clears Immigrant,” De-
cember 9, 2017, YouTube, uploaded by Michael McIntee (accessed April 28, 2020),
https://youtu.be/f5uiDXfRDBc.

22 Exec. Order No. 13768, 82 Fed. Reg. 8799 (January 30, 2017).
23 Jefferson B. Sessions, “Attorney General Jeff Sessions Delivers Remarks Announcing
the Department of Justice’s Renewed Commitment to Criminal Immigration En-
forcement,” Nogales, Arizona, April 11, 2017, https://www.justice.gov/opa/speech/
attorney-general-jeff-sessions-delivers-remarks-announcing-department-justice-s
-renewed.

24 Complaint, United States v. Warren, No. 4:18-mj-01455 (D. Ariz. Jan. 18, 2018) (describing
the two men as “illegal aliens”); and Affidavit of Aaron Kiraoffe for Detention of Mate-
rial Witness, United States v. Warren, No. 4:18-cr-00223 (D. Ariz. Jan. 18, 2018) (describing
the two men as “citizens and residents of Mexico”).

25 8 U.S.C. § 1324(a)(1)(A)-(B).
26 Paul Ingram, “Feds Drop Case against No More Deaths Volunteer Scott Warren,” Tuc-
son Sentinel, February 27, 2020, http://www.tucsonsentinel.com/local/report/022620_
warren_charge/feds-drop-case-against-no-more-deaths-volunteer-scott-warren/.
27 Oliver Wendell Holmes Jr., The Common Law, rev. ed. (New York: Dover Publications,

Inc., 1991), 1.

28 Barack Obama, “Remarks by the President in Address to the Nation on Immigration,”
November 20, 2014, https://obamawhitehouse.archives.gov/the-press-office/2014/11/
20/remarks-president-address-nation-immigration.

29 Brendan O’Connor, “The Deserving Migrant,” The Baffler, March 11, 2020, https://the

baffler.com/capital-offenses/the-deserving-migrant-oconnor.

30 @TrumpWarRoom, Twitter, April 16, 2020, 5:13 p.m. (accessed April 28, 2020), https://

twitter.com/TrumpWarRoom/status/1250925188344156166?s=20.

31 8 U.S.C. § 1227(a)(2)(B)(i).
32 8 U.S.C. § 1101(a)(43)(B).

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33 Mieke Neyens, “The Good, the Bad and the Rational: Desirable and Undesirable Migra-
tion to Cuba and Mexico (1907–1909),” Expectations Unfulfilled: Norwegian Migrants in Latin
America, 1820–1940, ed. Steinar A. Sæther (Leiden, The Netherlands: Koninkljike Brill
NV, 2016), 124.

34 Emily Wells, “The Strange, Irreverent Worlds of ‘Down Below’ and ‘The Complete
Stories of Leonora Carrington,’” Los Angeles Review of Books, May 18, 2017; and Anwen
Crawford, “Leonora Carrington Rewrote the Surrealist Narrative for Women,” The
New Yorker, May 22, 2017, https://www.newyorker.com/books/page-turner/leonora
-carrington-rewrote-the-surrealist-narrative-for-women.
35 8 U.S.C. § 1226(c)(1)(C); and 8 U.S.C. § 1227(a)(2)(B)(i).
36 Joel Warner, “Marijuana Is Legal in Colorado–But Only If You’re a U.S. Citizen,”
Westword, September 13, 2016, https://www.westword.com/news/marijuana-is-legal
-in-colorado-but-only-if-youre-a-us-citizen-8304837.

37 Joseph Nevins, Operation Gatekeeper and Beyond: The War on “Illegals” and the Remaking of the
U.S.-Mexico Boundary, 2nd ed. (New York: Routledge, 2010), 227, Appendix F (for 1980
data); and Customs and Border Protection, United States Border Patrol, “U.S. Border
Patrol Fiscal Year Staffing Statistics (FY1992–FY2019),” hosted at https://cbp.gov/
newsroom/media-resources/stats (for 2019 data).

38 U.S. Department of Homeland Security, Fiscal Year 2018 Entry/Exit Overstay Report (Wash-
ington, D.C.: U.S. Department of Homeland Security, 2018), 14, Table 2, 30, Table 6,
https://www.dhs.gov/sites/default/files/publications/19_0417_fy18-entry-and-exit
-overstay-report.pdf.

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