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Excluding 'criminals' from comprehensive immigration reform

Most of the so-called "criminal aliens" deported under Obama's presidency are neither dangerous nor are they outsiders.

Last Modified: 13 May 2013 09:26
Beth Caldwell

Beth Caldwell is a legal scholar whose research focuses on juvenile justice and immigration. She teaches at Thomas Jefferson School of Law and has published widely in academic journals. As a Soros Justice Media Fellow, she is researching the consequences of mass deportation from the US.
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"President Obama's administration has framed criminal deportees as dangerous outsiders, and the Senate immigration bill incorporates this understanding of the issue," writes Beth Caldwell [Getty Images]

Over two million people have been deported from the United States in the past five years. President Obama's administration has championed the cause of deporting "criminal aliens", many of whom are the spouses or parents of American citizens. This mass deportation effort has fractured families, negatively impacting the mental health of hundreds of thousands of American children whose parents have been deported. 

The immigration reform bill now pending in the US Senate is widely heralded as "comprehensive" reform. Although the proposed legislation makes bold steps in some areas, the bill is far from comprehensive. Rather, it categorically excludes most people with criminal convictions from relief. At first glance, this makes sense. The word "criminal" conjures images of threatening predators that most would rather keep out of the country. It is also politically savvy - an immigration bill that benefits "good" immigrants while leaving out the "bad" is more likely to pass. 

However, statistics about the "criminals" who were deported last year reveals that the people being left out of immigration reform are by and large not the dangerous predators the public fears. In 2012, 34 percent of "criminal deportations" were for non-violent crimes involving drugs or alcohol whereas 0.05 percent were deported for homicide convictions. Although ICE reports that it is "committed to maximising the removal or those who pose the greatest threat to public safety or national security", most of the "criminals" it deports pose no such threat. 

Excluding this population from immigration reform carries serious consequences - it divides families and perpetuates racism. Moreover, this exclusive paradigm rests on the misguided assumption that those who have committed crimes are disposable, rather than acknowledging that many are members of American families and communities who have made mistakes that can be rectified without permanently removing them from the country. 

Social cleansing  

Deportation has a long track record as a tool used to rid societies of people deemed socially undesirable, and excluding those with criminal convictions from immigration reform is consistent with its historic use. Political theorist William Walters traces the origin of modern deportation to political banishment employed by ancient Greece and Rome, the expulsion of poor or religiously unpopular groups during the Middle Ages in Europe, and the forced movement and genocidal practices of Nazi Germany. 

US immigration system moves towards reform

Walters argues that during the late 19th century and early 20th century "states increasingly used deportation as a way of governing the welfare of their populations, both by excluding the socially 'undesirable' (paupers, prostitutes, anarchists, criminals, the insane, excludable races, etc) and by removing foreign labour… during periods of economic recession". 

The emergence of the term "criminal alien", designed to both demonise and alienate, exemplifies the relationship between American immigration policy and social cleansing. In a historical investigation of the US Border Patrol, Kelly Lytle Hernandez uncovered the origin of the use of this term. 

In 1956, the Border Patrol's chief enforcement officer for the Southwest Region informed his officers that they should no longer refer to migrants as "wetbacks" because the term "creates a picture in the minds of the public and the courts of a poor, emaciated, Mexican worker, entering the United States illegally to feed a starving family at home". Instead, he advised: 

"Whenever a criminal record exists, we use the words, 'criminal alien', and when no criminal record exists, the words, 'deportable alien'. I feel this change will have a psychological effect on the public and courts that will benefit the Service." 

President Obama's administration has extended this linguistic shift by emphasising the importance of deporting those it refers to as "criminal aliens". The term in and of itself labels the population as socially undesirable others. 

This is particularly problematic because Latinos and blacks are systematically arrested, prosecuted and convicted of crimes at higher rates than their white counterparts, even when they engage in criminal behaviour at similar (or lower) rates. A Latino or black immigrant is therefore much more likely to be defined as a "criminal alien", and be excluded from immigration reform, even though he presents no greater risk to the public safety than a white immigrant. 

'Dangerous outsiders' 

President Obama's administration has framed criminal deportees as dangerous outsiders, and the Senate immigration bill incorporates this understanding of the issue. In 2012, the President told Univision

"We try to focus our enforcement on people who generally pose a threat to our communities, not to hardworking families who are minding their own business and oftentimes have members of their family who are US citizens… what we've tried to do is focus our attention on real threats, and make sure that families are not the targets." 

But most of the so-called "criminal aliens" who have been deported under Obama's presidency are neither dangerous nor are they outsiders. Hundreds of thousands are members of American families who have lived in the US for substantial periods of time. Although they have been convicted of crimes, most do not present ongoing risks to American public safety. 

The immigration reform bill precludes otherwise eligible individuals from qualifying for relief if they have a single felony conviction or three misdemeanour convictions. This exclusion casts a broad net and excludes people who have been convicted of felony drug possession from the benefits of immigration reform. Even those convicted of offences 10, 20, or 30 years ago would be excluded from relief because the legislation does not set any time limits for convictions. Many people who may have been "dangerous" 20 years ago no longer are, but the legislation does not allow for any consideration of rehabilitation. 

We try to focus our enforcement on people who generally pose a threat to our communities, not to hardworking families who are minding their own business and oftentimes have members of their family who are US citizens...

Barack Obama

The bill purports to provide relief to American families that have been divided by immigration, but it falls short of doing so. It would allow people who have been previously deported to apply to re-enter the US if they have an American citizen spouse or child. However, people deported due to criminal convictions are automatically excluded from this provision. As Seth Freed Wessler reported for Colorlines, Department of Homeland Security estimates that three quarters of deported parents of American children were removed due to criminal issues. They would be left out of this reform. 

Many deported parents have gone to great lengths to transform their lives in the years since their criminal convictions, yet the bill does not allow for them to demonstrate evidence of rehabilitation. Chris Najera, who grew up in Los Angeles but was deported to Tijuana seven years ago, is a Christian pastor who runs a shelter for recent deportees. His two American daughters are now teenagers and live in California with their mother; he wishes he could be more involved in their lives. 

Najera is a few classes away from finishing his BA degree. He has lived a law-abiding life ever since his deportation, dedicating himself to religious service. Last year, he launched an educational programme for American children who live in Tijuana due to a parent's deportation. However, he stands no chance of reuniting with his daughters, even if "comprehensive" immigration reform passes. 

Often, the American citizen family members of these deportees chose to "self deport" in order to keep their families together. Giovanni Gaez, who moved to the US when he was 13, was deported due to a criminal conviction years after he was honourably discharged from the military. His wife and two children, all US citizens, moved to Panama to be with him. "When I was deported," he said, "ICE also deported three Americans." According to Gaez, his wife and children are "trying to adjust to this new life", but they miss their home. 

The immigration bill currently pending in the US Senate further exacerbates the demonisation of immigrants - primarily Latino and black - who have gotten into trouble with the law. In doing so, the bill falls short of its stated purpose of being "comprehensive" in its effort to reform immigration law. It fails to address some of the most problematic aspects of contemporary American immigration law, including the forced separation of American families.

Beth Caldwell is a legal scholar whose research focuses on juvenile justice and immigration. She teaches at Thomas Jefferson School of Law and has published widely in academic journals. Her article entitled "Banished for Life: Mandatory Deportation of Juvenile Offenders as Cruel and Unusual Punishment" is forthcoming in the Cardozo Law Review. She also blogs for the Huffington Post. As a Soros Justice Media Fellow, she is researching the consequences of mass deportation from the US.

You can follow the editor on Twitter: @nyktweets

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The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.

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