Understanding the Double Standards of the Immigration System to Aid Immigrants
By: Gibran Khalil
Introduction
As many nonprofits know, immigration is a complex political and social issue in the United States. This article aims to help nonprofits further understand some of the legal difficulties that immigrants face after entering the United States. According to Dr. Hector Cardenas in the Goldman School of Public Policy, Central American immigrants are becoming the most prevalent immigrant group to the United States. Because of this, the article talks about the experiences of Central American immigrants in order to draw focus to immigration law and policy. An understanding of these policies can be used to help immigrants from all backgrounds. Overall, this article will focus on two areas: first, comparing the criminal justice system and immigration system in the United States; and second, covering recent immigration policy in order to better understand the immigrant experience and hopefully help nonprofits better help immigrants entering the United States.
Push Factors: Central American Immigrants:
Some of the most common immigrants to the United States are from what is known as the Northern Triangle, a region in Central America including Guatemala, El Salvador, and Honduras.
Women and children often flee this region due to high levels of violence created by a system of organized crime, weak government, and food insecurity and poverty. Not only is the journey to the United States extremely difficult, but upon entering the US many immigrants are detained, deported, and sent back to their native countries, forced to reintegrate into a society that is potentially more dangerous upon return. In order to figure out why so many immigrants are left worse off after coming into contact with our immigration system, we can look at our immigration system in comparison with the criminal justice system and recent immigration policy.
For nonprofits that interact with immigrants, understanding some of these conditions that immigrants come from can be extremely useful in helping them both physically and mentally as they attempt to find a home in the United States.
The Criminal Justice System vs. the Immigration System
Classification of the Immigration System:
The main reason why our immigration system and deportation process is complex and unjust is because in the eyes of the Supreme Court, deportation is a “civil” and not “criminal” sanction. This means that the rights bestowed to individuals under the criminal justice system do not exist in the immigration system. In the end, this leads to more harm than security. Though the Supreme Court has overruled many of their deportation decisions since 1800, deportation is still treated differently from a criminal prosecution and immigrants facing removal are not afforded basic rights under United States law.
Statute of Limitations:
Firstly, immigrants can be deported based on past actions, no matter how long ago the event took place and regardless of their attempts to correct or rehabilitate the issue. In other words, deportation doesn’t follow the statute of limitations. Additionally, individuals in the justice system cannot be prosecuted for actions that legal at the time that they took place. However, because deportation is a “civil” issue, immigrants can be deported for doing something that was legal at the time it took place but illegal in the future. As will be touched upon later in the paper, this occurrence was especially prevalent after the expansion of what was meant by “aggravated felony” in the new immigration policy of 1996. Overall, if there is no statute of limitations for immigrants facing deportation, the government can start their process of removal for lawful permanent residents or green card holders for minor offenses from decades in the past. This kind of activity disrupts the lives of both the lawfully present residents and their US citizen family members, and it further discourages other green card holders for applying for permanent citizenship, a huge milestone in the immigration process, for fear of deportation.
Miranda Rights:
Another infringed-upon right in the immigration system is the lack of dissemination of rights to immigrants. When a criminal is taken into custody, they must be read their Miranda rights (i.e. “You have the right to remain silent…”). Though there are similar advisals of rights that are meant to be given once an immigrant is detained, officers are not required to read these rights before questioning. Furthermore, immigration officers may not even disclose these rights until weeks after the deportation process has started and the individual has been questioned, and the federal government generally does not permit immigrants to have an attorney present during their interrogation. This kind of practice defeats the purpose of having advisals of rights in the first place and creates a hugely unjust system.
Detention:
Another difference between the two systems exists in detention wait-time. Under the Constitution, suspects under arrest with no warrant do not have to stay indefinitely in jail: there is a hearing process they can access within 48 hours in order to figure out if the police were valid in arresting them. The Supreme Court supports this, saying that this process is to ensure that individuals are not unnecessarily detained without someone “independent of police or prosecution” reviewing their case. However, immigrants arrested without warrant are not afforded this opportunity, and immigrants can even be examined behind closed doors by the same officers who detained them. Immigrants can request a bond hearing for the “earliest possible date,” but their scheduling can take weeks — leaving immigrants stuck in detention.
Suspects in the criminal justice system can also request a hearing where they can argue if they should receive bail, and the only time they are denied is if the government deems them a flight risk or a danger to their community. Because of the expanded immigration laws of 1996, many immigrants are sent to mandatory detention without the ability to receive bond or a bond hearing, even if they aren’t a flight risk or a danger to their community. The Supreme Court upholds this notion by explaining that removal proceedings are supposed to be completed within 47 days and any appeals are resolved within four months. However, immigrants may actually spend months and even years in detention while these hearings are pending because of the prevalence of mistakes and lack of transparency within the government. For example, the average waiting time for an immigrant to wait for their court case is 696 days, which means immigrants are, on average, waiting almost two years before their cases in court. While not all immigrants could be detained at this point, a lot are, meaning that immigrants are spending years in detention facilities.
Many criminal cases are also solved through plea bargains, where the defendant stands before a judge, waives their rights knowingly, and admits guilt in order for the removal of some charges or a less severe sentence. This is also an opportunity not afforded to immigrants in the deportation process. Immigrants can agree to deportation under a process called “stipulated removal,” but they never actually appear before an immigration judge. Instead, federal immigration officers advise them of their rights and present them with forms to sign, often very quickly and without the presence of an attorney. In this way, immigrants are not afforded basic protections under the law.
Rights During Trial:
Another hallmark of the criminal justice system is the idea that “you are innocent until proven guilty,” or the presumption of innocence. Because deportation is not a “punishment,” none of the protections included in the presumption of innocence are afforded to immigrants. In addition, our three branches of government are afforded checks and balances to maintain a separation of powers and our democracy. This means that the judicial branch should not be influenced by the other two branches, and judges are neutral decision makers. In immigration courts, that is not always the case. Immigration courts are part of the Department of Justice under executive branch. Immigration judges are not judges, but rather attorneys in the Department of Justice. This means their performance, and thus their paycheck, is decided by case completion and not judicial fairness.
Also involved in the criminal process is the fact that prosecutors must give out evidence that can be beneficial to the defendant, or clear the defendant’s name. However, non-citizens can’t automatically access their immigration records, which can be extremely important in showing that someone has lawful status in the United States or does not need to be removed from the country. In order to get these files, most non-citizens have to file a Freedom of Information Act (FOIA) request. However, these requests are separate from the removal process, which means non-citizens can be removed before they get responses for their requests. Furthermore, the government can redact and withhold information under FOIA.
The rights involved in trial also differ between criminal defendants and immigrants. The Constitution grants the right to trial for criminal defendants seeking to prove their innocence. Immigrants instead must go through an expedited process where they plea their case to employees of the Department of Homeland Security, who can also issue final orders for deportation. In fact, most deportation orders come from these employees and not immigration judges, and it’s likely that less than a quarter of removed immigrants appeared before an immigration judge. Also supporting the idea of a “speedy trial” in the criminal justice system is the notion that “justice delayed is justice denied.” With criminal cases, lingering cases and long periods of time between the arrest and the trial can prevent innocent individuals from clearing their name and create court backlog. Immigrants aren’t afforded trials, however, so there is a historic proportion of immigration court backlog that keeps asylum seekers and wrongly-placed immigrants stuck in detention until their cases are decided, even though these hearings are essential to their future. Furthermore, in order to reduce backlog, immigration judges can be less thorough in their assessments. Criminals are also tried in the same district where the crime was committed, so prosecutors can’t separate the suspect from family and friends and make finding an attorney more difficult. In the immigration system, removal proceedings are often far away from the states of arrest. In this way, detained non-citizens are often far away from family, friends, lawyers, and the evidence needed to support their case. They can also often end up in conservative courts that usually don’t rule in favor of immigrants.
The right to an attorney, even for one day of jail time, is also essential to the criminal justice system because expecting a person to defend themselves, especially those who can’t afford a lawyer, would not provide the conditions for a fair trial — however, this crucial right is nonexistent in the immigration system. . The Department of Homeland Security often refuses for the presence of privately attained attorneys during interrogation. A lack of counsel could be the factor with the largest impact on an immigrant’s ability to get a fair hearing. Immigration laws are extremely complex, so having a lawyer present is exceedingly beneficial. In fact, research shows that immigrants with lawyers are much more likely to succeed in their hearing than those without them.
During trial in the justice system, evidence that was obtained unlawfully, or in violation of the Fourth Amendment, cannot be used. Not only is this not afforded to immigrants, but it is harder for immigrants to suppress evidence, so officers do not have an incentive to follow the Fourth Amendment in their proceedings. Due to immigration law passed in 1996, immigrants also cannot appeal or challenge convictions in the same way that criminal defendants can. Finally, Defendants can even challenge the severity of their own sentences. For immigrants, deportation cannot be seen as “cruel and unusual punishment,” even when an immigrant is facing deportation orders for a criminal conviction that didn’t result in jail time. This same juxtaposition applies to the appeal of an unfavorable decision.
Summary of the Immigration System vs The Criminal Justice System:
How Can Nonprofits Use This Information?
Ultimately, it’s very clear that the differences in our criminal justice system and immigration system are extensive and unfair. Given this complex juxtaposition, nonprofits can help immigrants by understanding some of the basics of this process and by actively seeking legal aid for immigrants facing deportation or other issues in their immigration process. Although the process to find a trustworthy immigration lawyer can also be difficult, putting immigrants who face legal concerns in contact with a lawyer or legal specialist can be one of their best bets in maintaining their status and security in the United States. Nonprofits like Immigration Institute of the Bay Area provide these kinds of services.
Immigration Law Changes in the Last Several Decades
As we can see, not only is there a serious lack of rights afforded to immigrants in the deportation law, but immigration policy over the last several decades has only amplified the strife that immigrants face upon their attempts to enter the United States. Understanding these policies can also be vital for the work nonprofits do to aid immigrants in their process of integrating into the United States.
Fear of Immigrants and Worksite Raids:
A big factor associated with immigration law is a “fear” of immigrants. Despite immigrants being less likely to commit crimes and engage in illegal activity, there is still a lot of fear associated with immigration and policy formed based on this fear has criminalized immigration.
In the context of today, we can start looking at the how the immigration system has been criminalized by first examining the worksite immigration raids that have taken place for the last three decades. Federal agents often raid businesses employing unauthorized immigrants in order to detain and deport immigrants. However, these raids often devastate the towns with these businesses. Often a large portion of the population of these towns are immigrants, so deportation of a large number of immigrants can lead to social and economic disaster.
Immigration Enforcement Agencies and Policies:
In 1986, the Immigration Reform and Control Act, or IRCA, was formed and best known for being the most common pathway that unauthorized immigrants took to gain legal status. However, IRCA also created the foundation for new immigrant-enforcement programs that targeted non-citizens with a criminal record. This eventually led to the creation of the Criminal Alien Program, or CAP, which was designed to “ identify, detain, and begin removal proceedings” for deportable immigrants whether they were detained in local, state, or federal prisons. CAP is still active in all state and federal prisons and is also used in 300 local prisons across the US. It is also the oldest interface of its type. CAP’s nature as a tool used to deport immigrants leads to ethnic profiling by police.
The War on Drugs is also an important landmark for immigration law. The politics of this time often linked immigration and drugs together. This led to more prisons and also more people that were sent to fill these prisons. The rapid expansion of detention centers starting in the early 1980s was then focused both on the “crackdown on immigrants” and the War on Drugs. Immigration detention centers were expanded through IRCA and the Immigration Act of 1990, but the Anti-Drug Abuse Act of 1988 filled prisons with citizen-offenders. More importantly, however, the Anti-Drug Abuse Act was one of the acts that created the concept of an “aggravated felony.”
In continuation, The Illegal Immigration Reform and Immigration Responsibility Act, or IIRIRA, and Antiterrorism and Effective Death Penalty Act, or AEDPA, of 1996 changed immigration law in two notable ways. First, any noncitizen was convicted of an “aggravated felony” was detained and deported, even those non-citizens who had pled guilty to minor charges in order to get probation instead of jail time. Secondly, the definition of an “aggravated felony” was expanded in order to detain more immigrants than before. This is due to the fact that the expanded definition also applied to offenses that occurred before the new law was enacted in 1996. The IIRIRA also created the 287(g) program in 1996, where the Department of Homeland Security can permit state and local law-enforcement officers to perform the function of federal agents. As with ICE, those in 287(g) can access federal immigration databases, interrogate and arrest non-citizens who they think have violated the law, and give out “detainers,” or intents to detain, against alleged non-citizens who are in state or local custody. The problems with this program is that it lacks federal supervision, it takes resources away from local crime investigations, and it results in the increased profiling of Latinos. There is also the question of whether it even provides a law enforcement benefit at all. In 2013, the program received a lot less funding in the budget breakdown due to the expansion of Secure Communities.
The tragic events of September 11, 2001 also had a profound effect on immigration law. “National security” was the justification used to incarcerate and deport more immigrants at the time. Very vaguely defined “potential threats” were detained on immigration related charges that often were not under the same standard of proof as criminal charges. The first targets were Arabs, Muslims, and other South Asians, but there were implications for all immigrants. The PATRIOT Act of 2001, Homeland Security Act of 2002, and the Enhanced Border Security and Visa Entry Reform of 2002 furthered criminalization in the immigration system. All these acts led to an increased number of deportations. Furthermore, the Patriot Act allowed federal agents to apprehend and detain “non-citizens on immigration grounds,” essentially without giving them the rights of due process for up to 6 months simply because they were subjectively deemed a “national security risk.”
In 2005, Operation Streamline was a program originating in the Southwest where those who were trying to cross the border were prosecuted in large group trials and convicted of illegal entry into the country, which is a misdemeanor. If they were caught again, they would be convicted of an “aggravated felony” and could be in prison for two years. This program almost guarantees a violation of human rights, as trying, for instance, eighty people at one time is unjust. This kind of program also dramatically increases the number of immigrant prosecutions to the point that immigration courtrooms, especially near the border, end up clogged and full of petty offenses. At the end of the day, resources are pulled from human and drug smuggling prosecutions and instead used on prosecuting non-violent immigrants who don’t pose significant threats to the country.
The creation of Secure Communities in 2008 only added to the double standard in justice that applied to immigrants. Secure Communities uses “biometric data” to check for immigrants that can be deported as people are booked in jails. Most of the immigrants who are eventually picked up are nonviolent, and the overwhelming majority of people receiving ICE detainers while in custody of law-enforcement agents had no criminal record. Not only that, but financial costs continue to increase as more and more people are thrown into immigration detention and then deported. The program creates a distrust of authorities within immigrant communities as they are less likely to report crimes or cooperate with police officers for fear that cooperation can lead to deportation. The state of Secure Communities was murky around 2014 during the Obama era, and in 2014 it was discontinued. However, in January 2017 President Trump restarted the program. Overall, Secure Communities is not equitable or practical.
The criminalization of unauthorized immigrants intensified on the US Mexico border with the Consequence Delivery System in 2011. The CDS was designed to prevent further “smugglers” from entering the country, with agents instructed on how to “best stop further illegal activity.” Possible consequences after coming into contact with this program is processing through the Alien Transfer and Exit program where people are sent to unfamiliar and dangerous Mexico-border towns, many of which are marred with drug violence. This kind of program only increases the vulnerability of an already vulnerable population of people. During the Obama era, Obama worked to help grant immigrants some relief with the Deferred Action for Childhood Arrivals, or DACA, and Deferred Action for Parents of Americans, or DAPA. However, the presidency of Donald Trump has brought a lot of turmoil to the issue of immigration. Most notably, Trump has insisted on building a wall on the United States-Mexico border and earlier in his presidency employed the “travel ban.” Overall, Trump’s stance on immigration has brought about a rise in the fear of immigrants and a reversal of Obama era regulation on immigration.
How can Nonprofits Help?
Nonprofits and others concerned with immigrant rights can use the long list of immigration policy changes at hand to better understand who to vote for in all elections in order to effect change. In addition, understanding these policies can also be vitally important to helping immigrants as educating them on how these laws work can help them understand exactly what’s at stake in a move to the United States at a given moment in time. Combining this knowledge with information on the immigration system ultimately provides a good foundation to find success in immigrating to the country. Immigration policy can change greatly in coming years depending on the results of the 2020 election.
What Does This System Mean for Central American Immigrants?
As we can see, the lack of rights and criminalization of immigrants under United States policy leads to immigrants finding disaster instead of safety: basic human rights and overall success are not afforded to immigrants. Thus, immigrants like the women and children mentioned from Central America are lied to and forced back into the very conditions they wished to flee. After looking at eight interviews conducted by the American Immigration Council, we can understand the types of conditions that these people return to. Upon return, these families are more vulnerable to the threats they previously received, and they are often threatened by the same gang members who caused them to flee. They are forced into hiding and because of a lack of protection from their governments, must seek refuge in other family members’ homes, pay for private security services, or live completely isolated. The weakness of the government provides no cover from the gangs, and complicity between the state and the gangs is often seen. These individuals often return with significantly less money than they previously had as well because their effort to get to the United States cost them a lot of what they had. Finally, the process of removal can prove traumatic and often violates basic human rights.
In addition to educating immigrants on their rights and policies upon entering the country, it’s also important to provide proper physical and mental health services to immigrants given some of the traumatic experiences that immigrants seeking refuge come from. Nonprofits and immigrants alike can access sources like this in order to help immigrants seek improvements in mental health.
Conclusion
After examining many of the policies and systems in place revolving our current immigration policy, it is clear that our immigration system needs to be revised. Rarely does our immigration system contain policies that legitimately follow the Constitution. Instead, old and outdated classifications of deportation as a “civil” proceeding are used to justify the cruel means in which we remove immigrants from our country. Our immigration system draws focus to both the complexities and contradictions of our Constitution, and especially given the stance of the President and many others on immigration, our Constitution should be first be revisited and revised to make sure it actually upholds the standards of basic human rights that people deserve.
