I had the opportunity to speak on a panel at Washington University about the troubling (and, in my view, unconstitutional) Executive Order restricting travel from seven majority-Muslim countries. The room was packed. I drew parallels to other race- and identity-based immigration bans in our nation’s history, such as the Chinese Exclusion Act.
Episode 10 of The RightsCast features César García Hernández, one of my most distinguished colleagues at the University of Denver School of Law and an expert on the growing intersection of criminal and immigration law. In the episode, his discusses his article “Naturalizing Immigration Imprisonment,” which is forthcoming in the California Law Review. César is the author of many highly regarded articles about the intersection of criminal and immigration law, and also runs the crImmigration.com blog, an award-winning blog about the intersection of criminal law and immigration law that is widely read among both professors and practitioners. To keep up with recent developments, you can find César on Twitter under the handle @crimmigration.
Immigration-related imprisonment has become an increasingly prominent feature of both criminal and civil immigration law enforcement and understanding why this is and the consequences for the justice system and for migrants is a critical step in immigration reform. Because of the importance of the topic and César’s incredible expertise in this area, I quickly realized that the topic required discussion in two segments rather than one, so the first part of César’s interview is available below, and I will release the second part next week as Episode 10, Part 2.
I’m spending most of today and tomorrow (2/6 and 2/7) at the Denver Law Review annual symposium. This year’s topic is the timely one of “crImmigration,” or the intersection between criminal and immigration law. The official announcement is available here, and my colleague Cesar Garcia Hernandez also has a nice write up here. You can follow the symposium in real time on Twitter under the hashtag #DULRcrimmigration, or check out the livestream.
My colleague César Cuauhtémoc García Hernández (visiting University of Denver from Capital; also the author of the well-read CrImmigration blog) has a fantastic piece coming out in the California Law Review called “Naturalizing Immigration Imprisonment.”
The piece is already getting attention in the blogosphere, and with good reason. It’s the first piece to undertake a systematic overview of the half million people per year who are imprisoned as a result of suspected or actual immigration violations. The piece defines this unique population with specificity and catalogs the many avenues by which people enter the imprisoned population. Understanding the genesis and characteristics of the population provides a crucial foundation for subsequent efforts to reform a system that presently imprisons far too many people for immigration-related reasons, resulting in severe costs at both a human and an economic level.
Here is the abstract for the piece:
Only recently has imprisonment become a central feature of both civil and criminal immigration law enforcement. Apart from harms to individuals and communities arising from other types of immigration enforcement, such as removal, imprisonment comes with its own severe consequences, and yet it is relatively ignored. This Article is the first to define a new prison population as those imprisoned as a result of suspected or actual immigration law violations, whether civil or criminal, a population that now numbers more than half a million individuals a year. It is also the first to systematically map the many entryways into immigration imprisonment across every level of government and involving civil and criminal law enforcement tools.
Examining the population as a whole provides crucial insights as to how we arrived at this state of mass immigration imprisonment. While political motivations — parallel to those that fueled the rapid expansion of criminal mass incarceration — may have started the trend, this Article demonstrates that key legal and policy choices explain how imprisonment has become an entrenched feature of immigration law enforcement. In fact, legislators and immigration officials have locked themselves into this choice, as there are now literally billions of dollars, tens of thousands of prison beds, and innumerable third parties invested in maintaining and expanding the use of immigration imprisonment. Using the literature on path dependence and legal legitimacy, this Article explains the phenomenon of immigration imprisonment as a single category that spans all levels of government. Rather than continue further along this path, the Article concludes by suggesting that policymakers should seek a future reflective of immigration law enforcement’s past when imprisonment was the exception rather than the norm.