Two-tiered Justice: Anti-immigrant laws in the United States

'Despite a century's worth of compelling evidence that immigrants of all nationalities and education levels are less likely than the native-born to commit serious crimes or be incarcerated, the popular stereotype of immigrants as violent criminals persists'.

by Walter A. Ewing

The criminalization of immigration has garnered considerable media attention in the United States due to the harsh new anti-immigrant law recently enacted in the state of Arizona. That law makes it a state crime to not carry proper immigration documents (making it a misdemeanor for the first offense and a felony for the second offense). Moreover, the law requires police in Arizona to determine a person's immigration status if they have a 'reasonable suspicion' that the person is an unauthorized immigrant. Needless to say, this new directive to the police is so broad and ambiguous that it is likely to promote racial stereotyping of all Latinos in the state, including legal immigrants and native-born U.S. citizens.

The law has provoked a furious outcry from advocacy groups on behalf of immigrants, Latinos, and civil rights, which object to what they see as the targeting of an entire group of people in Arizona based on nothing more than ethnicity. Adding insult to injury, the new law comes at the same time law-enforcement officers in the state's Maricopa County, under the leadership of Sheriff Joe Arpaio, have transformed themselves into immigration-enforcement agents. Among many other ethical and human-rights transgressions, the sheriff and his deputies in Maricopa County have used the state's anti-smuggling law to criminally charge unauthorized immigrants with conspiring to smuggle themselves into the United States. However, it is important to keep in mind that the criminalization of immigration in the United States extends far beyond Arizona, and applies to legal immigrants as well as the unauthorized. For instance, in 1996 the U.S. government enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which expanded the list of crimes for which legal immigrants can be deported. More precisely, the law expanded the definition of an ìaggravated felony, which was originally defined for immigration purposes as murder and other crimes so heinous that no relief from deportation should be available to the perpetrator. But IIRAIRA re-defined it to encompass nearly all crimes, no matter how minor the infraction or small the punishment. This includes many relatively minor, non-violent crimes - such as shoplifting, drug possession, and tax evasion - which are not necessarily felonies under federal or state criminal law. In addition, the law is applied retroactively, meaning that legal immigrants can be deported for crimes committed years before those crimes were made deportable offenses. The law made even more harsh and inflexible the two-tiered system of justice which already existed for legal immigrants in the United States; a system in which they pay twice for their crimes: once in the criminal justice system, and then again in immigration court where the penalty is deportation. An ironic aspect of these sorts of measures to criminalize immigrants is that they are often carried out in the name of fighting crime. Despite a century's worth of compelling evidence that immigrants of all nationalities and education levels are less likely than the native-born to commit serious crimes or be incarcerated, the popular stereotype of immigrants as violent criminals persists. This stereotype has served to fuel the passage of anti-immigrant measures such as Arizona's new law and IIRIRA in 1996, which then turns the myth of immigrant criminality into a self-fulfilling prophecy as new classes of 'criminals' are created (such as the immigrants-only definition of 'aggravated felons' under IIRIRA). This sort of circular reasoning notwithstanding, the fact remains that the vast majority of immigrants are not 'criminals' in any commonly accepted sense of the word. Anti-immigrant measures such as IIRIRA and Arizona's new law target a group of people who are less likely to engage in serious crimes than native-born Americans. Yet this crucial fact is too often lost in the emotional rhetoric that defines so much of the immigration debate in the United States.

Related article: Policing Migration in South Africa: Disinformation, Development, and Accountability by Loren Landau

Walter A. Ewing is Senior Researcher at the Immigration Policy Center (IPC) of the American Immigration Council in Washington, DC. He has written or co-written roughly 25 reports for the IPC and contributes regularly to IPCís Immigration Impact blog. He has also written articles for the Georgetown Journal of Law and Public Policy, Stanford Law and Policy Review, and Society; as well as opinion pieces for the Wall Street Journal, Miami Herald, Philadelphia Inquirer, Sacramento Bee, and Politico. Prior to joining the IPC, he was an Immigration Policy Analyst at the U.S. Conference of Catholic Bishops, and a Program Director at the U.S. Committee for Refugees and Immigrants. He received his Ph.D. in Anthropology from the City University of New York (CUNY) Graduate School in 1997.

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