Prosecuting Immigration

Ingrid V. Eagly - UCLA Law School

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The criminal prosecution of immigration—principally for illegal entry and reentry, alien smuggling, and document fraud—has reached an all-time high.  Not since Prohibition has a single category of crime been prosecuted in such record numbers by the federal government.  Immigration, which now constitutes over half of the federal criminal workload, has eclipsed all other areas of federal prosecution.  Noncitizens have become the face of federal prisons.

Along certain portions of the southwest border, virtually every person arrested while crossing into the United States is criminally prosecuted before being sent home.  In the interior of the country, prosecution for immigration-related offenses is increasingly linked to home and workplace raids, questioning of inmates at jails, and local police acting as immigration enforcers.  With the undocumented immigrant population in the United States holding steady at over eleven million, and with the War on Terror heightening concerns over foreigners, the issue of what to do about illegal immigration has catapulted to the top of the national agenda.  Yet even as the new Administration sets the stage for possible reform of the immigration system, criminal prosecution continues at a record pace.

The consequences of this sustained focus on criminal immigration enforcement—for the criminal justice system, the civil immigration system, and the rights of noncitizen defendants themselves—have remained underexamined.  Criminal law scholars have typically overlooked immigration crime in their study of federal criminal law.  In part, this omission reflects the tendency to treat white collar crime as the paradigmatic example of federal prosecution.  Immigration law scholars, in contrast, have traditionally explored civil regulatory questions of admission, exclusion, and removal, and largely ignored the criminal arm of the immigration bureaucracy.  A nascent body of literature has begun to document the increasing merger of the immigration and criminal systems, yet such analysis has focused on how the federal immigration agency imposes quasi-criminal sanctions in a setting that skirts criminal constitutional rights.  The existing scholarship thus has not adequately explored how immigration operates in the criminal sphere—namely, how the rights, procedures, and systems traditionally associated with the criminal system have themselves been affected by interaction with the civil system of immigration.

Immigration and criminal law scholars have offered contrasting interpretations of the criminal justice system and its relation to immigration enforcement.  On the criminal law side, prominent academics increasingly have adopted an antiformalist analytic stance.  Focusing on the disjuncture between the criminal system’s structure and the criminal law’s doctrinal principles, scholars have documented how the reality of prosecutorial power and the practice of plea bargaining often negate formal constitutional procedural protections.  Criminal law scholars have emphasized race and class inequality within the criminal justice system yet have not given noncitizen defendants any special analytical attention based on their alienage.  To be sure, the literature acknowledges the special disadvantages that noncitizen defendants may face—such as language and cultural barriers—make them vulnerable to abuse.  However, their situation is not doctrinally or structurally distinguished from that of other oppressed groups within our imperfect “administrative system” of criminal justice.

On the immigration law side, the academic emphasis is, in many ways, the inverse of its criminal law counterpart: deeply concerned about the treatment of noncitizens by the immigration system but generally formalist in its examination of the criminal system.  This approach follows from a growing focus on the convergence between immigration and crime and the impact of this merger on the immigration system—that is, within the civil administrative agency process for determining immigrant admission that is run by the United States Department of Homeland Security (DHS).  It is here, scholars claim, that noncitizens experience the force of the criminal law on “asymmetrical” terms.  Immigrants are increasingly subject to the burdens of criminal law (for example, when deported as a consequence of a criminal conviction), but they receive none of its benefits (because criminal procedural protections, such as Miranda warnings, jury trials, and the right to appointed counsel, do not apply in immigration proceedings).  Embedded in such descriptions is the belief that these protections do, in fact, operate in the criminal sphere.

These two literatures—one pertaining to criminal law and the other to immigration law—thus adopt divergent analytic and normative frameworks.  Yet, as I discuss in Prosecuting Immigration, they are joined by common assumptions about the operational relationship between the criminal and immigration spheres.  One is an assumption of what I call doctrinal equality: that noncitizen defendants occupy the same playing field as other defendants in the federal criminal system.  The second is an assumption of what I call institutional autonomy: that the immigration and criminal systems operate as independent institutions with distinct adjudicatory models, sanctioning regimes, and actors—reinforcing the “criminal-civil” divide.

This is not to suggest that scholars have been blind to the close relationship between criminal and immigration enforcement.  On the contrary, they have been careful to explain that the two systems are similar in their theories, enforcement methods, and priorities.  They have also acknowledged the role that criminal prosecution of noncitizens plays in advancing the overarching goals of immigration policy.  Nonetheless, the description of the prosecution of noncitizens that emerges depicts the interaction between the federal criminal and immigration systems in conventional terms: immigration enforcement agents detain immigrants and refer them for criminal prosecution to federal prosecutors who exercise discretion about whether to pursue charges and—if they do—prosecute immigrant defendants within a criminal court system that provides enhanced procedural protections, cordoned off from ongoing interaction with DHS.

Drawing on court rulings, government documents, legislative history, statistical data, and interviews, in Prosecuting Immigration I offer an account of the immigration prosecution system that is grounded in facts about the actual functioning of the system.  My analysis establishes that the conventional assumptions of equality and autonomy have been replaced in practice by a collaborative relationship that undermines the criminal-civil divide.  Instead of doctrinal equality, immigration laws allow criminal prosecutors to take advantage of the resources and procedures of the immigration system, which are largely unconstrained by the Constitution, to supplement their criminal prosecutions.  Detention without bond, interrogation without Miranda, arrest without probable cause of a crime, and sentencing without probation all become available to the criminal prosecutor in varying degrees as a result of the peculiar interaction between the criminal justice system and the administrative arm of the immigration system.  In practice, noncitizens are exposed to decidedly second-class criminal justice.

Instead of institutional autonomy of the criminal and administrative aspects of controlling immigration, the criminal justice system has been restructured to allow for agency control and promotion of immigration objectives within the criminal prosecution.  I track these shifts across three major axes—adjudicatory model, function, and actors.  In terms of adjudicatory model, the rise of immigration prosecution has fostered an alternative “fast track” for felony adjudication that emphasizes mass processing and speed.  In addition, at least half of criminal immigration cases are adjudicated through prosecution of illegal entry as a “petty crime” in magistrate courts—a practice that places immigration crime squarely outside the confines of Article III courts, the right to jury trial, and grand jury indictment.  In terms of prosecutorial function, immigration law screening—that is, decisions regarding the removal or admission of noncitizens—has become a salient function of the criminal prosecution.  For example, prosecutors increasingly include waivers of substantive immigration rights in criminal plea bargains.  Finally, with respect to actors, role reversal is evident: as a matter of practice, the agency often decides whether criminal charges are filed, while the prosecutor’s office adjudicates immigration rights.

In short, my Article tells the story of the evolving dynamic relationship between immigration and criminal enforcement.  In so doing, I challenge the conventional understanding of both systems.  I build on this functional analysis to identify two significant implications of the interaction.  The first is about law enforcement power, and the second is about prosecutorial function.

First, the criminal-immigration interaction has emboldened the criminal prosecutor to borrow law enforcement tools from the civil immigration system in ways that distort the boundaries of the criminal state.  The traditional criminal-civil incentive structure has been inverted.  Unlike the standard relationship of greater law enforcement powers on the criminal side, in immigration, enforcement powers are greater on the civil side.  This reversal, in turn, has motivated law enforcement to draw on expanded civil powers rather than criminal powers.  In addition, the reversal incentivizes the expansion of the civil immigration law and corresponding civil enforcement powers to avoid criminal rules meant to restrain police behavior.

The second implication of the interaction is the criminal justice system’s increasing role as an immigration screener.  Although the criminal law is generally appreciated for its role in exacting moral blame, this Article shows how, in application, it performs the work of immigration law.  Through concrete terms of written plea agreements, orders of criminal courts, and mandatory criminal deportation rules, the criminal prosecution, rather than the administrative agency removal process, acts as the de facto immigration adjudicator.  This use of criminal law to function as immigration law can also disrupt the substantive immigration law and truncate the procedural rules that would otherwise govern admission and removal.

In Prosecuting Immigration, I aim to establish a critical framework for understanding the institutional design of criminal immigration prosecution.  By examining how federal immigration prosecution actually works, I demonstrate the immigration agency’s influence over core aspects of the criminal system, including constitutional procedural rights, the boundaries of police power, and the aims of the criminal law.  Although the story I unveil focuses on the federal practice of immigration prosecution, the use of the criminal law to prosecute immigration violations has begun to appear in state criminal codes as well.  The prosecution of noncitizens has also increased in other bread-and-butter substantive crime areas beyond the realm of immigration crime.  And collaboration between local criminal law enforcement agencies and federal immigration authorities is expanding rapidly.  My findings thus have implications not only for federal immigration prosecution but also for how law enforcement power and prosecutorial function is understood in the criminal system writ large.


Ingrid V. Eagly is an Acting Professor of Law at UCLA School of Law.

Copyright © 2010 Northwestern University School of Law.

This Legal Workshop piece is based on the following article:  Ingrid V. Eagly, Prosecuting Immigration, 104 NW. U. L. REV. 1281 (2010).

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