‘Good’ vs ‘bad’ immigrants? — Alina Das’s ‘No Justice in the Shadows’ (2020)
“We’re going to keep focusing enforcement resources on actual threats to our security,” President Obama explained. “Felons, not families. Criminals, not children.” […] But where did that leave a person like Ravi — a hardworking man with a family and a felony conviction? On which side of the line between good and bad immigrants did he belong? (Das, 3–4)
Professor Alina Das starts her book, No Justice in the Shadows (Bold Type Books, New York: 2020) with a story of Ravi, a green card holder and a vocal immigrant rights activist who faced deportation charges due to a fraud conviction that happened fifteen years ago. Given his respected status as a community leader, people mobilized to prevent his arrest, filed a lawsuit in opposition, and eventually secured his release. Through his story, Professor Das raises important questions about who gets labeled a “criminal alien” in the United States and why. If people with a drug possession charge who had received probation decades ago are charged decades later with a “drug trafficking aggravated felony” for that past crime, do they truly deserve that label? Are they really a “threat to public safety,” whose removal would make our communities safer?
Throughout the book, Professor Das answers these and other important questions about the ways the U.S. has conflated crime and immigration policies. Alternating stories from clients she represented in New York City to the historical context that led to the birth of the crime-based deportation system, this book is historic and rich enough for scholarly purposes without alienating average readers. I recommend this book for anyone who wants to learn more about the emerging field of “crimmigration” or who may not have raised suspicion on presidential decrees to prioritize “criminal aliens” over “non-criminals” in immigration enforcement.
Tracing the origins of racialized immigration laws
After starting the book with thestory of her former client, Ely, Professor Das tracks the history U.S. naturalization and immigration laws that were either explicitly or implicitly intended to prevent people of color from immigrating or becoming U.S. citizens. Laws such as the 1882 Chinese Exclusion Act, 1892 Geary Act, 1924 National Origins Act based on the Eugenics theory, and the 1952 Immigration and Nationality Act were adopted “to preserve, as nearly as possible, the racial status quo in the United States,” as explicitly stated by the House Committee Report for the 1924 legislation (52). They not only succeeded in limiting immigration from outside the Western hemisphere, but also criminalized undocumented status.
However, over time, in response to mounting criticism on the racist motives of U.S. immigration law and the government’s failure to protect Jewish asylum seekers, President Lyndon B. Johnson adopted the1965 Hart-Cellar Act. This Act shifted U.S. immigration policy from enforcing a racialized cap on immigration to a country-based quota and created a system of admission based on family ties, employment, and refugee status. Despite the prediction that this law would not dramatically change the racial landscape of the U.S., migration from Asia, Latin America, and Africa rose to supersede migration from Europe.
With the changing demographic of the U.S., white Americans who had supported the race quotas began to feel threatened. Hate groups also emerged. In response to mainstream fears, Professor Das argues, “criminality replaced explicit racism in immigration law” (67). As a result, incarceration and deportation became a means of controlling the U.S. demographic. This worked hand-in-hand with federal policies aimed at restoring “law and order” in the Civil Rights movement era, including the ‘war on drugs.’
Drug offenses and the crime-based deportation machine
With increasing reliance on imprisonment and deportation to control the racial makeup of the U.S., the crime-based deportation system was born. In Chapter 3, Professor Das lays out its history and evolution.
To dispel white discontent with the Civil Rights movements and economic depression at the time, President Johnson issued a ‘war on crime’ and increased federal funding to local police. Later presidents targeted drugs used primarily by black demographics and waged a ‘war on drugs.’ The 1986 Anti-Drug Abuse Act not only set lengthy mandatory minimum sentences for drug offenses but also codified higher penalties for possession of crack cocaine than powder cocaine — distribution of 5 grams of crack cocaine (mostly accessed by poor Americans) or 100 grams of powder cocaine (more expensive than crack cocaine) both carry a 5-year minimum sentence. The Act also contained a broad drug deportation provision that caused drug offense to become a major deportable charge. In the same year, the Immigration Reform Act drove fears of criminal aliens and led the Immigration and Naturalization Service (INS) to focus on identifying immigrants already in jails and prisons and detaining them in immigration custody.
In 1988, the second Anti-Drug Abuse Act, which “marked a new low in the drug war,” introduced the term “aggravated felony” that included murder, drug trafficking, and firearms trafficking. For immigrants who are convicted of aggravated felony, they not only face deportation but also mandatory detention without bail, the likes of which are not found in other types of civil or criminal proceedings. Mandatory detention severely limits immigrants’ access to counsel and members of Congress ensured this by eliminating several forms of judge’s discretionary relief.
Further legislation introduced by President Clinton — 1996 Antiterrorism and Effective Death Penalty Act (AEDPA) and the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) — increased the types of deportable offenses: these included “crimes of moral turpitude” (a broadly defined term) and nearly all drug offenses. Subcategories of aggravated felonies swelled as well. Judges’ limited power to grant discretionary relief from deportation was further curtailed, making it a highly unlikely recourse.
Any public dissent with increasing criminalization of immigrants were quelled after the 9/11 attack, which fueled anti-immigration sentiment and added force to find and deport all “deportable aliens.” These policies have had disproportionate effect on immigrants of color: certain immigrant groups, such as Central American, black, and Southeast Asian immigrants, have been disproportionately detained or deported considering their proportion to the undocumented population (84). Lamentably, the deportation scheme was just gathering force, and during President Obama’s term, removals skyrocketed as the aforementioned legislation combined with data-sharing and partnership programs between government agencies allowed for widespread and unchecked immigration enforcement.
Partnership in immigration enforcement
In Chapter 4, Professor Das shares some of the major legislation that have increased partnership and data-sharing between immigration authorities and police and corrections officers. The following legislation are mentioned as having significantly raised the stakes of immigrants’ interaction with the police, as even minor charges or charges that were dropped later were flagged to immigration authorities.
Civil Alien Program: First introduced as the ‘Criminal Alien Apprehension Program’ in 1986; facilitates data-sharing and partnership between local police and corrections officers and immigration authorities to identify immigrants for deportation
Secure Communities: Fingerprints taken during local arrests are automatically shared with the Department of Homeland Security; DHS would send a “detainer” ordering jails to notify the INS when the immigrants are released on bail or have served their sentences so that they can be transferred to immigration custody; cooperation became required in all localities in 2003, although some resisted by forming ‘Sanctuary Cities.’
287(g): State and local police and corrections officials are given authority and training to serve as immigration agents
SB 1070 in Arizona: ratified in 2010 under fierce controversy as it made being undocumented a state crime; required local police officers to demand immigration papers during routine law enforcement; similar legislation was adopted in Alabama, Georgia, Indiana, South Carolina, and Utah. In a 2012 Supreme Court challenge, the court upheld a provision “requiring law enforcement officers to determine immigration status during a lawful stop” and struck down the rest.
Operation Streamline (2005): Join initiative by the DHS and DOJ that levies criminal charges on undocumented migrants apprehended at the border and puts them through a fast-track deportation proceedings; undocumented border crossings that were previously a civil offense became a criminal offense with limited due process and without right to federally-appointed counsel. Undocumented migrants are given the right to a ‘credible fear’ interview, through which they may be given an opportunity to present their asylum claims to a judge. However, this asylum screening and adjudication process may be limited or virtually terminated depending on the policies of the president.
Alongside strict and punitive legislation against undocumented immigrants, prosecutors often neglect to mention the deportation implications for immigrants in criminal proceedings of their plea bargain. This problem was only addressed after Padilla v Kentucky in 2010. Moreover, the growing influence of private corrections facilities in imprisoning immigrants and their ties to organizations like ALEC have shed light on the extent of private interest in the anti-immigrant legislative process.
What do deportations leave behind?
Chapter 6 titled, “All those that make life worth living,” refers to a quote by a Supreme Court judge who saw that deportation destroys “all those that make life worth living.” Professor Das views criminalization of vulnerable immigrants, such as survivors of domestic violence, asylum seekers, and indigent persons, as a lamentable reality of the U.S. government in punishing “survivors” rather than protecting them. She then traces the changes in immigration law that have slowly eliminated judges’ discretion in deportation proceedings.
For instance, until 1996, 212(c) allowed green card holders to receive relief from deportation if the “goods” outweighed the “bad.” However in 1996, “cancellation of removal” replaced 212(c) and gave greater exceptions to the judges’ ability to grant discretion: for instance, people convicted of ‘aggravated felony,’ whose definition had greatly expanded, would be permanently barred from relief and be ineligible for bond. These changes have severely limited detained immigrants’ access to counsel.
According to Professor Das, this meant that people like her client Luisa, a grandmother battling cancer with two past criminal records — one due to coercion from her abusive husband and a second that her defense attorney advised her to respond with “no contest” as she was innocent — was placed under deportation proceedings when she reentered the U.S. after attending her father’s funeral. Due to her two criminal records, she was barred from cancellation of removal and would have been deported without a hearing had it not been for lawyers that argued against her bar to relief. She managed to get a hearing date and successfully testified to qualify for 212(c). Luisa’s example serves as a shocking illustration of the merciless deportation process for those with criminal records, which robs immigrants of the opportunity to contextualize and explain their criminal records.
This chapter also touches on the “morality” of criminalizing undocumented status. Although elaboration would have helped to convince skeptical readers, Professor Das justifiably relates the effects of U.S. foreign policy on creating economic desperation and violence in parts of the Global South: “The violence and instability [people in a refugee camp in Tijuana] were fleeing were the bitter harvest of seeds sown by US foreign policy — everything from military interventions that propped up brutal dictatorships to trade deals that decimated farmworkers and textile industries in the Global South. But when they arrived at our doorstep, our government told them to wait — as if they posed a threat to us, and not the other way around” (148). Undocumented migration globally cannot be understood as divorced from foreign policy and international trade agreements that have heightened inequality in much of the world. Trying to stop unregulated migration and access to economic mobility without addressing the root causes will either completely crush humanity in an increasingly unequal world or plant the seed for radicalization among those who are locked out.
Immigrants and public safety
Chapter 7 builds on the previous chapter to assert that the “foreign-fear” narrative and expanding the crime-based deportation machine actually make our communities less safe. She argues that the “foreign-fear” narrative creates an ‘us-versus-them’ mentality that justifies people taking defensive actions against immigrants. However, Professor Das argues that the increasing number of terrorism in the U.S. is perpetuated by people harboring anti-immigrant and White supremist views. This can be seen in incidents such as the Tree of Life and Oak Creek shootings.
For immigrants who commit violence or acts of terror, the current screening system would not be able to detect them at the border, as they tend to become radicalized later. By listing ineffective past responses to police migrants, Professor Das argues that such programs terrorize immigrant communities and perpetuate the false notion of immigrant criminality, with marginal benefits in counterterrorism. Instead, she suggests that the government focus its resources on prevention of extremism through adequate social services and education.
Professor Das then turns her attention to the discussion of gang violence by immigration restrictionists. Without downplaying the cruelty of crimes committed by MS-13, she argues that the fear of undocumented migrants and unaccompanied minors feeding into gang membership in the U.S. is misplaced. She instead points out that MS-13 operates and recruits locally, which means that better social intervention and community-building can help curtail enlistment. Politicians like former President Trump has sensationalized and fixated on murders committed by several MS-13 members to push for a policy of returning unaccompanied alien migrants (UACs). She believes that such fearmongering can falsely equate terrorism and gang violence with immigrants. This has come at the expense of removing innocents mistakenly labeled as gang members and taking attention away from home-grown terrorism and possible preventative measures. As she succinctly puts it: “we distract ourselves by calling everything an immigration problem, and the crime-based deportation machine feeds off those fears” (185).
Concluding Thoughts
Offering numerous anecdotes of former clients, Professor Das does not deny that some immigrants do break the law, but seems to suggest that in many cases, their crimes do not warrant the severe terms (“crimes of moral turpitude,” “aggravated felony”) with which they are charged. This, by extension, means that the magnitude of their crimes often does not justify the unparalleled severity of imprisonment without bond or deportation. Contrary to public opinion that under President Obama, the immigration system has shifted its attention to arresting and deporting “aliens that threaten public safety,” many are under deportation proceedings for crimes for which they have already served their sentences years or even decades ago. Other are on deportation proceedings for crimes such as traffic violations or drug possession that gets rebranded as “crimes of moral turpitude” or “aggravated felony” under various federal programs regulating immigration.
It is difficult to get information on exactly for what crime immigrants in deportation proceedings are charged, Therefore, it is difficult to scale up the anecdotal evidence offered by Professor Das. However, as more immigrant rights activists and lawyers see the injustice of rising imprisonment and deportation of immigrants (without due process) for crimes of petty nature or for which time has already been served, immigrant rights movements have been moving away from differentiating “good” vs. “bad” immigrants. Instead, the movement is demanding equal rights and protections for all immigrants regardless of criminal status. Through this book rich in history and anecdotal evidence, Professor Das convinces the readers why we should do the same.
