Works-in-Progress Group 2: Crimmigration & Immigration Narratives

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Group 2: Crimmigration & Immigration Narratives 

The Institutional Hearing Program: Due Process violations and the final frontier in immigration enforcement 

Chloe Sugino, American University 

The Institutional Hearing Program (“IHP”) is a recondite aspect of immigration detention that seeks to remove noncitizens while they are serving their criminal sentences. This article builds upon existing qualitative and quantitative research on the IHP by expanding the understanding of the unique due process violations that come with forcing noncitizen state prison inmates to participate in immigration removal proceedings. First, although there is no right to counsel at the government’s expense in immigration court proceedings, incarcerated noncitizens post-conviction face almost insurmountable challenges in finding immigration counsel. Second, the almost exclusive use of video teleconferencing (“VTC”) in IHP proceedings has detrimental effects on credibility determinations and the noncitizen’s ability to meaningfully engage in their proceedings. Third, due to the fragmented nature of the IHP in state prisons, incarcerated noncitizens are forced to rely on state correctional officials, who have no accountability towards the immigration court, to facilitate compliance with their immigration applications such as with biometrics, civil service exams and the production of relevant records. This article seeks to add to the existing literature on the IHP as the Trump administration continues pursuing its aggressive enforcement of the U.S.’ draconian immigration laws, making incarcerated noncitizens particularly vulnerable to having their diminished rights further curtailed.  

The War on Immigrants  

Erika Nyborg-Burch, FSU 

An alarming resurgence of discourse equating border crossing with invasion and migrants with criminality dominates national and state politics, fueling an unprecedented wave of state criminal immigration legislation. Although scholars have extensively critiqued crimmigration—the decades-long fusion of immigration enforcement and criminal law— this Article identifies a novel and more extreme phenomenon. Drawing on dehumanizing notions of “illegality,” states are directly criminalizing undocumented presence and targeting noncitizens for unprecedented punishments. This new crimmigration regime destabilizes immigration federalism, distorts criminal law, and erodes individual rights. This Article is the first to critically examine and evaluate this emerging legislative trend. It offers a typology of four new legislative models that collapse the lines between criminal and immigration law. Through distinctive mechanisms, each model converts undocumented presence into a state criminal offense punishable by actual or effective banishment. The Article argues that these new statutes distort the traditional crimmigration framework and imperil fundamental constitutional principles. By criminalizing immigration status and authorizing discriminatory enforcement, they erode foundational protections for criminal defendants, legitimize racialized profiling for immigration status, and impose draconian punishments grossly disproportionate to any underlying conduct. Moreover, by embedding civil immigration violations into state criminal law, these statutes fragment federal immigration policy and flout established international legal norms. In exposing how these new state-level offenses amplify the existing dangers of crimmigration, this Article challenges the constitutionality and efficacy of intertwining migration regulation with the criminal processes. It argues that decoupling immigration and criminal law is essential to restoring constitutional safeguards, urging repeal of statutes that criminalize border-crossing and permit state involvement in immigration enforcement. Ultimately, it emphasizes the imperative of preserving constitutional protections for all who call this country home.  

Moving Beyond Legal Invisibility: How Immigration Law Rewards Marginalization while Disempowering the Marginalized 

Roni Amit, U Mass, Dartmouth  

The legal process often silences the voices of marginalized individuals. Unable to speak the proper legal language, their attempts to convey their stories go unheard, rendering their legal claims invisible because they are not expressed through narrow legal categories. Immigration law similarly relies on technical legal categories. But it also elevates and privileges certain types of marginalization. For example, the asylum system offers protection to individuals falling into particular victim archetypes. The same holds true in the labor sphere, where labor exploitation based on marginalization also may provide undocumented migrants with opportunities to receive deferred action and work authorization. Thus, while the law silences stories of dehumanization in the civil sphere, immigration law has created certain spaces where these stories are elevated and may confer immigration benefits. This paper will examine this seeming dichotomy. It asks whether the immigration sphere is qualitatively different, or, alternatively, is merely replicating the dynamic of silence by reifying certain ideas of marginalization and/or victimization while still discounting individual narratives.