Criminalizing the Undocumented


There are many ways to become undocumented in the United States. Two of the most common ways are crossing the border undetected and overstaying a temporary visa. These are not criminal actions. The penalty for either of these is deportation – a civil procedure. The bill recently signed into law by Arizona Governor Jan Brewer – SB 1070 – criminalizes this civil offense.

In United States law, deportation is not considered punishment. It is a civil sanction. Were deportation to be considered punishment, all sorts of legal procedures would have to be in place in order for the punishment to be carried out. For example, in order for a police officer to arrest someone, they must have a reasonable suspicion that a person has committed a crime. When a person is arrested as a crime suspect, they must be read their Miranda rights, which tell them that they have the right to remain silent and the right to counsel. After being arrested, suspects must be charged, convicted and sentenced in order to be punished.

In contrast, the civil penalty of deportation is a whole different ball game. Deportation is imposed with few procedural protections and is outside the purview of most Constitutional protections. For this reason, immigration agents can detain people without establishing reasonable suspicion and non-citizens are not afforded counsel in deportation proceedings. Deportation is not punishment for being illegally present in the US; it is a remedial action to correct the fact that a person is illegally present. If a person does not have the right to remain in the US, they can be removed.

The bill recently signed into law in Arizona criminalizes undocumented migrants by making undocumented migration a crime of trespassing. People suspected of trespassing will be arrested by police officers. Then, they will have to be charged and convicted in Arizona state courts. Trespassing is defined in this bill as a Class 1 misdemeanor – a person convicted faces up to a $2500 fine and up to six months in jail. Within Arizona, this process remains in the criminal justice system.

The State of Arizona does not have to power to deport anyone – only the Department of Homeland Security can do that. Once the person is charged and convicted in Arizona, they can be turned over to immigration authorities to be deported – as criminal aliens – people convicted of crimes prior to being deported.

What I find particularly contradictory in SB 1070 is that it criminalizes what is defined by the US government as a civil violation. Of course, once undocumented migration is criminalized, suspects will have to be afforded all of the rights that criminal suspects have. Since a Class 1 misdemeanor carries the possibility of jail time, defendants have the right to court-appointed counsel. In addition, when arrested, the grounds for reasonable suspicion must be met. How are police officers going to establish “reasonable suspicion” that a person is undocumented? Federal laws prohibit discrimination based on a person’s national origin, race, color, and religion. This means that reasonable suspicion may not be based on any of these factors. What, then, will police officers use to establish reasonable suspicion?

Another issue is the case overload – both in Arizona and in the DHS. There are about a half a million undocumented migrants in Arizona and many, many others who could be suspected to be so. How is Arizona going to be able to handle this criminal case overload? The Department of Homeland Security only has 33,000 beds available for immigrant detainees. Where will they put all of these new arrivals?

These are questions that will have to be considered before this law takes effect in August. Hopefully, by that time, the Supreme Court will have ruled this law unconstitutional.

TANYA GOLASH-BOZA is an Assistant Professor of Sociology and American Studies at the University of Kansas.




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