Click amount to donate direct to CounterPunch
  • $25
  • $50
  • $100
  • $500
  • $other
  • use PayPal
Keep CounterPunch ad free. Support our annual fund drive today!

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.



Tanya Golash-Boza is the author of: Yo Soy Negro Blackness in PeruImmigration Nation: Raids, Detentions and Deportations in Post-9/11 Americaand Due Process Denied: Detentions and Deportations in the United States. Her new book Deported: Immigrant Policing, Disposable Labor, and Global Capitalism will be published by NYU Press in 2015.

More articles by:

2016 Fund Drive
Smart. Fierce. Uncompromised. Support CounterPunch Now!

  • cp-store
  • donate paypal

CounterPunch Magazine


October 26, 2016
John W. Whitehead
A Deep State of Mind: America’s Shadow Government and Its Silent Coup
Anthony Tarrant
On the Unbearable Lightness of Whiteness
Luke O'Brien
The Churchill Thing: Some Big Words About Trump and Some Other Chap
Mark Weisbrot
The Most Dangerous Place in the World: US Pours in Money, as Blood Flows in Honduras
Eric Draitser
Dear Liberals: Trump is Right
Chris Welzenbach
The Establishment and the Chattering Hack: a Response to Nicholas Lemann
Sabia Rigby
In the “Jungle:” Report from the Refugee Camp in Calais, France
Linn Washington Jr.
Pot Decriminalization Yields $9-million in Savings for Philadelphia
Pepe Escobar
“America has lost” in the Philippines
Pauline Murphy
Political Feminism: the Legacy of Victoria Woodhull
Lizzie Maldonado
The Burdens of World War III
David Swanson
Slavery Was Abolished
Thomas Mountain
Preventing Cultural Genocide with the Mother Tongue Policy in Eritrea
Colin Todhunter
Agrochemicals And The Cesspool Of Corruption: Dr. Mason Writes To The US EPA
October 25, 2016
David Swanson
Halloween Is Coming, Vladimir Putin Isn’t
Hiroyuki Hamada
Fear Laundering: an Elaborate Psychological Diversion and Bid for Power
Priti Gulati Cox
President Obama: Before the Empire Falls, Free Leonard Peltier and Mumia Abu-Jamal
Kathy Deacon
Plus ça Change: Regime Change 1917-1920
Robin Goodman
Appetite for Destruction: America’s War Against Itself
Richard Moser
On Power, Privilege, and Passage: a Letter to My Nephew
Rev. William Alberts
The Epicenter of the Moral Universe is Our Common Humanity, Not Religion
Dan Bacher
Inspector General says Reclamation Wasted $32.2 Million on Klamath irrigators
David Mattson
A Recipe for Killing: the “Trust Us” Argument of State Grizzly Bear Managers
Derek Royden
The Tragedy in Yemen
Ralph Nader
Breaking Through Power: It’s Easier Than We Think
Norman Pollack
Centrist Fascism: Lurching Forward
Guillermo R. Gil
Cell to Cell Communication: On How to Become Governor of Puerto Rico
Mateo Pimentel
You, Me, and the Trolley Make Three
Cathy Breen
“Today Is One of the Heaviest Days of My Life”
October 24, 2016
John Steppling
The Unwoke: Sleepwalking into the Nightmare
Oscar Ortega
Clinton’s Troubling Silence on the Dakota Access Pipeline
Patrick Cockburn
Aleppo vs. Mosul: Media Biases
John Grant
Humanizing Our Militarized Border
Franklin Lamb
US-led Sanctions Targeting Syria Risk Adjudication as War Crimes
Paul Bentley
There Must Be Some Way Out of Here: the Silence of Dylan
Norman Pollack
Militarism: The Elephant in the Room
Patrick Bosold
Dakota Access Oil Pipeline: Invite CEO to Lunch, Go to Jail
Paul Craig Roberts
Was Russia’s Hesitation in Syria a Strategic Mistake?
David Swanson
Of All the Opinions I’ve Heard on Syria
Weekend Edition
October 21, 2016
Friday - Sunday
John Wight
Hillary Clinton and the Brutal Murder of Gaddafi
Diana Johnstone
Hillary Clinton’s Strategic Ambition in a Nutshell
Jeffrey St. Clair
Roaming Charges: Trump’s Naked and Hillary’s Dead
John W. Whitehead
American Psycho: Sex, Lies and Politics Add Up to a Terrifying Election Season
Stephen Cooper
Hell on Earth in Alabama: Inside Holman Prison
Patrick Cockburn
13 Years of War: Mosul’s Frightening and Uncertain Future