On February 23rd, President Trump declared that his new immigration priorities would get the “really bad dudes out of this country.” By sweepingly associating immigrants who overstayed their visa or crossed the border improperly with criminal activity, the President built upon a long tradition in U.S. political culture. Indeed, although his policies represent a major shift, they were made possible by a consistent strategy deployed since the 1970s to portray unauthorized immigration as criminal. As immigrants gradually became linked to illegality, the next step was simple: reshape immigration law so that the noose of criminality would tighten around their necks.
But aren’t they ‘illegals,’ you might ask? Hardly: this is a particularly clever socio-political construction, one exerting tremendous power to reshape the discourse around immigration. Rarely have words been so lethal. A human being cannot be legal or illegal, for one thing, and nearly half of all unauthorized immigrants never actually broke any law (roughly 40-45 percent of unauthorized immigrants enter the country legally but overstay their visa, which is not a crime). Entering the U.S. without inspection is indeed a minor misdemeanor punishable by up to 6 months in jail, making it an offense similar to reckless driving or disorderly conduct. Once in the U.S., however, the unauthorized immigrant is only guilty of a civil offense, so proving guilt of even that petty misdemeanor requires demonstrating that the improper entry occurred. Most unauthorized immigrants therefore are treated as having violated civil law, and as a result they are typically denied the protections given to people accused of a crime.
Yet referring to them as “illegals” or “illegal immigrants” has become pervasive. We can track this in the media’s use of the term ‘illegal immigrant’: a quick search in the New York Times shows the term skyrocketing from obscurity to becoming a constant term by the first decade of the 21st century. An important step in this transformation came in 2005 when the pollster Frank Luntz admonished fellow conservatives always to use the term “illegal immigrants.” He further clarified in a 2008 book that one should never say “undocumented workers”: “This linguistic distinction may prove to be the political battle of the decade. The label used to describe those who enter America illegally determines the attitudes people have toward them.” So successful was this effort that the inflammatory label began by the 1990s to be codified in state policies. California’s Proposition 187, for example, approved by voters in 1994, was titled “Illegal Aliens. Ineligibility for Public Benefits.”
Luntz was remarkably prescient. By criminalizing the nation’s discourse around unauthorized immigrants, conservatives repeatedly triggered a highly negative emotion. ‘Illegal’ functions here similarly to--but more powerfully than--other ethnic or racial insults like kike, wog, or wop. It not only discriminates and stereotypes, it cuts off debate about vastly complex immigration experiences and policies, the multiple causes of immigration, and individual immigrants’ contributions to society. It deftly erases the humanity involved, and in that way it reduces a large swath of people to inferior, even sub-human, status.
Once immigrants became perceived routinely as outlaws, it remained only to change existing laws so that more and more harmless human activities could be classified as criminal. This became central to the goals of the anti-immigrant movement, as represented by organizations like the Federation for American Immigration Reform. Led by Arizona in 2010, a number of states created criminal penalties for civil violations. Arizona’s SB 1070, for example, made it a crime for immigrants not to register with the police or fail to carry at all times their legal documents. Often these efforts exploited public concern that unauthorized immigrants made use of public benefits, even though they are barred from most federal programs that benefit the poor. Most of these state laws were struck down as an unconstitutional overreach into immigration policy.
The memos issued this week by the Department of Homeland Security to implement the President’s Executive Orders of January 25 broaden the logic of criminalization to the entire nation. They attach criminal significance to a vastly expanded scope of activities, and in this way they constitute a major attack on human rights. Unauthorized immigrants who have been charged with a crime (but not yet prosecuted, much less found guilty) will be deported. Someone who has acted in a way that, in the opinion of an immigration agent, might result in criminal charges will be deported. Anyone who can be seen as posing a threat to public safety or national security (to be decided subjectively by police officers, presumably) is cast as a criminal who will be deported. Detention facilities already deny detainees basic constitutional rights, but the memos will speed up deportation and expand detention to millions more in ways that will further deny due process of the law. The DHS will now also expend special resources on publishing data linking unauthorized immigrants to crime, even though numerous studies show that immigrants commit fewer crimes than do native-born citizens.
Forty some years of strategies to criminalize unauthorized immigration have made President Trump’s new regime possible. Now his policies will promote even more robustly the idea that illegality and unauthorized immigration cannot be separated from one another. Yet the vast majority of unauthorized immigrants are not criminals, nor are they “bad dudes.” By pulling the noose of criminality ever tighter around the necks of certain immigrants, the administration makes the human cost of a broken immigration system far greater, and far more difficult to fix.