Immigration Laws: Legal Or Lawless?

Immigration laws are a highly contested topic, with some arguing that they criminalize immigrants, refugees, and asylum seekers, while others believe they are necessary to protect national security and prevent illegal border crossings. In the United States, immigration laws have led to the mass incarceration and separation of families, with harsh penalties imposed on those entering or residing in the country without authorization. These laws have been criticized for their discriminatory nature, targeting communities of color and causing severe harm to those seeking a better life. On the other hand, supporters of strict immigration laws argue that illegal immigration drains public funds, overwhelms communities, and poses a security threat. The debate surrounding immigration laws raises important questions about human rights, national sovereignty, and the balance between enforcing borders and protecting vulnerable populations.

Double punishment for immigrants with criminal records

Immigration laws enacted in 1996 created double punishment for immigrants with criminal records. Sections 1325 and 1326 of the U.S. Code make it a federal crime to enter or re-enter the U.S. without authorization. These laws have fuelled the mass incarceration of communities of colour, torn families apart, and caused severe harm to communities by subjecting thousands of people to detention and deportation.

Regardless of status, immigrants are frequently and unjustly penalized for interacting with the criminal legal system. An ever-growing patchwork of laws imposes harsh penalties on immigrants with criminal records, including the possibility of detention without the opportunity to seek bond and automatic deportation to dangerous or unfamiliar countries. When combined with discriminatory policing practices that target communities of colour, these laws put immigrants at constant risk of detention, deportation, and family separation.

For example, a NIJC client, Fernando, was convicted on drug possession charges and served three months in jail. Instead of being allowed to reunite with his family after his incarceration, ICE officials put him into deportation proceedings, causing another year of separation from his family.

The prosecution of individuals fleeing persecution or torture also harms their family members. Spouses are often separated, and parents are separated from their minor children. Lawyers have observed federal prosecutions of adult family members for entry-related offenses, which result in those family members being sent to federal prison away from their children. The children are then placed with federal authorities at shelters for unaccompanied minors or in foster homes, while parents receive little to no information about their location and condition.

The criminalization of immigrants with criminal records is part of a broader pattern of U.S. immigration law that criminalizes immigrants, refugees, and asylum seekers through a series of unjust laws and harsh penalties. These laws have been exposed as serious injustices long embedded in the U.S. immigration and criminal legal systems, with roots in a xenophobic and racist history.

Unauthorised entry or re-entry into the US

Unauthorized entry or re-entry into the US is a violation of US immigration law. Title 8 of the US Code identifies federal criminal offences related to immigration and nationality, including two entry-related offences: "illegal entry" and "illegal re-entry". These laws make it a crime to enter or re-enter the US without authorization and are applied to people who do not enter with proper inspection at a port of entry, such as those who enter through unauthorized means, avoid examination, or make false statements.

The consequences of unauthorized entry or re-entry can be severe, with penalties including fines, imprisonment, or both. For a first offence of illegal entry, an individual may be fined, imprisoned for up to six months, or both. A subsequent offence can result in a higher fine or imprisonment of up to two years. Illegal re-entry carries a maximum sentence of two years in prison, with higher penalties for those with prior convictions for certain crimes.

The prosecution of these offences has been a priority for US government administrations, particularly along the southwest border. Tens of thousands of migrants and asylum seekers are subjected to criminal prosecution each year, leading to concerns about due process and the impact on vulnerable individuals and families. The financial costs of these prosecutions are also significant, with the incarceration of defendants charged with or convicted of entry-related offences totaling billions of dollars over the years.

Critics argue that the criminalization of unauthorized entry or re-entry has led to the mass incarceration of communities of color, family separation, and severe harm to communities. The application of these laws has been characterized as discriminatory and rooted in xenophobic history.

Racial profiling and discrimination in the criminal legal system

Immigration laws in the United States have been a topic of much debate, with critics arguing that they criminalize immigrants, refugees, and asylum seekers, leading to mass incarceration and family separations. These laws, combined with discriminatory policing practices, put immigrant communities of color at constant risk of detention, deportation, and separation. The Trump administration's policies have been particularly criticized for their harshness and contribution to the demonization of immigrants.

Racial profiling in the criminal legal system has been a longstanding and deeply troubling issue in the United States, despite the country's claims of entering a "post-racial era." It is considered a form of racial discrimination that undermines the basic rights and freedoms of individuals. Racial profiling occurs when law enforcement and private security target people of color for detentions, interrogations, and searches without evidence of criminal activity, basing their actions on race, ethnicity, national origin, or religion. This practice is patently illegal, as it violates the equal protection clause of the 14th Amendment of the U.S. Constitution, which guarantees equal protection under the law and freedom from unreasonable searches and seizures.

The American Civil Liberties Union (ACLU) has been a vocal opponent of racial profiling, defining it as "any police-initiated action that relies on the race, ethnicity, or national origin" of an individual rather than their behavior or information linking them to criminal activity. The ACLU argues that racial profiling is not only illegal but also ineffective, as it drives a wedge between communities and law enforcement, hinders community policing efforts, and causes law enforcement to lose credibility and trust.

The issue of racial profiling gained media attention, and many local police agencies have implemented policies, procedures, and training to combat biases and prejudices within their ranks. However, despite these efforts, racial profiling continues to occur, and legislation like the End Racial Profiling Act has struggled to gain traction in Congress.

In summary, racial profiling and discrimination in the criminal legal system are significant issues in the United States, with far-reaching consequences for communities of color. These practices are illegal, ineffective, and detrimental to the relationship between law enforcement and the communities they serve. Addressing racial profiling requires a combination of legislative action, increased public awareness, and a commitment from law enforcement agencies to eradicate biases and discriminatory practices from their procedures.

Separation of families and communities

Immigration laws have been at the centre of political debate in the United States, with critics arguing that they break up families and communities. While there is no law that requires the separation of families, policies enacted by the Trump administration have led to an unprecedented humanitarian crisis at the US border.

The Trump administration's zero-tolerance policy, which was in effect from April to June 2018, resulted in the separation of nearly 2,000 immigrant children from their parents in just six weeks. This policy, defended by then-Attorney General Jeff Sessions, instructed US Attorney’s Offices along the southwest border to adopt a "zero-tolerance" approach to illegal entry into the United States. As a result, all adults who crossed the border without proper documentation were prosecuted and separated from their children. While the Trump administration attempted to shift the blame onto the Democrats, this family separation policy was, in fact, a series of policy choices made by the administration itself.

The impact of these policies has been devastating, with countless stories of families being torn apart. For example, a Honduran father, Marco Antonio Muñoz, killed himself after being separated from his wife and child. In another case, three siblings were taken from their parents and were told that they couldn't hug each other in the shelter. Parents have also been deported while their children remain in the US, with no clear plan for reunification.

The consequences of family separation reach far beyond the border. In the US, more than 4 million American children under the age of 18 have at least one undocumented parent, and nearly 6 million live in mixed-status households. These children are at constant risk of being separated from their parents, leading to increased fear and anxiety within these communities. The fear of detection and deportation forces families to live in the shadows, often avoiding necessary errands and limiting their movement.

The psychological impact of these policies on children cannot be overstated. Studies have shown that family separation can lead to higher rates of PTSD, depression, and struggles at school. Children of undocumented parents experience extreme levels of psychological stress, affecting their educational performance and developmental trajectories. Even very young kids are keenly aware of how quickly their parents could vanish.

The impact of immigration laws on family separation is not limited to the US. In countries like Honduras and Mexico, parents who are deported often face the difficult decision of whether to take their children back to a country where they may not have access to adequate healthcare or other essential services. The process of obtaining legal status in the US can be complex and lengthy, leaving families separated for extended periods.

The separation of families and communities as a result of immigration laws is a complex and ongoing issue. While there have been calls for comprehensive immigration reform, the situation continues to evolve, and the future remains uncertain for many families.

Unjust detention and deportation

Immigration detention is the practice of incarcerating immigrants while they await a determination of their immigration status or potential deportation. In Fiscal Year 2023, the US government detained over 273,000 people across approximately 200 detention centres, jails, and prisons. Immigration and Customs Enforcement (ICE) has been criticised for its record of abuse, including depriving detainees of their liberty, denying them access to lawyers, separating them from their families, and subjecting them to severe medical neglect and abuse. Since 2003, at least 230 people have died in ICE custody.

The US locks up survivors of torture, asylum seekers, visa holders, permanent residents, individuals with mental and medical conditions, and other vulnerable groups. In the past, the government has even detained families and children, and there are reports that this practice may be reinstated.

Detention is non-punitive, and once a noncitizen is transferred to ICE custody, the agency makes a custody determination. ICE uses its limited detention resources to detain noncitizens to secure their presence for immigration proceedings or removal from the US, as well as those subject to mandatory detention. When a noncitizen is not subject to mandatory detention, ICE exercises its discretion in making custody determinations to release noncitizens with conditions. These decisions are made on a case-by-case basis, primarily considering the risk of flight, national security threat, and risk to public safety. Other factors, such as serious medical conditions, being the primary caregiver of minor children, or other humanitarian considerations, are also taken into account.

Detention facilities must comply with one of several sets of detention standards, including the National Detention Standards (NDS) 2000, Performance-Based National Detention Standards (PBNDS) 2008, Family Residential Standards 2020, and Temporary Housing Standards. These standards describe a facility's immigration detention responsibilities, explain what detainee services a facility must provide, and identify what a facility must do to ensure a safe and secure environment for staff and detainees.

The US may detain and deport noncitizens who participate in criminal acts or are a threat to public safety. After a noncitizen is detained, they may go before a judge in immigration court during the deportation process. In some cases, a noncitizen may be subject to expedited removal without being able to attend a hearing. This can happen when a noncitizen comes to the US without proper travel documents, uses forged travel documents, or does not comply with their visa or other entry document requirements.

The unjust detention and deportation of immigrants have severe consequences. It tears communities and families apart, causes trauma to children, and separates parents from their children. It also fuels mass incarceration, particularly in communities of colour, and puts immigrant communities at constant risk of detention, deportation, and family separation.

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