Immigration Law: Civil, Criminal, Or Both?

Immigration law is complex, and while physical presence in a country without authorization is often considered a civil violation, there are instances where it can lead to criminal charges. For example, in the US, immigration law has its roots in the Constitution, which gives Congress the power to enact laws governing the naturalization of non-citizens. Over time, this has evolved into a complex area of civil law, with immigration status viewed as a benefit granted at the government's discretion. However, certain violations, such as illegal entry or re-entry, are considered criminal offenses under Title 8 of the U.S. Code, carrying misdemeanor or felony charges. These laws have been criticized for their discriminatory impact and advancement of racist policies. Understanding whether breaking immigration laws is civil or criminal is crucial, as it determines the potential consequences, ranging from fines and deportation to incarceration and criminal records.

The criminalisation of immigration violations

Immigration law in the United States has developed into a complex area of civil law, with its roots dating back to the creation of the country. The Constitution grants Congress the power to enact laws governing the naturalisation of non-citizens, highlighting the significance of immigration and citizenship. Over the last two decades, however, the federal government has increasingly turned to criminal courts to punish people for immigration violations. This shift has resulted in tens of thousands of migrants and asylum seekers facing criminal prosecution each year, with serious consequences for those involved.

The consequences of these criminal charges are significant. Migrants may face mandatory incarceration, fines, and separation from their families. In addition, a conviction can hinder current and future attempts to migrate lawfully or obtain asylum. The impact is also felt by family members, including spouses and minor children, who may be separated and left with little information about their loved ones' whereabouts and well-being.

The criminal justice system's response to immigration violations has been criticised for its high financial cost and lack of effectiveness as a deterrent. The prosecution of these cases incurs substantial expenses for the government, including the time spent by prosecutors, the use of judicial resources, and the costs of incarceration. Despite these high costs, research suggests that prosecuting immigration violations does not deter future migration. Instead, migration is driven by factors such as security, economic conditions, and family ties in the United States.

In conclusion, the criminalisation of immigration violations in the United States has resulted in a complex and costly legal landscape. While the government justifies these measures as necessary to enforce immigration laws, critics argue that they lead to family separation, racial disparities, and a strain on federal resources. The criminalisation of immigration violations remains a highly contested issue, with ongoing debates about the balance between border control and the protection of human rights.

The civil nature of immigration law

Immigration law in the United States has its roots in the country's early history. The Constitution gives Congress the power to create laws regarding the naturalization of non-citizens, which underscores the importance of immigration and citizenship. The Naturalization Act of 1790 set the first requirements for obtaining citizenship and established the precedent that immigration status is a benefit granted at the government's discretion. Over time, immigration law has evolved into a complex area of civil law, reflecting the view that immigration is a type of public benefit.

However, it is important to note that there are criminal aspects to immigration law as well. For example, Sections 1325 ("illegal entry") and 1326 ("illegal re-entry") of Chapter 8 of the U.S. Code are criminal statutes that carry misdemeanor and felony penalties, respectively. These laws have been controversial due to their racist history and impact, and there have been legal challenges to their constitutionality.

While the civil nature of immigration law is well-established, the criminalization of immigration violations has become more prevalent in recent years. The federal government has increasingly used criminal courts to prosecute migrants for entry-related offences, particularly on the Southwest border. This approach has led to the separation of families and high costs for both migrants and the government, with limited deterrent effect on future migration.

In summary, while immigration law in the United States has traditionally been viewed as a civil matter, there is a growing trend towards criminalization. This shift has important implications for how immigration violations are handled and the rights of those accused of these violations.

Racist and discriminatory application of immigration laws

Immigration laws have been used to advance racist and discriminatory goals, with a disproportionate impact on specific racial groups. For instance, Sections 1325 and 1326 of Chapter 8 of the U.S. Code, passed in the late 1920s during the height of the eugenics movement, were rooted in racist and white supremacist ideology. The impact of these laws is still felt today, with Justice Department data showing that in fiscal years 2020-21, roughly 94% of people prosecuted for unauthorized reentry were from Mexico, Honduras, Guatemala, and El Salvador.

The Trump administration weaponized these laws to block asylum seekers and separate families, and while the Biden administration has ended some of these practices, the laws themselves remain in place and continue to cause harm.

At a local level, the New York City Commission on Human Rights (CCHR) has issued guidance on discrimination based on actual or perceived immigration status and national origin. The CCHR prohibits discrimination in employment, housing, and public accommodations on the basis of "alienage and citizenship status" and "national origin." This includes discriminatory practices such as treating individuals less favorably due to their immigration status or national origin, disparate impact policies that disproportionately affect certain groups, and bias-based profiling by law enforcement.

The CCHR also addresses specific issues such as immigration worksite enforcement, employment protections for undocumented workers, housing protections for undocumented tenants, and inquiries about immigration status.

Additionally, federal laws prohibit discrimination based on national origin, race, color, religion, disability, sex, and familial status. This includes discrimination in areas such as education, employment, housing, lending, and public accommodations.

Despite these protections, immigration laws continue to be applied in a discriminatory manner, exacerbating racial and ethnic disparities and causing harm to individuals, families, and communities.

The impact of immigration prosecutions on families

Immigration prosecutions have had a devastating impact on families, causing severe harm and wreaking havoc on the lives of those affected. The consequences of these prosecutions are far-reaching, leading to family separation, financial instability, and long-lasting emotional and psychological trauma.

In the United States, over 16.7 million people live with at least one undocumented family member, and approximately 6 million of them are children under the age of 18. The threat of immigration enforcement hangs over these families, causing constant fear and uncertainty. The impact of this fear is profound, with children experiencing toxic stress, anxiety, and behavioural changes. Studies have shown that the detention and deportation of a family member are associated with increased rates of suicidal thoughts, alcohol use, and aggression among adolescents. The impact of immigration prosecutions on the mental health and well-being of children cannot be overstated.

The financial implications of immigration prosecutions are also significant. Families often lose a primary breadwinner, leading to a substantial loss of income and increased economic instability. This can result in difficulties affording housing, increased relocations, and even foreclosure. The loss of income can also lead to a lack of health insurance, hindering a child's healthy growth and development and threatening a family's financial stability.

The impact of immigration prosecutions extends beyond the individual and the family, affecting entire communities. Large-scale raids by ICE can cause displacement, with families choosing to leave or avoid communities that partner with ICE. This has led to a decline in public school enrollment, particularly among Hispanic students. Additionally, the focus on prosecuting immigration offenses diverts resources away from other priorities, wasting taxpayer dollars and impacting the prosecution of other types of crimes.

The current immigration prosecution system in the United States has caused immeasurable harm to families. It has torn apart families, inflicted trauma on children, and disrupted communities. It is essential to recognize the devastating consequences of these prosecutions and work towards implementing more humane and compassionate policies that prioritize keeping families together and protecting the well-being of all individuals, regardless of their immigration status.

The cost of prosecuting immigration violations

The prosecution of immigration violations has imposed heavy costs on both migrants and the federal government. The financial expense of prosecuting immigration violations is massive, with a conservative estimate for the incarceration of defendants charged with or convicted of entry-related offenses totaling $7 billion over the decade from 2005 to 2015. The expansion of criminal enforcement against migrants has resulted in soaring numbers of prosecutions, with entry-related offenses reaching an all-time high of 106,312 in Fiscal Year 2019. This has led to a significant increase in the incarceration of migrants, with many subjected to mandatory incarceration for months or longer.

The human cost of prosecuting immigration violations is also significant. The separation of family members, including spouses and parents from their minor children, has been observed by lawyers. Children are placed with federal authorities at shelters for unaccompanied minors or in foster homes, and parents often receive little to no information about their location and condition. The conviction of migrants for entry-related offenses can also impede current and future attempts to migrate lawfully or obtain asylum.

The prosecution of immigration violations has also been criticized for exacerbating racial and ethnic discrimination. Data shows that prosecutions for unauthorized reentry disproportionately impact Mexican and Latinx individuals, with 94% of those prosecuted in fiscal years 2020-21 from Mexico, Honduras, Guatemala, and El Salvador. The criminalization of migration has also been identified as a contributing factor to the alarming increase in deaths and abuses at the border. A policy called "Prevention through Deterrence," implemented in 1994, sought to deter irregular border crossings by disrupting traditional entry and smuggling routes, resulting in a nearly tripled number of border deaths.

The high number of prosecutions for immigration violations has also placed a strain on judicial resources and the caseloads of public defenders. Judges and attorneys along the border have argued that the emphasis on prosecuting entry-related offenses expends precious resources that could be devoted to prosecuting more serious crimes, such as drug smuggling and human trafficking. The rushed nature of the proceedings, often with group prosecutions and limited access to translation services, raises serious due process concerns and compromises the quality of representation provided by attorneys.

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