Papers by Cesar Cuauhtemoc Garcia Hernandez
Boston University Law Review, 2017
INTRODUCTIONImprisonment today is a central feature of immigration law enforcement.1 It should no... more INTRODUCTIONImprisonment today is a central feature of immigration law enforcement.1 It should not be. This Article details immigration imprisonment's reach, lays bare its origins and continued utility as a means of racial subordination, identifies its many adverse consequences, and calls for a wholesale reimagining of how the United States conceptualizes migration and regulates migrants' lives. In short, this Article is the first to call for the abolition of immigration imprisonment in the United States.2Since 2008, approximately a half million people annually have spent time inside a jail, prison, or similarly secure immigration detention facility due to some legal transgression associated with migration. The largest numbers are 1 Jennifer M. Chacon, Immigration Detention: No Turning Back?, 113 S. Atlantic Q. 621, 624 (2014); id. at 627 ("[A]ll viable reform proposals . . . assume the need for punitive detention for migrants . . . .").Despite being so common today, immigration imprisonment is a historical anomaly. After relying on confinement in the ugly years of the Chinese exclusion era,9 the United States did not lock up migrants for migration-related activities for much of the twentieth century.10 That historical norm shifted suddenly and radically in the mid-1980s. As part of the "War on Drugs," Congress and various presidential administrations expanded the authority and capacity of immigration officials to detain migrants.11 More recently, the federal government's appetite for immigration imprisonment has been bolstered by fears of terrorism, first by the 1995 bombing of a federal building in Oklahoma City, and later by the September 11, 2001 attacks.12 Whether motivated by fears of illicit drug activity or terrorism, there are few signs that this appetite for imprisoning migrants is abating. Indeed, under President Barack Obama, DHS shuttered facilities reserved for family units, only to open others five years later.13 States have followed suit in response to increasing concerns about growing migrant populations-in particular Latino migrants- by expanding the number of migration-related crimes and bases for imprisonment on the books.14While each of these instances of immigration imprisonment expansion arose from a different political, economic, and cultural context, they all share one salient feature: racism. To varying degrees, racist currents motivated immigration imprisonment's creation and each episode of its growth. In a pattern that has not abated since the 1980s, people racialized as nonwhite have consistently been imprisoned for migration-related activity. That history alone is sufficient to cast a shadow of immorality on a practice as widespread as immigration imprisonment now is, and as coercive as forcible confinement necessarily must be. But as is typical of other incidents where racism has turned into policy, immigration imprisonment does not exist in a vacuum. Immigration imprisonment responds to racialization as much as it produces racialization. Indeed, immigration imprisonment marginalizes migrants of color by rendering them vulnerable to physical and psychological abuse and demonizing them through the very act of confinement.15Immigration imprisonment also operates as a means of class-based exploitation. The bodies of poor people surrounded by barbed wire are turned into sources of extraordinary financial and political benefits for scores of governmental and nongovernmental actors. From the politicians who point to the steel and concrete of secure facilities to tout their accomplishments, to the private prison corporations that earn millions of dollars for housing immigration prisoners on behalf of ICE, USMS, or the BOP, immigration imprisonment is propped up by a large number of diverse, highly invested individuals and organizations.16 The end result is that immigration imprisonment brings substantial material and political benefits to the most privileged members of our society while denying some of the least privileged members access to their basic liberties. …
Ius gentium, 2020
The United States has been criminalizing migration since the 1980s. In addition to its deportatio... more The United States has been criminalizing migration since the 1980s. In addition to its deportation practices, immigration crime prosecutions are the most commonly prosecuted offense in the nation’s federal courts. Illustrating a newly pernicious edge to the country’s embrace of crimmigration laws and policies, federal officials have expressed a willingness to criminally prosecute migrants who enter the United States without authorization even if they intend to request asylum despite the existence of a statutory right to request asylum if present in the United States. This chapter takes this development as an example of the limits of human rights norms. Framed as emanating from a post-war recognition of the primacy of law, the criminalization of asylum seekers displays the fragility of the human rights tradition’s illusory imperative that states respect as fundamentally inviolable the right of all people, as people, to seek legal protection from persecution.
Tulsa Law Review, 2019
Today, the United States forcibly removes hundreds of thousands of individuals annually. However,... more Today, the United States forcibly removes hundreds of thousands of individuals annually. However, for most of the nineteenth century, federal removal of migrants was essentially nonexistent. In Deportation: The Origins of U.S. Policy, historian Torrie Hester chronicles deportation’s uneven shift from the margins of United States law to a pillar of twenty-first century policing. This book review discusses Hester’s contribution to contemporary understandings of U.S. deportation practices, highlighting the powerful storytelling and fine-grained historical exegesis Hester uses to illustrate deportation’s life-changing impacts. Although Hester avoids questions about the troubling normative foundations on which deportation practices are built, by identifying threads that run through the whole of federal deportation history, she builds a window into the past that tells us much about our present.
This short essay introduces a collection of articles that arose from the Denver University Law Re... more This short essay introduces a collection of articles that arose from the Denver University Law Review’s symposium Crimmigration: Crossing the Border Between Criminal Law and Immigration Law, held in February 2015 at the University of Denver Sturm College of Law. The essay borrows heavily from the Epilogue to my book Crimmigration Law.
Mass incarceration has long featured the imprisonment of vast numbers of people of color. Today’s... more Mass incarceration has long featured the imprisonment of vast numbers of people of color. Today’s immigration incarceration regime emblematizes these characteristics of mass incarceration. In recent years, almost 400,000 individuals, mostly people of color, have cycled through immigration prisons annually. The modern state of immigration imprisonment, this Essay argues, should not come as a surprise. It is the perversely rational extension of the nation’s decades-old criminal policing emphasis that resulted in penal mass incarceration paired with a more recent emphasis on sorting desirable and non-desirable immigrants through the lens of criminality.
Berkeley La Raza Law Journal, 2011
Although the overwhelming majority of individuals detained in immigration prisons are transferred... more Although the overwhelming majority of individuals detained in immigration prisons are transferred from one prison to another, their relocation, this article suggests, frequently violates the Fifth Amendment’s due process right to counsel for lawful permanent residents (LPRs). Most LPR detainees spend their days awaiting a decision on their removability while confined in the nation’s largest detention centers, which are located in remote regions of Arizona, Georgia, and Texas. In these areas, there are very few attorneys willing to represent detained immigrants and detainees are isolated from social networks that could help them tap legal resources to put up a credible defense.
The Supreme Court’s decision in Padilla v. Kentucky involves criminal defense attorneys in immigr... more The Supreme Court’s decision in Padilla v. Kentucky involves criminal defense attorneys in immigration law as never before. Long the mediators between defendants and the state’s penal authority, these attorneys must now advise their noncitizen clients about the potential immigration pitfalls of a conviction. Just what advice is required, however, depends on the clarity of the immigration consequence. This article unpacks Padilla and the jurisprudential convergence of criminal law and immigration law to develop a theoretical framework based on close readings of the Immigration and Nationality Act’s crime-based grounds of removal. Applying this framework suggests that crimes that likely constitute controlled substances offenses or aggravated felonies require clear, unequivocal advice that conviction will lead to deportation, while offenses that might constitute crimes involving moral turpitude require general advice only.
Courts and commentators have long assumed, without significant analysis, that immigration detenti... more Courts and commentators have long assumed, without significant analysis, that immigration detention is a form of civil confinement merely because the immigration proceedings of which it is part are deemed civil. This Article challenges that deeply held assumption. It harnesses the Supreme Court’s instruction that detention’s civil or penal character turns on legislative intent and, buttressed by theoretical understandings of punishment, contends that immigration detention — apart from the deportation that often results — itself constitutes penal incarceration. In particular, legislation enacted over roughly fifteen years in the 1980s and 1990s indicates a palpable desire to wield immigration detention as a tool in fighting the nation’s burgeoning war on drugs by sanctioning and stigmatizing criminal behavior. Indeed, the immigration detention system that has developed has accomplished Congress’s punitive goal: immigration detention is experienced as severe and its occupants viewed a...
SSRN Electronic Journal, 2018
Asylum law is one aspect of U.S. immigration law that purports to serve humanitarian purposes. It... more Asylum law is one aspect of U.S. immigration law that purports to serve humanitarian purposes. Its humanitarianism is thwarted, however, when migrants who otherwise qualify for asylum or withholding of removal are deported because they have been convicted of a “particularly serious crime” (PSC). This article responds to a proposal offered by Professor Mary Holper to reform the PSC bar. As Professor Holper convincingly shows, the PSC bar has become overly expansive as a result of a ruthless trend in U.S. criminal justice and immigration policy some call “the severity revolution.” To correct the severity revolution’s distorting effect on the PSC bar, Professor Holper proposes that the bar should only apply if a migrant was convicted of a violent offense against persons and incarcerated for five years. This is a pragmatic reform that would remedy some of the unpredictability that currently plagues the PSC analysis, advance the humanitarian purposes of asylum law, and honor the plain meaning of the “particularly serious crime” statutory text. The proposal does not, however, address the more difficult questions involving the PSC bar, including those related to the rehabilitation of criminal offenders and the challenges inherent in assessing dangerousness. Nor does it challenge the premise that the lives of U.S. citizens are more deserving than those of other human beings. Nonetheless, among proposals to improve the PSC bar, Holper’s analysis is clear, sensible, and actionable.
Albany Law Review, Dec 22, 2009
Good morning, it is a pleasure to be here. I would like to thank Professor Anthony Farley, the ed... more Good morning, it is a pleasure to be here. I would like to thank Professor Anthony Farley, the editors of the Albany Law Review, and the Albany Law Journal of Science & Technology for inviting me in, and for all of you for being here this morning. I would like to spend my time this morning talking about racial profiling. Specifically, I plan to discuss one area of the law where racial profiling remains firmly embedded explicitly in several decades of U.S. Supreme Court jurisprudence. In the area of immigration law enforcement, racial profiling remains alive and well. I plan to address the implications, specifically, of race-based immigration policing in South Texas, where the vast majority of the population is of Mexican ancestry and where the Border Patrol heavily relies on agents of Mexican ancestry to enforce its race-based immigration policing calculus. I argue that in South Texas, the Border Patrol's reliance on Mexican-Americans to police the border creates a dichotomized intragroup racial divide that is destructive of the people who are charged with doing the policing, that is destructive of the people who are being targeted, and that is destructive of the very social fabric that has held the communities along the border together for generations. In the early and mid-1800s--to give a brief historical overview of this region--the Rio Grande River served as a unifying force for communities in this region. It was a source of commerce for the early communities that sprang up along both sides of the river. Back then, obviously, both sides of the river were part of the same country. After a lot of bloodshed, by the turn of the twentieth century, the Rio Grande had become firmly established as a political boundary between Mexico and the United States of America. (1) Nonetheless, it remained a largely porous border. Into this scene entered the Border Patrol. From its origins in the 1920s and the immediate aftermath of the Mexican Revolution-when unprecedented numbers of Mexican refugees entered what was, by then, the southwest of the United States of America--the Border Patrol's purpose has been to interfere with immigrants' endeavors to enter into this country. The agency's focus then was on the nation's southern border, and the focus has not changed since then. By the early 1930s, the Border Patrol was apprehending nearly five times as many suspected, undocumented people along the nation's southern border, as it was along the nation's Canadian border. (2) In those early years, the Border Patrol in Texas was comprised mainly of young gun slingers. (3) These were individuals who had been recruited from the Texas Rangers, the state police force, which, to say the least, did not have a very peaceable relationship with the Mexican population of South Texas. (4) The Border Patrol's charge, then, was to enforce immigration laws (5)--laws that from a very early period had embraced racism and by the turn of the twentieth century, were beginning to be imbued with a criminal aspect as well. In 1919, for example, Congress for the first time enacted a law requiring that everyone seeking to enter the country go through a formal admissions process, the predecessor of the admissions process that we all go through today anytime we want to enter into the country. (6) Ten years later, in 1929, Congress added another component to this, which was that failure to seek and acquire admission through the formal admissions process constituted a crime--it constituted a criminal misdemeanor--punishable by imprisonment. (7) These changes had a significant impact on the Texas border region, where generations of residents had gone back and forth across the river without regard to government regulation. The free flow of people across the river continued, only now their travels were either lawful or unlawful, depending on whether they complied with the government regulations. (8) Today, the Border Patrol maintains a constant presence in the Texas border region. …
Loy. J. Pub. Int. L., 2011
... See United States v. Russell, 686 F.2d 35, 38 (DC Cir. 1982). n23.n23. Padilla v. Kentucky, 1... more ... See United States v. Russell, 686 F.2d 35, 38 (DC Cir. 1982). n23.n23. Padilla v. Kentucky, 130 S. Ct. 1473, 1482 (2010). n24.n24. Id. at 1483. n25.n25. ... n30.n30. See Andrew Moore, Criminal Deportation, Post-Conviction Relief and the Lost Cause of Uniformity, 22 Geo. Immigr. ...
Notre Dame JL Ethics & Pub. Pol'y, 2009
Border Patrol is officially known as the Customs and Border Protection branch of the Department o... more Border Patrol is officially known as the Customs and Border Protection branch of the Department of Homeland Security. Nonetheless, the "Border Patrol" moniker persists in formal and informal discussions. Consequently, I will use that term throughout this article. According to the Migration Policy Institute, CBP Border Patrol officers are responsible for enforcing 8,000 miles of US land and water boundaries between legal ports of entry (designated points where immigration officials can regulate entry). The goal of the Border Patrol is to maintain a presence along border areas in order to prevent individuals, such as criminals and unauthorized migrants, from entering US territory outside official ports.
Daedalus, 2021
Beginning in the 1980s, the United States embarked on a decades-long restructuring of federal law... more Beginning in the 1980s, the United States embarked on a decades-long restructuring of federal laws criminalizing migration and increasing the consequences for migrants engaging in criminal activity. Today, the results are clear: a law enforcement apparatus and immigration prison system propelled by a vast infrastructure of laws and policies. The presidency of Donald Trump augmented this trend and brought it to public attention. But lost in President Trump's unique flair is an ideological commitment shared by multiple presidential administrations and legislators from both major political parties to use the criminal justice system and imprisonment to sift migrants. Examining these ideological attachments reveals Trump-era policies to be the outer edge of decades-long trends rather than extreme and momentary deviations from the norm.
California western law review, 2012
This is the story of immigration policing today. Sensors in the ground, high-intensity lights ove... more This is the story of immigration policing today. Sensors in the ground, high-intensity lights overhead, steel walls ten feet high, and drone aircraft in the air. 1 Twenty-one thousand uniformed personnel armed with automatic weaponry, their might augmented by many thousands more from local law enforcement agencies. 2 All tied * Assistant Professor, Capital University Law School. Cesar writes crImmigration.com, a blog about the convergence of criminal law and immigration law. Many thanks to Margaret B. Kwoka for her thoughts on an earlier version of this essay.
This session focuses on critical outsider jurisprudence, featuring a brief presentation on LatCri... more This session focuses on critical outsider jurisprudence, featuring a brief presentation on LatCrit’s intellectual precursors in Legal Realism, Critical Legal Studies, and Critical Race Theory, as well as Latina and Latino Critical Legal Theory, Inc. (LatCrit) basics on theory, principles, goals and values. It is also an introduction to LatCrit, a community of scholars committed to the principle of anti-subordination. This session ends with open discussion and questions/answers
The Berkeley Journal of African-American Law & Policy, 2015
Nineteen sixty-five proved monumental in the history of race relations in the United States. In N... more Nineteen sixty-five proved monumental in the history of race relations in the United States. In New York, Malcolm X was assassinated, while in Selma, Alabama, state police officers attacked civil rights marchers in what would come to be known as “Bloody Sunday”. That fall, Congress enacted two pieces of legislation that promised to alter the United States’ long engagement with racism. Less than two months apart, Congress sent President Lyndon B. Johnson legislation that broke from longstanding practices of formally excluding people of color from two core features of United States society: voting and the right to live in the United States. The Voting Rights Act of 1965,1 enacted on August 6, went a long way toward eliminating the overt race-based barriers to participation in the nation’s electoral system. Meanwhile, the Hart-Celler Act,2 adopted on October 3, repealed the decades-old legislation that limited immigration based on racial quotas.
Monthly Review, 2008
Crowded on the beaches were the inductees, some twenty million silent black men, women, and child... more Crowded on the beaches were the inductees, some twenty million silent black men, women, and children, including babes in arms. As the sun rose, the Space Traders directed them, first, to strip off all but a single undergarment; then, to line up; and finally, to enter those holds which yawned in the morning light like Milton's "darkness visible." The inductees looked fearfully behind them. But, on the dunes above the beaches, guns at the ready, stood U.S. guards. There was no escape, no alternative. Heads bowed, arms now linked by slender chains, black people left the New World as their forbears had arrived.
The United States’ civil immigration detention system is characterized by an executive body, the ... more The United States’ civil immigration detention system is characterized by an executive body, the Department of Homeland Security, which possesses substantial authority over the lives of migrants with limited oversight by Congress or the courts. Beginning with the “entry fiction” doctrine that concludes that some migrants who are physically present in the United States are not present for purposes of key constitutional protections, Congress and the courts have granted executive officials substantial flexibility in operating immigration detention sites. They have broad powers and impressive resources to detain migrants they suspect of having violated immigration laws. Migrants who seek release in the United States have a steep path to hew. Moreover, immigration detention centers are shielded from public scrutiny by a host of legislative and judicial decisions ranging from limitations on tort recovery to the inapplicability of transparency statutes. Immense resources and legal authority paired with a lack of penetrating legislative or judicial scrutiny has led to an immigration detention regime that is enormous and filled with abuse. Detainees frequently receive inadequate medical care, complaints about sexual abuse go unreported, and deaths are not uncommon. This Essay posits that the troubling state of immigration detention is a foreseeable — but not irreversible — consequence of these trends.
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Papers by Cesar Cuauhtemoc Garcia Hernandez