Academic journal article Harvard Law Review

Policing Immigrant Communities

Academic journal article Harvard Law Review

Policing Immigrant Communities

Article excerpt

Jose Antonio Elena Rodriguez was sixteen in October 2012 when a border patrol officer shot him repeatedly in the back and head. The officer --officials did not release his name for more than two years after the killing (1)--claimed Jose had thrown rocks at him from the Mexican side of the border. Prosecutors brought no charges.

Anastasio Hernandez Rojas was killed on May 28, 2010. Immigration officials deported him after twenty-seven years of living in San Diego, and officers caught him trying to return to his wife and five children. A cell phone video captured the events that led to his death. (2) Officers tazed the forty-two-year-old Rojas five times while he was was handcuffed and surrounded by a dozen agents. They demanded he "quit resisting" (3) as he cried for help. (4) The coroner declared his death a homicide, but prosecutors did not convene a grand jury until two years later. (5) They never announced an indictment.

Policing is at an inflection point. Police killings of unarmed African American men inspired the national conversation about policing, and those killings are, appropriately, the conversation's focus. (6) The conversation requires context, though--not only background, (7) but foreground. (8) This Chapter highlights the policing of immigrants. What was once a civil-enforcement regime has developed alongside the modern criminalization, enforcement, and incarceration regime. It is now executed by federal, state, and local officers. (9) It is the majority of federal criminal work. (10) It shares the goals of criminal enforcement: immigration enforcement is used to manage crime, and criminal enforcement is used to manage immigration. (11) And like the victims of police violence, immigration policing's victims have little recourse. In some ways, they have even fewer remedies.

This Chapter describes developments in policing immigrants, identifies a gap between police officers' capacity to do harm and victims' rights to a remedy, and proposes enforcement consolidation as a means to bridge that gap. The argument proceeds in three sections. Section A describes immigration enforcement's roots and growth. In important ways, that enforcement is now indistinguishable from policing. Section B identifies an accountability deficit--a gulf between police's capacity to harm immigrants and immigrants' access to any sort of remedy. That section further argues that the gulf is widened by immigrants' limited access to constitutional protections. Section C offers a way forward: consolidating immigration policing in the federal government to increase transparency and facilitate reform.

A. Developments in Policing Immigrants

Certain features of the immigration-enforcement regime have remained static over the last two centuries; others have changed dramatically. The forces driving the immigration regime, for instance, have not changed: regulation has always been driven in part by an image of immigrant criminality, (12) an image which itself has been driven by racism. (13) The tools to implement those forces, though, have changed. The modern criminal justice system and immigration enforcement regime have fused together, (14) and today it is possible to say that immigration enforcement is the work of police generally. This is due not only to an explosion of criminal laws governing migration, but also to the extent to which federal, state, and local police enforce both these criminal laws and the civil provisions of the immigration law. This section describes these changes from two perspectives: the laws that are enforced and the actors who enforce them.

1. The Laws Enforced.--Immigration law is complex, and this section describes developments only as they have intertwined civil immigration enforcement with the criminal law. Criminal law began to filter into the civil immigration-enforcement regime in 1917 when Congress created a "narrow class of deportable offenses." (15) Congress expanded the class with the Immigration and Nationality Act of 1952, (16) the AntiDrug Abuse Act of 1988, (17) the Immigration Act of 1990, (18) and the Illegal Immigration Reform and Immigrant Responsibility (19) (IIRIRA). …

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