The current administration has responded to the most recent “border crisis” with measures to expand child detention, family separation, criminal prosecution of asylum seekers, surveillance technology, border personnel, and a wall. In policies described as a “renewed commitment to criminal immigration enforcement,” the Trump administration gave immigration agents, police, and prosecutors more power to detain, deport, and imprison migrants and asylum seekers (Kelly Reference Kelly2017; Preston Reference Preston2017; Sessions Reference Sessions2017; Trump Reference Trump2017). These rescinded directives under the Obama administration directed agents to use their discretion to target agency resources on high-priority criminal cases in order to keep deportable, but low-priority, immigrants from “clogging the system” (Latino Policy Forum 2011). The Obama administration based its enforcement priorities on those of the Clinton administration, which authorized agents to use prosecutorial discretion as a form of relief from deportation in certain cases (Meissner Reference Meissner2000). Critics of the Trump administration’s blanket enforcement policies, in which almost everyone is considered an enforcement target, have called for a return to prosecutorial discretion policies of the administrations of Bill Clinton and Barack Obama when deciding whether to detain, deport, or imprison.
Yet the current “border crisis” is in part the product of policies enacted in the Clinton and Obama administrations (Chomsky Reference Chomsky2017). Both administrations used prosecutorial discretion—in this case, the decision to deprioritize or to de-escalate enforcement action—as a way of providing relief in an ever-expanding detention and deportation regime (Zatz and Rodriguez Reference Zatz and Rodriguez2014; Wadhia Reference Wadhia2015). Despite guidelines directing agents to consider humanitarian factors, formal deportations rose under the Clinton administration and aggressive criminal prosecution and deportations persisted under Obama (Rosenblum and Meissner Reference Rosenblum and Meissner2014).
In fact, under the Obama administration’s reliance on risk metrics and data-driven approaches to immigration enforcement, unauthorized entry and reentry after deportation outnumbered low-level drug offenses as one of the leading charges sending people to prison. In total, 52 percent of those charged with immigration offenses were Latino (Lopez and Light Reference Lopez and Light2009; Schmitt and Konfrst Reference Schmitt and Konfrst2015). By 2013, deportations under the Obama administration had exceeded two million people per year, resulting in more immigrants imprisoned for crossing the border and reentering after deportation (Gonzales-Barrera and Krogstad Reference Gonzalez-Barrera and Krogstad2014).
This article examines why ostensibly more humanitarian approaches to immigration enforcement produced equally, if not more, punitive and racially disproportionate outcomes. Specifically, this study analyzes the political struggles over enforcement discretion under the Clinton and Obama administrations. It examines contestations over where discretionary authority rest (with the agents or the judges); whether discretionary power should be expanded or curtailed; and how frontline border patrol agents have implemented it.
Although discretion has a long history in the immigration system and operates in multiple ways throughout the immigration process (Motomura Reference Motomura2012), this study analyzes enforcement discretion from above and below at the US-Mexico border (as opposed to interior enforcement). When discussing enforcement discretion from above, I am referring to decision-making at the level of the Executive Branch and Congress, such as setting enforcement priorities or targeting certain groups for border enforcement. Enforcement discretion from below refers to the ways in which frontline US Border Patrol agents decide whether or not to deport or imprison.
Though the focus is on enforcement discretion at the US-Mexico border during the Clinton and Obama eras, my analysis draws on the historical work of Naomi Murakawa (Reference Murakawa2014) and others who analyze the connection between liberal reformers (that is, racial liberals and liberal feminists) and the rise of the carceral state (Simon Reference Simon2007; Richie Reference Richie2012).Footnote 1 In reviewing these groundbreaking studies, certain logics and patterns paralleled findings from my own research on immigration and border policing. These include, for example, policy elites who rely on law-and-order politics to advance rights; liberal reform platforms that expand punishment; the mobilization of crime rhetoric in ways that cement an association between race and criminality; and color-blind policies that obscure racial violence, among others. Liberal policy elites and reformers, particularly those who are sympathetic to more than just immigration policies, are often the intended audience and are seldom studied for their role in ushering in a punitive turn in immigration enforcement.
In this article, I bring together and build upon the historical work of Murakawa and others under a framework of carceral racial liberalism in order to broaden its application to an immigration (and possibly other) context(s). The analytic framework, as I use it in this article, refers to the ways in which liberal policy elites draw on crime control measures to advocate for rights and protections in ways that reinforce an association between race and criminality. Policy elites do so by advocating color-blind policies, such as prosecutorial discretion, that mask or obscure racial hierarchies and appear divorced from racial politics. Beyond the findings in this study, the analytic framework of carceral racial liberalism provides a lens to better understand contemporary migration and border politics in liberal democracies more broadly, where adherence to republican principles necessitates a rationale for forced expulsion and confinement of immigrants of color, without appearing to be racist or nativist. As an analytic framework, then, carceral racial liberalism provides a more nuanced lens to understand how purportedly humanitarian enforcement in the immigration system contains seemingly oppositional elements of forced confinement and expulsion (Coutin Reference Coutin2010; Macías-Rojas Reference Macías-Rojas2016; Paik Reference Paik2016).
Using this analytical framework, I argue that the Clinton and Obama administrations took a punitive humanitarian approach to enforcement discretion aimed at punishing “illegal immigration” at the border while protecting “legal immigrants” with long-standing ties to the United States from deportation. The findings show that such an approach extended crime control to US-Mexico border enforcement, disrupting traditional practices aimed at managing labor rather than crime. This blend of humanitarian and punitive approaches systematized criminal enforcement priorities and expanded the discretion of border agents to deport and imprison. Such well-intentioned policies disproportionately went beyond their intended targets and directly ensnared deportees with family ties and histories of settlement in the United States, the very people such policies were intended to protect.
PROSECUTORIAL DISCRETION IN THE IMMIGRATION CONTEXT
Though prosecutorial discretion has a long history in the immigration system, it became central to national immigration debates in the late 1990s during the Clinton administration and continued through Obama’s presidency. The Clinton administration used it to temper the punitive provisions in the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) (1996) that constrained judicial review and expanded criminal grounds for deportation (Hing Reference Hing2006; Kanstroom Reference Kanstroom2007). The Obama administration issued prosecutorial discretion guidelines to soften the harsh effects of post-9/11-era immigration enforcement, which left many vulnerable to deportation and imprisonment through silent raids in homes, workplaces, and prisons (Kubrin, Zatz, and Martínez Reference Kubrin, Zatz and Martínez2012; Dowling and Inda Reference Dowling and Inda2013; Joao Guia, van der Woude, and van der Leun Reference Joao Guia, van der Woude and van der Leun2013).
Analyzing a new blend of immigration and criminal law, “crimmigration” scholars (Stumpf Reference Stumpf2006; Chacon Reference Chacon2009) have examined prosecutorial discretion as a remedy or a check on a punitive deportation and detention regime (Morawetz Reference Morawetz2000; Kanstroom Reference Kanstroom2012; Motomura Reference Motomura2012; Wadhia Reference Wadhia2015).Footnote 2 In the immigration context, the focus is generally on discretion as a humanitarian program designed to “protect people from removal in compelling cases,” in contrast to the criminal justice system where the focus is on the power that prosecutors have to incarcerate (Wadhia Reference Wadhia2015, 1).Footnote 3 With few exceptions, less attention has been given to the politics of discretion and how contemporary debates about prosecutorial discretion emerge from, and are linked to, earlier political struggles over policing and racial violence in both the immigration and criminal justice systems.Footnote 4
Current scholarship on prosecutorial discretion in an immigration context often focuses on immediate pressing issues concerning process and procedures, particularly under Deferred Action for Childhood Arrivals (D. Martin Reference Martin2012; Motomura Reference Motomura2012; Olivas Reference Olivas2012), or on how to improve prosecutorial discretion’s application through more transparency, standardization, and judicial review (Kanstroom Reference Kanstroom2000, Reference Kanstroom2007, Reference Kanstroom2014; Wadhia Reference Wadhia2010, Reference Wadhia2015; Rosenblum and McCabe Reference Rosenblum and McCabe2014). The focus is often on improving due process and equal protection under law. These studies often appeal to policy elites who are sympathetic to more humane border policies rather than to examine policies and policy elites within a longer history of struggle over racial violence, policing, and discretion (Sarat and Silbey Reference Sarat and Silbey1988).
More recent studies have focused on the devolution of immigration enforcement and the transfer of discretion from federal immigration judges to local law enforcement (Ellermann Reference Ellermann2009; Armenta Reference Armenta2012, Reference Armenta2016, Reference Armenta2017; Coleman Reference Coleman2012; Provine et al. Reference Provine, Varsanyi, Lewis and Decker2016). These studies suggest that transferring discretion to local law enforcement undermines procedural protections and fairness in the criminal justice system (Motomura Reference Motomura2010; Eagly Reference Eagly2013; Provine and Lewis Reference Provine, Lewis, Menjívar and Kanstroom2014; Beckett and Evans Reference Beckett and Evans2015).Footnote 5 The focus is often on how police carry out immigration controls through interior enforcement. With few exceptions, less attention has been given to the enforcement discretion of frontline federal border agents who now play a more direct role in crime control (Weissinger Reference Weissinger1996; K. Johnson Reference Johnson2004; Romero Reference Romero2006; Ellermann Reference Ellermann2009).
This study centers on enforcement discretion at the US-Mexico border at a time when Democratic administrations advocated for more humanitarian border policies by redirecting federal resources away from interior enforcement to border communities. Understanding the political logics and practices of enforcement discretion under the Clinton and Obama administrations provides insights into current debates about discretion and why moments of intense protest against forced expulsion and confinement and administrative reforms, which were intended to provide relief, ultimately expanded deportations and criminal prosecutions. The analytical focus on the politics of discretion also provides important historical context to understand how crime control imperatives became the driving force of border policy.
RESEARCH SITE AND METHODS
In the late 1990s, following the Clinton administration’s high-profile border patrol operations and the passage of the IIRIRA in 1996, southern Arizona became the busiest crossing point along the US-Mexico border. Under the Obama administration, Arizona’s federal courts led the country in criminal prosecutions, with immigration accounting for 85 percent of the caseload in 2010. By 2011, reentry after deportation had become the leading charge sending people to prison, at 47 percent of all criminal prosecutions (Transactional Records Access Clearinghouse 2011; Light, Lopez, and Gonzales-Barrera Reference Light, Lopez and Gonzales-Barrera2014). The US Border Patrol was the lead agency referring a majority of all cases to the US Attorney’s Office (USAO) for criminal prosecution (Transactional Records Access Clearinghouse 2010).Footnote 6 In 2012, Arizona was one of the leading states where individuals entered the custody of Immigration and Customs Enforcement (ICE) for detention and deportation (Transactional Records Access Clearinghouse 2013). The Arizona-Sonora border, then, is an important site for analyzing how border agents implement enforcement discretion and select and process people for deportation and criminal prosecution.
This study draws on twenty-one months of multi-sited fieldwork on the Arizona-Sonora border, in the US Border Patrol’s Tucson sector, conducted between 2002 and 2005 with follow-up research in 2010 and 2013. In 2003, Congress reorganized the former Immigration and Naturalization Service (INS) under the Department of Homeland Security (DHS). The fieldwork conducted between 2002 and 2005 captures the period after the passage of the IIRIRA in 1996 and the Clinton administration’s guidance on prosecutorial discretion. In other words, the post-IIRIRA context and the prosecutorial discretion guidelines issued in response informed the practices that I observed while conducting fieldwork in the Tucson sector between 2002 and 2005.Footnote 7 The follow-up fieldwork between 2010 and 2013 captures enforcement practices under the Obama administration. To better understand enforcement discretion on the Arizona-Mexico border under the Clinton and Obama administrations, this study combines historical research, ethnography, and interviews.
My historical research uncovered a short history of enforcement priorities that shaped the discretion of border agents. The historical research informed how I analyzed the ethnographic fieldwork. At the US Citizenship and Immigration Services library in Washington, DC, I consulted US Border Patrol handbooks, budget books, speeches, agency reports, and internal memoranda. I also examined Congressional records in order to better understand debates about enforcement procedures and discretionary authority. This research also uncovered how debates about discretion in the criminal justice system informed, yet differed from, debates about discretion in the immigration system.
The ethnographic fieldwork focused on the “street-level” practices of border agents and how they enacted enforcement priorities on the ground as a way of examining enforcement discretion (Lipsky Reference Lipsky1980). My analysis of the practices of frontline border agents draws on ride-alongs with agents and fieldwork observations in the public spaces of border towns, where law enforcement and smuggling have become main sources of employment. I conducted observations in immigration and criminal courts in the metropolitan areas of Tucson and greater Phoenix. I observed administrative removal hearings in Florence, Arizona, a prison town sixty-one miles from Phoenix.Footnote 8 In Tucson, I observed criminal prosecution hearings under Operation Streamline, a federal program that charges immigrants with illegal entry and reentry in criminal courts. Analyzing what border agents did versus what they said also required that I consult multiple sources, including ethnographic interviews with migrants and residents, local law enforcement, Mexican government officials, nongovernmental organizations, and other local actors involved in the field of immigration law enforcement.
My fieldwork also included ethnographic interviews with twenty-five US Border Patrol agents and enforcement and removal officers under the former INS and, after 2003, ICE.Footnote 9 In my conversations with agents, I avoided the issues of migrant deaths, vigilantism, and racial profiling unless the agents themselves raised them. Shifting the focus away from inflammatory popular representations of border policing opened the conversation for richer descriptions of their day-to-day work, which provided insights into how they implemented criminal enforcement priorities and differentiated high- and low-priority immigrants. Overall, the multi-sited fieldwork collected during this period offers a unique window into an important transitional period in US-Mexico border policing during the Clinton and Obama eras.
THE CLINTON YEARS: “TOUGH-ON-CRIME” APPROACHES TO BORDER ENFORCEMENT
Adopting the Crime Rhetoric of the New Right
In the early 1990s, Democrats appropriated the law-and-order strategies of the Republican party and the New Right, pledging to take a tougher stance on unauthorized migration. Democratic senators Diane Feinstein and Chuck Schumer penned op-eds and introduced punitive immigration bills seeking to deport immigrants with low-level drug convictions from dangerously overcrowded prisons (Macías-Rojas Reference Macías-Rojas2018a). The Clinton administration supported high-profile border patrol operations, such as Operation Hold the Line (1993), Operation Gatekeeper (1994), and Operation Safeguard (1995) in order to take a “tough-on-crime” approach to “illegal” immigration (Cornelius Reference Cornelius2005; Nevins Reference Nevins2010a).
In 1996, Clinton signed the IIRIRA, which effectively redefined enforcement priorities in the immigration system by enacting a series of measures and funding to identify and classify immigrants convicted of crimes as “criminal aliens.” A majority of the immigrants in the criminal justice system were actually legal immigrants with a long history of settlement. Going after immigrants with criminal records required a fundamental restructuring of detention and deportation. Among its most controversial provisions, the IIRIRA instituted retroactive deportations for legal permanent residents with convictions. It authorized funding to identify and track “criminal aliens” through a “nationwide fingerprinting of apprehended aliens.”Footnote 10 It instituted fast-track deportations, such as expedited removal for unauthorized immigrants apprehended at the border and asylum seekers without a convincing “credible fear of persecution.” The law authorized mandatory detention, which was viewed by Congress as necessary for carrying out criminal deportations. It restricted avenues for relief from deportation and detention and redefined the criteria for immigrants with convictions, including legal permanent residents and asylum seekers, to be able to stay in the country. It also authorized formal cooperative agreements that directly involved local police in federal immigration enforcement (Macías-Rojas Reference Macías-Rojas2018a).
When former President Clinton signed the IIRIRA into law on September 30, 1996, he referred to it as “landmark immigration reform” that “cracks down on illegal immigration without punishing legal immigrants” (Clinton Reference Clinton1996). In a memo to former president Clinton written after the IIRIRA’s enactment, Clinton’s senior policy advisor Rahm Emanuel remarked on the president’s success in “adopting the opposition’s rhetoric.” Emanuel (Reference Emanuel1996, 1) wrote: “Since Nixon’s Law and Order campaign, crime has been a staple of the GOP [Republican party] platform. Over the last four years, your policies have defined the issue and allowed Democrats to achieve parity. … The illegal immigration legislation provides the same opportunity.” In taking a tough-on-crime approach, the Clinton administration split the issue of legal and illegal immigration. The administration opposed measures in the law that would have restricted legal immigration while allowing its harshest provisions, targeting “illegal immigration” and “criminal aliens,” to move forward with bipartisan support. Republican Lamar Smith, the IIRIRA’s principle sponsor, described the IIRIRA as “the toughest legislation against illegal immigration enacted in our lifetimes” (Smith and Grant Reference Smith and Grant1996, 913).
To be sure, criminalizing discourses on immigration were not new. Eugenicists and nativists during the Progressive Era linked immigration and crime in both law and political rhetoric in order to repress immigrant labor organizing. What was new was the way in which the Clinton administration split the immigration issue by framing legal immigration as legitimate and morally upright while depicting unauthorized migration as a crime. Such criminalizing rhetoric by pro-immigrant policy makers was unprecedented. By adopting the opposition’s rhetoric, the Democratic party appropriated the anti-civil rights crime rhetoric of the New Right while masking the racial politics that fueled it. This crime rhetoric rests on a color-blind logic, arguing that “tough-on-crime” measures like the IIRIRA’s criminal provisions target “lawbreakers,” not racial groups (Skelton Reference Skelton1993; K. Johnson Reference Johnson1995).
Disrupting Traditional Enforcement Practices
Before Clinton signed the 1996 law, enforcement discretion on the US-Mexico border had been largely based on factors such as labor demand, family ties, and settlement history, not crime (Wildes Reference Wildes1976; Calavita Reference Calavita1992; Ngai Reference Ngai2004; Kang Reference Kang2017). The majority of arrests for unauthorized entry occurred on the US-Mexico border, and over 90 percent of apprehended migrants were processed as “voluntary returns,” a form of removal in which migrants waive their right to a formal deportation hearing before a judge in exchange for “rapid return” to Mexico in order to reattempt the border crossing (Heyman Reference Heyman1995, Reference Heyman1998). The threat of deportation kept migrants in a perpetual state of “deportability” that maintained a temporary and flexible labor force (de Genova Reference De Genova2002).
For decades, then, the US Border Patrol exercised discretion based on the labor demands of industry, not the criminal history of migrants (Calavita Reference Calavita1992; Kang Reference Kang2017; Macías-Rojas Reference Macías-Rojas2018b). Although criminal grounds for deportation were written into the statutes in 1929, criminal history was not the primary factor shaping discretion before the IIRIRA. In fact, information obtained through the Freedom of Information Act shows that the INS exercised prosecutorial discretion (that is, selected cases for nonenforcement) on the basis of factors such as long-term residence in the United States, familial ties to US citizens, financial hardship, and medical conditions (Wildes Reference Wildes1976; Wadhia Reference Wadhia2011). Criminal enforcement priorities were not yet prevalent, partly because immigration was viewed as a labor or a civil rights issue (US Commission on Civil Rights 1980; Schuck Reference Schuck1984; Harwood Reference Harwood1986; Motomura Reference Motomura1992; Welch Reference Welch2002).Footnote 11
The IIRIRA disrupted traditional practices by expanding criminal grounds for deportation and centering border controls around criminal enforcement priorities. The IIRIRA created a single category of removal that eliminated the historical distinction between the exclusion of migrants at the border and the expulsion of those already in the United States. Migrants already in the United States and with a longer history and ties had more protections from deportation than new border crossers. By creating a new category of removal, the IIRIRA treated migrants already in the United States the same as new border crossers who entered without inspection. At the border, these fundamental changes ultimately gave greater importance to deportation and forced expulsion over “voluntary returns,” and to criminal history over labor demands.
Following the IIRIRA’s enactment, immigrant rights activists documented hundreds of cases of excessive use of force, mandatory detention, forced removal, and family separation stemming from the law’s criminal enforcement provisions (Hing Reference Hing1995; Morris Reference Morris1997; Catholic Legal Immigration Network 2000; K. Johnson Reference Johnson2000; American Bar Association 2004; Romero Reference Romero2006). These reports and Congressional records uncovered hundreds of cases of minors, domestic violence survivors, and legal permanent residents who were caught up in raids, languished in detention, imprisoned, forcibly expelled, or fatally shot by border patrol agents (Hing Reference Hing1995; Morris Reference Morris1997; Catholic Legal Immigration Network 2000; American Bar Association 2004; Romero Reference Romero2006). In 1999, twenty-eight members of Congress, including Lamar Smith, the IIRIRA’s architect, sent a letter to Attorney General Janet Reno and INS Commissioner Doris Meissner, urging the INS to use prosecutorial discretion to reduce hardship in the deportation proceedings of legal permanent residents with citizen children (Zatz and Rodriguez Reference Zatz and Rodriguez2014).
Punitive Humanitarian Approaches to Discretion under Clinton
In 2000, Immigration Commissioner Doris Meissner circulated an internal memo to INS personnel, instructing regional and district directors and senior enforcement officers to “exercise discretion in a judicious manner at all stages of the enforcement process” (Meissner Reference Meissner2000, 1). According to the memo, “‘favorable exercise of prosecutorial discretion’ means a discretionary decision not to assert the full scope of the INS’ enforcement authority as permitted under the law. … Such decisions will take different forms, depending on the status of a particular matter, but include … not detaining an alien placed in proceedings (where discretion remains despite mandatory detention requirements), and approving deferred action” (Meissner Reference Meissner2000). The 2000 guidelines on prosecutorial discretion affirmed humanitarian and antidiscrimination principles when “deciding whom to stop, question, and arrest” and whom to detain or deport (2). The guidelines also prohibited “race, religion, sex, national origin, or political association, activities or beliefs” as factors for determining eligibility for prosecutorial discretion (9). But the guidelines broke with past precedent in giving more weight to criminal history and immigration violations, such as reentering or “resisting arrest,” than in the past.
The prosecutorial discretion guidelines drew distinctions between cases of long-term residents in the interior (who were eligible for favorable prosecutorial discretion and relief from deportation) and cases of “criminal aliens” and unauthorized migrants on the border. Factors for identifying favorable exercise of discretion included immigration status (“lawful permanent residents generally warrant greater consideration”); “length of residence in the United States”; humanitarian concerns, such as “family ties in the United States”; criminal history (“officers should take into account the nature and severity of any criminal conduct, as well as the time elapsed since the offense occurred and evidence of rehabilitation”); and immigration history (“aliens without a past history of violating the immigration laws, particularly violations such as reentering after removal, failing to appear at hearing, or resisting arrest that show heightened disregard for the legal process, warrant favorable consideration to a greater extent than those with such a history” (Meissner Reference Meissner2000, 7–8). The new enforcement priorities transformed the way border agents processed people.
In theory, agents should have targeted new border crossers for enforcement and offered relief from deportation to migrants with longer histories of residence and more family ties. Under the revised enforcement priorities, border agents were to rank migrants according to criminal and immigration history in unprecedented ways, backed by heavy investment in detention beds, biometric technologies, and personnel to implement them. On the border, however, agents’ views of undocumented migrants did not always align with the “tough-on-crime” rhetoric in Congress. In practice, none of the agents interviewed between 2002 and 2005 referred to the act of unauthorized entry as “criminal.” On the border, where cross-border flows are part of the economic and social fabric of the region, agents referred to undocumented migrants as “workers” and likened some apprehended migrants to crime victims, particularly those lost in the desert, abandoned by smugglers, robbed, assaulted, or who had perished in the hostile desert climate. So although new undocumented border crossers had fewer ties to the United States and a shorter history of residence, agents processed those without a criminal record as undocumented workers eligible for “voluntary return” as opposed to criminal aliens. In cases of Mexican nationals, migrants with no convictions could be eligible for voluntary return or referred to an immigration judge, which allowed them to be processed quickly and to try to cross again. In cases of migrants from countries other than Mexico—officially categorized as “other than Mexican” (OTMs)—agents used discretion to parole migrants from detention or to release them on their own recognizance while their removal hearing was pending or when the detention centers were overcrowded.
A 2005 internal memorandum on immigration enforcement describes how, under new criminal enforcement priorities, border agents (as opposed to immigration judges) had more authority to refer apprehended migrants to the USAO for criminal prosecution or to use their discretion to offer “relief” in the form of “voluntary returns.”
All of the USAOs prosecute the most serious offenses and those offenders with established criminal records as a priority. Along the southwest border, offenders entering the country illegally but with no criminal record and no prior deportation are almost certainly going to be voluntarily removed (known as being “VRd”) numerous times before they are formally deported, barring some unusual or aggravating circumstance in the case. Several factors contribute to this policy, the most pronounced being the lack of resources and bed space to detain and prosecute every illegal entry violator. Additionally, there is also very little punishment for first-time offenders, and investigative agencies and the USAOs are inclined to spend their resources on the more serious offenses. Therefore, offenses in which aliens are smuggled for profit or where an alien with a serious criminal record reenters the country after being deported will receive priority attention.Footnote 12
This document is important, because it illustrates the shifting logic of bypassing the immigration courts and giving frontline agents more discretionary power to place migrants on pathways to imprisonment as well as to administer relief from deportation and punishment. Instead of formally deporting or criminally prosecuting new border crossers, they might use their discretion to administer forms of relief like (1) voluntary return; (2) a notice to appear before an immigration judge; (3) a notice to appear/release on recognizance; and (4) voluntary departure (US Border Patrol 1998). In their day-to-day work then, agents processed new border crossers or those “entering the country illegally but with no criminal record” less severely, effectively prioritizing those who had resided in the US for long periods of time. Apprehended migrants with “more serious criminal records,” typically had more ties to the US and longer histories of residence (Morris Reference Morris1997; Morawetz Reference Morawetz2000). Additionally, the IIRIRA expanded criminal grounds for deportation to include some misdemeanors and convictions “accompanied by a sentence of one year or longer,” and so many low-income legal permanent residents or green card holders caught in the Drug War became targets for criminal immigration enforcement (Scalia Reference Scalia1996, 3; US Congress 1996).
Although the IIRIRA’s primary enforcement targets were immigrants convicted of crimes, many long-term, legal permanent residents with low-level drug offenses were caught in its dragnet. Frontline agents’ day-to-day work increasingly involved formally deporting many legal permanent residents with criminal convictions for low-level drug offenses under the IIRIRA’s criminal provisions. News outlets and legal advocates reported that refugees and legal permanent residents in the United States for as long as thirty-six and even fifty years were suddenly facing deportation under the new law (Catholic Legal Immigration Network 2000, 38–39; American Bar Association 2004, 44). Detention and removal officers under the INS—before the creation of ICE in 2003—were charged with processing these removals.
A detention and removal supervisor explained in an interview that Mexican nationals with longer ties, as opposed to new border crossers, were increasingly detained and deported under the IIRIRA’s mandatory detention provisions: “[Mexican nationals are] coming out of jail and prison for reentry [after deportation], alien smuggling, [and] drugs. … They’re brought here after time served.” In an Arizona detention center, an immigration judge described in an interview how Mexican nationals were being detained under IIRIRA’s mandatory detention provisions, limiting their rights to an immigration hearing and constraining the discretion of immigration judges to offer little more than a formal deportation:
Criminal aliens. … They’re brought from the county jails. Many have previous records for reentry [that is, violating a deportation order]. We want to make sure they get formally deported so they won’t come back. But they still have a right to a hearing. Most Mexican nationals don’t belong here [in detention]. It’s too expensive. We can’t afford to keep them here. I don’t care if they have a record; they still have a right to a hearing.
The IIRIRA required “zero tolerance” approaches to migration and border controls and ultimately led to the deportation of many long-term legal permanent residents, with dire consequences for their families (Morris Reference Morris1997; Catholic Legal Immigration Network 2000; American Bar Association 2004). Although “voluntary” deportation had been the primary mode of removal for decades, after the IIRIRA was introduced, formal deportations quickly rose and outpaced voluntary returns (Rosenblum and Meissner Reference Rosenblum and Meissner2014, 22–23). The move from “voluntary” returns to formal deportations in the aftermath of the IIRIRA matters because the legislation came with bars to future reentry, and those who returned to the United States could be criminally prosecuted. Thus, although prosecutorial discretion was intended to provide relief from deportation in the aftermath of the IIRIRA, on the border it also had the opposite effect.
By taking a punitive humanitarian approach to enforcement, the Clinton administration gave border agents more authority to perform crime control functions when enforcing immigration law. The Meissner (Reference Meissner2000) memo states: “Since the 1996 amendments to the Immigration and Nationality Act (INA) which limited the authority of immigration judges to provide relief from removal in many cases. … Service officers are not only authorized by law but expected to exercise discretion … from planning investigations to enforcing final orders.” By giving agents the authority to exercise favorable discretion in interior enforcement and the power to imprison and criminally classify unauthorized migrants on the border, the Clinton administration reorganized immigration and border enforcement around crime control.
Following this, border enforcement practices during the early years of the Bush administration looked similar to enforcement under Clinton. The Bush administration left intact prosecutorial discretion guidelines under the Meissner memo and maintained many of the Clinton-appointed, high-ranking senior officials in the US Border Patrol. In 2003, the Bush administration reorganized the former INS under the DHS and centered the DHS’s mission on fighting terrorism. It shifted resources from the border to interior enforcement, targeting Arab and Muslim communities (Rosenblum and McCabe Reference Rosenblum and McCabe2014). In everyday practices on the US-Mexico border, however, the Bush administration prosecuted fewer terrorism and crime-related cases than it did traditional immigration violations like “entry without inspection (EWI)” (see Transactional Records Access Clearinghouse 2007). The Obama administration later shifted resources from the interior to the border, such that, by 2010, deportations had reached a record-breaking high of nearly four hundred thousand (Meissner et al Reference Meissner, Kerwin, Chisti and Bergeron2013, 11; Rosenblum and McCabe Reference Rosenblum and McCabe2014, 21).
THE OBAMA ERA: RISK-BASED APPROACHES TO ENFORCEMENT DISCRETION
Adopting “Smart-on-Crime” Enforcement
In 2010, undocumented anti-deportation activists, in Arizona and around the country, began risking arrest, deportation, detention, and imprisonment to protest the rising number of deportations and family separations under the Obama administration (King Reference King2010; Preston Reference Preston2013; Marquez-Benitez and Pallares Reference Marquez-Benitez and Pallares2016). That year, five undocumented activists staged a sit-in in Arizona Senator John McCain’s office, calling on him to support the Development, Relief, and Education for Alien Minors Act and paths to citizenship (Preston Reference Preston2010). The bill failed to pass in Congress that year. Activists also staged a protest to shut down the entrance of the Maricopa County jail to protest rising deportations.
In response to anti-deportation protests, the Obama administration issued new guidelines on prosecutorial discretion between 2010 and 2014 (Morton Reference Morton2011a, Reference Morton2011b; J. Johnson Reference Johnson2014). The guidelines listed humanitarian factors to consider when exercising prosecutorial discretion (Morton Reference Morton2011b) and extended risk-based, “smart-on-crime” approaches to border enforcement (Morton Reference Morton2011a; J. Johnson Reference Johnson2014). Smart-on-crime initiatives rely on “data-driven” solutions,” risk metrics, and surveillance technologies as alternatives to incarceration in order to focus resources “on the most serious cases.”Footnote 13 This coincided with actions that the administration had taken to reform the criminal justice system through “smart-on-crime” initiatives.Footnote 14 The Obama administration went further than the Clinton administration by extending “smart-on-crime” approaches to border enforcement. In important ways, it reversed the on-the-ground practice of processing new and repeat border crossers as “workers” and began prosecuting them as “criminals.” In 2011, the secretary of the DHS, Janet Napolitano, extended the prosecutorial discretion guidelines to the other agencies within the DHS beyond ICE—namely, the US Border Patrol—a move that further shifted enforcement resources away from interior enforcement to the border (Rosenblum and McCabe Reference Rosenblum and McCabe2014, 9).Footnote 15 By 2014, “aliens apprehended at the border” had become “Priority 1” targets for enforcement (J. Johnson Reference Johnson2014, 3).
The Obama administration also revised the US Border Patrol’s strategic plan to focus more on “risk-based approaches to border security” (US Customs and Border Protection 2012, 7).Footnote 16 It systematized Clinton’s “tough-on-crime” approaches by relying on risk metrics to classify and distinguish between high- and low-risk offenders when processing apprehended migrants on the US-Mexico border. The DHS, under Obama, focused on “smart and effective enforcement of immigration laws … [and] established clear enforcement priorities to focus on the removal of individuals who pose … a risk to public safety … with particular emphasis on violent criminals, felons, and repeat offenders … [while also] “protecting crime victims, asylees, and refugees; [and] updating rules to keep immigrant families together.”Footnote 17
The ICE union sued the Obama administration, arguing that such approaches to discretion essentially granted “amnesty” to “lawbreakers” and prevented ICE agents from enforcing immigration law (D. Martin Reference Martin2012; Zatz and Rodriguez Reference Zatz and Rodriguez2014). In fact, under the Obama administration, agents had considerably more discretion to process migrants under civil immigration law and criminal law. Criminal enforcement priorities backed by biometric technology empowered agents to administer relief from deportation on the basis of risk assessments (Noferi and Khoulish Reference Noferi and Koulish2014; Macías-Rojas Reference Macías-Rojas2016). Not only were agents performing an administrative role of civil immigration law enforcement, but they also were now playing a more direct role in crime control.
Punitive Humanitarian Approaches to Discretion under Obama
US Border Patrol agents had more discretion to process apprehended migrants under criminal law by referring them to the USAO for prosecution in federal criminal court. Instead of the traditional practice of “voluntary return,” this culminated in migrants’ imprisonment, mandatory detention after serving their sentence, then forced expulsion or deportation with bars to future legal migration. In the early years of the Obama administration, the government expanded a federal prosecution program known as Operation Streamline, which charged undocumented border crossers with federal crimes of illegal entry and reentry in federal district courts (Lydgate Reference Lydgate2010; Greene, Carson, and Black Reference Greene, Carson and Black2016). Under Operation Streamline, the plea bargain, which most migrants accept, plays a crucial role in conferring criminal alien status. Illegal entry is prosecuted as a petty misdemeanor offense, which could be punishable with up to six months in prison. Deportation and criminal prosecutions at the border increased, then, as the Obama administration scaled back interior enforcement.
Under the Obama administration, criminal prosecution for unauthorized entry increasingly played an important role in branding people as criminals for immigration violations. Public defenders advised migrants to plead guilty to criminal charges of “entry without inspection” (under section 1325 of the Immigration and Nationality Act [1965]) and “reentry after deportation” (under section 1326 of the Immigration and Nationality Act) in exchange for a lower prison sentence or time served. What migrants did not realize was that pleading guilty effectively marked them with a criminal conviction.Footnote 18 The next time migrants crossed and were apprehended, the agent would no longer just process them in the immigration system for the “entry without inspection.” They would also flag them as criminal aliens and refer them to the USAO to criminally charge and imprison them for illegal entry and reentry after deportation.
The Obama administration invested heavily in US Customs and Border Protection personnel, biometric technology, and surveillance systems on the US-Mexico border as a way of “standardizing the decision-making process regarding the application of consequences, ranging from administrative removal to criminal prosecution” (US Customs and Border Protection 2012, 17; see also Nevins Reference Nevins2010b; López Reference López2011; Rosenblum Reference Rosenblum2012; Rosenblum and Meissner Reference Rosenblum and Meissner2014). Agents had greater access to biometric technology that would search the databases of the Federal Bureau of Investigation and the Department of Defense and a criminal master file. Within minutes, agents could identify “recidivists” (that is, people who repeatedly cross the border and get caught) and “lookouts” (that is, those with prior criminal records).
Yet agents retrieved very few hits for high-priority targets, even with the highly sophisticated technological capacity to conduct comprehensive background checks on criminal and immigration history. A Congressional Research Service report found that “the proportion of people apprehended by the border patrol with previous convictions for major crimes hovered between 1.9 percent in 2005 and 2.5 percent in 2008 before falling to 0.9 percent in 2011, which is the lowest level since the US Border Patrol began matching records against FBI databases” (Rosenblum Reference Rosenblum2012, 29).
Since the US Border Patrol could not find enough individuals matching the “high-priority” criteria, officers had to reach lower on the priority scale and targeted “reentry after deportation” cases instead. The mandate to identify criminal enforcement priorities resulted in agents targeting lower-priority migrants, mostly persons with longer histories of settlement who had violated their deportation orders in order to reunite with family. The guidelines of prosecutorial discretion listed migrants with a prior a deportation order as “the third and lowest priority for apprehension and removal” (J. Johnson Reference Johnson2014, 3; Morton Reference Morton2011a). Yet these lower-priority cases were precisely the ones that the agents selected for criminal prosecution. In fact, by 2010, reentry after deportation had become the leading charge with which immigrants were sentenced to federal prisons (Motivans Reference Motivans2012). Once deportees were criminally prosecuted for violating a deportation order, they were essentially classified as criminal aliens and became high priorities for enforcement. A federal public defender described this trend in an interview:
Twenty years ago an alien, legal permanent resident convicted for possession of 20 grams … if he had a wife, children, he could apply for a waiver of relief [from deportation]. He was given a second chance. Nowadays if that happens, family ties, a job count for absolutely nothing. He can be forty years old, lived here since he was two, own property, it doesn’t matter. So what is a person to do when they get deported? They will come back. What you have then is thousands upon thousands serving years for international trespass, because in addition to broadening the definition of aggravated felony to include misdemeanors and making those convictions result in inevitable deportation, the government has also increased the sentences for reentry.
As in the criminal justice system, where the stigma of a criminal mark justifies legitimate forms of violence and social death (Cacho Reference Cacho2012), on the border, criminal stigma justifies forced expulsion and forced confinement (Macías-Rojas Reference Macías-Rojas2016). Criminal alien status limits access to the immigration courts and suspends access to basic forms of relief, such as access to asylum, voluntary departure, release from detention, and claims to ethical treatment. Criminal status justifies mandatory detention and a greater likelihood of exposure to violence. A recent study of 116 US detention facilities between 2008 and 2012 tracked rates of assaults, forced moves, hunger strikes and other protests, the use of chemical agents, SWAT teams, and restraints. The study shows linkages between violence in detention centers and rates of death, attempted suicide, and health referrals (Hernandez et al. Reference Hernandez, Eason, Goldmith, Abel, McNeeley, Miller and Peguero2017). And yet, criminal enforcement priorities obscure the historical connection between criminal stigma and racial violence (Alexander Reference Alexander2012).
Thus, although the Obama administration advocated for protecting legal immigrants and keeping families intact, it did so without challenging the criminalizing rhetoric associating unauthorized migration with “law breaking” and crime. It left intact approaches to migration management that conflated immigration and border enforcement with crime control. And it went further by investing heavily in detention bed space, agency coordination, biometric technology, and law enforcement personnel, institutionalizing a blend of humanitarianism with “smart-on-crime” and risk-based approaches to immigration and border controls.
LIBERAL POLICIES, PUNITIVE EFFECTS
Drawing on an analytical framework of carceral racial liberalism, this article examines why deportation and imprisonment for immigration offenses rose under presidential administrations that claimed to favor more “humane” approaches to immigration enforcement. In the criminal justice arena, carceral racial liberalism offers a lens to understand how racial liberals and liberal feminists built the carceral state (Richie Reference Richie2012; Murakawa Reference Murakawa2014). In an immigration context, carceral racial liberalism explains how racial liberals extended crime control to immigration and border enforcement. Despite the parallels between the immigration and criminal justice systems and the tendency to conflate them, they operate under different logics. The immigration system operates as a nonjuridical space where constitutional rights to an attorney or a trial and protections against cruel and unusual punishment do not necessarily apply. The criminal justice system, by contrast, is premised on presumed “equal protection under law” and substantive constitutional rights. Under the Democratic administrations of Clinton and Obama, these logics have increasingly blended to simultaneously produce sites of humanitarian relief and “rightlessness” (Macías-Rojas Reference Macías-Rojas2016; Paik Reference Paik2016).
In this article, I argue that the Clinton and Obama administrations’ approaches to prosecutorial discretion were distinct for the ways in which they drew on law-and-order logics to champion protections in the immigration system. The Clinton and Obama administrations shifted enforcement resources to the border and issued guidelines on prosecutorial discretion that directed agents to give more weight to criminal history, culminating in an increase in formal deportations, which impacted immigrants with longer histories of settlement. And the Obama administration’s punitive humanitarian approaches to discretion helped institutionalize risk-based, “smart-on-crime” approaches to managing migration that expanded detention and deportation and drove up immigrant incarceration (under sections 1325 and 1326 of the Immigration and Nationality Act [1965]), mostly for reentry after deportation. By taking a punitive humanitarian approach to prosecutorial discretion, these administrations played a direct role in standardizing criminal enforcement priorities and making crime control the driving force of immigration and border control.
Policy analysts have argued that the Obama administration inherited punitive policies from the Bush administration (Lopez, Gonzales-Barrera, and Motel Reference Lopez, Gonzalez-Barrera and Motel2011; Rosenblum and Meissner Reference Rosenblum and Meissner2014; Chishti, Pierce, and Bolter Reference Chishti, Pierce and Bolter2017). In fact, in the aftermath of 9/11, the Bush administration doubled the number of border agents, aggressively funded many of the policies set in place under Clinton, and weaponized immigration law in counterterrorism policies under the so-called War on Terror that directly impacted Arab and Muslim immigrants (Demleitner Reference Demleitner2002, Reference Demleitner2004; Transactional Records Access Clearinghouse 2007; US Customs and Border Patrol 2012, 7). However, in matters of day-to-day immigration enforcement on the US-Mexico border, the Bush administration touted “smart borders” designed to encourage cross-border trade with Mexico and facilitate the flow of people and goods, even as it authorized torture and secret detention through its global War on Terror.
To be sure, policies criminalizing immigrants were not unique to the Obama or the Clinton administrations. During the Progressive Era, nativists and eugenicists also mobilized political rhetoric and passed laws associating immigrants with criminality in order to repress radical immigrant labor activism. At the time, the Immigration and Naturalization Service directed inspectors to use prosecutorial discretion to prevent the deportation of mostly European immigrants with family ties and longer histories of residence (Ngai Reference Ngai2004). What is different about the Clinton and Obama eras is the way in which liberal policy elites adopted the criminalizing rhetoric of immigration restrictionists. While the Trump administration has blamed Democrats for its policies of family separation, child detention, and mass deportation (Haberman Reference Haberman2018; Flyn Reference Flyn2019), my analysis uncovered a more complicated story. On the one hand, the findings shed light on the punitive legacy of the policies of the Clinton and Obama administrations. However, my analysis of these administrations also puts into relief what is distinct about the current administration’s “zero-tolerance” approaches.Footnote 19 The current administration’s policies blend the racial politics of Progressive Era eugenicists and nativists with that of the anti-civil rights crime politics of the New Right.
Early twentieth-century nativists believed that immigrants were inherently criminal, and they used studies of race and genetics to advance policies criminalizing migration and mobilized rhetoric that stoked fears about immigration and the changing racial makeup of the US population at the time (see, for example, US Congress 1928). Similarly, the current administration deploys alarmist rhetoric depicting immigrants from Latin America, Africa, and the Middle East as a threat to American identity and security. The current administration is also aligned with the racial politics of early twentieth-century nativists and anti-civil rights racial politics in other ways—namely, by inciting racial rhetoric and violence to enforce its immigration policies (Copp Reference Copp2018; Sessions Reference Sessions2018).
Democratic policy elites have responded to the violence and “humanitarian crisis” on the US-Mexico border by supporting more border security spending to improve conditions in detention centers. They have invoked prosecutorial discretion as a way to mitigate the impact of family separation through deportation, detention, and immigrant incarceration. By ignoring the decades-long racial politics of discretion, policy elites have silenced and buried a long history in which enforcement discretion has perpetuated racial violence through forced confinement, containment, and expulsion.
