Incarcerating the Undocumented

Rebecca Dharmapalan
Incarceration and Inequality, Professor Christopher Muller

Abstract: It is my contention that incarceration, and the detention of undocumented immigrants, have several similarities that should be explored through a succinct understanding of state actor surveillance and policing, such as ICE and law enforcement agencies. In addition to exploring hyper-policing of undocumented immigrant communities, I will address the phenomenon surrounding detention centers, specifically looking into privatized facilities and state driven human rights abuses. This paper will examine the following questions: In what ways are undocumented immigrants policed? How does this policing contribute to the racialized and gendered intersections of police-immigrant encounters? How are current detainment centers perpetuating oppressive practices and contributing to a racially distorted carceral population?

Introduction

Crimmigration in the United States is a field of scholarship that merges the study of criminal and immigration law. It has come to my attention that there are several similarities between the policing of Black communities in the United States and the policing of undocumented immigrants both of which lead to formalized incarceration through prisons and detention centers. The over-policing under policing paradox (Rios, 2011) [1] explores the idea of policediscretion, selectively deeming what crimes are worthy of punishment and which are to be ignored. Lack of documentation, in recent years, has become a catalyst in the participation of law enforcement engagement in immigration enforcement. The coupling of policing and detention centers illustrate the nuances of incarceration.

Policing Immigrants

“Policing immigrants or policing immigration? Understanding local law enforcement participation in immigration control” by Amanda Armenta and Isabela Alverez explores how police involvement bled into immigration enforcement by outlining the contribution of law enforcement’s involvement in immigrant policing and how that has led to a distrust within immigrant communities. [2] In this article, Armenta and Alverez urge future sociological research to focus on street level policing of immigrants over “exclusive examination.” There are several modes in which law enforcement and policing have come in contact within the policing of immigrants. First and foremost, there has been “the direct enforcement of immigration laws” (Armenta and Alverez, 2016) which entails the arbitrariness of local law enforcement’s engagements with the United States Border Patrol (USBP) and Immigration and Customs Enforcement (ICE). Empirically speaking, local police could not enforce immigration law and had to remain in criminal enforcement. However, in 1996, the Illegal Immigration Reform and Immigrant Responsibility Act added Section 287(g), augmented this involvement. Section 297(g) allowed for Law Enforcement Officers to “directly enforce civil immigration law” (Armenta and Alverez, 2016). There were three models that dictated this involvement: the jail, task force, and hybrid models. The “jail model” allowed for Law Enforcement Officers to identify immigrants and report them to ICE. The “task force model” gave officers the ability to actually investigate immigrants outside of the context of usual police duties. Lastly, Section 297(g) incorporated a “hybrid model” which was the intersection of the jail and task force models. In addition to Illegal Immigration Reform and Immigrant Responsibility Act, was the state led passing of the “stop and verify” immigration policing in Oklahoma and Arizona, several similar bills were passed in Alabama, Georgia, Indiana, South Carolina, and Utah as well.

The infamous law passed in Arizona in 2010 required police to question anyone they arrest about immigration status if they suspect the person is in the country illegally. Five other states enacted measures patterned after the Arizona law. Police, who are “obligated to turn over to immigration authorities undocumented persons who have been apprehended for common crime” (Menjívar and Bejarano, 2004) possess the power and responsibility of both law enforcement and immigrant enforcement. In Arizona, what would otherwise be a petty crime could result in deportation. Immigrants lack a general trust in law enforcement officers, which is similar to the relationship that the inner-city Black community have with police (Rios, 2014). In his ethnographic article, “Punished’, Victor Rios follows two young men of color, Tyrell and Jose, in their coming of age in Oakland, California. Jose’s mother, who was undocumented, worked multiple low skill labour jobs, feared for the safety of her children by local gangs as well as police (Rios, 2014). Tyrell and Jose, along with many other young men in the community, were labelled as deviant criminals from a young age.
The aforementioned mistreatment by police insights not only a fear of law enforcement, but also a general distrust and hatred of authority figures. Interestingly enough, many cops employed selective policing practices. “Jose’s experience and my observations confirm what many of the other boys reported: officers consistently police certain kinds of deviance and crime, while neglecting or ignoring other instances when their help is needed” (Rios 54). Police intimidated young children by taunting them and suggesting punishments for childish misbehavior. Rios tells the story of Jose’s friend, J.T., who explained that police in the community would threaten young children with sending them to Juvenile Hall. J.T. explained to Rios “When I was young, we didn’t know nothing about the laws, so they always tried to scare us when we were little, telling us they would take us to juvenile hall. ’Cause, like, we would throw rocks at cars or do lil’ things or even just hanging out on the corner. They would tell us to go home, and they would handcuffs if we didn’t listen. [. . .] We were like six [years old]” (Rios, 56).

In addition to the direct enforcement of immigration laws, there has also been an “intermediary immigration enforcement through ad hoc cooperation with federal immigration enforcement authorities” (Armenta and Alverez, 2016). Through both informal and formal means, law enforcement officers work to enforce ICE. Much of this communication is based on micro level interactions, highly up to the discretion of the officer- immigrant interaction. Interestingly enough, police officers have a greater tendency of empathizing with undocumented immigrants than sheriff's (Armenta and Alverez, 2016). This idea wasarticulated in Armenta’s ethnographic research article, “Between Public Service and Social Control: Policing Dilemmas in the Era of Immigration Enforcement.” [3] Armenta, who spent two years of conducting participant observation and interviews the Metropolitan Nashville Police Department, found that Latino immigrants were generally seen as “law abiding” by the local police. Armenta observed that much of the police interactions with immigrants led to misdemeanor citations rather than arrests of unlicensed drivers. A police officer remarked:

“These are not bad guys. They’re just on their way home from work. How do you arrest someone for feeding their family? The only way you don’t give them a misdemeanor citation is if they’ve failed to appear a bunch of times, but they’re going to do it again” (Armenta, 2015).

Interestingly enough, much of policing in America is left to the discretion of state actors: Law Enforcement Officers, ICE, Judges etc.. Many times, undocumented immigrants are issued warnings. In her ethnography, Armenta explains that undocumented immigrants are sometimes able to get a pass, but this is purely up to the officer’s discretion. An officer, who could have given an undocumented immigrant with an expired license a citation, instead gave him a warning:

“The officer also indicated that he could have confiscated the expired driver’s license, but he did not because the card was useful as identification. As he saw it, the driver’s expired license was proof of the driver’s identity and her willingness to follow the law”

(Armenta, 2015).

Law enforcement officers are empowered with the ability to utilize their personal discretion when faced with the task of recognizing different forms of documentation. The term “undocumented” implies the absence of documents, however many “undocumented” individuals do have papers, in one form or another. As observed by Armenta, many of these documents include “passports, consular identification cards, and foreign driver’s licenses, to verify one’s identity and issue a misdemeanor state citation. Occasionally, officers also used non-government issued photo identification cards as proof of ID, albeit more reluctantly” (Armenta 2015). Yet, law enforcement officers have the power to dictate which documents they will recognize and which they will not. In some cases, this arbitrary openness allows for many undocumented individuals are exempted from formal adjudication, but in many other cases trail and deportation may occur. Armenta notes the following:

According to police administrators, the department’s laissez faire approach gives officers the “freedom” to exercise discretion, while not being “limited” to a particular list of documents. This freedom also allows officers to categorically reject all forms of alternate identification and make arrests (Armenta 2015).

While in Armenta’s ethnography she observed law enforcement's ability to almost humanize undocumented individuals, she also captures the problematic nature of law enforcement’s discretion and arbitrary involvement with immigration enforcement. On the contrary, while there is an importance and valuable lessons to be learned within Armenta’s study, the push for ethnography documenting the perspectives of undocumented immigrants also presented a curious and worthwhile viewpoint. Armenta points out there still remains a negative perception of law enforcement by Latino immigrants (Armenta, 2015). While it is important to factor in the intentions and discretion of law enforcement, an equal weight should be placed on the fears and individualized experiences of immigrants themselves. In “Latino immigrants’ perceptions of crime and police authorities in the United States: A case study from the Phoenix Metropolitan area” an ethnography, Menjívar and Bejarano speak with Graciela, a 66-year-old Guatemalan woman, who believes language barriers and cultural differences perpetuate confusion between undocumented Latino communities and law enforcement officers. Graciela reflects:

“Many [Latinos] fear the police because they are illegals here. Even if they haven’t done anything wrong, they fear them. So when the police stop them, they run and the police think that they are suspects or delinquents. But they run because (they fear) the police may report them to the immigration [authorities]. They don’t get a chance to explain why they run and the police just shoot them”. [4]

Menjívar and Bejarano focus on the nuanced intricacies of the relationship between Latino immigrants and law enforcement. As stated in their introduction, they “treat perceptions of crime and fear of the police together because in communities comprised mostly of minorities these often go hand in hand” (Menjívar and Bejarano, 2004). The authors point to the 1996 immigration laws, a multitude of crime bills, and the creation of the Department of Homeland Security post 9/11 that distressed immigrants, specifically undocumented individuals (Menjívar and Bejarano, 2004). Menjívar and Bejarano illustrate a multitude of stories of undocumented women who will refuse to call the police regarding their abusive partners due to the fear of deportation:

‘The police is different here. Fright [of the police] makes you restrain yourself more at home’. And Josefina insisted that their son Manuel stop living with his girlfriend because, she explained, their relationship was often tense, and one day he might lose control and hit her, and ‘he’ll end up in jail, or even deported because here it’s not like in our countries’” (Menjívar and Bejarano, 2004).

Undocumented immigrants have to negotiate between their physical safety and the fear of deportation. In particular, undocumented women possess a reluctance to call the police over domestic violence situations. This phenomenon is articulated in Kimberle Crenshaw’s infamous article “Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color” [5] where Crenshaw maps out the intricacies and intersectional realities of women of color. Undocumented women or color are faced with a particular amalgamation of maltreatment that forces them to make major consequential decisions.

When faced with the choice between protection batterers and protection against deportation, many immigrant women chose the latter. Reports of the tragicconsequences of this double subordination put pressure on Congress to include in the Immigration Act of 1990 amending the marriage fraud rules to allow for an explicit hardship caused by domestic violence (Crenshaw 1991).

The policing of immigrants takes place everywhere at all times. In today’s political climate deportations have become even more commonplace (Stuesse and Coleman, 2014). In Stuesse and Coleman’s article focused on policing of immigrants, “Automobility, Immobility, Altermobility: Surviving and Resisting the Intensification of Immigrant Policing,”[6] they highlight specific instances of police immigrant interactions that have led to an increase of fear. “Every instance behind the wheel becomes an opportunity for scrutiny at the hands of law enforcement, and thus a potential occasion for detention, deportation, and life-shattering family separation” (Stuesse and Coleman, 58).

The direct policing of immigration by policing immigrants is a key asset of the previously addressed Armenta and Alverez article. Heavy criminalization and surveillance of both documented and undocumented immigrants is a main feature of immigrant enforcement. Jails have become a breeding ground for deportation, and have fostered a fear of law enforcement officers. Armenta and Alverez write the following on racial profiling of immigrants “police engage in immigration policing ‘by proxy’ by enforcing public space ordinances that target day laborers who are presumed to be undocumented” (Armenta and Alverez, 2016). There are negative consequences for the increased involvement of law enforcement officers participating in immigration policing. Intricate networks of cell phone alerts have been created by undocumented youth networks. “Pase la voz” which means “spread the word” was texted to 25 thousand undocumented immigrants in Georgia to alert police checkpoints: “[undocumented immigrants] registered for this automated checkpoint notification texting service, which allows an individual with a cell phone to sign up, for free, to receive text alerts about police checkpoints in the vicinity of the zip code they enter” (Stuesse and Coleman, 63). Many immigrants are fearful of calling the police, or having any sort of interaction with them. This phenomenon, formally known as “System Avoidance” [7] lends for a general distrust and avoidance in law enforcement. “As these cases illustrate, when there is a threat of immigration officials’ intervention, immigrants [...] are more reluctant to call the police because they are aware of the links between the two. This situation not only affects the immigrants’ perceptions of U.S. authorities, but shapes (the often tense) interactions between the two in important ways” (Menjívar and Bejarano, 136).

Detention Centers

Torrie Hesters analysis of the “deportability” of undocumented immigrants is articulated in his 2015 article “Deportability and the Carceral State.”[8] There are many crimes that may lead to the felonious chargers, detention, or the deportation of undocumented immigrants; from “unlawfully entering the United States after a deportation” to “remaining in the United States after the expiration of a visa is a felony” (Hester 141); these chargers could lead to one year in prison to federal imprisonment. “Over the past decade, immigration offenders have consistently equaled or outnumbered drug offenders in the federal penal system, although the margin is relatively slight. In 2011, for example, drug offenders made up 29.1 percent of all federal convictions compared to immigration offenders who represented 34.9 percent of all convictions” (Hester 141). Deportations have contributed massively to the increase of federal, state, and local prison populations. As articulated by Hester, “Since the 1980s, deeply rooted ideas about “illegal” low-wage workers, redeployed under the crime- security nexus, now serve as a cornerstone of the carceral state” (Hester 151).

Karen Manges Douglas & Rogelio Sáenz’s essay, The Criminalization of Immigrants & the Immigration-Industrial Complex,[9] gives a panoramic understanding of policies and practices that contributed to the rise of criminalization of immigrants (Douglas and Sáenz 199). By mapping the institutional migration theory, the capitalistic benefits of immigrant detention, what they call the “immigration-industrial complex,” and lastly the human rights framework surrounding detainment of immigrants, Douglas and Sáenz are able to articulate the increase of immigrant policing and detention practices. In 2006, when the Department of Homeland Security replaced “catch and release” to “catch and detain,” a major socio-political transformation took place (Douglas and Sáenz 206). Over a three-year span, from 2009 to 2011, 2.5 million immigrants were deported (Hester 151). In Deportability and the Carceral State, Torrie Hester works to analyze deportations and detention centers in their relationship to incarceration. In 1954, an increase of state surveillance over immigrants, specifically during “Operation Wetback”, created the conditions for “the federal government [to operate] over 250 immigrant detention centers throughout the country. These numbers are one stark outcome of the merging of immigration control and mass incarceration” (Hester 151).

The criminalization of undocumented immigrants, married with the rise of the prison industrial complex, provided for an immediate development of more detention centers around the United States. (Douglas and Sáenz 208-209). Immigrant detention centers, that could once fit all detainees, could no longer accommodate everyone. It was at this point where corporations stepped in to facilitate the building of detention centers. As mentioned by Douglas and Sáenz, “significantly, the private sector seized the opportunity to build new detention centers, operate them, and provide provisions for them” (Douglas and Sáenz 208). The private sector was monopolized by two major prison providers: The Corrections Corporation of America (CCA) and the geo Group (Douglas and Sáenz, 2013). CCA and the Geo Group directly profit from the detention of undocumented immigrants and also contribute to the growing xenophobia, racialization, and othering of said populations. Douglas and Sáenz write the following: the immigration-industrial complex is further supported and sustained by the discourse of otherization and the racialization of immigrants, especially the portrayal of Mexican immigrants as “invaders” and “foreigners” who do not belong in the United States” (Douglas and Sáenz, 212).

Jessica Wright’s article, The Cost of (Non)Compliance: An Expose of the United States' Immigration Detention Policy and
Its Failure to Comply with International Standards on Torture,[10] works to map out the empirical human rights framework behind International and Domestic prevention of torture. From the 1948 Universal Declaration of Human Rights, which banned the use of torture [11], to the creation of the International Covenant on Civil and Political Rights, that prohibited states from using torture methods against their citizens [12], there was an obvious international push to move away from extreme methods of corporal punishment (Wright 2017). However, much to the dismay of the international community, the lack of global recognition of these documents proved that non-state actors, such as the United Nations, have little to zero jurisdiction over states. Once again, this idea of state discretion is at play. The United States signed the Torture Convention in 1988, a document that “seeks” to “promote an end to torture, cruel and inhumane punishment through regulation of domestic law and strict accountability among members states” (7 Convention Against Torture). Merely a list of suggestions of what ought to be, the Convention Against Torture urges states to (1) report their efforts to eradicate any methods of torture and (2) conclude with a list of "principal subjects of concern and recommendation" (Wright, 317). One of the twenty-one major concerns included U.S. detention centers. “Generally, immigration detention is the practice of detaining immigrants arrested under administrative immigration law in prison- like facilities until their court date arrives. Immigration detention is not new to the U.S., but recent legislation has revolutionized its role. From 1995 to 2013, the average daily population of immigrant detainees in custody of Immigration Customs Enforcement (ICE) has more than quadrupled, and nearly 60% of those in ICE custody are held in private, for-profit prisons” (Wright, 317-318).

Within these detention centers various human rights abuses take place. From sexual assault, to medical negligence, forced labour, detention centers have become a breeding ground for human rights violations. “Reports of sexual abuse, deaths due to insufficient medical care, forced labor with low to no pay, and lack of access to counsel and to the outside world captured the attention of various human rights groups and spurred legislation proposals” (Wright, 318). Entrenched within a bureaucratic process called “expedited removal, many detained individuals are instead kept detained for years before they actually see a judge. “This policy of mandatory detention applies to all undocumented immigrants, including asylum-seekers and small children. Ironically, part of the mandatory detention policy is called "expedited removal," but has created a backlog of cases, causing many individuals and families to remain in detention for months, sometimes years, before seeing the Immigration Judge” (Wright, 319). The privatization of detention centers coupled with the prison industrial complex has created a cyclical and harmful trend of human rights abuses against undocumented immigrants.

Conclusion

State actor surveillance and policing, work to reinforce racial biases and perpetuate violence and discrimination against both documented and undocumented Latino immigrants. Armenta’s ethnographic research with the Metropolitan Nashville Police Department ultimately does a disservice to scholarship by presenting her research as an articulation of a macro-level phenomenon that is simply not present. The misconception that law enforcement officers view undocumented individuals as helpless victims, in need of empathy and warning, when in actuality undocumented immigrants face copious amounts of injustice and hyper- policing, is a dangerous and inaccurate generalization. As articulate by Rios; Crenshaw; Menjívar and Bejarano; as well as Stuesse and Coleman, the hyper-policing and surveillance of undocumented immigrants in the United States has created a sense of fear and distrust between these communities and state agents. Undocumented women are forced to weigh out their legal status over their physical safety. Detention center’s violate a plethora of international laws that were put in place to protect refugees, asylum seekers, and undocumented individuals across the world, yet the United States selectively mandates which of these laws to abide by. Along with the hyper-policing of undocumented Latino immigrants and the forced deportation of millions, the United States incarcerates and detains undocumented immigrants for copious and arbitrary amounts of time. "Immigrants can be held by U.S. immigration officials indefinitely without receiving bond hearings, even if they have permanent legal status or are seeking asylum, the Supreme Court ruled.” [13] This unfair exploitation of undocumented immigrants should be addressed in further scholarship, and immigrants should be considered a valued population in the United States, undeserving of the racism and discrimination that they currently face.

[1] Rios, Victor M. 2011. Punished: Policing the Lives of Black and Latino Boys. New York: New York University Press.

[2] Armenta, Amada and Isabela Alvarez. 2016. Policing Immigrants or Policing Immigration? Understanding Local Law Enforcement Participation in Immigration Control. John Wiley & Sons Ltd.

[3] Armenta, Amada. 2015. Between Public Service and Social Control: Policing Dilemmas in the Era of Immigration Enforcement. Oxford University Press.

[4] Menjíva Cecilia and Cynthia L. Bejarano. 2004. Latino Immigrants’ Perceptions of Crime and Police Authorities in the United States: A Case Study from the Phoenix Metropolitan Area. 148th ed. Taylor & Francis Ltd.

[5] Crenshaw, Kimberle. 1991. Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color . 6th ed. Stanford Law Review.
[6] Stuesse, Angela and Mathew Coleman. 2014. Automobility, Immobility, Altermobility: Surviving and Resisting the Intensification of Immigrant Policing. 1st ed. American Anthropological Association.

[7] Brayne, Sarah. 2014. Surveillance and System Avoidance: Criminal Justice Contact and Institutional Attachment. 3rd ed. American Sociological Review.

[8] Hester, Torrie. 2015. Deportability and the Carceral State. Oxford University Press.

[9] Douglas , Karen Manges and Rogelio Sáenz. 2013. The Criminalization of Immigrants & the Immigration-Industrial Complex. American Academy of Arts & Sciences.

[10] Wright, Jessica. 2017. The Cost of (Non)Compliance: An Expose of the United States' Immigration Detention Policy and Its Failure to Comply with International Standards on Torture. Berkeley, CA: 12 Intercultural Human Rights Law Review.

[11] G.A. Res. 217 (III) A, Universal Declaration of Human Rights art. 5 (Dec. 10, 1948).

[12] International Covenant on Civil and Political Rights art. 7, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR].

[13] Bowden, John. 2018. “Supreme Court Rules Immigrants Can Be Detained Indefinitely.” The Hill, February 27. Retrieved (http://thehill.com/regulation/court- battles/375791-supreme-court-rules-immigrants-can-be-detained-indefinitely).