Friday, January 10, 2020

Expansion of the Immigration Caging Machine


Harvard Latinx Law Review has published "Not A Matter of If, But ‘When’: Expanding the Immigration Caging Machine Regardless of Nielsen" by HLS 3L Felipe Hernández.

Harvard Law School's Crimmigration Clinic is hosting a Facebook Live discussion on January 10, at 12:00 p.m. (EST). Recording of the event is here

Hernández notes in his own words the following four arguments:

(1) Settler-Colonialism: The expanding deportation machine is a "legal system" rooted in the settler-colonial practices that brutally murdered and displaced Native Americans, enslaved peoples of African descent, and caged and killed Brown and Asian folx. This means that the processes, institutions, politics, and tactics have evolved from this history and are allowed in our legal system. We must grapple with these roots to see how today’s practices are an extension of a long historical practice of State violence. Doing so will allow us to build cross community solidarity to abolish the tentacles of the same beast that hurt us all.

(2) More Deportations = More Institutional Power and Profits. Next, I uncover the institutional triangle of actors who make up the immigration caging machine. They evolved from the settler-colonial roots and include Democratic & Republican Legislators (State, Local, and Federal), Executive Enforcers (e.g. ICE, CBP, Local Police, Prosecutors), and (For-profit) Prisons. I show how they work together towards expanding and refining the tactics to criminalize, cage and remove as many people deemed "illegal." For example, state legislators continue to expand ways illegalized people can be labeled "criminals" and subject to caging and removal. This is due in large part to lobbying by private prisons, prosecutors, and police unions. Once in the system they are easily funneled to deportation and everyone in these institutions benefits by way of promotions, elected office, campaign funds, work contracts, etc. As some legislators and some organizers push a narrow "good immigrant" construct, States are able to expand who is a "criminal" and more people are caught in the deportation machine’s net.

(3) The Supreme Court is Complicit and will Not Save Us: Third, I examine all Supreme Court decisions related to immigration mandatory detention to show how the Court has overwhelmingly allowed the expansion of the caging machine, narrowed relief, and allowed Congress to label people deportable for a growing number of reasons. I show how the liberal legal strategy of asking the Court for more due process, reforms, and minimal protections has actually helped refine how the Machine is able to cage and harm more immigrants. Specifically, this has incentivized politicians, prosecutors, ICE/police, and courts to expand who is illegalized as a "criminal alien" who are offered little/no protection in exchange for offering minimal protection to those labeled as "good immigrants." Thus, the legal system pits immigrants against each other in an exchange of "rights." Recently, the Supreme Court allowed DHS to detain and cage someone at any time after they are released from criminal custody (Nielsen v. Preap, 2019). This means that someone who served time for a drug charge 20 years ago, for example, could be held in immigration prisons without bond and deported. As a result of this recent ruling, the Supreme Court bolstered Congressional power to use immigration prisons for deportation. It also incentivized private and State actors to bolster investment in immigration prisons, broaden criminal statutes to capture more immigrants, and expand State and Federal policing power.

(4) Abolish the U.S. Immigration Caging Machine: This article concludes by arguing that, following the lead/vision/strategy of organizers and directly impacted communities, movement lawyers must move beyond reform and instead abolish the immigration caging machine and go beyond #AbolishICE by abolishing prisons, police, prosecutors, criminal statutes, and the legal concept of citizenship. We must support grassroots organizers who are building community power, abolitionist strategies, and divest from the "legal system."

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