'Welcome the Wretched' book argues for separating immigration from criminal justice system

In his new book “Welcome the Wretched,” immigration lawyer César Cuauhtémoc García Hernández makes a case for separating immigration policy from the criminal justice system.

The Ohio State University professor argues that criminal offenses should not automatically lead to deportation. Plus, he says crossing the border without permission should not be considered a crime. As he writes, those policies run contrary to the history of immigration in this country.

Despite the refrain that Democrats and Republicans can't agree on immigration policies, both parties “wielded the criminal legal system as a weapon against immigrants,” García Hernández writes.

“Whether it's Republicans like Donald Trump or Democrats like Barack Obama or Joe Biden, we see time and again whoever occupies the White House embrace this idea that a run-in with the criminal legal system is one run-in too many and a useful marker of undesirability, of unfitness for life in the United States,” García Hernández says. “When in reality, of course, there is crime all around us and nothing to do with citizenship and everything to do with the fact that people mess up.”

As a college professor, García Hernández points to dorm rooms on campuses as a place where crime happens every day, from low-level offenses to the use of hard drugs or violent crimes like sexual assault.

“The reality is there [are] very few instances in which the police are barging into dorm rooms and breaking down doors to arrest criminal undergraduates,” he says. “And it's all because the activity is happening in protected privileged spaces. It's no less criminal, but some people are being arrested, prosecuted, convicted, and if you're not a U.S. citizen, potentially deported for it.”

By César Cuauhtémoc García Hernández

Stained with the mark of criminality, migrants who commit crimes have become politicians’ favorite piñata. Elected officials take whacks at them while their supporters cheer on, their eyes covered to avoid seeing the damage they cause, uncovered only to revel in the spoils of in-the-moment reverie. Tagged by criminal law as misfits, criminal aliens are imagined as lone figures
whose failures are entirely their own and whose lives affect no one but themselves and their victims. Denigrating them rhetorically and targeting them through immigration law and policy, politicians make migrants who commit a crime out to be owed nothing but the harshest edge of modern policing’s prowess. In that zeal to be tough on crime, migrants are rounded up, their families and friends are left with a hole in their lives, and the ugly head of racism is ignored.

To imagine migrants as caricatures without a care in the world, whose ordeals ripple nowhere, is to imagine a fantasy world in which deportation solves a problem without creating new ones. Fantasies make us feel good, but law shouldn’t revolve around fantasies. Migrants aren’t lifeless figurines unmoored from the world. They are real people connected to friends,
relatives, jobs, churches, and neighbors, and they behave like it. With pasts and hopes for the future here, many, like José Inéz García Zarate, will come back. If the United States is home, then it will continue to be home. But their return following deportation will be clandestine, a federal crime, making the journey more dangerous and their life in the United States more tenuous.

Others, like Vietnam War veteran José Padilla, will fight all the way to the Supreme Court to stay here. Over four decades in the United States, José Padilla had agreed to die on behalf of the United States. He had married, raised a family, and started a trucking business. The country where he was born, Honduras, was barely a memory. Driving around the United States delivering all sorts of merchandise, in September 2001 José made his way through Kentucky carrying too much weight in his trailer. Traveling just days after the attacks of September 11, 2001, José had nothing to do with terrorism, but with the politics of security swallowing immigration policy, all that mattered was his citizenship status and his cargo. Inspectors at a highway weigh station took a close look at his trailer and found about one thousand pounds of marijuana. José wanted to fight the drug possession charges that prosecutors brought against him, claiming he had no idea what was inside the boxes he was hauling. If he pleaded guilty, prosecutors wouldn’t ask for much prison time, his lawyer told him, so he’d be able to go home soon.

José worried that it wouldn’t be so easy. He was a lawful permanent resident—a green-card holder—not a U.S. citizen. He could live, work, and die in the United States, but he could also be deported. The lawyer told him not to worry. The Immigration and Naturalization Service, ICE’s predecessor, wouldn’t go after a Vietnam vet, the lawyer promised. “Because of the stressful condition in which I saw my wife and daughter at the time, I ended up taking the plea bargain,” José said years later.

By then immigration agents had proven José’s lawyer wrong. They’d tried to deport José, only to find an adversary who wouldn’t give up. José took his case to the Supreme Court and won. His lawyer’s promise that he didn’t have to worry about deportation wasn’t just incorrect; it was unconstitutional. Criminal law is separate from immigration law, but that doesn’t mean
defense attorneys can invent the law so that they can promise their clients what’s pleasing to the ear. Just like they’re constitutionally obligated to figure out the criminal law that might lead to their client’s conviction, defense attorneys are constitutionally obligated to figure out the
immigration law that might lead to their client’s deportation. Since José’s lawyer didn’t do that, the court tossed out his conviction, allowing José to stay in the United States. Eventually he even became a U.S. citizen. But most migrants can’t count on getting good news from the Supreme Court. For many migrants with a criminal record, there are few escapes from the immigration prison and deportation pipeline. Once in, it’s hard to get out.

Claims by politicians that they make the United States safer and promote the rule of law by targeting criminal aliens overlooks the substantial consequences of immigration laws that target people who commit crimes. Children are routinely left without a parent, and spouses are forced to carry on without a partner and income-earner. At its worst, deporting migrants with
checkered backgrounds displaces danger—prioritizing safety in the United States over insecurity elsewhere. Sometimes, deportation even increases risk everywhere. When Congress went after gangs in the 1980s and cops across California followed by going after kids who were born in Central America, the result was to create a perverse migration loop: the gangs hatched in struggling cities across the United States exported to struggling cities across Central America. Social disorder here fueled instability there, which eventually led back here in the form of another round of migration, this time the children and families fleeing gang violence since 2014.

Immigration policies, like people, are difficult to corral. Crime is defined broadly to include coming to the United States without the government’s permission, something that’s common even for people coming in search of asylum. Federal law is clear that any migrant can request asylum no matter how they got to the United States or if they received the government’s
permission to come. What federal law doesn’t do is insulate asylum seekers from criminal prosecution. In a perversity born of immigration law’s entanglement with criminal law, the “huddled masses yearning to breathe free” that Emma Lazarus celebrates in words latched onto the Statue of Liberty are also criminal aliens.

Politicians’ zeal to target the easily maligned criminal alien has redefined all of
immigration law. Tactics justified by fears of migrant criminality have become standard for all migrants even if they haven’t been convicted of a crime. Trained to see in migrants existential threats to the nation, Border Patrol agents and ICE officers view all migrants as potential dangers. Armed to defend themselves against the greatest risk, they bring their weapons to every encounter.

Sometimes these practices even hit people who are U.S. citizens. It turns out that citizens are not very good at carrying proof of their citizenship. Law doesn’t require it, nor should it. That just means that most of us rely on a mix of luck and loose stand-ins for our citizenship. Living in neighborhoods that don’t have too many migrants, speaking English with some kind of U.S. accent, or worse: skin color and wealth. But luck and outward signals have their limits, sending some U.S. citizens, always people of color, into ICE prisons and onto deportation.

Criminal aliens are easy to tar and hard to defend. But defending criminal aliens’ place in the United States is exactly what this book does. Migration should never be criminalized, and evidence of crime should have no place in deciding who gets to live here and who doesn’t. Instead of using the criminal legal system to identify people to imprison and deport, the United States must reconstruct immigration law and reimagine citizenship. Instead of a zerosum game in which those of us born into our citizenship limit who else can access this all-important tie to the nation, we should think of citizenship as the constantly changing link between ordinary people and the imperfect political community that we’ve built and rebuilt collectively.

A rightful claim to belonging in the United States has never been determined solely by citizenship, and citizenship has never been static. Time and again, citizenship has been reimagined. Time and again, citizenship has expanded. New generations have changed citizenship’s basic features, radically rejuvenating an old concept to give it new relevance. The country has taken steps backward, to be sure, but a clear trend has developed. Over the years, the citizenry has widened to welcome people previously shunned to the margins, decried as dangerous, described as undesirable members of the political community, or declared unfit to hold an equal stake in the experiment in self-governance called the United States of America.

© 2024 César Cuauhtémoc García Hernández. This excerpt originally appeared in "Welcome the Wretched: In Defense of the 'Criminal Alien,'" published by The New Press. Reprinted here with permission.