Immigration and the Criminal Justice System

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Author: Alexis Burling
Date: 2018
Race in the Criminal Justice System
Publisher: ABDO Publishing Group
Series: Race in America
Document Type: Topic overview
Pages: 12
Content Level: (Level 4)
Lexile Measure: 1150L

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Immigration and the Criminal Justice System

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Demonstrators participate in a rally demanding immigrants receive a path toward US citizenship. Demonstrators participate in a rally demanding immigrants receive a path toward US citizenship.

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Chan Om was just a child when he arrived in Minnesota in the 1970s. He and others had made the journey from Cambodia to escape the atrocities that were taking place as a result of the Vietnam War. During that period, more than 150,000 Cambodians sought legal asylum in the United States.

But on August 26, 2016, Om’s life changed for the worse. Now 46 years old, Om drove to a US Immigration and Customs Enforcement (ICE) office for his regular check-in. When he got there, he was detained. After more than three decades of living in the United States, he faced deportation back to Cambodia.

Om is a former criminal. In 2004, he and others tried to rob a local restaurant. They were arrested, and Om served more than three years in prison. Though he found a home and a job after he got out, Om could be sent back to his birth country because of an agreement the United States struck with Cambodia in 2002. The agreement stated that any refugee with a criminal record could be deported at any time no matter when the crime was committed, even if he or she was in the United States legally.

Studies have shown that immigrants such as Om are less likely to commit violent crimes than their second- or Page 43  |  Top of Articlethird-generation counterparts. Still, they often face insurmountable challenges when trying to forge new lives in a new country. Paul Lelii, a lawyer who works with cases such as Om’s, said the situation is stacked against them. “They’re the children of people who assisted this country,” he said. “We brought them here. The last thing we should be doing is sending their children back to the place we saved them from.”1

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The US Immigration and Customs Enforcement, or ICE, makes sure the national laws on border control, customs, trade, and immigration are enforced around the country. ICE has more than 20,000 employees in more than 400 offices. Most are in the United States, but ICE also has offices in 46 foreign countries.2 ICE employees search for and arrest undocumented immigrants to determine whether they should be deported. Employees are also in charge of investigating domestic and international incidents that occur when people or goods are transferred in and out of the United States illegally.


Many people believe undocumented immigrants, particularly those convicted of crimes, should be deported. Supporters of this viewpoint say deportation would make the country safer. ICE has been especially vigilant in detaining nonwhite drug offenders and those who have been convicted of a crime. According to Page 44  |  Top of Articledata released by the Pew Research Center, there are approximately 11.1 million unauthorized immigrants in the United States. Of that number, 139,368 were deported in 2015 for being convicted criminals.3 The largest portions were from Mexico, Guatemala, and other Central American countries.

The majority of deportations are of undocumented immigrants who were previously convicted of a crime. The majority of deportations are of undocumented immigrants who were previously convicted of a crime.

However, many experts say the definition of “convicted criminal” means something different in the matter of immigration. “Immigrants who experience even the slightest brush with the criminal justice system, such as being convicted of a misdemeanor, can find themselves subject to detention for an undetermined period, after which they are expelled from the country and barred from returning,” says Walter Ewing, a senior researcher for the Page 45  |  Top of ArticleAmerican Immigration Council (AIC). “In other words, for years the government has been redefining what it means to be a ‘criminal alien,’ using increasingly stringent definitions and standards of ‘criminality’ that do not apply to US citizens.”4

Since the late 1800s, the US Supreme Court has classified deportation as a civil act. This means deportation is technically considered an administrative decision rather than a form of punishment.

Deported immigrants stage a protest at the US–Mexico border to call for an end to abuses by border police. Deported immigrants stage a protest at the US–Mexico border to call for an end to abuses by border police.

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Undocumented immigrants are not entitled to the same constitutional rights as US citizens. For instance, they are not read their rights when they are arrested. However, in some cases they can file motions to suppress incriminating statements. They are not provided with an attorney during interrogations but can choose not to make a statement.

Undocumented immigrants who have not been deported before can appear before an immigration judge. If they are eligible for immigration relief, they can challenge their deportation. In most cases, they do not qualify for any relief and must accept their fate of deportation to their country of birth. Deportation often results in them being separated from their family and friends. In addition, their lives might be in danger when they return to their country of birth, as others may assume they have a lot of money because they lived in the United States.


In the criminal justice system, most crimes are subject to statutes of limitation. This means after a designated period of time, the government is not allowed to prosecute perpetrators of certain crimes. Statutes of limitation force law enforcement to make speedy arrests of suspects and the government to make swift decisions whether to Page 47  |  Top of Articleprosecute those suspects. Certain crimes are not subject to the statutes of limitation; those who are suspected of heinous crimes can always be prosecuted, irrespective of when they are arrested. Statutes of limitation do not apply to immigrants in deportation proceedings. Therefore, ICE can start deportation proceedings against noncitizens decades after they entered the United States unlawfully, overstayed their visit, or were convicted of a serious crime.

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In 1970, 11-year-old Juan Rivas-Melendrez left Mexico to come to the United States. He entered with a green card, a legal document that certified he was a lawful permanent resident. Ten years later, when he was 21, he was arrested for having sex with his 17-year-old girlfriend. The sex was consensual, but Rivas-Melendrez was convicted of statutory rape because his partner was under the age of 18.

Rivas-Melendrez later served in the US Army. After that, he got married and started a family. The couple had four children, all of whom were citizens because they were born in the United States.

But Rivas-Melendrez’s situation changed in 2009. The Department of Homeland Security became aware of his decades-old conviction and initiated deportation proceedings. “Because of the lack of a statute of limitations on the grounds of deportability, someone like Rivas-Melendrez can be removed from his home and family at any point,” said an AIC report.5

In addition, noncitizen immigrants do not receive pretrial hearings to determine whether their arrest was justified or whether they will be Page 48  |  Top of Articleallowed bail. This step is customary in most criminal cases involving citizens. Instead, immigrants are given a mandatory detention sentence—which can last for Page 49  |  Top of Articleweeks, months, or even years—while they await their deportation hearing.

An ICE officer arrests suspected undocumented immigrants. An ICE officer arrests suspected undocumented immigrants.

The United States has the capacity to hold 34,000 noncitizens in more than 200 civil detention facilities Page 50  |  Top of Articleacross the country, including private detention centers, county jails, and a few federal prisons.6 A 2015 report by the US Commission on Civil Rights states a majority of these facilities are overcrowded and filthy. Health care is minimal. Guards look the other way in cases of sexual abuse or rape. Some detainees find the conditions to be so restrictive that they commit suicide rather than wait for a trial and the slim chance of freedom.

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From 2003 to 2016, approximately 160 immigrants died while in ICE’s custody awaiting deportation proceedings. They were being held in detention centers such as the Eloy Detention Center in Arizona, which houses up to 1,600 immigrants on any given day. Eloy is one of more than 200 immigration detention facilities located in the United States. Of the seven suicides of ICE detainees between 2005 and 2015, five took place at Eloy, including that of 31-year-old José de Jesús Deniz Sahagun. “This was a man who . . . had a family that he missed terribly,” said Dr. Allen Keller, director of a New York University program for survivors of torture. “He had not been a danger to our country. And in the equation, it got lost that this was a human being.”8

“We have witnessed the creation of an environment which condones the inhumane treatment of immigrants, especially those coming from Latin America,” wrote commission chairman Martin R. Castro.7

The AIC suggests the US immigration policy is “broken.” This organization, along Page 51  |  Top of Articlewith other groups, has been calling for reform, and the demands are getting louder. “In reforming our immigration system,” the AIC states, “we must not forget that the immigration removal system—from arrest to hearing to deportation and beyond—does not reflect American values of due process and fundamental fairness.”9

However, Donald Trump’s victory in the 2016 presidential election led many observers to believe immigration reform was unlikely. Experts predicted President Trump would vigorously enforce existing immigration laws.

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  • Should noncitizen immigrants receive the same rights as US citizens, even if they are criminals? Why or why not?
  • Do you think Latinos are disproportionately affected by US immigration laws? Why or why not?
  • Many children are born in the United States but have parents who are undocumented immigrants. Other children born in the United States have parents who have a green card but have not yet obtained full citizenship. What impact do current immigration laws have on these children?

Source Citation

Source Citation   

Gale Document Number: GALE|CX7720600008