After reviewing the lecture video, and completing this module's readings, identify a special population not yet discussed in this course. The special population you choose can be from this module's re
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1. COMMENTARY: Gendering Crimmigration: The Intersection of Gender, Immigration, and the Criminal Justice
System, 27 Berkeley J. Gender L. & Just. 1
Client/Matter: -None-Search Terms: Gendering CrimmigrationSearch Type: Natural Language Narrowed by: Content TypeNarrowed bySecondary MaterialsSources: Berkeley Journal of Gender, Law & Justice COMMENTARY: Gendering Crimmigration: The Intersection of Gender,
Immigration, and the Criminal Justice System
Winter, 2012 Reporter27 Berkeley J. Gender L. & Just. 1 *
Length: 14810 wordsAuthor: Allison S. Hartry+
+ J.D. Candidate, University of California, Berkeley, 2012. I wish to thank Erik D. B. Anderson, Lucy Hartry, Barry
Krisberg, and Nancy Lemon for their insightful feedback on early drafts of this Commentary. I am also grateful to
Sara Carian and the rest of the Berkeley Journal of Gender, Law & Justice for excellent editorial assistance.Highlight
AbstractIn the last decade, legal scholars have noted with alarm the increasing alignment between immigration enforcement
and the goals and methods of the criminal justice system, terming this alignment "crimmigration." Although
discussions of race and nativism have played a large part in this analysis, the same cannot be said for the
connection between crimmigration and gender. This Commentary begins by introducing the reader to the rise of
crimmigration, the intersection of gender with the criminal justice system, and the intersection of gender with
immigration. Then, using examples of immigrant women's lived experiences, the author explores scholars' failure to
consider a gendered analysis, demonstrating that a gender-blind approach ignores how most immigrant families
interact with the state. The Commentary concludes by offering suggestions to decouple immigration and the
criminal justice system in light of this gendered analysis, with the intent of encouraging scholars and policymakers
to reconsider crimmigration's overly individualistic approach to a system that harms women and families
disproportionately.
Text
[*2]
Introduction Encarnacion Bail Romero 1 entered the United States without inspection in 2006. 2 She gave birth to her son,
Carlos, 3 in Missouri later that year. 4 Carlos and Ms. Romero slept on the floor of a friend's apartment for the first
1 Michelle Brane, Delayed Justice for Guatemalan Mother Encarnacion Bail Romero, Women's Refugee Commission Jan. 27,
2011, http://www.womensrefugeecommission.org/blog/1098-delayed-justice-for-guatemalan-mother-encarnacion-bail-romero.
The court documents do not refer to Ms. Romero by name. Page 2 of 22 few days of Carlos's life. 5 Eventually, a parent educator was able to find a crib for Carlos, but the mother and son's
living conditions remained poor and it was difficult for Ms. Romero to find sufficient food for Carlos. 6 A few months
later, the pair moved in with family, and Ms. Romero found work in a poultry processing plant in Barry County,
Missouri. 7 On May 22, 2007, Immigration and Customs Enforcement ("ICE") officers raided the plant and arrested
Ms. Romero. 8 Because Ms. Romero was undocumented and had used false documents, including a false social
security number, to obtain a job at the plant, the federal government charged her with aggravated identity theft. 9
She pled guilty on October 11, 2007, and was sentenced to two years in prison with an order of removal following
her release. 10
Although Carlos remained with Ms. Romero's family for a time after she was taken into custody, each adult worked
full-time and babysitting responsibilities eventually transferred to a local clergy couple. 11 The parent educator
visited Ms. Romero in jail in September 2007 and asked for her consent [*3] to Carlos's adoption. 12 Ms. Romero
refused, 13 requesting that Carlos be placed in foster care until she was able to take over his care. 14 Soon after
that, when
Carlos's uncle went to pick him up from the "babysitter," he was told that marshals had taken Carlos away. When
Ms. Romero learned Carlos was missing, she tried to contact the aide and the sitters, but they did not answer her
calls. In the meantime, Carlos had been given to a couple who were interested in adopting him. They served
adoption papers to Ms. Romero in English, which she could not read, and several days later were given temporary
custody of Carlos by a Missouri judge. 15
2 In re the Adoption of C.M.B.R., 332 S.W. 3d 793, 801 (Mo. Jan. 25, 2011) (en banc). 3 Carlos is a U.S. citizen by virtue of his birth in this country. U.S. Const. amend. XIV, § 1. For more information on the history of
birthright citizenship, see Allison S. Hartry, Birthright Justice: Birthright Citizenship and Reproductive Justice in Immigration
Detention Centers, 36 N.Y.U. Rev. L. & Soc. Change (forthcoming 2012).
4 Adoption of C.M.B.R., 332 S.W. 3d at 801. 5 Id. 6 Id. 7 Id. 8 Id. 9 Id. at 802. Ms. Romero was prosecuted under 18 U.S.C. § 1028A, which sentences someone to two years imprisonment for
"knowingly transfering, possessing, or using, without lawful authority, a means of identification of another person." However, the
Supreme Court of the United States has since interpreted § 1028A to require that the government prove "that the defendant
knew that the means of identification at issue belonged to another person." Flores-Figueroa v. United States, 129 S. Ct. 1886,
1894 (2009). The Court held that, "in the classic case of identity theft, intent is generally not difficult to prove." Id. at 1893. See
also Peter R. Moyers, Butchering Statutes: The Postville Raid and the Misinterpretation of Federal Criminal Law, 32 Seattle U. L.
Rev. 651, 688-699 (arguing, pre-Flores-Figueroa, that § 1028A was intended to apply only to traditional identity-theft cases and
has been misapplied to immigration cases where defendants were unaware that they were using the social security number of
another person).
10 Adoption of C.M.B.R., 332 S.W. 3d at 802. 11 Id. 12 Id. 13 Id. 14 Brane, supra note 1. 15 Ask President Obama to Help Keep Families Together: Encarnacion Romero, Women's Refugee Commission (Oct. 12, 2011,
2:41 PM), http://www.womensrefugeecommission.org/programs/detention/paren tal-rights/encarnacion-romero.
27 Berkeley J. Gender L. & Just. 1, *2 Page 3 of 22 What followed next was a legally convoluted path that has "ensured that, whatever the ultimate outcome, hearts
will be broken." 16 Although Ms. Romero soon sent the adoptive parents a letter requesting, "quiero que me veuga
a visitor todo el tiempo que este aqui en la carcel," 17 she was denied any contact with Carlos. 18 She was also
routinely denied due process rights, received ineffective assistance of trial counsel, and the case was routinely
delayed. 19 Although she does not speak English, she received information about her case in English with no
translation services available. 20 Most significantly, Carlos's adoptive parents hired and paid for her lawyer,
creating a conflict of interest. 21 Finally, the trial court determined that Ms. Romero had abandoned her son, and it
terminated her parental rights, allowing Carlos to be adopted. 22 It took almost four years for the Supreme Court of
Missouri to remand the case, finding that Ms. Romero's rights had been violated. 23
In December 2009, Maria Bolanos, an undocumented immigrant from El Salvador, called the Prince George's
County, Maryland, police station to report a [*4] case of domestic violence. 24 Instead of keeping her safe from an
abusive husband, the police arrested Ms. Bolanos and charged her with illegally selling a $ 10 phone card. 25 She
was taken into police custody and fingerprinted; the police shared the prints with ICE, 26 and ICE determined that
Ms. Bolanos was undocumented. 27 The criminal charges were dropped but Ms. Bolanos was shackled and held in
a detention facility, even though she informed ICE that she was still breastfeeding her young daughter, a U.S.
citizen. 28 After a doctor insisted, she was fitted with an ankle bracelet and released pending her deportation
hearing. 29 Of the bracelet, she said, "I'm really ashamed to show it in public… . People see it and think I'm a
murderer. I try to keep it covered at all times." 30
16 Adoption of C.M.B.R., 332 S.W. 3d at 840 (Wolff, J., concurring in part and dissenting in part). 17 Id. at 830 (Stith, J., concurring in part and dissenting in part). In English, this translates to, "I would like to have visitation with
my son all the time that I am here in jail." See id.
18 Adoption of C.M.B.R., 332 S.W. 3d at 830 (Stith, J., concurring in part and dissenting in part). 19 See generally id. (Justice Stith and Justice Wolff's concurring and dissenting opinions, which would have returned custody to
Ms. Romero immediately). For a detailed timeline of the case, see id. at 840-45 (Wolff, J., concurring in part and dissenting in
part).
20 Brane, supra note 1. 21 Id. 22 Adoption of C.M.B.R., 332 S.W. 3d at 823. 23 Id. at 840. Both dissenting judges would have given custody to Ms. Romero without requiring remand. Id. at 825 (Stith, J.,
concurring in part and dissenting in part); Id. at 845 (Wolff, J., concurring in part and dissenting in part).
24 Lucia Graves & Elise Foley, Immigration Advocates Push Obama to Make Good on Campaign Promises, Huffington Post,
Mar. 31, 2011, available at http://www.huffingtonpost.com/2011/03/31/immigration-obama-campaign-promises_n_843285.html.
25 Shankar Vedantam, Call for Help Leads to Possible Deportation for Hyattsville Mother, Wash. Post, Nov. 1, 2010, available at
http://www.washingtonpost.com/wp-dyn/content/story/2010/11/01/ST2010110106818.html?sid=ST2010110 106818.
26 The process occurs automatically under Secure Communities, discussed in Part I infra. 27 Vedantam, supra note 25. 28 Id. 29 Id. 30 Id.
27 Berkeley J. Gender L. & Just. 1, *3 Page 4 of 22 Ms. Bolanos is fighting her deportation. In November 2010, she confronted an ICE official about her initial arrest. "I
called the police after a fight with my partner. I thought they would help me… . But through this the police turned me
over to ICE, and now I have a deportation order." 31 As of this writing, she has managed to remain in the country
and care for her daughter. But Ms. Bolanos's husband is also facing deportation 32 and, because he is from Mexico
and she is from El Salvador, their daughter will likely be forced to grow up without at least one of her parents. 33
ICE claims that, in this case, its system "functioned exactly as it was designed to, allowing ICE to identify individuals
booked into jail for a state crime and who were also present in the country unlawfully." 34 But immigrant rights
groups and even Prince George's County State's Attorney Glenn F. Ivey feel differently. 35 Ivey says, "We should
target our limited state and federal law enforcement dollars on killers, rapists, child molesters, human traffickers and
violent gang members… . This kind of defendant should not be a high priority." 36
[*5] Ms. Romero and Ms. Bolanos are not the only noncitizen 37 women whose lives have been negatively
impacted by the confluence of immigration and criminal laws. A woman in Rhode Island was convicted of felony
criminal neglect of a child and deported after state officials determined that her husband abused their two children. 38 Because the state also terminated her parental rights, she was not allowed to bring her children with her back to
Mexico, and they were placed in foster care. 39 Women who call the police to report abuse are often arrested as
well, particularly in states with mandatory arrest laws or "where the couple doesn't speak English and there is
confusion about what happened," 40 and these arrests can have immigration consequences as well.
These women's stories all demonstrate a troubling trend. As the immigrant population in the United States grows,
immigration policy has shifted "away from regulation and toward enforcement, punishment, and deterrence," 41
making immigration enforcement goals more aligned with those of the criminal justice system. Legal scholars have
coined this confluence "crimmigration." 42 Crimmigration has a significant impact on the functioning of both
immigration detention and the state and federal prison systems. Because the number of crimes the Immigration and
31 Domestic Violence Survivor Confronts Secure Communities Director, Deportation Nation (Nov. 18, 2010),
http://www.deportationnation.org/2010/11/domestic-violence-survivor-confronts-secure-communities-director/.
32 His deportation order does not stem from Ms. Bolanos's call to the police but from a traffic violation. Vedantam, supra note 25. 33 Id. 34 Id. 35 Id. 36 Id. 37 A note on terminology: when I refer to noncitizens, I include undocumented immigrants, lawful permanent residents, and non-
immigrants - excluding tourists - who are here on a temporary, but documented, basis. I have chosen to use the term
"undocumented immigrant" instead of "illegal immigrant" or "illegal alien" because I believe those terms are divisive, incorrect,
and dehumanizing. For a more in-depth discussion of terminology, see Stephen H. Legomsky & Cristina M. Rodriguez,
Immigration and Refugee Law and Policy 1140-41 (5th ed. 2009).
38 Scott MacKay, Immigrant Loses Children After Abuse, Providence J., July 20, 2008, at 1; State v. Lopez-Navor, 951 A.2d
508, 509-10 (R.I. 2010).
39 MacKay, supra note 38, at 1. 40 Pilar Marrero, Abused and Deported: Immigrant Women Face Double Disgrace, La Opinion, Mar. 17, 2011 (trans. Elena
Shore), available at http://newamericamedia.org/2011/03/abused-and-deported-immigrant-women-face-double-disgrace.php.
41 Tom Barry, A Death in Texas: Profits, Poverty, and Immigration Converge, Boston Rev., Nov./Dec. 2009. 42 The first scholar to address this "crimmigration crisis" was Juliet Stumpf, who is now widely regarded as the preeminent
expert on the topic. See Juliet Stumpf, The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, 56 Am. U. L. Rev.
367 (2006).
27 Berkeley J. Gender L. & Just. 1, *4 Page 5 of 22 Nationality Act ("INA") deems deportable offenses has increased in recent years, 43 crimmigration increases the
number of immigrants who are deportable and held in immigration detention centers. The Supreme Court has
upheld a law 44 that requires mandatory detention until removal for any noncitizen who has been convicted of an
aggravated felony and served his or her sentence, without requiring an individualized due process hearing showing
that the detainee poses a "danger to society or a flight risk." 45 Simultaneously, because ICE does not have the
capacity to seek out and detain all immigrants eligible for deportation, the criminal justice system often steps in to fill
in the [*6] gaps, increasing the number of immigrants held in federal prisons. 46
As Teresa A. Miller succinctly describes, "criminal aliens (deportable for their post-entry criminal conduct), illegal
aliens (deportable for their surreptitious crossing of the U.S. border), and terrorists … are all deemed dangerous
foreigners for whom criminally punitive treatment and removal are uniformly appropriate and urgently necessary." 47 Stephen Legomsky argues persuasively that the immigration enforcement system builds off the criminal justice
system, with the "theories, methods, perceptions, and priorities" of the latter incorporated into the former. 48
Jennifer Chacon builds on this theory to argue that "not only are we seeing what Stephen Legomsky has termed the
asymmetric incorporation of criminal justice norms into civil removal proceedings, but we are also witnessing the
importation of the relaxed procedural norms of civil immigration proceedings into the criminal realm." 49 This mutual
reinforcement has a profound impact on noncitizens' lives.
Although the past five years have seen a marked increase in scholarly interest in crimmigration issues, the same
cannot be said for the intersection of crimmigration and gender. Scholars have not even begun to address the
issue. Meanwhile, women's detention in immigration centers, in pure numbers and as a percentage of the total
population of the centers, has increased from 7 percent in 2001 to 10 percent in 2009. 50 This growth is caused by
a combination of factors, including "increased prosecution of immigration violations, workplace raids, and harsh
sentencing for drug offenses." 51 In other words, this growth comes from both the immigration and criminal justice
sides of crimmigration: ICE's increased crackdown on workplaces where undocumented female immigrants are
likely to be found, and women's increased presence in the criminal justice system.
The stories of female immigrants clearly demonstrate the mutual reinforcement that Stephen Legomsky and
Jennifer Chacon have identified, but thus far scholars have ignored women. Women are often invisible in criminal
43 See Part I, infra; 8 U.S.C.A. § 1227(a)(2) (West 2011). 44 8 U.S.C. § 1226(c) (2006). 45 Demore v. Kim, 538 U.S. 510, 513-14 (2003). 46 See generally Jonathan Simon, Governing Through Crime: How the War on Crime Transformed American Democracy and
Created a Culture of Fear (2007) (arguing that immigration law has played a role in an increased focus on governing through
crime); see also Teresa A. Miller, Citizenship & Severity: Recent Immigration Reforms and the New Penology, 17 Geo. Immigr.
L.J. 611, 619 (noting "greater criminal punitiveness within a nominally civil system of immigration regulation").
47 Teresa A. Miller, Blurring the Boundaries Between Immigration and Crime Control After September 11th, 25 B.C. Third World
L.J. 81, 113 (2005).
48 Stephen H. Legomsky, The New Path of Immigration Law: Asymmetric Incorporation of Criminal Justice Norms, 64 Wash. &
Lee L. Rev. 469, 472 (2007).
49 Jennifer M. Chacon, Managing Migration Through Crime, 109 Colum. L. Rev. Sidebar 135, 137 (2009). 50 Nina Rabin, Unseen Prisoners: Women in Immigration Detention Facilities in Arizona, 23 Geo. Immigr. L.J. 695, 696-97
(2009).
51 Id. at 702.
27 Berkeley J. Gender L. & Just. 1, *5 Page 6 of 22 justice and immigration discussions, and the new focus on crimmigration is no different. As the stories of Ms.
Romero and Ms. Bolanos illustrate, however, [*7] female immigrants' experiences with crimmigration are
uniquely impacted by their gender and familial status. Women and families have a distinctive relationship with the
state that a gender-blind analysis misses entirely. I seek to insert women's and families' experiences into the field,
ultimately arguing that as criminal law and immigration enforcement become more and more intertwined, our most
vulnerable populations suffer the most.
In Part I, this Commentary provides background to crimmigration, discussing developments in immigration law that
have made the confluence of immigration and criminal law especially critical and describing how criminal law
interfaces with immigration law. In Part II, I examine the intersection of gender with the criminal justice system and
then gender with immigration. Part III explores the failure of crimmigration scholars to analyze how gender
interacts with the criminal justice system and immigration enforcement, ultimately concluding that a gender-blind
look at crimmigration ignores the way most immigrant families interact with the state. In Part IV, I conclude by
offering suggestions to make the gendered impact of crimmigration less harmful for women, men, and families.
I. The Rise of Crimmigration Immigration and crime control have not always played such an intertwined role in the United States. Indeed, there
was no mechanism for deportation at the federal level until the Immigration Act of 1891 created the Office of
Immigration within the Treasury Department to deport people who entered the country without authorization. 52
These new laws were motivated by racial animosity towards Chinese immigrants; 53 the Supreme Court upheld
laws with similar racial motives in two notorious cases. 54 Even with the rise of administrative deportation, however,
immigration and crime remained decoupled. 55 Between 1892 and 1907, the Immigration Service removed only a
few hundred noncitizens per year. 56 The Immigration Service soon increased that number and [*8] mostly
located noncitizens in "asylums, hospitals, and jails," 57 perhaps indicating that immigration officials were beginning
to link undesirable immigration with crime. Even so, the government did not begin to deport noncitizens for criminal
convictions until 1917. 58 Furthermore, a strict statute of limitations on deportation 59 seems to mitigate this
potential link between immigration enforcement and crime. "The statute of limitations on deportation was consistent
with the general philosophy of the melting pot: it seemed unconscionable to expel immigrants after they had settled
in the country and begun to assimilate." 60 In other words, although it may have been desirable to remove
52 Immigration Act of 1891, ch. 551,§§7, 10, 11, 26 Stat. 1084, 1085-86. 53 Jennifer M. Chacon, Commentary, Unsecured Borders: Immigration Restrictions, Crime Control, and National Security, 39
Conn. L. Rev. 1827, 1836 ("These first-time efforts to regulate immigration on the national level went hand-in-hand with an effort
to exclude a particular group of immigrants - the Chinese."); see also Daina C. Chiu, Comment, The Cultural Defense: Beyond
Exclusion, Assimilation, and Guilty Liberalism, 82 Cal. L. Rev. 1053, 1065-66 (1994) (describing how so-called "Chinese
exclusion laws" became more and more restrictive over the course of the 1880s).
54 Chae Chan Ping v. United States, 130 U.S. 581, 609 (1889); Fong Yue Ting v. United States, 149 U.S. 698, 724 (1893).
By not "reviewing federal immigration statutes for compliance with substantive constitutional restraints," these cases are widely
cited for the beginnings of the plenary power doctrine in immigration, which strictly limits judicial review of immigration law and
gives an incredible amount of power to the legislature and the executive. Stephen H. Legomsky, Immigration Law and the
Principle of Plenary Congressional Power, 1984 Sup. Ct. Rev. 255, 255 (1984).
55 The very term "administrative deportation" indicates that the government did not aim its deportation efforts at criminal
defendants.
56 Mae M. Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America 59 (2004). 57 Id. 58 Gerald L. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law 22 (1996). 59 There was a one-year statute of limitations on initiating deportation proceedings before 1917. Chacon, Unsecured Borders,
supra note 53, at 1836.
27 Berkeley J. Gender L. & Just. 1, *6 Page 7 of 22 noncitizens who had become wards of the state shortly after their arrival, they were inoculated from removal after a
period of time, no matter what crime they might commit. 61 Additionally, entering the U.S. without inspection was
not a grounds for removal, no matter how recent. 62
All this began to change in the 1920s. In 1924, the Johnson-Reed Immigration Act established numerical limits on
how many immigrants could enter the country each year, restricting immigration from some ethnic groups and
countries much more than others. 63 Perhaps just as important for the development of crimmigration, by 1929, the
United States had criminalized illegal entry itself, "providing a means to criminally punish the growing class of
[noncitizens] present without authorization." 64 Before the 1930s, immigrants were either "legitimate," "illegitimate,"
or "ineligible," 65 but "Congress's criminalization of unauthorized migration created the "illegal alien.'" 66 By the
1950s, "illegal" was the word of choice to describe undocumented immigrants. 67
The combination of immigration and criminal law that began in the first decades of the twentieth century expanded
in the century's last decades, further linking the two areas of law and introducing harsher penalties for the violation
of [*9] either. There are two main criminal offenses that have immigration removal consequences today: crimes of
moral turpitude and aggravated felonies. 68 U.S. law does not clearly define crimes of moral turpitude, 69 even
though the term first appeared in an immigration statute in 1891. 70 Legal dictionaries 71 and courts 72 have both
60 Ngai, supra note 56, at 59. 61 See id. 62 Id. For a compelling argument that border crossings alone should not constitute a crime modernly, see generally Victor C.
Romero, Decriminalizing Border Crossings, 38 Fordham Urb. L.J. 273 (2010). Professor Romero notes that the criminal justice
system treats traffic violations, for example, as a civil, administrative penalty and treats drug possession, for example, as a
criminal offense. Id. at 279. "In the immigration context, however, this distinction [between the two systems] disappears, for
Congress has seen it fit to establish both civil, administrative penalties … as well as criminal consequences … for the same
conduct - entry without inspection." Id.
63 Ngai, supra note 56, at 3. 64 Chacon, Unsecured Borders, supra note 53, at 1837. 65 Anna Marie Gallagher, The Situation of Undocumented Migrants in the United States, 05-06 Immigr. Briefings 1 (2005). 66 Chacon, Unsecured Borders, supra note 53, at 1838. 67 Id. 68 8 U.S.C.A. § 1227(a)(2)(A)(i)-(iii) (West 2011). The INA lists other criminal grounds for removal, including high speed flight
from an immigration checkpoint; failure to register as a sex offender; conviction of controlled substance and certain firearms
offenses; miscellaneous crimes; domestic violence, stalking, and child abuse crimes; failure to register and falsification of
documents, including document fraud and falsely claiming citizenship; and national security grounds. See § 1227(a)(2)-(4).
However, most of these crimes are also considered either aggravated felonies or crimes of moral turpitude, and ones that are
not have much broader avenues for relief from removal. See 8 U.S.C.A. § 1229b (West 2011) (describing mechanisms for
canceling removal or adjusting status).
69 See generally Derrick Moore, "Crimes Involving Moral Turpitude": Why the Void-For-Vagueness Argument is Still Available
and Meritorious, 41 Cornell Int'l L.J. 813 (2008) (arguing that the term is so unclearly defined that the U.S. Supreme Court
should find moral turpitude to be unconstitutionally vague).
70 Id. at 821. 71 See, e.g., Black's Law Dictionary 1008-09 (6th ed. 1990) ("Act or behavior that gravely violates moral sentiment or accepted
moral standards of community and is a morally culpable quality held to be present in some criminal offenses as distinguished
from others.").
27 Berkeley J. Gender L. & Just. 1, *8 Page 8 of 22 attempted to define the term, and courts routinely find certain crimes to inherently contain moral turpitude, including
"fraud, larceny, or intent to harm persons or things." 73 The consequences for conviction of a crime of moral
turpitude have increased in the twentieth century. For example, current law provides that a lawful permanent
resident is deportable if, within ten years after the date of admission, he or she commits one crime of moral
turpitude "for which a sentence of one year or longer may be imposed" or if he or she commits more than one such
crime at any time after admission. 74 For undocumented immigrants, conviction of the crime of moral turpitude is
not necessary; merely "admitting committing acts which constitute the essential elements of … a crime involving
moral turpitude" is sufficient to make that immigrant inadmissible. 75
[*10] Aggravated felonies are perhaps an even more contentious ground for deportation, in part because the term
today encompasses an enormously broad range of crimes 76 and in part because avenues for relief from removal
are nonexistent. 77 "Notably, it was the Anti-Drug Abuse Act of 1988, a crime-control bill intended to combat
narcotics trafficking, rather than an immigration bill that expanded the categories of removal by creating an
"aggravated felony' ground," 78 a development with profound implications for immigrants convicted of crimes.
Although the 1988 bill included crimes that could truly be considered "aggravated," including murder or trafficking in
drugs or weapons, 79 Congress began to expand the definition in 1990. 80 In 1996, Congress passed both the
Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") 81 and the Anti-Terrorism and Effective
Death Penalty Act ("AEDPA"), 82 making gambling, bribery, minor drug offenses, thefts, and burglaries removable
72 See, e.g., Hamdan v. INS, 98 F.3d 183, 186 (5th Cir. 1996) (adopting a definition of moral turpitude as "conduct that shocks
the public conscience" or conduct that is "inherently base, vile, or depraved, and contrary to the accepted rules of morality and
the duties owed between persons or to society in general").
73 Moore, supra note 69, at 824. It is important to note, of course, that these crimes also overlap with aggravated felonies. See 8
U.S.C.A. § 1101(a)(43) (West 2011).
74 8 U.S.C.A. § 1227(a)(2)(A)(i)-(ii) (West 2011). To qualify as multiple crimes involving moral turpitude, the crimes must not
"arise out of a single scheme of criminal misconduct." § 1227(a)(2)(A)(ii).
75 8 U.S.C.A. § 1182(a)(2)(A) (West 2011). This harsher penalty - with even fewer due process requirements - originated with
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, § 321, 110 Stat. 3009-
546, 3009-627. IIRIRA made "admission" to the United States "determine whether a noncitizen will be subject to the admissibility
grounds" or the removal grounds. Legomsky & Rodriguez, supra note 37, at 522. This means that undocumented immigrations,
who were never "admitted" to the country for the purpose of the INA, are considered under admission grounds, while lawful
permanent residents, who were admitted to the country, are considered under removal grounds. There are two benefits to the
admission grounds under § 1182(a)(2)(A), however, that do not apply to immigrants under 8 U.S.C. § 1227(a)(2): the former
contains an exception for minors and for petty offenses. § 1182(a)(2)(A)(ii)(I)-(II).
76 8 U.S.C.A. § 1101(a)(43) (West 2011). 77 For both permanent residents and undocumented immigrants, relief from removal is within the discretion of the Attorney
General unless the individual has "been convicted of any aggravated felony." 8 U.S.C.A. § 1229b(a)(3) (West 2011).
78 Aarti Kohli, Does the Crime Fit the Punishment?: Recent Judicial Actions Expanding the Rights of Noncitizens, 2 Calif. L. Rev.
Circuit 1, 5-6 (2011). The Act was widely known as the Drug Kingpin Act. Id. at 6.
79 See Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7342, 102 Stat. 4181. 80 The Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (adding money laundering and any crime of violence for
which at least a five-year sentence is imposed to the list of aggravated felonies).
81 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, § 321, 110 Stat. 3009, 3009-627. 82 Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 401, 110 St. 1214, 1277-78. AEDPA was
passed in the wake of the Oklahoma City bombing and was frequently cited as a means to prevent such acts of terrorism, even
27 Berkeley J. Gender L. & Just. 1, *9 Page 9 of 22 aggravated felonies 83 - even when the crimes are neither aggravated nor felonies according to criminal statutes.
During the AEDPA floor debate, representatives touted the link between noncitizens, criminals, and terrorists, with
one representative calling for the removal of "those who abuse both our immigration and criminal laws. S. 735
ensures that the forgotten Americans - the citizens who obey the law, pay their taxes, and seek to raise their
children in safety - will be protected from the criminals and terrorists who want to prey on them." 84
Following the September 11, 2001 terrorist attacks, the criminalization of immigration law escalated further. The
USA PATRIOT Act, the National Security Entry-Exit Registration System, and the Secure Fence Act have all
"conflated crime, national security, and immigration." 85 Just as importantly, recent years have seen the rise of
state and local enforcement of crimmigration. [*11] The most notorious example has been Arizona's Support Our
Law Enforcement and Safe Neighborhoods Act of 2010, known as S.B. 1070. 86 The Obama administration
successfully obtained a preliminary injunction based on federalism grounds against sections of the law that "called
for police officers to check a person's immigration status while enforcing other laws and required immigrants to
prove that they were authorized to be in the country or risk state charges." 87 However, in many other respects the
executive branch has been all too happy to use state and local resources to enforce immigration laws. ICE's 287(g) 88 program, for example, "allows a state and local law enforcement entity to enter into a partnership with ICE, under
a joint Memorandum of Agreement (MOA), in order to receive delegated authority for immigration enforcement
within their jurisdictions." 89 The MOAs allow state and local law enforcement officers to act as ICE or border patrol
officers in enforcing immigration laws. 90
though none of the conspirators were immigrants. See, e.g., 142 Cong. Rec. H3606 (daily ed. Apr. 18, 1996) (statement of Rep.
Hyde). 83 Kohli, supra note 78, at 6-7. 84 See, e.g., 142 Cong. Rec. H3617 (daily ed. Apr. 18, 1996) (statement of Rep. Hyde). 85 Juliet P. Stumpf, States of Confusion: The Rise of State and Local Power Over Immigration, 86 N.C. L. Rev. 1557, 1591-92
(2008).
86 Randal C. Archibold, Arizona Enacts Stringent Law on Immigration, N.Y. Times, April 23, 2010,
http://www.nytimes.com/2010/04/24/us/politics/24immig.html. It is important to note that Arizona Governor Jan Brewer, when she
signed the bill into law, touted the bill as a crime-reducing measure:
I firmly believe it represents what's best for Arizona. Border-related violence and crime due to illegal immigration are critically
important issues to the people of our state, to my Administration and to me, as your Governor and as a citizen. There is no
higher priority than protecting the citizens of Arizona. We cannot sacrifice our safety to the murderous greed of drug cartels. We
cannot stand idly by as drop houses, kidnappings and violence compromise our quality of life. We cannot delay while the
destruction happening south of our international border creeps its way north.
Mark Evans, Text of Gov. Brewer's speech after signing SB 1070, Tucson Citizen (Apr. 23, 2010),
http://tucsoncitizen.com/mark-evans/archives/236.
87 Randal C. Archibold, Judge Blocks Arizona's Immigration Law, N.Y. Times, July 28, 2010,
http://www.nytimes.com/2010/07/29/us/29arizona.html. More recently, the U.S. Court of Appeals for the Ninth Circuit has upheld
the injunction. Marc Lacey, Appeals Court Rules Against Arizona Law, N.Y. Times, Apr. 11, 2011.
88 The name comes from INA § 287(g), which was added to the INA by IIRIRA in 1996 but not utilized by any state or local
government until Alabama signed the first Memorandum of Agreement in 2003. ICE, Fact Sheet: Delegation of Immigration
Authority Section 287(g) Immigration and Nationality Act, http://www.ice.gov/news/library/factsheets/287g.htm (last visited Nov.
16, 2011). § 287(g) is codified at 8 U.S.C. § 1357 (2006).
89 ICE, Fact Sheet: Delegation of Immigration Authority, supra note 88. 90 Jennifer M. Chacon, A Diversion of Attention? Immigration Courts and the Adjudication of Fourth and Fifth Amendment
Rights, 59 Duke L.J. 1563, 1583 (2010).
27 Berkeley J. Gender L. & Just. 1, *10 Page 10 of 22 In 2008, Homeland Security instituted Secure Communities with four strategic goals: (1) "identify and process all
criminal aliens amenable for removal" currently in custody; (2) increase detention space and alternatives to
detention to "ensure no removable alien is released into the community;" (3) shorten the time between initial
detention and removal; and (4) deter unlawful immigration and decrease recidivism. 91 To do so, ICE uses
technology that links "local law enforcement agencies to both FBI and DHS biometric databases," so that
fingerprints are automatically checked with immigration history. 92 ICE [*12] claims that it "allocates appropriate
resources" based on crimes that "pose the greatest risk to the public" 93 and that it exercises its discretion in
choosing whom to detain and remove. 94 Jennifer Chacon points out, however, that Secure Communities screens
arrestees "without regard for the reason for the arrest or whether the person is guilty or innocent of a crime," 95
putting the accuracy and sincerity of ICE's claims into question.
Statistics and anecdotes further emphasize that ICE does not focus its police power on high-level offenders.
Monthly statistics through November 2010 indicate that over one-half of the people removed through the Secure
Communities program are low-level offenders and an additional one-quarter are non-criminals. 96 Ms. Bolanos's
story illustrates a key problem with these programs. Local police departments need the cooperation of residents to
investigate reported crimes. Few would blame Ms. Bolanos for refusing to cooperate with police in the future when
calling them for help with a dangerous situation previously put her ability to remain in the country in danger. The
International Association of Chiefs of Police has questioned the benefits of using local agencies to enforce
immigration violations: "without assurances that they will not be subject to an immigration investigation and possible
deportation, many immigrants with critical information would not come forward, even when heinous crimes are
committed against them or their families." 97 Similarly, the Major Cities Chiefs Association writes,
without assurances that contact with the police would not result in purely civil immigration enforcement action, the
hard won trust, communication and cooperation from the immigrant community would disappear. Such a divide
between the local police and immigrant groups would result in increased crime against immigrants and in the
broader community, create a class of silent victims and eliminate the potential for assistance from immigrants in
solving crimes or preventing future terroristic acts. 98
Maria Bolanos's charged crime, selling a $ 10 phone card, certainly posed almost no risk to the public, and thus far
ICE has refused to use its discretion to allow her to remain in the country. Although ICE has taken steps under the
Obama administration to prevent arrest for minor offenses like Ms. Bolanos's as a "guise to initiate removal
proceedings," 99 it is unclear how much impact these [*13] directives will have on ICE practices. Some evidence
91 ICE, Fact Sheet: Secure Communities 1-2 (Mar. 28, 2008), http://www.aila.org/content/default.aspx?docid=25045. 92 Id. at 5. 93 Id. at 2. 94 Chacon, A Diversion of Attention?, supra note 90, at 1596-97. 95 Id. at 1596. 96 Center for Constitutional Rights, Preliminary Briefing Guide: Newly Released Documents Chronicle Agency's Deception About
Opting-Out of "Secure Communities" Program, Feb. 12, 2011, at 4.
97 Immigration Pol'y Ctr., Local Enforcement of Immigration Laws Through the 287(g) Program: Time, Money, and Resources
Don't Add Up to Community Safety 3 (Apr. 2, 2010).
98 Id. 99 Press Release, Dep't Homeland Sec., Secretary Napolitano Announces New Agreement for State and Local Immigration
Enforcement Partnerships & Adds 11 New Agreements (July 10, 2009),
http://www.dhs.gov/ynews/releases/pr_1247246453625.shtm.
27 Berkeley J. Gender L. & Just. 1, *11 Page 11 of 22 suggests that ICE may even be moving in the wrong direction since the implementation of Secure Communities. 100This link between immigration and crime has had a profound impact on how Americans view immigrants. In 2000,
when "asked whether "more immigrants cause higher crime rates,' 25 percent [of adults] said [this was] "very likely'
and an additional 48 percent said [this was] "somewhat likely' - that is, about three-fourths (73 percent) believed
that immigration was causally related to more crime." 101 Homeland Security now labels any noncitizen with a
criminal conviction a "criminal alien," recently publicizing its success in removing 195,000 such criminal aliens in
2010. 102 However, empirical data clearly suggest that immigrants 103 are less likely to commit crimes than U.S.-
born citizens. 104 According to the Homeland Security Office of Immigration Statistics, although [*14] almost 30
percent of "criminal aliens" were removed for "dangerous drugs" in fiscal year 2009, just as many immigrants were
removed for simple traffic offenses or immigration violations. 105
Over the last 100 years, there has been an ever-increasing confluence of immigration and criminal laws, to the point
where the government is no longer focused on removing noncitizens who pose a risk to the security of the United
States but rather on the blanket removal of any immigrant who comes into contact with the criminal justice system.
100 A recent ICE directive itself seems to indicate this. A 2008 fact sheet laying out the program, supra note 91, at 2, described
ICE's risk-based approach as follows:
Level 1 - Individuals who have been convicted of major drug offenses and violent offenses such as murder, manslaughter, rape,
robbery, and kidnapping;
Level 2 - Individuals who have been convicted of minor drug offenses and mainly property offenses such as burglary, larceny,
fraud, and money laundering; and
Level 3 - Individuals who have been convicted of other offenses. However, a 2011 memorandum to all ICE employees replaces "the existing Secure Communities levels of offenses:"Level 1 offenders: aliens convicted of "aggravated felonies," as defined in § 101(a)(43) of the Immigration and Nationality Act, or
two or more crimes each punishable by more than one year, commonly referred to as "felonies";
Level 2 offenders: aliens convicted of any felony or three or more crimes each punishable by less than one year, commonly
referred to as "misdemeanors"; and
Level 3 offenders: aliens convicted of crimes punishable by less than one year. Memorandum from John Morton, Director, ICE, to All ICE Employees regarding Civil Immigration Enforcement: Priorities for the
Apprehension, Detention, and Removal of Aliens 2 (Mar. 2, 2011), available at
http://www.ice.gov/doclib/news/releases/2011/110302washingtondc .pdf. This change seems to reflect a change from a sensible
sliding scale based on the severity of the crime and the likelihood that the immigrant actually poses a risk to security to a sliding
scale based on the INA's definition of aggravated felonies and other removable crimes, which can include crimes that are neither
aggravated nor felonies. This re-definition of the scope of the risk-based approach can only harm noncitizens.
101 Ruben G. Rumbaut et al., Debunking the Myth of Immigrant Criminality: Imprisonment Among First-and Second-Generation
Young Men, Migration Info. Source, June 1, 2006, available at http:// www.migrationinformation.org/Feature/display.cfm?id=403.
102 Press Release, U.S. Dep't of Homeland Sec., Secretary Napolitano Announces Record-Breaking Immigration Enforcement
Statistics Achieved under the Obama Administration (Oct. 6, 2010), http://dhs.gov/ynews/releases/pr_1286389936778.shtm.
103 These statistics include undocumented immigrants, lawful permanent residents, and naturalized citizens. 104 Chacon, Unsecured Borders, supra note 53, at 1879-80; Barry Krisberg & Veronica Smith, Berkeley Ctr. for Criminal Justice,
Where Is the Fire? Immigrants and Crime in California 3-4 (2010) (noting that between 1991 and 2008 there has been a
"dramatic decline in California in crimes reported to the police," despite over 3.5 million new foreign-born immigrants in the
state).
105 Homeland Sec., Office of Immigration Statistics, Immigration Enforcement Actions 2009 4 tbl.4 (Aug. 2010),
http://www.dhs.gov/xlibrary/assets/statistics/publications/enfo rcement_ar_2009.pdf.
27 Berkeley J. Gender L. & Just. 1, *13 Page 12 of 22 Although women are often ignored when we talk about either crime or immigration, the impact of escalating
crimmigration practices on women could not be more dramatic and heartbreaking.II. Women, Crime, and Immigration Immigration and crime are both often examined as male issues, 106 despite clear evidence that women's
imprisonment "has increased dramatically and disproportionally in recent decades" 107 and "nearly half of the
foreign-born population in the United States is female." 108 This section will first examine women's increasing
interactions with the criminal justice system and then look at women's experiences with immigration.
A. Women and the Criminal Justice System The "tough on crime" policies that began in the United States in the 1980s have greatly increased the total number
of incarcerated people in the United States. 109 The war on drugs and "changes in the economy, social services,
education, and employment opportunities" have also contributed to this dramatic increase. 110 Although these
policies may appear to be gender-neutral, "women are particularly vulnerable to policy changes because they are
more likely than men to be incarcerated for drug-related or petty, nonviolent property crimes," 111 crimes
specifically targeted by this recent legislation. For example, according to [*15] the U.S. Department of Justice, 112
men in jail are more likely to be incarcerated for a violent offense 113 than any other type of offense, while women
are less likely to be incarcerated for a violent offense than any other crime. 114 Women are most likely to be
accused or convicted of property offenses, 115 drug offenses, 116 or public order offenses. 117
As a result, the number of female prisoners is rising more quickly than the number of male prisoners, and there are
now almost 200,000 female inmates in local jails and state or federal prisons across the country. 118 Between 1995
and 2000, the number of women incarcerated in state, federal, and private facilities increased by 37.9 percent,
106 See, e.g., Kavitha Sreeharsha, Immigration Pol'y Ctr., Reforming America's Immigration Laws: A Woman's Struggle 4 (2010)
(noting that "public discourse … often omits any discussion of women immigrants"); Angela Wolf, Barbara E. Bloom & Barry
Krisberg, The Incarceration of Women in California, 42 U.S.F. L. Rev. 139, 139 (2008) ("Women's needs in California prisons
continue to escalate, yet remain largely unaddressed despite the best reform efforts of advocates and the California Department
of Corrections and Rehabilitation.").
107 Wolf, Bloom & Krisberg, supra note 106, at 140. 108 Sreeharsha, supra note 106, at 4. 109 Wolf, Bloom & Krisberg, supra note 106, at 139-40. 110 Id. at 140. 111 Id. at 140-41. 112 Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics 2003, 495 tbl.6.20 (2005). 113 26.5 percent of offenses. Id. 114 17.1 percent of offenses. Id. When violent crimes are broken down by crime, women are also more likely to be incarcerated
for less serious violent crimes like assault. Id. Furthermore, approximately 62 percent of these women had a prior relationship
with the victim. Barbara Bloom, Barbara Owen, Stephanie Covington & Myrna Raeder, Nat'l Inst. of Corrections, Gender-
Responsive Strategies: Research, Practice, and Guiding Principles for Women Offenders 13-14 (2002), available at
http://www.nicic.org/pubs/2003/018017.pdf. This raises the possibility that the women were acting in self-defense against an
abusive partner.
115 32.4 percent of offenses. Sourcebook of Criminal Justice Statistics 2003, supra note 112. 116 29.2 percent of offenses. Id. 117 20.8 percent of offenses. Id. 118 Christopher Hartney, Nat'l Council on Crime & Delinquency, The Nation's Most Punitive States for Women 4, 8 (2007).
27 Berkeley J. Gender L. & Just. 1, *14 Page 13 of 22 while the number of men incarcerated increased by 26.8 percent. 119 In 1990, jail inmates were 9.2 percent female;
by 2009, the number had risen to 12.2 percent. 120 Female offenders face unique circumstances as a result of their gender. They are "disproportionately women of
color, low-income, uneducated, and unskilled, with sporadic employment histories." 121 These women have often
faced sexual abuse, assault, and domestic violence. 122 They are also more likely than not to be the primary
caregiver of minor children 123 and to be [*16] unemployed. 124 They are often "from fragmented families that
include other family members who also have been involved with the criminal justice system" and have significant
health, mental health, or substance use histories. 125 Despite these circumstances, the U.S. prison system has
been remarkably slow to develop gender-responsive probation, incarceration, or parole systems. 126 This failure
has ramifications outside the criminal justice system - namely, for female immigrants and crimmigration in general.
B. Women and Immigration As with women and the criminal justice system, female immigrants receive much less scholarly, political, and
popular attention than male immigrants - a fact that is even more dramatic considering that women are almost half
the foreign-born population in this country. Lawful permanent residents are disproportionally female, making up
almost 55 percent of the total and outnumbering male permanent residents in every age group except ages five to
nineteen. 127 Undocumented immigrants under the age of forty-four are more likely to be male, while those forty-
five and older are more likely to be female. 128
119 Sourcebook of Criminal Justice Statistics 2003, supra note 112, at 503 tbl.6.31. 120 Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics Online tbl.6.17.2009,
http://www.albany.edu/sourcebook/pdf/t6172009.pdf (last visited Nov. 16, 2011).
121 Bloom, Owen, Covington & Raeder, supra note 114, at 10. 122 Id. 123 Id.; M. Anne Powell & Clare Nolan, California State Prisoners with Children: Findings From the 1997 Survey of Inmates in
State and Federal Correctional Facilities 1 (2003) ("Care taking arrangements for the children of women in prison differ
dramatically from those of the children of incarcerated fathers. While most fathers (85 percent) reported that at least one of their
children were being cared for by the child's other parent or step-parent, only 29 percent of incarcerated mothers reported their
children in parental care. Mothers were much more likely than fathers to report that a grandparent was caring for their children
(49 percent as compared to 14 percent). In addition, the children of incarcerated women were more likely than the children of
incarcerated fathers to be in the care of a foster home, agency or institution (nine percent as compared to two percent)."); Little
Hoover Comm'n, Breaking the Barriers for Women on Parole 7 (2004).
124 Bloom, Owen, Covington & Raeder, supra note 114, at 11 tbl.2. 125 Id. at 18. 126 For discussion of this problem and recommendations for rectifying it, see generally id.; see also Wolf, Bloom & Krisberg,
supra note 106, at 154-69. For specific critiques of the federal criminal justice system's failure to develop policies addressing
gender's intersection with family ties, see, e.g., Jack B. Weinstein, The Effect of Sentencing on Women, Men, the Family, and
the Community, 5 Colum. J. Gender & L. 169, 178 (1996) ("In certain cases, in view of the necessity of maintaining family
stability in environments where father role models are few and far between, downward departures from the [Sentencing]
Guidelines and a search for alternatives to incarceration are a necessity for male defendants."); Jody L. King, Avoiding Gender
Bias in Downward Departures for Family Responsibilities Under the Federal Sentencing Guidelines, 1996 Ann. Surv. Am. L. 273,
301 (recommending that "the decision to grant a downward departure for family responsibilities turn[] on the need of the
defendant's dependents").
127 Homeland Sec., Office of Immigration Statistics, 2009 Yearbook of Immigration Statistics 25 tbl.8 (2010). Women are slightly
less likely than men to be admitted on nonimmigrant grounds (which include tourisism and business travel, study, temporary
work and diplomacy). Id. at 80 tbl.29.
27 Berkeley J. Gender L. & Just. 1, *15 Page 14 of 22 Despite these numbers, female immigrants are often especially vulnerable - and often in ways that mirror the
inequalities women in the criminal justice system face. Immigrant women, like women in the justice system, are
likely to be primary caregivers, 129 so women like Encarnacion Romero risk termination of their parental rights
when they are taken into ICE custody or removed from the country. Even if their detentions do not result in removal,
the detention of domestic violence survivors often entails leaving a child in the [*17] custody of the abuser. 130
Women often come to the U.S. to reunite their families or keep them together, 131 but criminal and immigration
laws often prevent them from succeeding.
Lack of access to education, both in their countries of origin and in the U.S., often means that immigrant women
have fewer job opportunities. Immigrant men are much more likely to find professional or white-collar employment,
while immigrant women are more likely to be homemakers or unemployed. 132 Immigrant women's median income
in 2008 was $ 21,182 - $ 3,259 less than U.S.-born women and $ 8,351 less than immigrant men. 133
A less obvious effect of this lack of education and job opportunities is reflected in the way that lawful permanent
residents gain access to the U.S. While men are the majority of immigrants under employment-based preferences,
which prioritize jobs requiring high levels of education and skill, women vastly outnumber men under family-
sponsored preferences and as immediate relatives of U.S. citizens. 134 This means that female immigrants who are
able to enter the U.S. as lawful permanent residents are more likely to depend on men for their immigrant visas
than vice versa. It also means that, because "the family immigration system has been fraught with backlogs and
burdens that sometimes separate families for more than 20 years," women must choose between remaining in their
country of origin, often "as the sole providers in countries where women may lack the same economic and
employment opportunities as men," or entering the U.S. without documents. 135
When women do enter the U.S. without documents, they face unique risks and pressures. If they find work, it is
often at factories that provide both low wages and a high likelihood for workplace raids by ICE agents. 136 Because
women make up an ever-growing share of the workforce in such factories, they are increasingly likely to come into
contact with ICE and face deportation consequences. 137 Women may also find work as domestic workers, where
they are unable to organize and where their undocumented status allows employers to gain substantial control over
their employees, underpaying them and perhaps threatening to report them to ICE if the women complain about
workplace [*18] conditions or hours. 138
128 Michael Hoefer, Nancy Rytina & Bryan C. Baker, Homeland Secur., Office of Immigration Statistics, Estimates of the
Unauthorized Immigrant Population Residing in the United States: January 2010 5 tbl.5 (2011).
129 Sreeharsha, supra note 106, at 7. 130 Id. at 11. 131 Id. at 5. 132 2009 Yearbook of Immigration Statistics, supra note 127, at 25 tbl.8. 133 Sreeharsha, supra note 106, at 4. 134 2009 Yearbook of Immigration Statistics, supra note 127, at 26 tbl.9. Under the INA, "the term "immediate relatives' means
the children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at
least 21 years of age." 8 U.S.C.A. § 1151(b)(2)(A)(i) (West 2011). These immigrants are "not subject to direct numerical
limitations." § 1151(b). Family-sponsored immigrants who do not qualify as immediate relatives, § 1151(c), and employment-
based immigrants, § 1151(d), are subject to numerical restrictions. Preference for employment-based visas is only given to
certain priority workers. 8 U.S.C. § 1153(b) (2006).
135 Sreeharsha, supra note 106, at 4. 136 Rabin, supra note 50, at 702. 137 Id. 138 Evelyn Nakano Glenn, Forced to Care: Coercion and Caregiving in America 180 (2010).
27 Berkeley J. Gender L. & Just. 1, *16 Page 15 of 22 Women may also be survivors of sexual assault and domestic violence, both related and unrelated to their
immigration status. Such a large percentage of women are sexually assaulted when they cross the border from
Mexico that advocates advise them to take birth control pills on their journeys. 139 The assaults may come from the
coyotes who help them cross the border, so-called "border bandits" who wait for them on the U.S. side of the Rio
Grande, or even Border Patrol agents. 140 "On a single tree outside Tucson, Arizona, an orange pair, a blue pair,
and a white pair [of underwear] hang like grotesque ornaments among the desert's thorny brush. Border activists
and women's advocacy groups call them "rape trees.' Each pair of underwear, they say, represents a victim of
sexual abuse." 141 Women with immigrant visas may have less dangerous journeys to the U.S., but they are also
often survivors of domestic violence. As mentioned above, they may be dependent on their spouse for their lawful
status, 142 making them especially reticent to report domestic violence. 143 Undocumented survivors like Maria
Bolanos are often even less likely to report being crime victims for fear of coming to the attention of ICE.
In sum, gender plays parallel roles in immigration and in the criminal justice system. Female immigrants and
women in the criminal justice system face employment, race, and class inequities. Their status as primary
caregivers shapes their daily lives and their interactions with immigration and criminal laws. Finally, they are
frequently survivors of sexual assault and domestic violence. Understanding the impact of gender on both
immigration and the criminal justice system and the merger of criminal and immigration laws into "crimmigration,"
however, does not explain why this merger occurred. Part III will begin by examining scholars' attempts to
understand this union. It will then argue that these attempts, by ignoring gender and family, have failed to
comprehend the entire picture.
[*19] III. Beyond the Individual and the State: Inserting Gender and the Family into Crimmigration Crimmigration scholars have shed light on an increasingly important legal issue that impacts real people's lives.
However, by failing to analyze how gender interacts with the criminal justice system and immigration enforcement,
scholars have ignored an entire group of immigrants and their experiences. Just as crucially, scholars' gender-blind
examination of crimmigration overlooks immigrant families' lived experiences by creating an individualistic
framework that does not reflect how immigrants and their loved ones interact with the state. This Part examines the
theoretical basis for the rise of crimmigration and then inserts the issue of gender to demonstrate how previous
scholarship has failed to consider the full picture.
Before 2006, many scholars had noted the growing links between immigration and criminal law but had not
discussed the analytical underpinnings that had driven the shift. 144 Professor Stumpf, in a groundbreaking article,
139 See Kevin Sieff, Access Denied: Countless Women are Assaulted as They Attempt to Immigrate into the United States. What
Happens to Their Reproductive Rights When They Wind Up in U.S. Custody?, Tex. Observer, Feb. 19, 2009, available at
http://www.texasobserver.org/archives/item/15571-2963-access-denied.
140 Id. 141 Id. 142 They may also be on a nonimmigrant visa that does not allow them to work, making them economically dependent as well.
Sreeharsha, supra note 106, at 8.
143 Although the Violence Against Women Act has attempted to correct this troublesome issue by allowing survivors to self-
petition for lawful status, this option is only available to women whose spouses are citizens or permanent residents.
Furthermore, there is a severe backlog that makes this option difficult for many women to take advantage of. Id. at 8-9.
144 See, e.g., Nora V. Demleitner, Immigration Threats and Rewards: Effective Law Enforcement Tools in the "War" on
Terrorism?, 51 Emory L.J. 1059 (2002); Daniel Kanstroom, Criminalizing the Undocumented: Ironic Boundaries of the Post-
September 11th "Pale of Law," 29 N.C. J. Int'l L. & Com. Reg. 639 (2004); Daniel Kanstroom, Deportation, Social Control, and
Punishment: Some Thoughts about Why Hard Laws Make Bad Cases, 113 Harv. L. Rev. 1890 (2000); Maria Isabel Medina, The
Criminalization of Immigration Law: Employer Sanctions and Marriage Fraud, 5 Geo. Mason L. Rev. 669 (1997); Miller, Blurring
27 Berkeley J. Gender L. & Just. 1, *18 Page 16 of 22 145 coined the term crimmigration and sought to "illuminate how and why these two areas of law have converged."
146 She observed that "criminal law seems a distant cousin to immigration law": while the former is aimed at harm
deterrence and punishment, the latter is ostensibly about "who may cross the border and reside here, and who
must leave." 147 However, she further noted that the two areas of law are more similar and interconnected than
they appear. Instead of regulating inter-personal relationships or relationships between businesses and individuals,
both criminal law and immigration law "primarily regulate the relationship between the state and the individual." 148
Furthermore, both use "physical exclusion" and "lesser levels of citizenship" to isolate individuals regulated by
criminal or immigration law from the broader society. 149
Membership theory 150 indicates that both immigration law and criminal [*20] law entail making choices about
who we want in the national community, making the merger of these two institutions into crimmigration a natural
progression in a nation obsessed with crime prevention, punishment, and eliminating unauthorized immigration.
Stumpf writes, "the result of the application of membership theory has been to create a population, often identifiable
by race and class, that is excluded physically, politically, and socially from the mainstream community." 151
Immigration enforcement explicitly factors in class by refusing to admit would-be immigrants who lack financial
resources 152 and allows consideration of race and ethnicity through racially-related traffic stops 153 and programs
that require registration for men from Muslim and Arab countries. 154 Although "criminal law's disparate treatment
of members of certain minorities and income levels is not [as] explicit" as it may be in immigration law, there is
certainly a disparate impact on minority and indigent communities. 155
the Boundaries, supra note 47; Robert Pauw, A New Look at Deportation as Punishment: Why at Least Some of the
Constitution's Criminal Procedure Protections Must Apply, 52 Admin. L. Rev. 305 (2000). 145 See generally Stumpf, The Crimmigration Crisis, supra note 42. 146 Id. at 377. 147 Id. at 379. 148 Id. at 379-80. 149 Id. at 381. 150 According to Stumpf, "membership theory is based in the idea that positive rights rise from a social contract between the
government and the people. Those who are not parties to that agreement and yet are subject to government action have no
claim to such positive rights, or rights equivalent to those held by members." Id. at 397. It "depends on the decisionmaker's
vision of who belongs." Id. "Immigration law defines membership in this society explicitly, by establishing a ladder of accession to
permanent residence and then formal U.S. citizenship," while the term "criminal defines membership implicitly, by stripping
critical elements of citizenship from individuals who commit relatively serious offenses," like the freedom of association, the right
to vote, and access to the social safety net. Id. at 398-99.
151 Stumpf, The Crimmigration Crisis, supra note 42, at 413. 152 See 8 U.S.C.A. § 1182(a)(4)(B) (West 2011) (discussing barriers for people likely to become public charges). 153 United States v. Brignoni-Ponce, 422 U.S. 873, 885-86 (1975). 154 See, e.g., The National Security Entry-Exit Registration System created by 67 Fed. Reg. 67,766 (Nov. 6, 2002) and amended
by 67 Fed. Reg. 77,642 (Dec. 18, 2002).
155 Stumpf, The Crimmigration Crisis, supra note 42, at 417 (noting that "the rules of the criminal justice system are neutral on
their face, but their effect on racial and ethnic minorities is notoriously disproportionate to the number in the general population"
and citing numerous articles and studies in support of this proposition).
27 Berkeley J. Gender L. & Just. 1, *19 Page 17 of 22 At the same time, however, crimmigration theory and membership theory together have ignored gender as a unit
of analysis, thus failing to examine gender as a crucial intersection with race and class. 156 Perhaps scholars
assume that immigration law is gender-neutral, or that women are not convicted of crimes in sufficient numbers to
warrant study, or both. Of course, these assumptions are wrong. Women are a growing presence in the criminal
justice system, both in raw numbers and as a percentage of the total. 157 Less obviously, the ramifications of
immigration law are not gender-neutral. Although the INA is facially neutral, 158 its impact is often not. Laws like
the 1986 Immigration [*21] Reform and Control Act (IRCA) legalized the status of many more male than female
undocumented immigrants. 159 The INA also denies admission to anyone who, "in the opinion of the consular
officer … or … the Attorney General," "is likely at any time to become a public charge." 160 Under a totality of the
circumstances test, the officer considers age, health, family status, assets, education, and skills. 161 Although
gender is not one of the factors listed in the test, it has historically been a significant deciding factor, 162 and the
government continues to deem "receipt of public cash assistance for income maintenance or institutionalization for
long-term care at government expense" a relevant factor. 163 Although men sometimes receive public assistance
as well, women and children are the primary beneficiaries, 164 indicating that women and children are more likely to
be prevented from documented entry into the country. Finally, because immigrant women are less likely to have
jobs and work experiences 165 that qualify them for employment-based visas, 166 they have fewer opportunities to
156 See, e.g., id. at 377-78 (failing to mention gender as a component of membership theory when discussing crimmigration);
T. Alexander Aleinkoff & Rubin G. Rumbaut, Terms of Belonging: Are Models of Membership Self-Fulfilling Prophecies?, 13
Geo. Immigr. L.J. 1, 3-4, 4 n.7 (discussing race-based membership policies but relegating citizenship laws discriminating on the
basis of gender to a footnote and discussing them only in a historical context).
157 See supra Part II.A. 158 The obvious and controversial exception to the INA's facial neutrality is 8 U.S.C.§§1401(g), 1409(c), which impose a five-
year residence requirement on citizen fathers - but not citizen mothers - before they may transmit their citizenship to a child born
abroad, outside marriage, where the other parent is a non-citizen. The Supreme Court has upheld these statutes. See generally
Flores-Villar v. U.S., 131 S. Ct. 2312 (2011) (affirming, in a one-line decision, the lower court's decision denying an equal
protection challenge); Nguyen v. INS, 533 U.S. 53 (2001) (holding that the disparate treatment does not violate the Equal
Protection Clause of the Fifth Amendment).
159 Syd Lindsley, The Gendered Assault on Immigrants, in Policing the National Body: Sex, Race, and Criminalization 175, 177-
78 (Jael Silliman & Anannya Bhattacharjee eds., 2002) ("This gender bias was a result of several factors. First of all, men
predominately filled the types of agricultural work upon which amnesty was contingent. Cannery and packing, in which women
held the majority of jobs, were specifically excluded from the amnesty provision. Also, the documentation required for amnesty,
such as driver's licenses, pay stubs, and rent receipts was much more likely to be held by men than women.").
160 8 U.S.C.A. § 1182(a)(4)(A) (West 2011). 161 § 1182(a)(4)(B)(i)(I)-(V). 162 See, e.g., Martha Mabie Gardner, The Qualities of a Citizen: Women, Immigration, and Citizenship, 1870-1965 91 (2005)
(noting that pregnant women were often deemed inadmissible because they were thought likely to become public charges);
Eithne Luibheid, Entry Denied: Controlling Sexuality at the Border 5 (2002) (claiming that unmarried pregnant women were
automatically presumed to be public charges).
163 U.S.C.I.S., Public Charge (Sept. 3, 2009), http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac
89243c6a7543f6d1a/?vgnextoid=829b0a5659083210VgnVCM100000082ca6
0aRCRD&vgnextchannel=829b0a5659083210VgnVCM100000082ca60aRCRD.
164 See, e.g., Lindsley, supra note 159, at 177 (noting that welfare recipients are primarily women). 165 2009 Yearbook of Immigration Statistics, supra note 127, at 25 tbl.8. 166 8 U.S.C. § 1153(b) (2006).
27 Berkeley J. Gender L. & Just. 1, *20 Page 18 of 22 come to the United States legally. These factors add up to create an immigration law with disparate impact on
women and their children. 167 [*22] Furthermore, immigrant women - and, especially, immigrant women of color - are clearly defined as "other"
by membership theory. They have the unique ability to reproduce more non-members, making them especially
threatening. 168 For Mexican women, for example, "their sexuality as well as their culture and language have been
suspect and considered alien." 169 David Morales describes the "paradigmatic vision of "illegal' immigration" as
a Mexican woman, brown-skinned and mestiza, nine-months pregnant, crossing the Rio Grande under cover of
night. Such an image captures the full scope of the terror bound up with "illegal" immigration: the sneaking
nocturnal setting lends the tableaus the requisite feeling of legal breach (of trespass onto sovereign property) while
also emphasizing the defenselessness of the border, which is barely a "border" at all, just a river, like any other, that
happens to mark a boundary… . That the immigrant herself is gendered as the "weaker sex" reinforces our sense
that immigrants are dependent on us. That the woman is also literally burdened with a growing child represents the
perpetual burden that We the People will bear once she and her pre-citizen fetus take residence in the United
States. Her brown skin reflects our long-standing fear of cultural and genetic miscegenation. 170
Syd Lindsley suggests that we should see this conceptualization as an attack "on immigrant women's ability to
reproduce and maintain their families" and "an attempt to regulate and control immigrant women's mothering." 171
With this conceptualization in mind, any membership theory analysis that looks at race and class but fails to
consider gender will necessarily fail to understand the immigrant experience and its popular conception as a whole.
Just as important is current scholarship's missed opportunity to discuss the way that gender changes immigrants'
relationship to the state. Although Juliet Stumpf argues that criminal law and immigration law both "primarily
regulate the relationship between the state and the individual," 172 her conception of this [*23] "individual" is
gendered male. If we add gender and family into the crimmigration equation, it becomes clear that the scope of
the impact of immigration law and the criminal justice system extends beyond the individual directly involved,
167 Because gender plays an obviously important role in both employment and welfare law, it seems natural that immigration
scholars would analyze gender's role when discussing the intersection of crimmigration and welfare or employment.
Unfortunately, this is not the case. Another Juliet Stumpf article builds on membership theory. Stumpf, States of Confusion,
supra note 85, at 1583-86. Immigration law's transition "from a border-focused foreign policy matter to a more internal focus
began with employment law" through IRCA, which "was the first expansion of federal immigration enforcement into employment,
an area of traditional state concern." Id. at 1583. However, instead of standing for an increasing federal presence over
immigration control, IRCA represents a move away from immigration as foreign policy - and thus subject to federal control - and
toward immigration as a domestic issue. Id. Likewise, the Personal Responsibility and Work Opportunity Act ("PRWORA") of
1996 "devolved federal power to the states to deny benefits to immigrants" and required that states receiving grants under
PRWORA report anyone they knew to be undocumented. Id. at 1586. It "connected the state welfare laws with the condition
under which noncitizens are admitted" by mandating that immigrants prove they have sufficient resources not to become a public
charge. Id. at 1585.
168 For an intriguing and horrifying example of this, see Mary Romero, "Go After the Women": Mothers Against Illegal Aliens'
Campaign Against Mexican Immigrant Women and Their Children, 83 Ind. L.J. 1355, 1374-75 (2008) (looking at Mothers
Against Illegal Aliens' ("MAIA") "dehumanizing construction of immigrant women as unworthy mothers"). MAIA claims that
immigrant women are "crossing our border to "steal' the American Dream by giving birth" and "are producing and utilizing
children as hostages until demands for citizenship are met." Id.
169 Id. at 1365. 170 Daniel Ibsen Morales, In Democracy's Shadow: Fences, Raids, and the Production of Migrant Illegality, 5 Stan. J. C.R. &
C.L. 23, 69-70 (2009).
171 Lindsley, supra note 159, at 185. 172 Stumpf, The Crimmigration Crisis, supra note 42, at 379-80.
27 Berkeley J. Gender L. & Just. 1, *21 Page 19 of 22 whether that individual is male or female. When male immigrants are taken into ICE custody or deported, their
children and partners are left behind to fend for themselves and are ignored by academic scholarship and popular
opinion. When female immigrants are taken into ICE custody or deported, however, the media and popular opinion
correctly recognizes that their status as primary caregiver - and thus their relationships with their family - is
compromised. If a partner remains in the U.S. and is involved in the family, he often takes over primary caregiving
responsibilities leaving the mother to survive in custody or in her home country without her family. But if the partner
is also deported or is out of the picture, a woman with children may lose her parental rights involuntarily - as Ms.
Romero did - or make a heartbreaking choice between leaving a citizen child in the U.S. and taking the child with
her when she is deported. 173 When we analyze gender in conjunction with crimmigration, it is clear we are not
simply talking about the relationship between individuals and the state but rather between families and the state.
Scholars' failure to include women and gender in their examination of crimmigration represents more than simply
ignoring a substantial portion of the individuals affected by crimmigration. Overlooking gender has led to an overly
individualistic analysis of the relationship between noncitizens and the state, making it appear that only the
individual who comes into direct contact with the crimmigration apparatus is affected. Inserting gender into the
equation demonstrates that this individualistic approach harms men, women, children, and families and makes it
clear that current scholarship does not represent the lived experiences of all immigrants.
IV. Proposals for the Decline of Crimmigration in Women's Lives Thus far, academia has failed immigrant women. This Part attempts to begin rectifying that failure by proposing
specific laws and policies that could limit crimmigration's impact on noncitizens in general and women in
particular.
Crime and immigration have not always been linked, and only over the last several decades have the two become
so interdependent. The law must halt - and hopefully reverse - the ever-increasing number of crimes identified as
aggravated felonies discussed in Part I. The Immigration and Nationality Act should limit deportable crimes to those
that are truly both aggravated and felonies, as the Anti-Drug Abuse Act did. 174 Not only would this limit deportation
to punishment for those crimes that truly impact public safety, but it would also limit the number of crimes for which
relief from deportation is not [*24] available. Additionally, the INA should return to the era of statutes of limitations
for removal, a time when "it seemed unconscionable to expel immigrants after they had settled in the country and
begun to assimilate." 175 These two simple reforms - once taken for granted - would do much to decouple crime
and immigration.
We should also aim to limit the detrimental impact that newer laws and policies have on immigrant populations.
Secure Communities could become less damaging to noncitizens in several ways without implicating its overall
mission. It could base removal on whether the noncitizen is actually convicted of, or at least charged with, a crime.
It could also restrict automatic reporting to cases where the noncitizen is arrested for a high-level offense that in fact
poses a danger to the community. We should also demand that our counties opt out of Secure Communities and
287(g) altogether. Local and state police collaborating with ICE makes our communities less safe by making
noncitizens reticent to work with the police for fear of being arrested themselves and turned over to Immigration.
This non-collaboration strategy has been working. Illinois Governor Pat Quinn ended his state's involvement in
Secure Communities. According to his administration, "Illinois signed up to help I.C.E. remove criminals convicted
of serious crimes, but based on the statistics from I.C.E., that's not what was happening." 176 The California
legislature has been considering whether to allow counties to opt out of the program after San Francisco Sheriff
173 There are many reasons why she might not want to take her child with her, including poverty, social stigma, lack of
education, and lack of medical care in her country of origin.
174 Kohli, supra note 78, at 5-6. 175 Ngai, supra note 56, at 59. 176 Julia Preston, States Resisting Program Central to Obama's Immigration Strategy, N.Y. Times, May 5, 2011, at A18,
available at http://www.nytimes.com/2011/05/06/us/06immigration.html?_r=1.
27 Berkeley J. Gender L. & Just. 1, *23 Page 20 of 22 Michael Hennessey "argued that engaging local police in immigration enforcement would erode hard-earned trust
with Latino and other immigrant communities." 177 The Providence City Council recently expressed concern with
the program and directed the public safety commissioner to review it. 178 Continuing education about the damage
Secure Communities actually does will hopefully lead to more actions like these.
This approach will help both male and female noncitizens escape the devastating impact of crimmigration, but
there are specific actions that can shield women and families in particular. Perhaps most simply, educating police
officers about domestic violence and other ways that women come into contact with the criminal justice system
could have prevented Ms. Bolanos's arrest in the first place. With Secure Communities in place, the initial arrest
and fingerprint scan is currently the point of no return, regardless of whether a prosecutor ultimately decides to
institute charges. If police officers are trained to be more careful in their approach to situations of domestic violence
and other abuse, they could avoid involving ICE at all by not making hasty arrests in the first place.
[*25] Other actions must focus on women's disproportionate role as primary caregivers 179 for children. The INA
currently allows for cancellation of removal for two categories of noncitizens: permanent residents who have lived in
the U.S. for seven continuous years, five of which were under permanent resident status, and have "not been
convicted of any aggravated felony"; 180 and any noncitizen who has lived in the U.S. for ten continuous years,
"has been a person of good moral character," has not been convicted of a crime that would make her inadmissible
or removable, 181 and "establishes that removal would result in exceptional and extremely unusual hardship" to a
citizen or permanent resident parent, child or spouse. 182 Where a noncitizen is the primary caregiver of a U.S.
citizen or permanent resident child, we should expand avenues for relief under either section. For example,
because the continuous residence requirement is meant to stand as a proxy for connections to the U.S., being a
primary caregiver to a citizen or resident child could be another such proxy. Such caregivers could be given relief
with fewer years of residence. Furthermore, almost anyone implicated by the crimmigration crisis will be ineligible
for relief under either section. To that end, we should redefine aggravated felonies and other crimes that make a
prospective immigrant inadmissible or removable, as discussed above, or we should not make these crimes an
absolute bar to relief. Additionally, in the case of undocumented immigrants, primary caregiving of a citizen or
permanent resident child should automatically qualify as sufficient hardship to bar removal. 183 All of these actions
would benefit women and families caught up in the crimmigration system.
Finally, we must address the potential for termination of parental rights while primary caregivers are in ICE custody
to ensure that what happened to Ms. Romero does not happen again. Unlike avenues for relief from deportation,
these guidelines should apply regardless of whether the child is a citizen, a permanent resident, or undocumented.
Beyond ensuring that the court upholds a parent's procedural due process rights while in custody, ICE should
release primary caregivers until their deportation hearings unless, after an individualized hearing, an immigration
judge finds the noncitizen would pose an immediate threat to the community. In cases where release is not
177 Id. 178 Providence, R.I., Comm. on Ordinances, Resolution 35 (March 3, 2011), available at
http://sos.ri.gov/documents/publicinfo/omdocs/notices/4798/2011/104158.pdf.
179 Using "primary caregiver" instead of a gendered term will eliminate any possibility of an equal protection challenge. See
generally Ex Parte Devine, 398 So. 2d 686 (Ala. 1981); Garska v. McCoy, 278 S.E.2d 357 (W. Va. 1981).
180 8 U.S.C.A. § 1229b(a)(1)-(3) (West 2011). 181 This includes aggravated felonies, crimes of moral turpitude, and national security grounds, as discussed in Part I, supra. 182 § 1229b(b)(1)(D). There is a limited exception for a "battered spouse or child" that decreases the amount of time that
noncitizen must have resided in the U.S. to three years. § 1229b(b)(2).
183 Of course, all of these proposals will be strongly opposed by conservative politicians and advocates who decry so-called
"anchor babies," whose parents allegedly enter the United States to give birth to American citizens and then use their children to
"anchor" themselves to the country. See generally Hartry, supra note 3.
27 Berkeley J. Gender L. & Just. 1, *24 Page 21 of 22 possible, immigrants' rights groups should rethink their opposition to holding children with their parents in [*26]
detention. 184 Mother-child prison facilities have shown potential for success, 185 and similar programs run by ICE
or community groups could help primary caregivers maintain contact with their children and limit opportunities for
termination of parental rights. As discussed in Part III in a different context, current opposition to mother-child
immigration detention facilities possibly stems from an overly individualistic view of crimmigration that focuses only
on the noncitizen caught in the crimmigration net and ignores its impact on the immigrant's family. If we examine
the holistic best interest of a child, given the option of foster care outside detention or remaining with his or her
family inside detention, the latter may win. It is not sufficient to examine the relationship between the child and the
state; instead, advocates and courts must look at the relationships between the family and the state and between
family members. Doing so may allow us to keep families together during a very difficult time.
The above proposals are not exclusive, nor will they dismantle the crimmigration crisis sufficiently. For real
change, we need comprehensive reform of both our immigration policy 186 and our criminal justice system. 187 But
[*27] any proposals that attempt to impact the lives of women caught in this dual system of oppression are a step
in the right direction.
Conclusion184 For example, a private immigration detention center in Texas sparked an ACLU lawsuit for housing women with their children
in violation of a "1997 court settlement that established minimum standards and conditions for the housing and release of all
minors in federal immigration custody." Press Release, ACLU, ACLU Challenges Prison-Like Conditions at Hutto Detention
Center (Mar. 6, 2007), available at http://www.aclu.org/immigrants-rights-racial-justice/aclu-challenges-prison-conditions-hutto-
detention- center.
185 See generally, e.g., Karen Shain, Carol Strickman & Robin Rederford, Legal Servs. for Prisoners with Children, California's
Mother-Infant Prison Programs: An Investigation (2010). 186 Comprehensive immigration reform proposals take many forms, but they generally contain three core principles: some form
of legalization or amnesty for undocumented immigrants already within the United States, guest worker programs, and an
increased focus on preventing undocumented immigration. See, e.g., Michael J. Wishnie, Labor Law After Legalization, 92 Minn.
L. Rev. 1446, 1446-47 (2008). The Development, Relief, and Education for Alien Minors (DREAM) Act is also considered a core
component of immigration reform. See generally Michael A. Olivas, The Political Economy of the DREAM Act and the Legislative
Process: A Case Study of Comprehensive Immigration Reform, 55 Wayne L. Rev. 1757 (2009) (discussing the Act in detail and
locating it within the broader immigration reform debate). Comprehensive immigration reform bills are introduced routinely in
Congress; the Senate's latest attempt at reform was introduced by Senator Robert Menendez. See Comprehensive Immigration
Reform Act of 2011, S. 1258, 112th Cong. (1st Sess. 2011).
187 Suggestions for reform of the criminal justice system are incredibly varied. See, e.g., Dorothy Roberts, Constructing a
Criminal Justice System Free of Racial Bias: An Abolitionist Framework, 39 Colum. Hum. Rts. L. Rev. 261, 284 (2007) (arguing
that because we should see "capital punishment, mass incarceration, and police terror as modern extensions of a caste system
that originated in slavery and that continues to subjugate black people," we can only eliminate racism from the criminal justice
system through prison abolition); National Criminal Justice Commission Act of 2011, S. 306, 112th Cong. (1st Sess. 2011)
(intending to create a bipartisan Commission to review and identify effective criminal justice policies and make recommendations
for reform); Richard A. Serrano, David G. Savage, & Carol J. Williams, Early Release Proposed for Crack Cocaine Offenders,
L.A. Times, June 1, 2011, available at http://articles.latimes.com/2011/jun/01/nation/la-na-holder-crack-20110602 (discussing
attempts "to correct wide disparities in sentences for crack and powder cocaine offenders"); Leena Kurki, Restorative and
Community Justice in the Unites States, 27 Crime & Just. 235, 235 (2000) (discussing restorative justice, which "is based on
values that promote repairing harm, healing, and rebuilding relations among victims, the offenders, and the communities," and
community justice, which "views crime as a social problem that affects life in communities and suggests that prevention is an
essential part of all criminal justice agencies' work."); Marc Mauer, Sentencing Reform: Amid Mass Incarcerations - Guarded
Optimism, 26 Crim. Just. 27, 27, 28, 30, 31 (2011) (noting that "the high cost of imprisonment, particularly at the state level, has
caused policy makers to consider a host of reform strategies designed to stabilize or reduce the number of people in prison," and
advocating reentry programs, "smart on crime" policies, and improvement of prison conditions). This is just a small sampling of
some proposals; the rich treatment this topic deserves is outside the scope of this Commentary.
27 Berkeley J. Gender L. & Just. 1, *25 Page 22 of 22 This Commentary argues that academic treatment of the intersection of the criminal justice system and immigration
law has thus far ignored the experiences of immigrant women and families. I have examined the ways in which
crimmigration is uniquely gendered in an attempt to put women and families at the forefront of our nationwide
debate over the future of criminal justice and immigration reform. In doing so, I hope to encourage other scholars to
reexamine crimmigration's overly individualistic approach to the relationship between noncitizens and the state
and situate scholarly analysis in noncitizens' lived experiences. Finally, I aim to help women like Encarnacion Bail
Romero and Maria Bolanos avoid deportation and the loss of their children by showing that society's overzealous
approach to crimmigration harms women and families disproportionately.
Berkeley Journal of Gender, Law & Justice
Copyright (c) 2012 The Regents of the University of California on behalf of Berkeley Journal of Gender, Law & Justice
End of Document
27 Berkeley J. Gender L. & Just. 1, *27
