Immigration and Criminal Law
Santa Clara Law School
Ana Aliverti
Course Introduction and Objectives
Immigration has long been linked to crime and social disorder. In countries which experienced
high levels of immigration in the late 1800s and early 1900s, newcomers were perceived with
suspicion and were accused of bringing disruption, social unrest and criminality to the hosting
societies. In the United States, for instance, the Chicago School was an important site where
those claims were tested. Such representation of immigrants as a source of social, economic and
cultural threat for the receiving societies and as a dan gerous class is often articulated in
contemporary public discourses and media reports about immigration. This may explain why
immigrants are quickly identified as outlaws and potential offenders, and why recent policies
have emphasised this parallel.
This course will address the position of non-citizens in contemporary penal policies and
practices. It will explore how those public perceptions are imprinted in the everyday practices of
the criminal justice system. It will also assess the so-called convergence of immigration law and
criminal law regimes, and its impact on contemporary policies and practices to police foreigners.
Course Structure
First Session: Criminal law and citizenship/immigration status
In this session we will discuss which role, if any, should immigration status have in national
criminal law systems. In this regard, we will discuss communitarian approaches to criminal law,
in particular Antony Duff’s, to assess the virtues and disadvantages of making citizenship central
to criminal law. We will also examine the pitfalls of constructing a criminal law for citizens
using modern legislation on anti-terrorism as a case in point.
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Duff, R. 2010. A criminal law for citizens.Theoretical Criminology, 14, 293-309.
Duff, R. 2011. Responsibility, Citizenship, and Criminal Law. In:Duff, R. & Green, S.
(eds.) Philosophical Foundations of Criminal Law. Oxford: OUP.
Gomez-Jara, C. 2008. Enemy Combatants vs. Enemy Criminal Law. New Criminal Law
Review, 11 , 529-562.
Zedner, L. 2013. Is the Criminal Law only for Citizens? A Problem at the Borders of
Punishment. In: Aas, K. F. & Bosworth, M. (eds.) The B orders of Punishment: Criminal
justice, citizenship and social exclusion. Oxford: Oxford University Press (forthcoming).
Zedner, L. 2010. Security, the State, and the Citizen: The Changing Architecture of
Crime Control. New Criminal Law Review 13, 379-403.
Dubber, M. 2010. Citizenship and Penal Law. New Criminal Law Review, 13, 190-215.
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Aharonson, E. & Ramsay, P. 2010. Citizenship and criminalization in contemporary
perspective: Introduction. New Criminal Law Review, 13, 181-189.
Coles, D. 2007. Against Citizenship as a Predicate for Basic Rights. Fordham Law
Review, 75, 2541-2548.
ECHR, A and others v United Kingdom, Application no. 3455/05, Judgment of 19
February 2009 (Use of indefinite imprisonment against foreigners suspected of terrorism,
Discrimination on grounds of nationality)
Second Session: Criminalization: Immigration offences
States in the west are increasingly appealing to the criminal law to deter migrants from choosing
these countries as their destinations. In this session, we will discuss the reasons for criminalizing
breaches to immigration laws. Should criminal law be used to police migrants? Are there
legitimate reasons for criminalizing immigration law-breaking? Who are the ‘immigrants’, ie Are
criminal law provisions aimed at foreigners, in general, or at certain groups of foreigners?
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Sklansky, D. 2012. Crime, Immigration, and Ad Hoc Instrumentalism. New Criminal
Law Review, 15, 157-223.
Chacón, J. 2012. Overcriminalizing Immigration. Journal of Criminal Law &
Criminology, 102, 613-652.
Dauvergne, C. 2008. Making People Illegal. What Globalization Means for Migration
and Law, New York, CUP (Chapter 2).
Stumpf, J. 2007. The Crimmigration Crisis: Immigrants, Crime, and Sovereign State.
Lewis & Clark Law School Legal Research Paper Series, 2007-2, 1-44.
Spena, A. 2013. Iniuria Migrandi: Criminalization of Immigrants and the Basic Principles
of the Criminal Law.Criminal Law and Philosophy.
Aas, K. F. 2011. ‘Crimmigrant’ bodies and bona fide travelers: Surveillance, citizenship
and global governance. Theoretical Criminology, 15, 331-346.
Medina, I. 1997. The Criminalization of Immigration Law: Employment Sanctions and
Marriage Fraud.George Mason Law Review, 5,669-731.
Demleitner, N. & Sands, J. 2002. Non-Citizen Offenders and Immigration Crimes: New
Challenges in the Federal System.Federal Sentencing Report 14, 247-254.
IACrtHR, Velez Loor v Panama, Series C 218, Judgment of 23 November 2010.
(Criminalisation of illegal entry by Panama and compatibility with human rights norms)
Council of Europe 2010. Criminalisation of Migration in Europe: Human Rights
Implications. Strasbourg: Office of the Commissioner for Human Rights Council of
Europe.
Third Session: Foreigners before the courts
Because the criminal law procedure is generally more protective than other legal proceedings –
such as administrative or civil ones – it can be argued that bringing non-citizens before the
criminal courts will place them on an equal footing with same legal rights as citizens. Yet,
research done on the criminal justice system shows that holding immigrants criminally
accountable contribute to perpetuate inequalities, instead of ensuring equal treatment. During this
session, we will examine the general patterns of immigration prosecutions and the criminal
proceedings involving people accused of immigration crimes.
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Stumpf, J. 2011. Doing Time: Crimmigration Law and the Perils of Haste. UCLA Law
Review, 58, 1705.
Aliverti, A. 2013. Crimes of Mobility: Criminal Law and the Regulation of Immigration,
Abingdon, Routledge (forthcoming) (Chapter V).
Legomsky, S. 2007. The New Path of Immigration Law: Asymmetric Incorporation of
Criminal Justice Norms. Washington & Lee Law Review, 64, 469-528.
Dunstan, R. 1998. United Kingdom: Breaches of Article 31 of the 1951 Refugee
Convention. International Journal of Refugee Law, 10, 205-213.
Eagly, I. 2010. Prosecuting Immigration. Northwestern University Law Review, 104,
1281-1360.
Albrecht, H. 2000. Foreigners, Migration, Immigration and the Development of Criminal
Justice in Europe. In: Green, P. & Rutherford, A. (eds.) Criminal Policy in Transition.
Oxford and Portland, Oregon: Hart.
Albrecht, H. 1997. Ethnic Minorities, Crime and Criminal Justice in Germany. Crime &
Justice, 21, 31-100.
Messier, F. 1999. Alien Defendants in Criminal Proceedings: Justice Shrugs. American
Criminal Law Review, 36, 1395-419.
R v. Uxbridge Magistrates Court and Another, Ex parte Adimi [1999] EWHC Admin
765; [2001] Q.B. 667 (offences of fraud used against asylum seekers, article 31 Refugee
Convention)
Arizona et al. v United States, 000 U.S. 11-182 (2012)
Human Rights Watch 2013. Turning Migrants into Criminals. The Harmful Impact of US
Border Prosecutions. New York: Human Rights Watch. (on the increasing use of
immigration prosecution)
Fourth Session: Punishing non-citizens: criminal punishment and administrative detention
Several academics have alerted about the over-representation of non-citizens in European
seclusion centres in the last few decades. This session will examine reasons for this trend and
assess whether race, social class and status play a role in this outcome. We will also explore the
function of reclusion more generally, by looking at the functional and institutional
commonalities between the prison and the immigration detention centre.
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Wacquant, L. 2006. Penalization, Depoliticization, Racialization: On the Overincarceration of Immigrants in the European Union. In: Armstrong, S. & McAra, L. (eds.)
Perspectives on Punishment New York: OUP.
Wacquant, L. 1999. ‘Suitable Enemies’: Foreigners and Immigrants in the Prisons of
Europe. Punishment & Society, 1, 215-222.
De Giorgi, A. 2010. Immigration control, post-Fordism, and less eligibility: A materialist
critique of the criminalization of immigration across Europe. Punishment & Society, 12,
147-167.
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Bosworth, M. 2011. Human Rights and Immigration Detention in the UK. In: Dembour,
M. & Kelly, T. (eds.) Are Human Rights for Migrants? Critical Reflections on the Status
of Irregular Migrants in Europe and the United States. Abingdon: Routledge.
Bosworth, M. 2012. Subjectivity and identity in detention: Punishment and society in a
global age. Theoretical Criminology, 16, 123-140.
Broeders, D. 2010. Return to sender?: Administrative detention of irregular migrants in
Germany and the Netherlands. Punishment & Society, 12, 169-86.
Melossi, D. 2003. ‘In a Peaceful Life’: Migration and the Crime of Modernity in
Europe/Italy. Punishment & Society, 5, 371-397.
Lacey, N. 2008. The Prisoners’ Dilemma. Political Economy and Punishment in
Contemporary Democracies, New York, CUP. (pp 144-169)
Hammond, N. 2007. United Kingdom. In: van Kalmthout, A., Meulen, F. H.-v. &
Dünkel, F. (eds.) Foreigners in European Prisons. Nijmegen: Wolf Legal Publishers.
World Prison Brief: percentage of prison population who are foreigners in prisons of
European countries
Fifth Session: Deportation and removal
In modern times, the protection against deportation – or non-deportability – is one of the
distinctive features of citizenship. As opposed to citizens, foreign nationals can be expelled.
Deportation is a collateral consequence of a criminal punishment and, as we have seen in
previous sessions, one of the purposes of punishment, at least in extra-legal terms. In the United
States, the increasing number of criminal offences which have been classified as ‘aggravated
felony’ have significantly expanded the pull of deportable foreigners on grounds of criminal
convictions. In Britain, non-citizens convicted to at least one year imprisonment are
automatically subject to deportation. In this last session we will look at how expulsion in times
of globalization is caught up in-between a technique of ‘population transfer’ and as one of the
last bastion of state sovereign powers.
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Stumpf, J. 2009. Fitting Punishment. Washington & Lee Law Review, 66, 1683-741.
Kanstroom, D. 2000. Deportation, Social Control, and Punishment: Some Thoughts about
Why Hard Laws Make Bad Cases. Harvard Law Review, 113, 1890-1935.
Gibney, M. 2008. Asylum and the Expansion of Deportation in the United Kingdom.
Government & Opposition 43, 146-167.
Ewald, A. 2011. Collateral Consequences and the Perils of Categorical Ambiguity. In:
Sarat, A., Douglas, L. & Merrill Umphrey, M. (eds.) Law as Punishment/Law as
Regulation. Stanford, California: Stanford University Press.
Beckett, K. & Herbert, S. 2010. Penal Boundaries: Banishment and the Expansion of
Punishment. Law & Social Inquiry, 35, 1-38.
Chacón, J. 2007. Unsecured Borders: Immigration Restrictions, Crime Control and
National
Security.
Connecticut
Law
Review,
39,
1827-1891.
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Chacón, J. 2008. The Security Myth. Punishing Immigrants in the Name of National
Security. In: D’Appollonia, A. & Reich, S. (eds.) Immigration, Integration, and Security:
America and Europe in Contemporary Perspectives. Pittsburgh, PA: University of
Pittsburgh Press
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Bosworth, M. 2011. Deportation, detention and foreign-national prisoners in England and
Wales. Citizenship Studies, 15, 583-595.
Quassoli, F. 2004. Making the neighbourhood safer: social alarm, police practices and
immigrant exclusion in Italy. Journal of Ethnic & Migration Studies, 30, 1163-1181.
De Genova, N. 2002. Migrant ‘Illegality’ and Deportability in Everyday Life.
Annual Review of Anthropology, 31, 419-447.
Markowitz, P. 2008. Straddling the Civil-Criminal Divide: A Bifurcated Approach to
Understanding the Nature of Immigration Removal Proceedings. Harvard Civil RightsCivil Liberties Law Review, 43, 289-351.
European Court of Justice, Judgement of 28 April 2011. Hassen El Dridi. Case C-61/11
Padilla v Kentucky 130 US S. Ct. 1473 (2010) (on deportation as consequence of
criminal conviction and failure of legal counsel to advice on this matter)