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Sarah Tosh discusses the rise of the use of the aggravated felony, known by lawyers as the “immigration law death penalty,” to criminalize and then deport immigrants.

Image courtesy of interviewee. November 27, 2023

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The speaker discusses their transition from a criminological background to researching immigration law, particularly focusing on the punitive intersection of criminal justice and immigration policy. They highlight how their personal experiences growing up in Brooklyn with immigrant communities motivated their research. The concept of "aggravated felony," introduced by the Anti-Drug Abuse Act of 1988, is examined as a key policy that leads to the deportation of both undocumented and lawful permanent residents for a broad array of offenses, not exclusively felonies.

The speaker notes the inadequate representation for immigrants facing deportation due to aggravated felonies, which often disproportionately affects Black and Latinx immigrants. They emphasize the importance of due process rights, which are limited in the immigration system compared to the criminal justice system, resulting in unjust deportations and prolonged detention for individuals who may not actually qualify as having committed an aggravated felony.

The speaker also discusses practical efforts made in New York City to resist the harsh impacts of such policies, including a universal representation program that has significantly improved outcomes for detained immigrants. They advocate for a more nuanced understanding of immigration and criminal law, calling for the abolition of the aggravated felony category and highlighting the need for broader reforms in both immigration and criminal justice systems to address systemic inequalities. Overall, the talk seeks to unmask the complexities of these policies and encourage advocacy for more equitable legal frameworks.

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X-TIMESTAMP-MAP:LOCAL=00:00:00.000,MPEGTS=900000

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I didn't come into this work really

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as an immigration scholar.

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I came into it more from a, I guess you could say,

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a cri criminological background.

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Um, I began doing research on really the unequal outcomes

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of the war on drugs, mass incarceration, looking at a lot

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of the racial inequalities, that sadly, despite

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many decades now of research on,

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we're still seeing continue to exist.

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Um, but in that research,

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I started learning about really growing links

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between criminal justice

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and immigration policy as well in the, around the world,

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but especially in the United States.

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Um, and growing up in Brooklyn, coming from New York City,

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this was particularly interesting to me since I grew up

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with a lot of people who were close to me

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who were immigrants, children of immigrants.

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So I did feel a personal connection, kind of seeing

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how these punitive policies were impacting the communities

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that, I felt close to and a part of.

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So really in this research on the,

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what we call the punitive turn in immigration, drug

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and criminal justice policy more broadly,

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I learned about the aggravated felony.

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So it was actually created as part

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of the Anti-Drug Abuse Act of 1988, which is one

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of the formative laws of the war on drugs.

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Um, so very related, really.

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And I learned about this as part of what we call in kind of,

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I guess in immigration law

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and legal studies as the immigration nexus.

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This increased intertwining between immigration

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and criminal law over the past 40 years.

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And there's a lot of research in the many ways

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that this intertwining has, as people say,

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criminalized immigrants, right?

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But there's less research.

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While there's amazing research in this field,

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and it's really made huge contributions, there's less

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research about immigrants who are convicted of non-immigrant

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immigration related criminal convictions, right?

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So this partially has to do with

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what we call the good immigrant, bad immigrant binary,

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both in policy and advocacy, right?

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That often kind of focuses on wanting to

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point out immigrants are not criminals, right?

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But what about people

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who are deemed criminal within our system, right?

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And what does it mean for this group?

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Are they not deserving of, you know,

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research advocacy and these things?

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So knowing what we do know,

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right about inequality in the criminal justice system,

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I really felt drawn

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to highlighting these populations in the kind

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of immigration sphere.

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I also, at the time, was,

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doing my doctoral studies in New York City

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at CUNY Graduate Center.

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So I, in some ways, in many ways,

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felt uniquely placed to do this research.

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Um, a lot of people just know of New York as kind

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of this immigration hub with sanctuary policies,

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but we do have some

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of the most active immigration courts in the country.

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Thousands of immigrants are deported each year.

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At the time when I was doing this research,

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Donald Trump was the president

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and there was a lot of focus on kind

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of cracking down on immigration in New York City,

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in particular, with this focus on criminal aliens, right?

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Um, and it's also very, very active in terms of criminal,

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legal, system, right?

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So New York has the largest police force in the country, 30,

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36,000 officers in the NYPD, right?

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With this extreme history

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and ongoing reality of racist enforcement

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that really has like shaped this

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criminal policy throughout the world.

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Um, it's a hub for black and Latinx immigrants,

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and particularly Afro Latinx immigrants

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who are targeted within this system.

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And lastly, we also have the first universal representation

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program for detained immigrants.

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So I felt there was a lot of voices able

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to speak on these issues, and I was excited to be able

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to access that in New York.

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A lot of the findings really come from my qualitative

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research in New York City's, detained Immigration Corp,

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really from 2017 to 2018.

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So it's a little bit ago,

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but sadly, these systems are working in really a lot

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of the same ways with some, actually

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some things getting even worse in some ways

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with throughout the pandemic and things like that.

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Um, I did courtroom ethnography.

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So Barrack Street Immigration Court is the detained

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immigration court in New York City.

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All the detained cases are held there.

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So it's smaller than the main immigration court,

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even though it's a public courtroom, it's very,

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you wouldn't know it, it's right in

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New York City's West Village.

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I had walked past it many times in my life,

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and didn't even know it was there, right?

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It's just like the 11th floor of this government building

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largely closed off in a lot of ways.

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So I, was able to

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access cases in part related.

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Um, at first I got, I mean, I could have got, I went

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to cases sometimes some days, just like went

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and went to whatever was happening,

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but I really wanted to target aggravated felony based cases.

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So I have one colleague who, testifies

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as an expert witness in a lot of relevant cases.

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So he was able to bring me in

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and throughout the research I made connections with lawyers

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who notified me about these type of cases.

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And this also gave me entry into meeting more lawyers

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who I did, about 40 in-depth, 39 in-depth interviews,

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with immigration lawyers, mostly immigration lawyers,

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as well as criminal defense lawyers

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and advocates who were doing work in this area.

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So, I met some of them through court,

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my own personal professional networks, snowball sampling

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as we do, and did in-depth in-person

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and phone interviews with these lawyers.

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And that really makes up the bulk of the research.

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There's also supported, of course,

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you can't write a book without looking at, you know, a lot

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of additional sources.

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So I did archival research of official records,

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historical analysis, legal analysis,

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organizational resources, kind of everything I could find

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related to this category.

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'cause there really hadn't been much done

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on it in the social sciences before this point.

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So I was drawing from really

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everywhere, all sorts of sources.

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And we've heard of aggravated put together sounds like, wow,

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the worst types of crime possible, right?

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The, you know, the worst category

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and then aggravated in some way, which is usually something

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that makes it like a motive

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or something that makes a crime particularly,

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extreme, right?

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So it's actually not a criminal law category at all.

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It's actually specifically an immigration law term.

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Um, it's a category of criminal convictions

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that makes non-citizens, both undocumented

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and lawful permanent residents, green card holders,

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deportable under immigration law.

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So there's a few categories of criminal convictions

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that make people deportable,

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but this is the one that applies to the widest array

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of convictions and has the most severe result

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of any category of deportable conviction.

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So as when it was first, you know, created in 1988,

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not in the scheme of immigration policy,

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it's fairly new, right?

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This is only the past three or four decades.

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Um, it started out including three areas of crime, right?

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Drug trafficking, arms trafficking, and murder, right?

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So in some way, I mean, if you don't know all the things

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that can be included in drug trafficking, right?

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You might think of that, okay?

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These are extreme crimes, right?

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Um, today it has since been expanded to apply

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to 35 types of crime, that are listed in the Immigration

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and Naturalization Act.

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And these are categories of federal crime.

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So it actually applies to thousands

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of state level offenses, right?

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Including many misdemeanors.

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So the name is really a misnomer.

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It does not need to be a felony to be included.

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And the only aggravating factor is

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that the person is not a citizen.

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So, which is kind of offensive in itself, right?

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Um, so that was something really

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emphasized by my participants.

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It doesn't have to be aggravated,

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it doesn't have to be a felony.

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So we see things like many misdemeanors are included if you

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get a year sentence

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or more, even if that sentence isn't suspended,

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that doesn't really matter in immigration law.

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So we saw examples of like shoplifting with a year

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sentence, minor drug crimes.

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Drug crimes are one of the major areas

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of that we see included.

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Um, New York City, right?

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Lawyers would talk about turnstile hopping,

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get into the subway as if you've got a year sentence.

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That's a theft defense that could, you know, be,

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become an aggravated felony.

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And this is called the immigration law.

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Death penalty be by Lawyers and advocates.

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It's a nickname, it's not officially called that, but

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because of its severe results, right?

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So once immigration authorities identify someone

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as having been convicted of an aggravated felony,

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or what they alleged to be an aggravated felony, right?

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This wide definition allows for a lot, lot

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of leeway in this area.

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It's extremely difficult to avoid deportation.

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So, and it's important to note this is

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after criminal punishment.

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So sometimes it's directly after,

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but oftentimes people are out,

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have been living a normal life post-incarceration

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for many years, and then are picked up for a minor offense

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or go to, to a green card check in, or leave the country

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and come back and are picked up and put into detention.

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You're mandatorily detained,

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once you're being facing deportation

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based on this aggravated felony.

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So you're basically being

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reincarcerated for the same offense.

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Um, and you're cut off from almost all forms

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of legal relief from deportation.

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So this includes common forms of relief like asylum, right?

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An internationally recognized protection that's designed to

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prov, you know, protect people

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who would face persecution if return to their country,

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as well as cancellation of removal,

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which is a very common protection for green card holders

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and other longtime residents who are able to prove,

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you know, they have strong community ties,

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strong rehabilitation since the original crime family here,

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kids, all of these things, all

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of those things don't matter once you

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have an aggravated felony.

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So it's very expansive, very severe results.

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Um, and these bar, so these bars

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and relief also have lots of problems

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with due process, right?

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So one thing to note is

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that immigration law is an administrative system,

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not a criminal.

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So it's not subject to the same due process

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requirements as the criminal system.

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People are imprisoned without bail through the process

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of mandatory detention.

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They are not guaranteed legal representation.

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So only 37% of immigrants are represented.

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Only 14%

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of detained immigrants are represented

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across the country, right?

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So it's very different.

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That's why often people may not even really have something

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that's an aggravated felony,

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but they don't have anyone to prove that for them.

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So there's a lot of due process issues

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that really leads to enhanced punishment, right?

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So there's subject to this lengthy imprisonment,

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condition in conditions that are really,

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have been found worse in many cases to or equal,

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but in many cases worse than criminal incarceration.

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So often people just don't fight their case, right?

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You don't have legal representation, you're detained.

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It's a deterrent effect.

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And that's something my lawyers really talked about.

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Um, and this really, just to kind

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of wrap up this on this question,

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this funneling towards deportation contributes

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to the reproduction of inequality, right?

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So we see immigrants who are mandatorily detained

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and deported, especially based on these criminal factors,

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disproportionately draw from the same groups

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that we know are overrepresented in the

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criminal legal system, right?

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So particularly black

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and Latinx immigrants, we see

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migrants from Latin America counting for over

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90% of deportations despite comprising only half

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of the US foreign-born population.

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And black immigrants who account for 10%

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of the foreign-born population comprise more than 20%

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of those who face removal based on criminal convictions.

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So these inequalities

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that are being reproduced are really rationalized

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through this good immigrant bin, good immigrant,

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bad immigrant binary that really just paints all immigrants

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with criminal records as non deserving.

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I talked about some of the kind of detailed ways

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that this increases in, deportation,

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but when we think of it more broadly, this is part

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of this broad punitive turn that really was intertwined

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with the parallel rise of war on drugs,

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mass incarceration, right?

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So while rhetorical links, you know, between immigration

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and crime are not new around the world

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or the United States, right?

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We've often seen this kind of stereotyping

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of immigrants as criminal.

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Um, and in the US we've seen

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that in particularly racialized ways.

12:52.305 --> 12:55.205
So particularly immigrants who are racialized as Latino

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and black, going back to racial hierarchies

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that go all the way back, right

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to colonialism, slavery, et cetera.

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We saw a lot of research.

13:04.725 --> 13:07.685
We've seen decades of research really disproving these

13:07.685 --> 13:10.525
racist tropes, but still they've been trotted out

13:10.525 --> 13:11.685
time and time again, right?

13:11.745 --> 13:13.765
In favor of these punitive policies.

13:13.825 --> 13:15.765
And we saw really a reinvigoration

13:15.865 --> 13:20.605
of this process in the 1980s, late seventies, 1980s,

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in response to an influx of Caribbean asylum seekers.

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So particularly immigrants coming from Haiti,

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and what were known as the Marielle Cubans.

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So Cubans who had more kind of African

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ancestry than other immigrants.

13:33.485 --> 13:38.125
So we saw the same kind of similar racial hierarchies

13:38.125 --> 13:40.005
that were being holding up the war on drugs

13:40.025 --> 13:41.485
and mass incarceration more broadly.

13:42.225 --> 13:43.405
We saw this spiral

13:43.505 --> 13:46.245
of panic linking immigrants with crime, right?

13:46.245 --> 13:47.765
So it was really part of the same,

13:47.835 --> 13:49.485
what we call a moral panic, right?

13:49.505 --> 13:52.445
Around immigration, crime and drugs,

13:52.465 --> 13:53.845
and linking these things together.

13:54.705 --> 13:58.765
Um, and this resulted in this crackdown on the so-called

13:59.245 --> 14:00.845
Criminal Alien,

14:00.845 --> 14:02.965
and actually through many of the same laws

14:02.995 --> 14:05.325
that were responsible for the tough on crime era,

14:05.465 --> 14:08.005
war on drugs, mass incarceration,

14:08.025 --> 14:09.645
and these were the laws that gave birth

14:09.645 --> 14:13.365
to the aggravated felony we saw throughout the eighties

14:13.365 --> 14:16.485
and nineties, these escalation of these laws

14:17.185 --> 14:19.605
and the culmination in 1996.

14:19.745 --> 14:22.405
So when we think about punitive immigration policy in the

14:22.405 --> 14:25.125
United States, there were a slate of,

14:25.445 --> 14:30.195
congressional acts in 1996 that really did a lot of damage

14:30.375 --> 14:32.915
and are the laws that expanded the aggravated felony

14:33.055 --> 14:34.475
to the wide ranging category.

14:34.495 --> 14:36.475
We see today. Before 1990,

14:36.665 --> 14:40.115
deportation rates never surpassed 40,000 a year in the

14:40.115 --> 14:42.755
United States with an average of 18,000

14:42.935 --> 14:46.395
or so removals per year from 1900 to 1990.

14:46.895 --> 14:48.675
And as we can see on this graph, right,

14:48.675 --> 14:52.365
there's an extreme slope going up from 1990 leading up

14:52.425 --> 14:56.445
to a situation in the 21st century where we see hundreds

14:56.445 --> 14:59.965
of thousands of deportations a year, upwards

14:59.965 --> 15:02.885
of 400,000 or more, right?

15:02.905 --> 15:04.765
In the mid kind of 2010s.

15:05.145 --> 15:08.565
And then a situation today where we see around 200,000

15:08.625 --> 15:12.125
or so removed each year, this is this huge jump, right?

15:12.145 --> 15:13.365
And this punitive turn

15:13.785 --> 15:17.005
and the aggravated felony as part of it is directly related.

15:17.345 --> 15:21.125
And I just wanna say even for people who are not directly,

15:21.945 --> 15:25.285
individually affected by this law, it's part

15:25.285 --> 15:28.805
of this broader rhetoric that helps to kind of

15:29.875 --> 15:32.365
hold up this punitive system more broadly, right?

15:32.435 --> 15:35.205
This idea that we're focusing on criminal aliens

15:35.205 --> 15:38.565
and we're focusing on severe aggravated felons, right?

15:38.565 --> 15:39.965
These severe crimes.

15:40.105 --> 15:41.525
So we see it trotted out time

15:41.525 --> 15:43.645
and time again, even the Biden administration, right?

15:43.645 --> 15:47.965
They've talked about aggravated felonies as the most,

15:48.385 --> 15:51.845
you know, the category that we can't give any kind

15:51.845 --> 15:54.885
of amnesty or any type of relief to, and things like that.

15:55.415 --> 15:57.565
Interviews really did speak to, right,

15:57.585 --> 16:00.445
the severe unequal impacts of the aggravated felony.

16:00.545 --> 16:05.045
And I definitely, that can't be under, emphasize,

16:05.725 --> 16:07.925
I was actually surprised to learn based on kind

16:07.925 --> 16:09.285
of my research up to that point.

16:09.925 --> 16:12.525
I was surprised to learn of the various ways that lawyers

16:12.905 --> 16:16.845
and advocates also work to resist its harshest results

16:16.945 --> 16:20.005
and work to ameliorate some of these severe outcomes

16:20.065 --> 16:21.565
and the inequality that comes to it.

16:22.145 --> 16:24.925
So this is particularly visible in New York City,

16:24.985 --> 16:27.805
as I said, home to the country's first universal

16:27.805 --> 16:30.165
representation program for detained immigrants.

16:30.825 --> 16:33.205
So it's called the New York Family,

16:33.725 --> 16:34.925
unity Project Knife Up.

16:35.385 --> 16:38.085
So New York Immigrant Family Unity Project.

16:38.185 --> 16:40.165
So even in the name, you can kind of see this trying

16:40.165 --> 16:42.045
to push the good immigrant narrative,

16:42.185 --> 16:46.405
but it actually has extreme impacts for people

16:46.425 --> 16:47.845
who are criminalized as well.

16:48.185 --> 16:52.765
Um, in most cases, in most places, the cases

16:52.865 --> 16:55.805
of people with criminal records are the least likely

16:55.805 --> 16:56.925
to be represented, right?

16:56.985 --> 17:00.445
So, as I said, only about 30%

17:00.545 --> 17:03.285
or so of cases are represented across the country.

17:04.065 --> 17:07.125
The organizations that work to kind of fill the need

17:07.265 --> 17:11.525
for affordable representation, they're often, first of all,

17:11.525 --> 17:13.925
trying to fight mostly the cases that they can,

17:14.355 --> 17:16.325
that they can as many as they can win, right?

17:16.385 --> 17:19.085
And then there's also funding issues about kind of saying,

17:19.305 --> 17:22.165
we don't, you know, work with people

17:22.185 --> 17:23.925
who have criminal records or especially

17:24.245 --> 17:25.325
aggravated felons, right?

17:25.345 --> 17:28.005
So they're often just barred from these programs.

17:28.545 --> 17:32.085
So just including this universal representation model

17:32.785 --> 17:34.165
had a huge impact, right?

17:34.385 --> 17:38.545
So not only, do we see more options

17:38.545 --> 17:39.905
for relief being explored,

17:40.685 --> 17:44.745
but also ice no longer being able to just overcharge

17:44.745 --> 17:47.425
what is an aggravated felony if someone's not represented?

17:47.425 --> 17:51.005
There's many, my interviewees would talk about, you know,

17:51.635 --> 17:54.565
imagining how many people across the country have been

17:54.565 --> 17:57.765
deported of something that actually could be proven in the

17:57.765 --> 18:00.645
law to not actually even qualify in this category, right?

18:00.705 --> 18:01.645
But because they're not

18:02.005 --> 18:03.205
represented, they don't have that option.

18:03.985 --> 18:07.525
So since this program was instated in 2014,

18:08.235 --> 18:09.525
they've seen a 20,

18:09.845 --> 18:14.485
a 43% success rate in avoiding removal in these detained

18:14.495 --> 18:18.445
cases versus 3% in similar cases previously.

18:18.545 --> 18:20.845
And this isn't like some trickery

18:20.845 --> 18:21.965
or cheating the system, right?

18:21.965 --> 18:24.845
These are lawyers working within the law

18:25.185 --> 18:28.365
and, they're not like looking for loopholes

18:28.365 --> 18:29.365
or anything like that, right?

18:29.365 --> 18:32.405
They're actually just fully representing these people

18:32.425 --> 18:35.965
and developing, knowledge in this area

18:36.015 --> 18:37.925
where knowledge hadn't been developed before.

18:37.985 --> 18:39.565
So that's extremely imp important,

18:39.625 --> 18:42.925
and we are seeing some, expansion

18:42.925 --> 18:44.325
of such programs around the country.

18:44.745 --> 18:46.605
So these kinda local,

18:46.605 --> 18:50.325
representation programs can have a huge impact, a form

18:50.325 --> 18:51.845
of harm reduction in a way, right?

18:51.845 --> 18:54.045
Because the system is still working as it does.

18:54.145 --> 18:57.765
But this is something that's at least giving individuals a

18:58.305 --> 19:00.525
way to fight their own cases, right?

19:01.425 --> 19:04.565
Um, they also, we also see preventative strategies

19:04.585 --> 19:05.925
as being extremely important.

19:06.225 --> 19:10.205
So in the criminal system for a long time in,

19:10.505 --> 19:13.885
it wasn't even required for a criminal lawyer.

19:14.345 --> 19:18.045
In, in the US we have over 90%, about 95%

19:18.585 --> 19:21.565
of criminal cases actually are decided in plea deals, right?

19:21.565 --> 19:22.725
It's not like law and order

19:22.725 --> 19:24.965
where they're fighting it in court, despite a lot

19:24.965 --> 19:28.365
of people believing that, most cases it's a plea deal

19:28.365 --> 19:29.365
between a prosecutor

19:29.425 --> 19:31.565
and a public defender in a lot of cases, right?

19:32.265 --> 19:34.885
So there were, for many,

19:34.885 --> 19:37.365
many years people didn't even need to be public.

19:37.505 --> 19:39.565
The criminal defense lawyers didn't even need

19:39.565 --> 19:42.365
to tell people the immigration outcomes

19:42.505 --> 19:43.725
of a criminal plea, right?

19:43.725 --> 19:45.205
So you could be pleading to something

19:45.825 --> 19:47.005
and you're a non-citizen

19:47.005 --> 19:48.685
and you have no idea that this could lead

19:48.685 --> 19:49.965
to your deportation, right?

19:50.025 --> 19:51.245
So this is very common.

19:51.275 --> 19:53.405
This has come up in more recent interviews, a lot

19:53.405 --> 19:54.645
that I've done with immigrants who have been

19:54.645 --> 19:56.645
through this system and kind of went

19:56.645 --> 19:58.925
through it in the nineties in particular.

19:59.265 --> 20:01.565
So there is a Supreme Court case,

20:01.565 --> 20:04.405
Padilla first Kentucky from 2010, which made it so

20:04.405 --> 20:08.085
that criminal lawyers are required to tell people at least,

20:08.785 --> 20:12.565
but it's not clear how well this is being kind

20:12.565 --> 20:14.205
of stated throughout the country.

20:14.425 --> 20:19.005
And my participants definitely exper some doubt in

20:19.025 --> 20:21.765
how well this is being instated in New York.

20:21.895 --> 20:25.685
We've institutionalized, kind of immigration

20:26.345 --> 20:28.925
law lawyer teams to give advice

20:29.105 --> 20:32.125
to public defenders in these public defense organizations.

20:32.745 --> 20:35.965
Um, and organizations also contracted to provide that advice

20:35.985 --> 20:38.165
for public private attorneys as well.

20:38.225 --> 20:41.925
So that's a very important strategy in just being able

20:41.925 --> 20:43.965
to negotiate with this in mind, right?

20:43.965 --> 20:46.525
Because you can't negotiate in immigration court,

20:46.625 --> 20:48.925
but you, you can negotiate at the plea deal phase.

20:49.105 --> 20:53.445
So even things as simple as if someone has a charge

20:53.515 --> 20:55.325
that is a one year charge,

20:55.355 --> 20:58.045
that would become an aggravated felony if they have

20:58.045 --> 21:02.405
that one year sentence asking for a 364 day,

21:03.125 --> 21:04.525
sentence on that misdemeanor, right?

21:04.525 --> 21:06.885
That's something that could make it so

21:06.885 --> 21:08.325
that the person is still getting

21:08.325 --> 21:09.805
their criminal punishment, right?

21:09.865 --> 21:11.565
But isn't going to have all these drastic

21:11.635 --> 21:12.845
results going forward.

21:13.505 --> 21:15.725
Um, so that's really the law side of it,

21:16.225 --> 21:18.245
but I really wanna emphasize that

21:19.105 --> 21:20.925
the legal resistance in New York City

21:20.925 --> 21:23.485
and my participants emphasize that none

21:23.485 --> 21:24.805
of it would be possible, right?

21:24.805 --> 21:27.885
With these, networks of community based activism

21:27.985 --> 21:30.885
and advocacy that really hold up these

21:31.025 --> 21:33.605
and have pushed to create knife up to create this,

21:33.625 --> 21:34.885
you know, preventative system.

21:35.185 --> 21:38.205
So this has particularly impacted communities

21:38.225 --> 21:40.205
who have brought attention to the impacts

21:40.205 --> 21:42.685
of criminal conviction based deportation

21:42.865 --> 21:44.085
and really shouted like,

21:44.085 --> 21:45.445
these are people from our communities.

21:45.445 --> 21:46.725
These are people from our families.

21:46.725 --> 21:48.365
These are not just bad immigrants

21:48.365 --> 21:50.925
that should be discarded within the system.

21:51.785 --> 21:54.685
Um, and along with that, right,

21:54.685 --> 21:57.285
there's a push from these same communities to not only

21:58.345 --> 21:59.845
change immigration law

21:59.865 --> 22:03.085
and abolish this category that has had such harmful effects,

22:03.185 --> 22:06.085
but they're also clear that these impacts also speak

22:06.085 --> 22:07.565
for a need to her drastic changes

22:07.705 --> 22:09.525
to punitive criminal legal policy

22:09.625 --> 22:11.405
and mass incarceration more broadly.

22:11.705 --> 22:14.765
So this kind of intersectional approach is really important.

22:15.495 --> 22:18.445
First off, I hope that people,

22:19.035 --> 22:22.165
will kick away be, take away a better understanding

22:22.165 --> 22:24.805
of an immigration system that's really set up

22:24.805 --> 22:27.325
to be confusing and inaccessible and

22:27.325 --> 22:28.845
therefore feel better situated

22:28.865 --> 22:30.645
to make demands to change this system.

22:31.505 --> 22:33.245
Um, but more importantly, I hope

22:33.245 --> 22:38.005
to muddy these strict binaries that have been set up to,

22:38.275 --> 22:41.605
deem certain people, both immigrant and non at disposable

22:41.605 --> 22:43.925
because of their so-called criminal status.

22:44.705 --> 22:45.885
And to remind people

22:45.985 --> 22:48.565
to not take these master labels at face value,

22:48.665 --> 22:51.125
but to critically look at the broader structures

22:51.185 --> 22:53.725
and the systems that create these pop categories.

22:54.345 --> 22:56.285
So I really hope this book can contribute

22:56.285 --> 22:57.685
to the reexamination

22:57.945 --> 23:01.085
and eventual abolition of the aggravated felony category,

23:01.705 --> 23:05.765
but also support ongoing advocacy against punitive

23:05.765 --> 23:07.525
and unequal systems of immigration

23:07.545 --> 23:08.845
and criminal law more broadly.

00:00 - I didn't come into this work really as an immigration scholar. I came into it more from a, I guess you could say, a cri criminological background. I began doing research on really the unequal outcomes of the war on drugs, mass incarceration, looking at a lot

00:15 - of the racial inequalities, that sadly, despite many decades now of research on, we're still seeing continue to exist. but in that research, I started learning about really growing links between criminal justice and immigration policy as well in the, around the world, but especially in the United States. and growing up in Brooklyn, coming from New York City, this was particularly interesting to me since I grew up

00:43 - with a lot of people who were close to me who were immigrants, children of immigrants. So I did feel a personal connection, kind of seeing how these punitive policies were impacting the communities that, I felt close to and a part of. So really in this research on the, what we call the punitive turn in immigration, drug and criminal justice policy more broadly, I learned about the aggravated felony. So it was actually created as part

01:10 - of the Anti-Drug Abuse Act of 1988, which is one of the formative laws of the war on drugs. so very related, really. And I learned about this as part of what we call in kind of, I guess in immigration law and legal studies as the immigration nexus. This increased intertwining between immigration and criminal law over the past 40 years. And there's a lot of research in the many ways that this intertwining has, as people say,

01:42 - criminalized immigrants, right? But there's less research. While there's amazing research in this field, and it's really made huge contributions, there's less research about immigrants who are convicted of non-immigrant immigration related criminal convictions, right? So this partially has to do with what we call the good immigrant, bad immigrant binary, both in policy and advocacy, right? That often kind of focuses on wanting to

02:10 - point out immigrants are not criminals, right? But what about people who are deemed criminal within our system, right? And what does it mean for this group? Are they not deserving of, you know, research advocacy and these things? So knowing what we do know, right about inequality in the criminal justice system, I really felt drawn to highlighting these populations in the kind

02:30 - of immigration sphere. I also, at the time, was, doing my doctoral studies in New York City at CUNY Graduate Center. So I, in some ways, in many ways, felt uniquely placed to do this research. a lot of people just know of New York as kind of this immigration hub with sanctuary policies, but we do have some of the most active immigration courts in the country.

02:52 - Thousands of immigrants are deported each year. At the time when I was doing this research, Donald Trump was the president and there was a lot of focus on kind of cracking down on immigration in New York City, in particular, with this focus on criminal aliens, right? and it's also very, very active in terms of criminal, legal, system, right? So New York has the largest police force in the country, 30, 36,000 officers in the NYPD, right?

03:19 - With this extreme history and ongoing reality of racist enforcement that really has like shaped this criminal policy throughout the world. it's a hub for black and Latinx immigrants, and particularly Afro Latinx immigrants who are targeted within this system. And lastly, we also have the first universal representation program for detained immigrants. So I felt there was a lot of voices able

03:45 - to speak on these issues, and I was excited to be able to access that in New York. A lot of the findings really come from my qualitative research in New York City's, detained Immigration Corp, really from 2017 to 2018. So it's a little bit ago, but sadly, these systems are working in really a lot of the same ways with some, actually some things getting even worse in some ways with throughout the pandemic and things like that.

04:11 - I did courtroom ethnography. So Barrack Street Immigration Court is the detained immigration court in New York City. All the detained cases are held there. So it's smaller than the main immigration court, even though it's a public courtroom, it's very, you wouldn't know it, it's right in New York City's West Village. I had walked past it many times in my life, and didn't even know it was there, right?

04:35 - It's just like the 11th floor of this government building largely closed off in a lot of ways. So I, was able to access cases in part related. at first I got, I mean, I could have got, I went to cases sometimes some days, just like went and went to whatever was happening, but I really wanted to target aggravated felony based cases. So I have one colleague who, testifies as an expert witness in a lot of relevant cases.

05:02 - So he was able to bring me in and throughout the research I made connections with lawyers who notified me about these type of cases. And this also gave me entry into meeting more lawyers who I did, about 40 in-depth, 39 in-depth interviews, with immigration lawyers, mostly immigration lawyers, as well as criminal defense lawyers and advocates who were doing work in this area. So, I met some of them through court, my own personal professional networks, snowball sampling

05:32 - as we do, and did in-depth in-person and phone interviews with these lawyers. And that really makes up the bulk of the research. There's also supported, of course, you can't write a book without looking at, you know, a lot of additional sources. So I did archival research of official records, historical analysis, legal analysis, organizational resources, kind of everything I could find related to this category.

05:57 - 'cause there really hadn't been much done on it in the social sciences before this point. So I was drawing from really everywhere, all sorts of sources. And we've heard of aggravated put together sounds like, wow, the worst types of crime possible, right? The, you know, the worst category and then aggravated in some way, which is usually something that makes it like a motive or something that makes a crime particularly,

06:22 - extreme, right? So it's actually not a criminal law category at all. It's actually specifically an immigration law term. it's a category of criminal convictions that makes non-citizens, both undocumented and lawful permanent residents, green card holders, deportable under immigration law. So there's a few categories of criminal convictions that make people deportable, but this is the one that applies to the widest array

06:48 - of convictions and has the most severe result of any category of deportable conviction. So as when it was first, you know, created in 1988, not in the scheme of immigration policy, it's fairly new, right? This is only the past three or four decades. it started out including three areas of crime, right? Drug trafficking, arms trafficking, and murder, right? So in some way, I mean, if you don't know all the things that can be included in drug trafficking, right?

07:21 - You might think of that, okay? These are extreme crimes, right? today it has since been expanded to apply to 35 types of crime, that are listed in the Immigration and Naturalization Act. And these are categories of federal crime. So it actually applies to thousands of state level offenses, right? Including many misdemeanors. So the name is really a misnomer.

07:45 - It does not need to be a felony to be included. And the only aggravating factor is that the person is not a citizen. So, which is kind of offensive in itself, right? so that was something really emphasized by my participants. It doesn't have to be aggravated, it doesn't have to be a felony. So we see things like many misdemeanors are included if you get a year sentence

08:07 - or more, even if that sentence isn't suspended, that doesn't really matter in immigration law. So we saw examples of like shoplifting with a year sentence, minor drug crimes. Drug crimes are one of the major areas of that we see included. New York City, right? Lawyers would talk about turnstile hopping, get into the subway as if you've got a year sentence. That's a theft defense that could, you know, be,

08:31 - become an aggravated felony. And this is called the immigration law. Death penalty be by Lawyers and advocates. It's a nickname, it's not officially called that, but because of its severe results, right? So once immigration authorities identify someone as having been convicted of an aggravated felony, or what they alleged to be an aggravated felony, right? This wide definition allows for a lot, lot of leeway in this area.

08:56 - It's extremely difficult to avoid deportation. So, and it's important to note this is after criminal punishment. So sometimes it's directly after, but oftentimes people are out, have been living a normal life post-incarceration for many years, and then are picked up for a minor offense or go to, to a green card check in, or leave the country and come back and are picked up and put into detention. You're mandatorily detained,

09:23 - once you're being facing deportation based on this aggravated felony. So you're basically being reincarcerated for the same offense. and you're cut off from almost all forms of legal relief from deportation. So this includes common forms of relief like asylum, right? An internationally recognized protection that's designed to prov, you know, protect people who would face persecution if return to their country,

09:49 - as well as cancellation of removal, which is a very common protection for green card holders and other longtime residents who are able to prove, you know, they have strong community ties, strong rehabilitation since the original crime family here, kids, all of these things, all of those things don't matter once you have an aggravated felony. So it's very expansive, very severe results. and these bar, so these bars

10:16 - and relief also have lots of problems with due process, right? So one thing to note is that immigration law is an administrative system, not a criminal. So it's not subject to the same due process requirements as the criminal system. People are imprisoned without bail through the process of mandatory detention. They are not guaranteed legal representation.

10:38 - So only 37% of immigrants are represented. Only 14% of detained immigrants are represented across the country, right? So it's very different. That's why often people may not even really have something that's an aggravated felony, but they don't have anyone to prove that for them. So there's a lot of due process issues that really leads to enhanced punishment, right?

11:01 - So there's subject to this lengthy imprisonment, condition in conditions that are really, have been found worse in many cases to or equal, but in many cases worse than criminal incarceration. So often people just don't fight their case, right? You don't have legal representation, you're detained. It's a deterrent effect. And that's something my lawyers really talked about. and this really, just to kind of wrap up this on this question,

11:28 - this funneling towards deportation contributes to the reproduction of inequality, right? So we see immigrants who are mandatorily detained and deported, especially based on these criminal factors, disproportionately draw from the same groups that we know are overrepresented in the criminal legal system, right? So particularly black and Latinx immigrants, we see migrants from Latin America counting for over

11:52 - 90% of deportations despite comprising only half of the US foreign-born population. And black immigrants who account for 10% of the foreign-born population comprise more than 20% of those who face removal based on criminal convictions. So these inequalities that are being reproduced are really rationalized through this good immigrant bin, good immigrant, bad immigrant binary that really just paints all immigrants with criminal records as non deserving.

12:21 - I talked about some of the kind of detailed ways that this increases in, deportation, but when we think of it more broadly, this is part of this broad punitive turn that really was intertwined with the parallel rise of war on drugs, mass incarceration, right? So while rhetorical links, you know, between immigration and crime are not new around the world or the United States, right? We've often seen this kind of stereotyping

12:46 - of immigrants as criminal. and in the US we've seen that in particularly racialized ways. So particularly immigrants who are racialized as Latino and black, going back to racial hierarchies that go all the way back, right to colonialism, slavery, et cetera. We saw a lot of research. We've seen decades of research really disproving these racist tropes, but still they've been trotted out

13:10 - time and time again, right? In favor of these punitive policies. And we saw really a reinvigoration of this process in the 1980s, late seventies, 1980s, in response to an influx of Caribbean asylum seekers. So particularly immigrants coming from Haiti, and what were known as the Marielle Cubans. So Cubans who had more kind of African ancestry than other immigrants. So we saw the same kind of similar racial hierarchies

13:38 - that were being holding up the war on drugs and mass incarceration more broadly. We saw this spiral of panic linking immigrants with crime, right? So it was really part of the same, what we call a moral panic, right? Around immigration, crime and drugs, and linking these things together. and this resulted in this crackdown on the so-called Criminal Alien,

14:00 - and actually through many of the same laws that were responsible for the tough on crime era, war on drugs, mass incarceration, and these were the laws that gave birth to the aggravated felony we saw throughout the eighties and nineties, these escalation of these laws and the culmination in 1996. So when we think about punitive immigration policy in the United States, there were a slate of, congressional acts in 1996 that really did a lot of damage

14:30 - and are the laws that expanded the aggravated felony to the wide ranging category. We see today. Before 1990, deportation rates never surpassed 40,000 a year in the United States with an average of 18,000 or so removals per year from 1900 to 1990. And as we can see on this graph, right, there's an extreme slope going up from 1990 leading up to a situation in the 21st century where we see hundreds of thousands of deportations a year, upwards

14:59 - of 400,000 or more, right? In the mid kind of 2010s. And then a situation today where we see around 200,000 or so removed each year, this is this huge jump, right? And this punitive turn and the aggravated felony as part of it is directly related. And I just wanna say even for people who are not directly, individually affected by this law, it's part of this broader rhetoric that helps to kind of hold up this punitive system more broadly, right?

15:32 - This idea that we're focusing on criminal aliens and we're focusing on severe aggravated felons, right? These severe crimes. So we see it trotted out time and time again, even the Biden administration, right? They've talked about aggravated felonies as the most, you know, the category that we can't give any kind of amnesty or any type of relief to, and things like that. Interviews really did speak to, right, the severe unequal impacts of the aggravated felony.

16:00 - And I definitely, that can't be under, emphasize, I was actually surprised to learn based on kind of my research up to that point. I was surprised to learn of the various ways that lawyers and advocates also work to resist its harshest results and work to ameliorate some of these severe outcomes and the inequality that comes to it. So this is particularly visible in New York City, as I said, home to the country's first universal representation program for detained immigrants.

16:30 - So it's called the New York Family, unity Project Knife Up. So New York Immigrant Family Unity Project. So even in the name, you can kind of see this trying to push the good immigrant narrative, but it actually has extreme impacts for people who are criminalized as well. in most cases, in most places, the cases of people with criminal records are the least likely to be represented, right?

16:56 - So, as I said, only about 30% or so of cases are represented across the country. The organizations that work to kind of fill the need for affordable representation, they're often, first of all, trying to fight mostly the cases that they can, that they can as many as they can win, right? And then there's also funding issues about kind of saying, we don't, you know, work with people who have criminal records or especially aggravated felons, right?

17:25 - So they're often just barred from these programs. So just including this universal representation model had a huge impact, right? So not only, do we see more options for relief being explored, but also ice no longer being able to just overcharge what is an aggravated felony if someone's not represented? There's many, my interviewees would talk about, you know, imagining how many people across the country have been deported of something that actually could be proven in the

17:57 - law to not actually even qualify in this category, right? But because they're not represented, they don't have that option. So since this program was instated in 2014, they've seen a 20, a 43% success rate in avoiding removal in these detained cases versus 3% in similar cases previously. And this isn't like some trickery or cheating the system, right? These are lawyers working within the law

18:25 - and, they're not like looking for loopholes or anything like that, right? They're actually just fully representing these people and developing, knowledge in this area where knowledge hadn't been developed before. So that's extremely imp important, and we are seeing some, expansion of such programs around the country. So these kinda local, representation programs can have a huge impact, a form

18:50 - of harm reduction in a way, right? Because the system is still working as it does. But this is something that's at least giving individuals a way to fight their own cases, right? they also, we also see preventative strategies as being extremely important. So in the criminal system for a long time in, it wasn't even required for a criminal lawyer. In, in the US we have over 90%, about 95% of criminal cases actually are decided in plea deals, right?

19:21 - It's not like law and order where they're fighting it in court, despite a lot of people believing that, most cases it's a plea deal between a prosecutor and a public defender in a lot of cases, right? So there were, for many, many years people didn't even need to be public. The criminal defense lawyers didn't even need to tell people the immigration outcomes of a criminal plea, right?

19:43 - So you could be pleading to something and you're a non-citizen and you have no idea that this could lead to your deportation, right? So this is very common. This has come up in more recent interviews, a lot that I've done with immigrants who have been through this system and kind of went through it in the nineties in particular. So there is a Supreme Court case,

20:01 - Padilla first Kentucky from 2010, which made it so that criminal lawyers are required to tell people at least, but it's not clear how well this is being kind of stated throughout the country. And my participants definitely exper some doubt in how well this is being instated in New York. We've institutionalized, kind of immigration law lawyer teams to give advice to public defenders in these public defense organizations. and organizations also contracted to provide that advice

20:35 - for public private attorneys as well. So that's a very important strategy in just being able to negotiate with this in mind, right? Because you can't negotiate in immigration court, but you, you can negotiate at the plea deal phase. So even things as simple as if someone has a charge that is a one year charge, that would become an aggravated felony if they have that one year sentence asking for a 364 day, sentence on that misdemeanor, right?

21:04 - That's something that could make it so that the person is still getting their criminal punishment, right? But isn't going to have all these drastic results going forward. so that's really the law side of it, but I really wanna emphasize that the legal resistance in New York City and my participants emphasize that none of it would be possible, right?

21:24 - With these, networks of community based activism and advocacy that really hold up these and have pushed to create knife up to create this, you know, preventative system. So this has particularly impacted communities who have brought attention to the impacts of criminal conviction based deportation and really shouted like, these are people from our communities. These are people from our families.

21:46 - These are not just bad immigrants that should be discarded within the system. and along with that, right, there's a push from these same communities to not only change immigration law and abolish this category that has had such harmful effects, but they're also clear that these impacts also speak for a need to her drastic changes to punitive criminal legal policy and mass incarceration more broadly.

22:11 - So this kind of intersectional approach is really important. First off, I hope that people, will kick away be, take away a better understanding of an immigration system that's really set up to be confusing and inaccessible and therefore feel better situated to make demands to change this system. but more importantly, I hope to muddy these strict binaries that have been set up to, deem certain people, both immigrant and non at disposable

22:41 - because of their so-called criminal status. And to remind people to not take these master labels at face value, but to critically look at the broader structures and the systems that create these pop categories. So I really hope this book can contribute to the reexamination and eventual abolition of the aggravated felony category, but also support ongoing advocacy against punitive and unequal systems of immigration

23:07 - and criminal law more broadly.

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