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In this second of a two-part contribution, I discuss how Maribel’s case reflects tensions and fissures in immigration and refugee politics and law in the United States. I outline the political and legal contexts for her case. I also argue that the fact of Maribel’s deportation speaks to the power of the criminalization and illegalization of migrants paradigm currently dominating the United States.
The first part described the case of Maribel Trujillo-Diaz. Maribel is a long-time resident of Fairfield, Ohio, United States. She is a worker in a local candy factory, and the married mother of four dependent American citizens. After cooperating fully with a series of escalating immigration enforcement requirements, Maribel was arrested in February, incarcerated in a detention centre, and slated for deportation on 19 April.
Asylum, border, and immigration matters in the United States fall under the plenary power doctrine, a powerful supposition that only the federal or executive branches of government are allowed to make and enforce immigration laws. As such, interventions, such as the protestations of Kasich and others, fall on deaf ears, and courts are reluctant to intervene. Further, staying a deportation to Mexico, let alone granting a Geneva Convention claim to refugee status, would set a precedent for the thousands of other cases presumed to be waiting in the wings. While some people may wish to see this precedent come to fruition, such an outcome is probably not appealing to the Trump Administration and voter base.
Significantly, Maribel’s case highlights the pervasiveness of the criminalization and illegalization of Hispanic people living in the United States. Maribel has been branded an “illegal alien” who forfeited her right to residency in 2002 when she crossed the border. Regarding Maribel’s case, Republican State Representative Candice Keller commented to a local newspaper:
“Why does her attorney say she’s not broken the law? Is she in the country illegally? Well, then, that’s a crime. If you’re in the country illegally, illegal means you’ve broken the law. That is a crime. … You know, these situations are unfortunate, but this is a nation of laws, and this is a state of laws. People have to be held responsible when they break even one law, and if a person is here illegally, they have broken a law. The detail about her having four children, I mean everyone who breaks the law these days just about has children, and if they are put in jail, whether they are here legally or not legally, they’re going to be separated from their children.”
Representative Keller is wrong about the law. There is a distinction between criminal law and justice, on the one hand, and immigration regulations that fall under administrative law, on the other. When you trespass against an immigration regulation, you are breaking administrative law. People held for days, weeks, months, or even years in immigration detention centres are being incarcerated for administrative reasons not criminal ones. Further, removal is an administrative act conducted by DHS, hence another reason why US courts do not want to intervene.
Unfortunately and alarmingly, Representative Keller may be encapsulating popular thinking about the spirit of the law in the United States. In that country, over the past ten to fifteen years, there has been a notable importation of criminal justice norms and punishments into immigration/administrative law. There has been an absence, however, of bringing over the corresponding protections afforded to people involved in criminal justice proceedings. In other words, two distinct bodies of law have melded, leading to the illegalization and unjust treatment of millions of people.
Importantly, the process of crimmigration – the meshing of two legal bodies – should be understood as a profoundly political exercise. The administrative law of immigration regulation is being manipulated to serve political ends. As Nicholas De Genova reminds us, “‘Illegality’ (much like citizenship) is a juridical status that entails a social relation to the state; as such, migrant ‘illegality’ is a preeminently political identity.” With the courts unwilling or unable to intervene, the law is being deployed strategically but also chaotically.
Mirabel’s detention is meant to shore up the idea that she is a criminal: if she were not, as Representative Keller implies, why would she need to be incarcerated? There is also the important question of deterrence, and DHS’s instrumentalization of Mariel’s case to “send a message” to others, including those who are not as sympathetic as she seems. It seems that the law is validating the political proposition that Mariel’s ‘original sin’ of irregular entry is more significant to the American community than her subsequent contributions, her religious or community identities and bonds, and her children’s social, emotional, and practical livelihoods.
It is unclear when, if ever, Juan Manuel and Maribel will be able to return to their homes and families. Significantly, the ethics and legalities of their deportations matter not only to them and their communities but also directly to hundreds of thousands of DREAMers and DACA recipients and indirectly to anyone who cares about a just migration policy in the US.
Stephanie J. Silverman is Bora Laskin National Research Fellow in Human Rights, and Secretary of CARFMS.
With thanks to Petra Molnar and the CARFMS Blog Committee for helpful comments.