1
“CIVIL DETENTIONS” AND THE PENOLOGICAL JUSTIFICATIONS FOR PUNISHMENT:
WHY THE U.S. CONSTITUTIONAL SHOULD APPLY TO UNDOCUMENTED IMMIGRANTS
Lawrence Cisneros, J.D Candidate, USC Gould School of Law
Prepared for Professor Jody Armour
Bias, Stereotypes, and the Rule of Law
Introduction
The U.S. government affords undocumented immigrants with less regard than non-
citizen terrorists captured in battlefields across the world. Enemy combatants are appointed
counsel after being detained by U.S. armed forces abroad for terrorist activities.
Undocumented immigrants in the United States, toiling often in sweat-shop like conditions, and
all the while paying taxes, are not appointed a lawyer if placed in deportation proceedings, nor
receive assistance from legal aid organizations.
In classroom discussions about prisoners and the criminal justice system in law schools
or other academic settings, there is scant mention that Latinos now constitute the most
represented ethnic group in federal courts.1
Unsurprisingly, the main reason for this statistic is
immigration offenses.2
However, surprisingly, when an immigrant is deported or “detained” in
a civil detention center, he is not “punished” under the law. The Supreme Court has repeatedly
held that civil detentions are not criminal “punishment” within the meaning of the Constitution.
Therefore those people placed in such detention centers are not afforded constitutional rights
like American citizens in the criminal justice system, even though many immigration offenses
mandate criminal sanctions.

2
The stark similarity between immigrant civil detentions and criminal punishment is so
clear that we should subject the former to scrutiny of the four penological justifications for
punishment; and indeed, I will. In my first section, I will provide a background of immigration
and deportation law, particularly outlining the similarities between civil detentions and prisons.
In Section II, I will subject civil detentions to the four penological justifications for criminal
punishment because that is exactly what “civilly detaining” and deporting someone is –
punishment. In Section III, I will argue why undocumented immigrants are often part of
America’s social contract and within the plain meaning of the Constitution, warranting
Constitutional protections in civil and criminal proceedings.
Section I: Background
The United States detains more than 300,000 immigrants annually.3
This is the largest
number of non-citizens detained in the world.4
The cost to house these immigrant offenders is
1.7 billion dollars.5
Immigration detainees represent the fastest growing segment of the jail
population of the United States.6
Although these numbers are staggering, it did not happen
overnight. Until the 1980’s, deportations were limited to a number of crimes, detention of
aliens was less common, and criminal sanctions for immigration offenses was rare.7
The times
changed because public sentiment changed “from a willingness to absorb and generously
resettle[] refugees and tolerance of illegal immigration to a growing sense of crisis that the
United States had ‘lost control of its borders’ and that U.S. immigration policy was adrift.”8
Detention Prison Facilities and Conditions
1. Facilities

3
The Immigration and Nationalization Service (INS) and the Immigration and Customs
Enforcement (ICE) are responsible for the removal and detention of immigrants for breaking a
civil or criminal penalty. However, this agency is not the direct authority that holds immigrants
in civil detention. Many of the different facilities that either hold or process immigrants are
owned and operated by private companies.9
However, ICE places the largest amount of
immigrant detainees in federal prisons and local county jails and they are often housed with
maximum security criminal offenders.10
To be clear, these are detainees who may have done
nothing more than come to the United States without documentation seeking asylum, work, or
who overstay their visas.
The private civil detention prisons are not regulated with any binding regulations that
have the effect of law, leading to numerous reports of abuse.11
These facilities are often
located in remote locations, away from loved ones and access to legal services that could assist
in their deportation defense.12
It is assumed by many immigration advocates that the
Department of Homeland Security, the agency that oversees INS and ICE, does this to ensure
that such immigrant prisoners are not given the legal representation and may be removed from
the country more easily.
2. Conditions
Immigrant prisoners are housed in “jail-like facilities in jail-like conditions.”13
Immigrants are required to wear uniforms, transported in handcuffs and shackles, subject to
strip searches, and confined to “lock down” for hours.14
Jails that hold these immigrant

4
prisoners often apply local correctional policies to manage both immigrant and non-immigrant
detainees, leading to the widespread use of solitary confinement.15
Immigrants are disciplined
harshly, “even though their failure to conform to prison rules may not result from belligerence,
but poor English comprehension and cultural differences.”16
In the private detention prisons,
the documented abuses are: inadequate medical care, breaches of visitation, overcrowding,
excessive force by guards, sexual misconduct, including high rates of depression that lead to
correspondingly high levels of suicide.17
“Crimmigration”: The blending of criminal and immigration law
At its core, criminal and immigration law are designed to “determine whether and how
to include individuals as members of society or exclude them from it.”18
Criminal and
immigration law “primarily regulate the relationship between the state and the individual.”19
The three areas where there is the most similarity and overlap is in the substantive law, the
enforcement of the law, and the procedure in which the government enforces the law.20
In
many ways today the American public already associates undocumented workers with illegally
and criminality, referring to them as “illegals,” and probably already create a persona in their
view that these people are criminals.
1. The substantive law
The severity of criminal sanctions within the immigration system is most apparent in the
case of deportation and detention. Not only have crimes subject to deportation increased, but
recent legislation has mandated detention of criminal immigrants, limited grounds for relief,

5
limited federal judicial review, and applied changes of law retroactively to crimes that were not
crimes previously.21
“The harsh immigration consequences of criminal activity, such as
exclusion and deportation have been expanded, as have the criminal consequences of
immigration violations (many of which were formerly treated civilly).”22
One scholar pointedly
notes that:
The changes in the law fed a powerful vision of the immigrant as a scofflaw and a criminal
that began to dominate the competing image of the benign, hard-working embodiment of
the American dream. 23
The greatest change to the system came about by two pieces of legislation, the Antiterrorism
and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA).24
Since then almost every immigration statute has expanded the list
of crimes leading to exclusion and deportation.25
For example, the criminal penalty for
unlawfully re-entering the United States after deportation or exclusion increased from two
years to a maximum of ten or twenty years,26
and enforcement of these violations has
increased dramatically.27
Crimes for which an alien may be deported fall in three general categories: crimes of “moral
turpitude,” aggravated felonies, and more offense-specific crimes, like drug offenses.28
Crimes
of moral turpitude involve an “act that is intrinsically or morally wrong or reprehensible, rather
than merely statutorily prohibited.”29
Aggravated felonies are crimes that are broader than
that of criminal law and the list of crimes in this category has grown over the years and with
each passage of immigration legislation. Any immigrant convicted of an aggravated felony is
deportable at any time, regardless of length of sentence.30
Although there are many laws

6
regulating immigrants and the various infractions they may commit, in fact, “illegal reentry”
into the United States was the most commonly filed federal charge in 2011.31
The punishment
for the violation is detention, not deportation.
Many violations that were only punished by civil penalties in the past have now been
criminalized. For example, if an immigrant entered into a marriage falsely in order to evade
immigration laws that person would be only deported, not incarcerated.32
Immigrants who,
among other crimes, have been previously removed are subject to mandatory detention.33
2. Similarities in enforcement
Immigration enforcement constitutes the largest armed law enforcement body in the
federal government.34
The INS and ICE, under the umbrella of the Department of Homeland
Security (DHS) where they reside now, are almost indistinguishable from other law
enforcement agencies in the federal government. 35
The Border Patrol, the other enforcement
agency, also under the DHS, is able to make stops and arrests 100 miles away from the border,
conduct surveillance, and pursue undocumented immigrants. 36
Moreover, the traditional role
of the federal government in immigration enforcement is beginning to fade as now state
governments, at the encouragement of their federal partners, are beginning to enter the
picture. In my time at a Los Angeles County Supervisor’s office working with their legal
department, it was very evident that there were many federal laws and regulations that needed
to be complied with regarding immigration in the local county jail. The Department of Justice,
through a program called Secure Communities, exerts pressure on local law enforcement to
effectuate arrests for immigration offenses and to detain immigrants when they have been
identified as breaking an immigration law during the course of a criminal stop or arrest. 37
In

7
order to aid local and state law enforcement, INS over the last decade has begun imputing
immigration offenders in the FBI criminal database, which local police officers regularly consult
to help carry out federal immigration policies. Recently, Kamala Harris, the Attorney General of
California, announced that state officers in California are not required (as they never were, but
were under that impression) to carry out federal immigration law enforcement. 38
Efforts to
curb the tide of this federal intrusion in states’ organization of its law enforcement has caused
states to pass legislation against it.39
3. Procedural overlap
Like a criminal trial, there is a judge and a prosecutor, the immigrant can present
evidence, and if found guilty is detained in a detention prison. However, unlike a criminal trial
where the defendant is afforded 4th
, 5th
, 6th
, and 8th
Amendment rights, a person in an
immigration hearing is only protected by the 5th
Amendment Due Process Clause. Evidence is
gathered by arrests and warrants. There is no government-appointed attorney, and evidence is
admitted that would normally be inadmissible by the Exclusionary Rule.
Differences between immigration and criminal law
Essentially, immigration detention law is like criminal law, but without the procedural
and substantive constitutional safeguards afforded to citizens that are prosecuted for violating
the laws of the United States. As outlined in the law review article that coined the term
“Crimmigration,” “The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power,” there
are four major differences between immigration and criminal law. First, as indicated above,
the only constitutional protection afforded to immigrants without documentation is the 5th
Amendment, compared to the other Amendments that citizens enjoy. There are no jury trials

8
and therefore the tactic of jury nullification, as discussed in class, is unavailable. Second,
immigrants are subject to detention in a greater amount of circumstances than their criminal
counterparts. 40
Thirdly, immigration regulation has traditionally been under federal control,
but as noted above, the federal government has been actively trying to share power with state
and local law enforcement to more effectively apprehend immigrant violators. Fourthly, race
and ethnicity cannot be relevant in determining probable cause and reasonable suspicion for 4th
Amendment searches and seizures. However, in the immigration realm, immigration officials
can use race and ethnicity as a factor to stop and search immigrants suspected of violating
immigration or criminal laws. 41
And if a court determines that it was done in a flatly racist and
impermissible way, the Exclusionary Rule still does not apply in immigration proceedings.
Section II: Penological Justifications in the Context of Immigrant Detentions
Why apply penological justification to immigrant detention?
When the criminal justice system began to focus more on deterrence, retribution and
isolation, rather than rehabilitation, the effects were felt in immigration penalties as well. 42
Now, with few exceptions, “immigration sanctions including deportation now result from a
wide variety of even minor crimes, regardless of the noncitizen's ties to the United States.”43
One scholar notes:
Immigration detention--previously reserved for the more dangerous individuals to
assure their appearance at the time and place of deportation--is now so broadly applied
to excludable and deportable aliens that it no longer serves to incapacitate the most
dangerous individuals, but to punish most deportable aliens by confining them in

9
institutions such as county jails, federal lockups and immigration service detention
facilities. 44
So there are two reasons to be detained: to be eventually removed pending a hearing and for
specific types of crime, like illegal reentry. In the former, “although DHS and the Supreme
Court both insist that immigration detention is a short-term measure designed to facilitate
removal hearings, “in reality, it becomes a long, unbearable process for most.”45
Considering
the punitive nature of immigration offenses, the locations where immigrants are imprisoned
(jails), and the conditions in which they are incarcerated (jail-like), it is justified to apply the
penological justifications for punishment addressed throughout the semester. It is most
appropriate to apply the justifications to penalties that require mandatory detention for
extended periods of time, like illegal-entry. In addition, as previously mentioned, it is the most
commonly filed federal crime in the United States today.
Application
Rehabilitation has generally been a long-forsaken justification for punishment in the
criminal justice system.46
Although it was a justification for immigration violations, it “fell into
disfavor after the 1970s, [as] criminal penology turned to retribution, incapacitation, and
deterrence as motivating ideologies.” 47
In the case of immigration violations, it is quite
difficult to see how one may be rehabilitated from committing a civil offense. Someone is not
morally wrong or “bad” when they cross an imaginary border to feed their starving kids or
escape persecution. Clearly, no one is rehabilitated from detention/incarceration for
committing such an offense.

10
Deterrence is a strong motivation for not committing a violation of the law. When the
punishment is very high, as an immigrant may become incarcerated for up to 10-20 years for
illegal reentry, there is a strong weighing of the psyche in determining whether to commit this
crime. However, when there is an equal weight on the other hand – subsistence living, abuse,
persecution – the risk often is worth it. For example, many immigrants in Mexico are fleeing
the drug violence and many have a very difficult time attaining asylum status for this type of
violence.48
The opportunity of success for someone coming over is worth the risk when
considering the alternative in their home country. Most rational people will risk some form of
imprisonment if there is an opportunity for bettering the life of their family. Until the lives of
people from third world countries actually improves to a level where they can make a decent
living in a safe place, no level of punishment will deter them from entering the United States,
unless they are detained for their whole lives. However, the cost of doing so is so prohibitive
that this will never come to pass. Instead of trying to deter someone in this situation, there
should be a more stream-lined approach to enter and work in the country if that is what they
decide is best for themselves and their families.
To isolate an undocumented immigrant, incapacitating them from trying to illegally
enter the country another time, seems to be the weakest justification for incarcerating an
immigrant for illegal reentry. Unfortunately, the federal government has decided that it would
rather spend thousands of dollars putting someone in jail for trying to work and be a productive
member of society. It is no wonder that the federal government is billions of dollars in debt
when they spend our money in this manner.

11
Lastly, retribution is probably the last refuge for someone advocating for detention or
deportation of a person who entered the United States illegally. They should get their “just
desserts,” one might argue, and be incarcerated for violating our laws. They argue: “what is so
difficult to understand? You break the law, you go to jail.” The problem is that once someone
does come into the country without proper documentation their presence and the effect of
their work is appreciated in the form of cheap goods and services, but only to the extent that
they are not caught for doing the most evil deed (crossing an imaginary border, of course).
American citizens only care that the law is in enforced against poor Latinos and Asians, but do
not demand and protest on the television that corporate executives – the ones actually
facilitating and creating the work for undocumented workers – are raided, jailed, and treated in
the same manner. This is because both types of people are white. I cannot imagine any other
reason why the law does not come down equally onto the rich and powerful; unless, of course,
we actually want to acknowledge that the rich and powerful ensure that the laws are crated to
benefit them. Therefore, taking all things considered, the demand for retribution is racist and
unjustified.
Section III: The Social Contract
Why are undocumented immigrants not afforded rights under the Constitution of the
United States? Answer: they are not citizens and entered the United States proper without
correct documentation. Most did this knowing they were breaking the law, but the alternative
was starvation, destitute poverty, sexual abuse, or political or religious persecution. When they
arrive here, they begin working to provide themselves a better life. Yet they are not afforded

12
rights under the Constitutional presumably because they are not part of the social contract
governed by our Constitution.
They work the midnight shifts, the jobs no one wants, and even do so for less pay and
for more hours without breaks. Many work in fields picking and planting the crops that feed
the country. I witnessed them every day going to school in the morning. The workers in the
field were there for everyone to see. I have had family members who were “undocumented,”
as their immigration statuses were in flux, which is still as “bad” as someone who comes
without any documents at all. Yet, these immigrants are criticized for committing more crimes,
contributing to unemployment, and draining public coffers.
Each of these claims, however, turns out to be false and based on stereotypes
perpetuated by self-serving politicians. In fact, immigrants have lower rates of incarceration
than native-born persons. “In California, the state with the greatest number of both
undocumented and legal immigrants, the incarceration rate for native-born men age 18-39
(4.5%) was more than 11 times the rate for immigrants (0.4%).”49
According to a study by the
Federal Reserve Bank of San Francisco, immigrants actually improve economic conditions in
whatever locality they reside. 50
And lastly, despite immigrants paying taxes – federal and state
income, sales, and property taxes – at similar levels as citizens, and receiving less in
government benefits than native-born people, immigrants have no representation and
practically no Constitutional protections.51
Even though undocumented immigrants cook, clean and provide for the country, the
highest court of the land has consistently held that such persons are second class citizens under
the law. In a recent case, the Supreme Court clearly articulated its opinion: “this Court has

13
firmly and repeatedly endorsed the proposition that Congress may make rules as to aliens that
would be unacceptable if applied to citizens.”52
One commentator of the Court notes that:
“undocumented immigrants, regardless of the strength of their actual ties here, have more
ephemeral constitutional claims.” The Court roots this reasoning in the plenary power of
Congress to do as it pleases in maintaining its borders. The Court wrote over 100 years ago in
Nishimura Ekiu v. United States:
It is an accepted maxim of international law that every sovereign nation has the power,
as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of
foreigners within its dominions, or to admit them only in such cases and upon such
conditions as it may see fit to prescribe. 53
Although the Court has very little regard for the principle of proportionality in sentences in
criminal law, it has even less regard for it in the context of immigration law violations. There is
practically no consideration of proportionality to the crime an undocumented person commits,
as it has been decided Congress has a blank check from the Supreme Court to do unto
immigrants as it sees fit.54
Once such persons do make it into the United States, create a family, work for a number
of years, possibly start a business, and pay taxes, they are part of our society whether we wish
to accept that or not. We buy the produce, clothes, and food they prepare, knowingly, and
gladly that it is at such a low price and brought to us with such efficiency. Our society wants to
have it both ways: we want the cheap child care and food, but also the ability to keep
undocumented immigrants on a tight leash with the threat of deportation or detention if they
step out of line.

14
The rule of law applies one way to the poor and helpless and another to the rich and
powerful. The government knows business leaders hire undocumented workers in their fields
and factories, yet ICE raids never occur in the skyscrapers of downtown Los Angeles and San
Antonio. The raids only happen in the barrios and sweat-shop factories of the inner-city. This is
a form of economic slavery that we all wish to perpetuate for the sake of our civilized standard
of living, even if it is at a sub-conscious level. Most Americans are cognitively dissonant about
this issue because although it affects them on a daily basis they would rather not think about it
to avoid actually take a moral stand against such practices by the federal government. For most
Americans it is much easier to blame and scapegoat the problem away, but hopefully in the
next few months there will be reforms in the system.55
Undocumented immigrants, through their determination to create a better life in what
some may call the “American Dream,” earn the right to be a part of the social contract and
fabric of our society. In many respects, they earn it more than most Americans, as we are just
born into this privilege and relative wealth compared to the rest of the world. This should earn
undocumented immigrants the right, at the least, to basic constitutional protections when the
weight of the United States federal government brings the full force of its power against them.
Consistent with Nishimura Ekiu v. United States, the Court should hold that, although Congress
may prescribe how and if an immigrant may enter the United States, when a person works,
lives, and pays taxes within the borders of the country that earns them the right to basic
constitutional protections as American citizens – nothing more, nothing less.
Some scholarship has begun to address this issue,56
but much more can be done like
giving workers basic constitutional protections for the work they do sustaining this country and

15
allowing the majority of the public to live in relative comfort. To arrest and detain
undocumented immigrants living in the shadows and margins of society, then sending them to
prison or deporting without the protection of a lawyer or the Constitution, undermines the rule
of law in our society and should be remedied.
1
Mark Hugo Lopez and Michael Light, “A Rising Share: Hispanics and Federal Crime,” Pew Hispanic Research
Center (2009).
2
Id.
3
Dora Schriro, U.S. Dep't of Homeland Sec., Immigration and Customs Enforcement: Immigration Detention
Overview and Recommendations 6 (2009), available at http:// www.ice.gov/doclib/about/offices/odpp/pdf/ice-
detention-rpt.pdf.) This is 100,000 more people than the total federal prison population in the United States.
(http://www.bop.gov/news/quick.jsp).
4
Global Detention Project, United States Detention Profile (Jan.-June 2007),
http://www.globaldetentionproject.org/countries/americas/united-states/introduction.html.

16
5
Tom Barry, Mass Incarceration of Immigrants, Border Lines (May 24, 2009, 11:48 AM),
http://borderlinesblog.blogspot.com/2009/05/mass-incarceration-of-immigrants.html.
6
Teresa A. Miller, Citizenship & Severity: Recent Immigration Reforms and the New Penology, 17 Geo. Immigr. L.J.
611, 641 (2003).
7
Juliet Stumpf, The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, 56 Am. U. L. Rev. 367, 369
(2006).
8
Teresa A. Miller, Citizenship & Severity: Recent Immigration Reforms and the New Penology, 17 Geo. Immigr. L.J.
611, 625 (2003).
9
Karen Tumlin et al., Nat'l Immigration Law Ctr., A Broken System vi, 1 (2009), available at
http://www.nilc.org/immlawpolicy/arrestdet/A-Broken-System-2009-07.pdf.
10
The Constitution Project, Recommendations for Reforming Our Immigration Detention System and Promoting
Access to Counsel in Immigration Proceedings 1 (2009) [hereinafter Constitution Project], available at http://
www.constitutionproject.org/pdf/359.pdf.
11
“Prisoners of Profit: Immigrants and Detention in Georgia,” ACLU of Georgia (2012), available at
(http://www.aclu.org/blog/immigrants-rights-prisoners-rights/prisoners-profit-immigrants-and-detention-
georgia).
12
Schriro, supra note 3, at 6.
13
Id.
14
Miller, supra note 8, at 642.
15
“Invisible in Isolation: The Use of Segregation and Solitary Confinement in Immigration Detention.” National
Immigrant Justice Center. (2012)
16
Tumlin, supra note 9, at 10.
17
Whitney Chelgren, Preventive Detention Distorted: Why It Is Unconstitutional to Detain Immigrants Without
Procedural Protections, 44 Loy. L.A. L. Rev. 1477, 1500 (2011).
18
Stumpf, supra note 7, at 380.
19
Id.
20
Id.
21
Miller, supra note 8, at 632.
22
Id. at 619.
23
Stumpf, supra note 7, at 371.
24
Chelgran, supra note 17, at 1482-83.
25
Stumpf, supra note 7, at 383.
26
See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 13001, 108 Stat. 1796, 2023
(codified at 8 U.S.C. § 1326 (1994)); Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7345, 102 Stat. 4181,
4471).
27
Stumpf, supra note 7, at 384.
28
Chelgren, supra note 17, at 1485 (citing 8 U.S.C. §1227(a)(2)(A)(i)-(iii), (B), (C), (D); Gordon, supra note 28,
§108.02(2)(b)).
29
Miller, supra note 8, at 632.
30
Id. at 633-34.
31
“Private Prisons: Immigration Convictions In Record Numbers Fueling Corporate Profits,” The Huffington Post
(2012), available at (http://www.huffingtonpost.com/2012/09/27/private-prisons-immigration_n_1917636.html).
32
Miller, supra note 8, at 640.
33
Chelgren, supra note 17, at 1485.
34
Stumpf, supra note 7, at 388.
35
See, e.g., CBP Report, Securing America's Borders, available at
http://www.cbp.gov/xp/cgov/toolbox/about/mission (describing CBP as the “largest uniformed law enforcement
agency” in the country and boasting that the agency's typical daily duties include executing arrests, seizing drugs
and other illegal items, and intercepting and refusing entry of smuggled and criminal aliens).
36
Bill Ong Hing, Defining America Through Immigration Policy 135 (Temple Univ. Press 2004).

17
37
“Secure Communities: A Fact Sheet, Immigration Policy Center, available at
http://www.immigrationpolicy.org/just-facts/secure-communities-fact-sheet (11/29/11).
38
“Secure Communities is Option, Harris Says,” Los Angeles Times (December 5, 2012), available at
(http://articles.latimes.com/2012/dec/05/local/la-me-secure-communities-20121205).
39
“TRUST Act Vetoed: California Gov. Jerry Brown Calls Limits On Immigration Enforcement 'Flawed',” The
Huffington Post (October 1, 2012), available at (http://www.huffingtonpost.com/2012/10/01/trust-act-veto-jerry-
brown_n_1928444.html).
40
Stumpf, supra note 7, at 392.
41
See United States v. Brignoni-Ponce, 422 U.S. 873, 886-87 (1975) (finding that while use of a person's ancestry is
a relevant factor in finding reasonable suspicion, standing alone, it would not be sufficient).
42
Stumpf, supra note 7, at 403.
43
Id. at 408.
44
Riddhi Mukhopadhyay, Death in Detention: Medical and Mental Health Consequences of Indefinite Detention of
Immigrants in the United States, 7 Seattle J. for Soc. Just. 693, 707-08 (2009)).
45
Miller, supra note 8, at 614-15.
46
Stumpf, supra note 7, at 402.
47
See David Garland, The Culture of Control: Crime and Social Order in Contemporary Society 34-35 (U. Chicago
Press 2001) (tracking the rise of the rehabilitative policy framework in penology and its role as “the hegemonic,
organizing principle, the intellectual framework and value system that bound together the whole structure....”).
48
Holly Buchanon, Fleeing the Drug War Next Door: Drug-related Violence as a Basis for Refugee Protection for
Mexican Asylum-Seekers, Merkourios Utrecht Journal of International and European Law.
49
“Immigrants and Crime,” Immigration Policy Center, available at (http://www.immigrationpolicy.org/just-
facts/immigrants-and-crime-are-they-connected-century-research-finds-crime-rates-immigrants-are).
50
The Effect of Immigrants and U.S. Employment and Productivity, The Federal Reserve Bank of San Francisco,
(August 30, 2010), available at (http://www.frbsf.org/publications/economics/letter/2010/el2010-26.html).
51
Francine J. Lipman, The Taxation of Undocumented Immigrants: Separate, Unequal, and Without
Representation, 9 Harv. Latino L. Rev. 1 (2006).
52
Demore v. Kim, 538 U.S. 510, 522 (2003).
53
Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892).
54
See Nora V. Demleitner, Immigration Threats and Rewards: Effective Law Enforcement Tools in the “War” on
Terrorism?, 51 Emory L.J. 1059, 1066-67 (2002) (noting that deportation is now mandated for permanent residents
who commit an aggravated felony regardless of whether they entered the United States as children, their familial
status in the United States, or how long they have lived in the country).
55
“Immigration Reform to Begin Post Inauguration,” The Huffington Post (November 8, 2012), available at
(http://www.huffingtonpost.com/2012/11/08/immigration-
reformsenate_n_2093178.html?utm_hp_ref=mostpopular,latinos).
56
Johnson, Kevin R., Gideon v. Wainwright and the Right to Counsel in Immigration Removal Cases: An Immigration
Gideon? (December 6, 2012). Yale Law Journal, Forthcoming; UC Davis Legal Studies Research Paper No. 316.
Available at SSRN: http://ssrn.com/abstract=2186245