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Prosecuting Immigration

Ingrid V. Eagly

University of California, Los Angeles (UCLA) - School of Law; University of Oxford - Border Criminologies

November 16, 2010

Northwestern University Law Review, Vol. 104, No. 4, Fall 2010
UCLA School of Law Research Paper No. 10-30

The rise of immigration prosecution as the central feature of the federal criminal justice system challenges conventional understandings of the relationship between the criminal and immigration systems. This Article shows that, in the domain of immigration, the immigration state and criminal state operate as an integrated process in which defendants’ rights and criminal procedural mechanisms have been redefined. On a doctrinal level, the integration of immigration and criminal enforcement has meant that rights traditionally accorded criminal defendants - such as Miranda and bail pending trial - are unevenly distributed along alienage lines. On an institutional level, immigration prosecution has supported an alternative federal adjudicatory structure, largely outside the confines of Article III criminal courts, that is defined by quick, mass processing of guilty pleas.

Drawing on court rulings, government documents, legislative history, statistical data, and interviews, this Article argues that there are two significant consequences of the federal immigration prosecution regime. First, it incentivizes prosecutors to borrow the tools of civil immigration enforcement to support criminal prosecution, thereby distorting the criminal procedural rules that would otherwise apply. Second, it deputizes criminal prosecutors to act as de facto immigration screeners, thereby threatening the substance and process of immigration law. This Article’s study of the interdependence between the immigration agency and the criminal prosecutor thus reveals a fundamental disruption in one of the central dichotomies in our legal system - the civil/criminal divide. In practice, the immigration agency interacts with criminal process to erode procedural protections afforded criminal defendants, expand criminal law enforcement power beyond the confines of the criminal state, and reorder the aims of the criminal law.

Number of Pages in PDF File: 80

Keywords: Immigration crime, federal prosecution, citizenship, illegal immigration

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Date posted: November 17, 2010 ; Last revised: June 17, 2014

Suggested Citation

Eagly, Ingrid V., Prosecuting Immigration (November 16, 2010). Northwestern University Law Review, Vol. 104, No. 4, Fall 2010; UCLA School of Law Research Paper No. 10-30. Available at SSRN: https://ssrn.com/abstract=1710182

Contact Information

Ingrid V. Eagly (Contact Author)
University of California, Los Angeles (UCLA) - School of Law ( email )
385 Charles E. Young Dr. East
Los Angeles, CA 90095-1476
United States
University of Oxford - Border Criminologies ( email )
Manor Road Building
Manor Rd
Oxford, OX1 3UQ
United Kingdom

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