Trump’s mass deportation campaign is interfering with the criminal justice system

We are being bombarded with images of masked ICE agents, packed detention centers and immigrants in handcuffs as the numbers of deportations under the Trump administration is racking up.

But, at the same time, the number of undocumented immigrants with criminal records who are being deported is going down. And we’re starting to see complaints that the mass deportation campaign is interfering with prosecutor’s attempts to hold them accountable to the law.

Angela Banks is an immigration law expert and Vice Dean of ASU’s Sandra Day O’Connor College of Law. She sat down with The Show to explain how this all works, beginning with the fact that these are two, separate legal systems.

Full conversation

ANGELA BANKS: First of all, generally, immigration violations are treated in the immigration system, and those are civil law violations. It’s not a criminal conviction. And so we have the civil system where there are immigration judges. There is the Board of Immigration Appeal where appeals go, and individuals in the immigration system, for example, non-citizens who would be found to be deportable, would go before an immigration judge.

That immigration judge would decide whether they are in fact deportable, and if they are deportable, whether they’re entitled to any form of discretionary relief. In other words, some ability to stay here in the United States.

LAUREN GILGER: So that’s an entirely separate system that is only to do with immigration and is civil. Then you have criminal.

BANKS: You have your traditional criminal system, and so in that context, individuals are entitled to counsel if they can’t afford one. You do not get free counsel in the immigration system the way you do in the criminal justice system. And that is in front of state or federal court judges, and there you would go before a trial judge.

You would have your case adjudicated. If you are found guilty, you could appeal to the next level of a state appeals court or a federal appeals court, but they are two separate distinct systems. The criminal system is done through the judicial branch. And immigration, it’s actually under the executive branch because it’s through the Department of Justice.

GILGER: Right. So much of what we hear right now about immigration and deportations has to do with deporting “the worst of the worst” — criminals, right? How do those two systems interact in cases like that?

BANKS: So what’s interesting is that traditionally there has been a policy, and there’s even some law in the Immigration Nationality Act, that if you are a non-citizen who’s been convicted of a crime, that you would serve that criminal sentence. And then if that crime also made you deportable, after you finish serving that sentence, you would then face deportation and then be removed.

GILGER: OK, so we have seen some examples coming up in Local news and nationally of kind of unintended consequences here of this mass deportation campaign. We are seeing some cases in which witnesses in a criminal proceeding have been deported before they can testify.

And even in one case, the Arizona Mirror reported locally that a suspect of murder who was going to go on trial for murder was deported before any of that prosecution could happen. Do we have any sense of how often that kind of thing is going on?

BANKS: Well, so there have been increased reports of this happening throughout the country, and it just highlights the tension between administration priorities. By prioritizing deporting as many people as possible and creating these quotas each month, it really is coming into tension with ideas that non-citizens who commit crimes in the United States ought to pay their debt to American society by going through the trial, if found guilty serving their sentence in the United States. And so we’re seeing those two goals sort of running up against each other.

GILGER: It is raising concerns about due process.

BANKS: Well, so there’s definitely concerns about due process for non-citizens facing deportation right now because there’s an increased use of expedited removal, which means that individuals are being deported without going before an immigration judge and having a judge decide whether or not they are in fact deportable.

And then it also just raises concerns that local communities aren’t going to receive the traditional understanding of justice that they would imagine from crimes that are committed by noncitizens.

Charlie Leight/ASU Now

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GILGER: Angela, is this illegal, unconstitutional or just against the norm?

BANKS: At this point, I would say against the norm. There is federal law that says the attorney general may not deport someone, a noncitizen, until they have completed their sentence. But as you see a number of these cases, it’s before the noncitizen has been found guilty of a crime. And so they are not running afoul of that provision of the Immigration and Nationality Act.

GILGER: Are we seeing prosecutors around the country challenging this and saying “Listen, we want to put this person on trial. Don’t send them away yet”?

BANKS: Yes, we are. And so prosecutors are, you know, many times often there used to be a way in which the prosecutors would work with the immigration enforcement officers, and there would be some cooperation to allow the individual to appear in their criminal proceedings and whatnot.

We’re seeing some of that break down, and I think part of that is because of the quotas and guidance that the immigration officers have been receiving about the need to reach certain numbers of people to be deported. But we are seeing prosecutors push back on that and file some legal complaints.

GILGER: Yeah. Let me ask you about that expedited removal process that you mentioned, which is being used increasingly, although I don’t think we know how much. The Arizona Republic is reporting right now that we are seeing immigration-related criminal prosecutions just plummet right now. What does that signal to you?

BANKS: It signals to me that the administration is not using traditional tools, legal tools to remove individuals or to respond to the criminal aspects of immigration law, but just utilizing these things like the Alien Enemies Act to remove individuals, they are increasing the use of expedited removal to remove individuals.

And so there is less need because those processes don’t involve going before a judge to have them determine whether or not the individual is in fact removable. It’s an easier and faster process than charging them with an immigration crime, having that crime adjudicated and then having the individual get a conviction and then be removed.

GILGER: Yeah. So you are an expert on immigration law. This is kind of your bread and butter. Have you been watching these changes with a sense of surprise? Does any of this seem unprecedented to you?

BANKS: It does seem unprecedented, even from the first Trump administration where immigration was a top issue for that administration. The tools that are being utilized during this administration are really unprecedented, and we’re seeing a lot more legal pushback to the strategies that are being used today.

GILGER: How much might it change the work that you do, and people who work in immigration law?

BANKS: So one of the things that’s interesting is that it is challenging the work that immigration lawyers do because individuals are just being picked up, put in proceedings, sometimes lawyers aren’t able to see their clients, sometimes lawyers aren’t able to find out that their client has been picked up and is being processed for deportation, and things are moving so much more quickly that it is difficult for noncitizens to receive the representation that they would have received in the past.

GILGER: Do you have broader concerns about what this means for immigration law and for due process going forward for justice in our country?

BANKS: So I have concerns not just what it means for due process and justice in immigration law, but what it means for justice and due process in American law, because I think often what happens to immigrants are the canaries in the coal mine. And that procedures and tactics that are used against immigrants first could be expanded to be used against citizens in the future, because as the public gets used to seeing individuals just being removed without process, then the categories of people who those strategies can be used for, it can expand.

GILGER: Have we seen that happen in the past?

BANKS: We have seen that happen historically.