Defund Hate Blog

Immigrant Justice is Racial Justice: Members of Congress Urge DHS to Abandon the Carceral Approach to Immigration

Thirty-four Democrats, led by Rep. Alexandria Ocasio-Cortez, sent a letter to DHS Secretary Mayorkas this month.

The U.S. criminal legal system is permeated by structural racism that has caused great harm to Black people and people of color. Congress enacted extremely harsh policies for immigrants with criminal convictions as part of the so-called “War on Drugs” and other tough on crime policies, which led to mass incarceration and which harmed Black communities and other communities of color. . These policies massively expanded the immigrant detention system and have resulted in mass deportations of immigrants, including long-time residents of this country. As we begin to dismantle the racist criminal legal system and reimagine safety for all of the members of our communities, we must also dismantle the deeply entwined deportation and detention apparatus. 

There is growing momentum for this effort. On May 14, Representative Alexandria Ocasio-Cortez and 33 other members of Congress sent a letter to Sec. Mayorkas and ICE Director Tae Johnson, urging them to abandon the “carceral approach to immigration” in the forthcoming enforcement priorities memo. The letter critiques the February 18, 2021 DHS interim enforcement memo for imposing bars to receiving prosecutorial discretion based on certain kinds of contact with the criminal legal system or based on being a “border security threat.” 

The Congressional letter argues that these categorical bars threaten asylum seekers, deprive people of due process, and perpetuate the racism inherent in the criminal legal system. For example, the term “aggravated felony,” which the memo uses as a bar and which the letter correctly deems a “relic of the racist War on Drugs,” is vague, and extremely broad, and legally complex. The letter also takes issue with using alleged gang involvement as a categorical bar.  The problems with gang-labeling are well-known and legion, and include racial profiling and wild inaccuracies. The letter urges DHS to take account of the current moment of racial reckoning in the United States and to put an end to policies that encourage racist policing and that increase mass incarceration.

Because the February 18 memo is an interim memo, and ICE will release new enforcement priorities soon, it is extremely important to push DHS to drop its criminalizing and asylum-endangering bars to prosecutorial discretion. Rep. Ocasio-Cortez’s letter reflects a growing consensus that immigrant justice is racial justice and that DHS must flip the script on prosecutorial discretion—instead of using problematic categories to identify whom the agency should deport, the agency should designate broad categories of people who should be protected from deportation,  and should weigh each person’s case holistically for grants of prosecutorial discretion. This reorientation would not only prevent people from being detained and deported based solely on contacts with the racist criminal legal system, but it would also begin to demilitarize the mindset of the agency. DHS should move away from a law enforcement orientation and instead, as the Congressional letter urges, prioritize due process and human rights.

By Caitlin Bellis, Policy & Community Advocacy Attorney at National Immigration Project of the National Lawyers Guild and Megan Essaheb, Director of Immigration Advocacy at Asian Americans Advancing Justice | AAJC.

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