Abstract
Language is powerful. It can affect how we think about and treat groups of people. Poor language choices have a massive impact on immigration law, an area of the law that determines how groups of perceived “outsiders” are classified and regulated. Language and bias in judicial opinions have been studied, but less research has been done on poor language choices in immigration statutes. This Comment focuses on the harmful effects of poor language choices in immigration statutes, including the criminal terminology “arrest” and “warrant” in civil immigration apprehension statutes 8 U.S.C. Sections 1226 and 1357. Two fundamental problems arise when criminal language is inserted into a civil statute. First, significant constitutional concerns arise when criminal procedures are ignored in the “civil” immigration arrest context. Second, the use of criminal language in civil statutes contributes to negative stereotypes and cognitive distortions linking immigrants with criminality. The public calls for harsh enforcement practices as the natural and only obvious solution for controlling “illegal immigration”—a term that is often misconstrued. Being unlawfully present in the United States is not a crime, yet non-citizens are frequently arrested and detained for this “act” of mere presence. We trace the use of the criminal terms “arrest” and “warrant” over time to understand when and how they became enshrined in the apprehension statutory machinery. We demonstrate legislative resistance to the executive branch’s encroaching power on Fourth Amendment rights, rebutting the Supreme Court’s contention in Abel v. United States that the practice of administrative arrest by executive officers was historically uncontested and, therefore, presumptively constitutional. The standard for immigration administrative arrest must meet the standard for a criminal arrest to withstand constitutional scrutiny, ensure doctrinal uniformity in the lower courts, and maintain the consistent application of Fourth Amendment protections for all. Reliance on dicta in Abel suggesting that administrative arrests for non-criminal immigration violations have been “uncontested” since the Nation’s founding is an incomplete and misleading historical account; reliance on this false narrative to garner support for administrative arrests, particularly warrantless ones, is no longer appropriate in light of the statutory history we expose, and the constitutionality of this practice should be revisited.
Creative Commons License
This work is licensed under a Creative Commons Attribution-NonCommercial-No Derivative Works 4.0 International License.
Recommended Citation
Shani M. King & Nicole S. Hall,
Tracing the Roots of a Poisonous Tree: On the Origins and Impact of Criminal Terminology in a Civil Apprehension Scheme,
53
N.M. L. Rev.
255
(2023).
Available at:
https://digitalrepository.unm.edu/nmlr/vol53/iss2/2
