Outsourcing Criminal Deportees

Source-labor countries—states that “export” migrants—are virtually invisible in immigration law scholarship. Notwithstanding the growing recognition that ever more people live transnational lives, the dominant conceptualization of immigration law and policy in the United States remains uni-nationally oriented. Under this approach, most immigration questions hinge on reforming and enacting federal laws.

“Crimmigration” scholarship—located at the intersection of criminal and immigration law—embodies this uni-national paradigm. Recent contributions by Professors Mariano-Florentino Cuéllar and David Sklansky epitomize this focus on the domestic political economies of immigration law enforcement. According to Professors Cuéllar and Sklansky, prosecutorial choices have been warped by transaction costs in policy making that implicate coordination between entities with overlapping and sometimes conflicting mandates. Absurdly, this results in immigration disproportionately consuming federal law enforcement resources. Indeed, immigration cases—most involving relatively minor infractions—now constitute the majority of federal criminal prosecutions. 

Compounding these absurd enforcement choices, the United States spends significant resources on incarcerating deportees-in-waiting, aliens with final convictions who are already subject to deportation orders. While Professors Cuéllar and Sklansky solely consider domestic decision makers, Professor Peter Schuck believes that this domestic focus exacerbates resource constraints. His contribution is groundbreaking: unlike traditional scholarship, Professor Schuck considers how the United States allocates its enforcement resources more broadly in the context of international decision makers. 

Given the voluminous enforcement obligations imposed by multiple immigration statutes, US law enforcement cannot merely identify and remove the myriad people subject to removal, even if they narrow their focus to aliens who commit (presumably more serious) nonimmigration crimes. Simply put, the system is overwhelmed. Where better to look for help than to countries from which these aliens came? As Professor Schuck notes, “Simply stated, the federal government should deport some immigrant criminals before they enter prison, not after.” Professor Schuck appears impatient with US officials whom he considers too “soft” with countries—like Mexico—that repeatedly resist entreaties to expeditiously receive their deported nationals. Professor Schuck advocates a tougher approach wherein the United States strategically utilizes its regional heft to pressure the reluctant Latin American and Caribbean countries— from which most migrant criminals originate.