Beyond Criminality in the U.S. Immigration System

In a world where the U.S. federal government still executes incarcerated people, it’s easy to see the nation-state’s vicious obsession with the idea of “irredeemable criminality.” There are few places in the U.S. where this obsession is more on display than in the immigration system. Though a denied naturalization application can be appealed, there is minimal recourse and no judicial review when a visa application is denied due to the applicant having a criminal background.

But the guise of criminality overlooks the nuance and complexity that can influence situations as well as the humanity of all people, especially immigrants. It’s also a notoriously difficult categorization to come back from, though immigrants are no more prone to criminality than those born and raised in the U.S. 

In a 2017 peer-reviewed paper for the NYU Law Review, Daniel I. Morales, an associate professor of law at the University of Houston who specializes in immigration law, keenly noted: “Every immigrant—like every citizen—poses a ‘risk’ of violence because every immigrant is human. The success with which this human mystery and the fear it inevitably elicits is managed by the legal and political system will to a significant extent determine the degree to which noncitizens are embraced by a society.”

The exclusion of individuals labeled “criminals” in the U.S. immigration system perpetuates discriminatory practices, ignores the complexity of human behavior, and reinforces this harmful narrative of irredeemability. Crimes of “moral turpitude”—crimes that have affect the moral fabric of society—define the criteria for exclusion and inadmissibility, and it is through the mask of morality that the nation-state justifies itself.

Such descriptions can—and have been—violently appropriated by the ruling class for centuries. While legislators claim these laws enhance “public safety,” the laws ultimately push a racist, classist, ableist, and overall discriminatory agenda that does little for actual safety. It is a framework that has been applied to people of color, sex workers, physically disabled people, anarchists, people with chronic illnesses, and poor people. 

And what better way to weaponize undesirability than to deem someone a criminal who has transgressed America’s alleged moral compass?

A blanket sweep that decries crimes of “moral turpitude” doesn’t actually improve the moral standing of society, because the “offender” and “victim” dichotomy doesn’t really exist. “In reality, because law-breakers do not spend all of their time committing crimes, individuals move between these categories [of ‘offender’ and ‘non-offenders’],” writes Susan Bibler Coutin in a 2005 peer-reviewed article published in Theoretical Criminology. 

This reduction of criminality must be done away with both for citizens and noncitizens alike because dichotomies make nuanced conversations seem more absolute. It’s easier to say that someone is a monster than to acknowledge that everyone has the potential to act monstrously. 

“‘Governing through crime’ works because of narratives that rely on simplistic dichotomies between offender and victim, violent and nonviolent, redeemable and irredeemable,” writes Mira Edmonds in a 2024 peer-reviewed article in the Northeastern University Law Review. “These dichotomies are empirically flawed, morally problematic, and ultimately self-defeating if our goal is to reduce violence.” 

But unfortunately, the stigmatization of criminality runs deep. Even within the U.S. justice system, those who commit “violent crimes” are more likely to be denied parole—regardless of case-specific recommendations. If we don’t allow for context and nuance, then how can there be any claim of just action? 

When a person is labeled a “criminal,” they’re then considered deserving of whatever the nation-state imposes on them. Once that label is applied and said person is deemed “undesirable,” “irredeemable,” and “inadmissible,” said person is then fixed into those labels and unable to challenge how that influences their immigration status, thanks to the doctrine of consular nonreviewability, which limits judicial review of visa decisions. 

Maybe it’s tempting to label an immigrant “irredeemable” and “inadmissible” because the designation can supposedly help the federal government distinguish between those who are likely to be law-abiding from those who are not. But that labeling system is uninterested in justice and the complexity of human experience. These labels serve only to establish a rigid hierarchy of human worth.

There are even open-border advocates who question whether or not the nation-state even has the inherent right to refuse people entry, especially as it infringes on a person’s freedom of movement. In questioning the state’s right to limit immigration, we should interrogate the question of whether or not the state’s deliberate suppression of freedom of movement is a just response to having a criminal background.

However, to date, U.S. courts have ruled that people seeking entry have no inherent rights. But in order to move past the idea of irredeemable and undesirable, our understanding of restorative and transformative justice must extend beyond the border. And if the United States were truly invested in preventing crime, the nation-state would focus on preventative measures that dissuade anyone, citizen or non-citizen, from harming people rather than using time and resources to keep people out. 

Unfortunately, as Juliet Stumpf writes in a 2006 article in American University Law Review, “It is much easier to equate the criminal offender with the alien and exclude him from society than when the offender was well known by and considered part of a smaller community.” 

Is it possible to imagine a U.S. immigration system that allows for nuance? A system that acknowledges the multiplicity of a person’s character and makes space for the reality that people have the ability to change? Maybe. But in order for the immigration system to change, we must first advocate for this nuance to be considered when breaking down the dichotomies reinforced through stigmatizing laws and restrictions against people with convictions. And, importantly, this work must extend beyond the criminal justice system and beyond the idea of punishment.

“Our call for the abolition of what we see as a punitive dimension of immigration law responds directly to the hardships and injustices that it produces, but we also see it as a contribution to abolitionists’ efforts to broaden our scope of analysis and our political projects,” writes Souheil Benslimane and David Moffette in a 2019 article in the Journal of Prisoners on Prison. “The move from prison abolitionism to penal abolitionism has been underway for a long time now, but more work needs to be done to further understand forms of punishment not anchored in criminal law, such as immigration penality.”

Some people think that the word citizen can save them just because the word criminal condemns. But these are just invented categories, simultaneously inflexible and malleable. The immigration system will never change as long as the U.S. judicial system remains carceral. Unless we acknowledge that punishment and punitive measures are not the solution for harm prevention, we will never move past the specter of the criminal—foreign or domestic—and the U.S. immigration system will only continue to be a form of double punishment.