Asserting criminality and denying migrant belonging: The production of deportability in US judicial court hearings
| Date | 01 August 2013 |
| Author | Giovanna Maria Frisso,Clare Newstead |
| Published date | 01 August 2013 |
| DOI | 10.1177/1362480613481488 |
| Subject Matter | Articles |
Theoretical Criminology
17(3) 377 –395
© The Author(s) 2013
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DOI: 10.1177/1362480613481488
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Asserting criminality and
denying migrant belonging:
The production of deportability
in US judicial court hearings
Clare Newstead
Nottingham Trent University, UK
Giovanna Maria Frisso
University of Nottingham, UK
Abstract
Recent interest in the securitization of immigration has highlighted a significant shift in
immigration enforcement, from border regulation to the control of territorially present
populations. Emphasis has focused on the production of migrant illegality and strategies
that criminalize undocumented workers. In this ar ticle, we shift the focus of analysis to
examine how legal residents convicted of non-immigration-related criminal offences are
also actively produced as deportable subjects. Drawing on research examining records
of appeal cases involving Jamaican nationals in removal proceedings consequent to a
criminal conviction, we illustrate how deportability is produced by the deportation
process itself, through legal practices that assert migrant criminality and alienage. We
suggest ‘criminality’ not only comes to represent migrant subjectivity, at the expense
of other forms of subjectivity based on belonging and territorial presences, but acts as
affirmation of alienage.
Keywords
Aggravated felony, alienage, criminality, deportation, subjectivity
Corresponding author:
Clare Newstead, International Studies, School of Arts and Humanities, Nottingham Trent University,
NG118NS, UK.
Email: clare.newstead@ntu.ac.uk
Article
378 Theoretical Criminology 17(3)
Introduction
For some time crime scholars have been documenting a growing punitiveness in US
crime control as states have responded to the rehabilitative failure of social welfare and
neo-liberal responsibilization by incarcerating and incapacitating increasing numbers of
‘undesirable’ subjects (Feeley and Simon, 1992; Garland, 2001; Wacquant, 2009).
Following a sequence of reforms in US immigration law since the mid-1990s and a series
of institutional transformations governing immigration enforcement, immigration agen-
cies now appear to draw upon and extend this ‘new penology’ to the control of popula-
tions marked as ‘undesirable’ by virtue of their immigrant status (Aas, 2007; Bosworth,
2008; Bosworth and Kaufman, 2011; Simon, 1998). New prison-like immigration deten-
tion centres have become key instruments in this new regime of immigration enforce-
ment but it is deportation—or removal—that has emerged as the definitive mechanism
for the punishment and incapacitation of non-citizens that violate US laws. Deportation,
as Kanstroom (2007: 20) points out, ‘renders the offender not simply a foreigner, but an
expelled, banished, criminal foreigner—as complete an outcast as one can imagine’.
Recent interest in what Weber and Bowling (2008) refer to as the ‘crime-and-
mobility-control-nexus’, suggests that as US immigration control has become more
punitive it has also become less discriminate in its application (Kanstroom, 2007;
Sweeney, 2010; Welch, 2002). Contemporary immigration control appears to approach
undocumented workers, asylum seekers and ‘criminal aliens’ equally unsparingly as an
undifferentiated category of ‘foreigners for whom criminally punitive treatment and
removal are uniformly appropriate and urgently necessary’ (Miller, 2005: 114). However,
while the effects of immigration control give the appearance of ‘the ascendancy of
deportation as an ever more pervasive and increasingly standardized instrument of state-
craft’ (De Genova and Peutz, 2010: 3), immigration enforcement in the USA has simul-
taneously become a more refined and precise instrument.
Different immigrant populations are subjected to the logic of deportation through an
increasingly sophisticated, expansive and complex suite of programmes, legislative
changes and swollen institutional frameworks that, while effectively controlling diverse
populations with similar punitiveness, target particular groups in very specific ways. In
her study of mass deportations by the Israeli state after 2000, Willen (2010) illustrates
how different ‘others’—legal migrant workers, illegal migrants, Palestinians within
Israel and Palestinians in the occupied territories—have been variously and unevenly
imagined in relation to Israel’s biopolitics of inclusion and exclusion. While noting that
many of these ‘others’ now experience a shared threat of expulsion, her work highlights
the contrasting legal, social, political and cultural practices through which differently
situated populations are variably made subject to comparable expulsion (see also Wicker,
2010 and the 2007 special collection of International Migration volume 45(5)). Similar
interrogations of US deportation regimes are limited (Talavera et al., 2010).
Much of the recent scholarship on deportation from the USA in anthropology, geog-
raphy, political science and sociology has focused on how the punitive practices associ-
ated with detention and deportation criminalize those found guilty of immigration-related
offences (Aas, 2007; Allegro, 2006; Coleman, 2007; Coutin, 2000, 2005; De Genova,
2002; Gilbert, 2009; Gleeson and Gonzales, 2012; Holmes, 2007; Kanstroom, 2004;
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