Neglected,Protected,Ejected: Latin American Women Caught by Crimmigration

Mass Deportation in the Crimmigration Era

More than 20,000 women are removed from the United States annually. These women are caught in a modern deportation regime that emerged alongside the decline of the welfare state and rise of neoliberal logics (Golash-Boza, 2015). In the mid-1990s, anti-immigrant sentiment coalesced around the militarization of borders, increased enforcement of the interior, and the convergence of immigration and criminal law. A “crimmigration” era emerged, characterized by the production of new forms of migrant “criminality” (García Hernández, 2013; Stumpf, 2006). Immigration violations such as unlawful entry and unlawful reentry long considered civil violations are now treated as criminal offenses. Deportable criminal offenses also dramatically expanded since the 1990s. Immigration enforcement—which was undeveloped for most of U.S. history—became an entrenched institution of interconnected agencies deeply entangled with the criminal justice system (Ngai, 2004). It is now more punitive than ever before.

The crimmigration era is epitomized by two laws passed in 1996: the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and Anti-Terrorism and Effective Death Penalty Act (AEDPA). These laws mandated that any noncitizen convicted of a “crime of moral turpitude,” “aggravated felony,” or offense carrying a minimum sentence of a year or more of prison or probation be subject to removal (Kanstroom, 2012). They forbade immigration judges from considering mitigating factors (like family ties, economic contributions, and moral character) in removal decisions involving most persons with deportable offenses. Detention is now mandatory for noncitizens convicted of “aggravated felonies” and for others treated as “priorities for removal” under prosecutorial discretion guidelines issued in 2014 (Johnson, 2014). IIRIRA’s 287(g) clause also ushered in new collaborations between immigration and criminal law enforcement, including training officers to perform immigration enforcement functions.

Mass deportation in the crimmigration era is facilitated by several programs operating in tandem with the criminal justice system. The Criminal Alien Program places immigration officials inside jails and prisons to identify deportable noncitizens. Secure Communities—replaced with the Priority Enforcement Program—relays inmates’ biometric information from contracted facilities to ICE. Operation Community Shield attempts to combat “gangs” through intelligence, surveillance, and enforcement operations in the United States and transnationally. The Fugitive Alien Program identifies and tracks down immigration absconders and other noncitizen priorities for removal. Operation Streamline implements a “zero-tolerance” approach to border-crossers, permitting judges to summarily convict unlawful entrants for immigration violations in mass trials of up to 80 persons. These programs are upheld by the immigration industrial complex, especially the private prison industry and its “bed quota,” which mandates 34,000 detainees must be housed daily (Ewing, Martinez, & Rumbaut, 2016). As immigration attorneys are not provided to the indigent, most apprehended persons are left without legal guidance and are deported, especially the most disadvantaged (Eagly & Shafer, 2016).

Contrary to public and official rhetoric conflating deportable persons with hardened criminals, most deportees are expelled for immigration violations and nonviolent offenses (Rosenblum & McCabe, 2014). Statistics on the rate at which women are deported for criminal offenses relative to men are not publicly available. However, in Fiscal Year (FY) 2013, 61.7% of formal removals were for immigration violations, drug offenses, and traffic violations (Ewing et al., 2016). Widespread criminalization of immigration also made “illegal reentry” the most common federal charge in the same year. Although federal inmates accounted for only 9% of all prisoners in 2010, Hispanics now constitute the fastest growing population in federal prisons (Light, Lopez, & Gonzalez-Barrera, 2014; TRAC Immigration, 2011). These trends continue despite the leveling off of undocumented immigrant population in recent years (Ewing et al., 2016).

Despite these trends, individual cases are far from predetermined. On the contrary, criminal grounds for deportation are characterized by their complexity, opacity, and unequal application (Sharpless, 2015). Enforcement programs are unevenly enforced within and across different jurisdictions (Pedroza, 2013). Prosecutorial discretion is implemented in varied ways depending on local enforcement norms (Eagly, 2013; Johnson, 2014; Wadhia, 2010). The law is also malleable and adapts to political will (García Hernández, 2015). Such was the case in the 1990s when the “immigrant danger” transformed from a feminine to masculine one (Hondagneu-Sotelo, 2013). Priorities shifted again in 2014 when DHS responded to the mass influx of women and children by declaring them “national security threats” who merited expedited removal instead of asylum seekers worthy of special protection (Johnson, 2014). Responses such as these highlight the ambiguous application of the law amid the persistence of mass criminalization, detention, and deportation.

Humanitarian Immigration Relief

The objectives of the crimmigration era collide with longstanding humanitarian norms regarding the protection of populations considered vulnerable. Since at least World War II (WWII), the United States continually replenished a tradition of providing relief on the basis of persecution, victimization, extreme hardship, and fear of return. In 1951, the United Nations established the “refugee” as a person with a well-founded fear of persecution on account of race, nationality, political opinion, or membership in a particular social group. Political asylum is also available for de facto refugees who enter the United States without authorization. Inadmissible noncitizens ineligible for asylum due to unlawful presence, criminal records, health status, political affiliations, and so forth may apply for deferred action, cancellation and withholding of removal, temporary protected status, and protection under the Convention Against Torture. These statuses exist in part to prevent refoulement—the extradition, deportation, or exile of persons likely to face persecution at home.

Another distinct set of humanitarian provisions emerged from the antitrafficking and battered women’s movements. The 1994 Violence Against Women Act (VAWA) created the VAWA visa for the abused spouses and derivative children of U.S. citizens and permanent residents. In 2000, the Trafficking Victims Protection Act (TVPA) established the T visa for trafficking survivors. TVPA also created the U visa for people who suffered harm from crimes committed in the United States and abroad. To be fully eligible for relief, applicants must demonstrate sufficiently compelling narratives of victimization (Lakhani, 2013). Law enforcement must also certify that applicants were helpful or likely to be helpful in the investigation of the crimes (Lakhani, 2014). However, if status is granted, recipients of VAWA, T, and U enter a pathway to citizenship.

Humanitarian provisions appear gender-neutral in text but are often gendered in implementation. Gender-based claims to asylum were historically denied and, as such, men were disproportionately granted relief. Immigration courts now regularly accept women as members of “particular social groups” facing unique forms of persecution (Nayak, 2015). Male and female applicants are granted asylum at similar rates. Advocates initially envisioned VAWA, T, and U visas for women facing unique gendered vulnerabilities, such as heightened risk for domestic abuse, sexual assault, and trafficking. After conceding this would discriminate against men, the visas were made available regardless of gender (Durst, 2009). Yet women continue to be granted VAWA, U, and T visas at higher rates than men (C. Brown, personal communication, April 14, 2016). This is likely because many crimes for which applicants are eligible disproportionately affect women, though other factors may also be at play. For instance, women may be more likely to report qualifying crimes and law enforcement may be more likely to sympathize with them (Berger, 2009; Villalón, 2010).

Most women currently in immigration custody arguably have claims to relief from removal. The United Nations reported that the 60% of children arriving at the Southern border are eligible for asylum. The U.S. government estimated that 87.9% of the population in “family detention” in 2015 had credible asylum claims (USCIS, 2015). Although statistics on the larger Latina population are unavailable, we know that women and girls flee gender and gang-related violence in countries-of-origin at alarming rates (Chishti & Hipsman, 2014). Eighty percent are raped during migratory journeys through Mexico (Goldberg, 2014). Women and girls are disproportionately trafficked into the country relative to men (U.S. Department of State, 2016). Large quantities of Latinas survive domestic and sexual violence (Menjívar & Salcido, 2002). Women and girls also fear their lives would be at risk if they were deported (Dreby, 2015).

Although a wide variety of women appear to be eligible for relief, there is no guarantee that cases will be approved, or even considered. There exist innumerable institutional barriers to relief. Take the U visa, which requires petitioners to not only testify to their victimhood but also receive law enforcement certification that they complied with investigations against their perpetrators. There exists “no uniformity among U visa certification processes” across different jurisdictions (UNC School of Law Immigration/Human Rights Policy Clinic, n.d.). Immigrants seeking law enforcement certification have been denied relief on racial and gendered grounds (Hsi Lee, 2015). There also exist lengthy backlogs for applications to be reviewed. For instance, as of 2015, applicants could expect a 6-year wait for their U visa application to be considered (USCIS, 2015). Further, even if they are otherwise eligible for relief, they must be admissible. Applicants typically cannot have an “aggravated felony” on their record, lending credence to our claim that crimmigration objectives systematically outweigh those of humanitarianism.

Removal outcomes are ultimately less dependent on eligibility than access to legal aid and/or public support. A hallmark feature of the deportation regime is that the state denies the indigent court-appointed attorneys. As most deportable immigrants are poor and unable to secure their own legal aid, “nationally, only 37 percent of all immigrants secured legal representation . . . and only 14 percent of detained immigrants acquired legal counsel” (Eagly & Shafer, 2016, p. 2). Migrants without attorneys are significantly less likely to be released on bond and to attain relief from removal (Eagly & Shafer, 2016, p. 3). Immigrant advocates and advocacy organizations routinely step in to provide pro bono legal aid to vulnerable populations, especially women and children. The immigrant rights movement also champions individuals, advocating for relief on a case-by-case basis through media advocacy, petitions, and pardons. But they tend to take on cases that appeal to the moral sensibilities of the so-called “moveable middle” of U.S. society, especially highly educated, family-orientated, or victimized persons without criminal records (Bloemraad, Silva, & Voss, 2016). In prioritizing laudable or sympathetic cases, they redraw boundaries of worthiness around racialized cleavages of criminality. They also reaffirm the state’s prioritization of crimmigration over humanitarianism.

Gendering the Crimmigration–Humanitarian Nexus

The outcomes of the crimmigration-humanitarian nexus can be likened to a “removal roulette” in which much of migrants’ outcomes are predicted by gender, class, geography, the discretionary power of law enforcement, and access to legal aid and immigrant advocates (Pedroza, 2013; UNC School of Law Immigration/Human Rights Policy Clinic, n.d.). Relief from removal is possible, but only if a constellation of circumstances aligns. Accordingly, there exist at least three broad categories of outcomes for women in immigration custody. They may be protected through humanitarian relief. They can be neglected in the sense that they are suspended in extended “legal limbo” while in detention, under parole, and during stays of removal (Mountz, Wright, Miyares, & Bailey, 2002). They can also be ejected through formal removal and practices that coerce migrants to submit to “voluntary” deportation (Carpenter, 2014). Individuals can move through different statuses as their circumstances and the legal landscape changes, but it is difficult and uncommon to reopen a case, particularly after deportation.

Regardless of status-outcome, enforcement objectives and norms consistently eclipse humanitarian concerns at each stage in crimmigration custody. This is not unique to the experiences of Latinas but characteristic of the deportation regime (Kanstroom, 2012). Regardless of gender and eligibility for relief, migrants enter custody in similar ways and claim to be treated as criminals (or worse), first and as humans second. “Criminality” and “illegality” are often the linchpins of removal decisions. The existence of humanitarian provisions provides some deportable migrants the ability to make a case. If they can tell a tale of victimhood or fear considered sufficiently credible and worthy, relief may be provided in spite of criminality, unlawful entry, and illegal presence. The result of this process is an ambiguous and haphazard allocation of removal outcomes in a context that typically prioritizes detention and removal over relief (Kanstroom, 2012).

Our findings demonstrate that women and girls face the same system as men, yet they also remain uniquely situated on account of statuses as mothers and wives/partners and treatment as sex objects. Their gendered status yields a contradictory impact. On one hand, experiences of criminalization and dehumanization are often worsened by sexual misconduct against them by agents of the law, as well as their preoccupations with the impact on their partners and children (Escobar, 2016; Harty, 2012). On the other hand, their status as a vulnerable class of migrants sometimes affords them legal aid, sympathy, and credibility denied to men. For example, some women in this study applied for relief only because pro bono attorneys traveled to family detention centers specifically looking to assist women and children. Others received relief despite their own criminal(ized) histories on account of gendered abuse. This option is possible but less common for men who tend to be viewed more as a threat than a vulnerable class (Hondagneu-Sotelo, 2013). This study thus lends credence to the idea that cimmigration law appears gender-neutral on-the-books but is gendered in practice.

Data and Method

This examination derives from a larger study examining the deportation experiences and post-deportation paths of Central American migrants, as well as our experience as social workers, paralegals, and community organizers with individuals in ICE custody. We conducted 107 semi-structured interviews with detained and deported migrants. Attesting to the gendered nature of U.S. crimmigration enforcement, 96 of our initial 100 interviews were with deported men. To explore women’s experiences, we utilized theoretical sampling (Corbin & Strauss, 2008). We sought out women who experienced different outcomes in immigration custody: protected, suspended, and ejected. Our sample for this paper included 11 individuals who identified as women. Three received legal status via asylum, T, and U visa; three were suspended in removal proceedings; and five were deported to El Salvador and living there.

In the tradition of case study, life history, and small N research, we treated each individual as its own case (Ragin & Becker, 1992). The participants who represent the cases were located through referrals from nonprofits, attorneys, and our personal connections. The first and third authors conducted interviews with the five deported women in El Salvador between 2008 and 2016. The fourth and sixth authors conducted an additional six interviews with Mexican and Honduran women living in Colorado and New Jersey in 2016. The interviews ranged from 45 min to 1.5 hr. They were conducted in participants’ preferred language (Spanish/English) in a semistructured, open-ended, life history format. The order and phrasing of questions varied slightly depending on each participant’s story and how the conversation unfolded. In general, interviews addressed life before migration, the migratory journey, incorporation in the United States, detention and deportation, and life after custody. We also asked the women to reflect on the ways their gendered status and identities affected their experiences.

Bilingual members of the research team transcribed the data. If the interviews were conducted in Spanish, we translated them into English post transcription. We proceeded to code each interview using Dedoose, a web-based application for collaborative mixed-methods research. There is a feminist tradition of using interviews to give voice to marginalized populations (Olesen, 2011). Our analysis was influenced by this legacy as well as grounded theory and life history analysis (Corbin & Strauss, 2008). Though familiar with the literature, we approached the data without a framework, trusting concepts would emerge. We only sought to understand the experience of criminalization, detention, removal, and legalization. We also planned to compare and contrast these experiences across the different types of cases we identified during theoretical sampling.

In the first round of coding, we went line-by-line, allowing codes to inductively emerge. In a second round, we condensed each interview into a shorter life history. This allowed us to understand quotes within the broader context of our interviewees’ lives. In a third, we identified themes that cut across the transcripts and the life history narratives we produced. Throughout analysis, we assumed our participants’ stories reflected their reality, though we acknowledge they are essentially stories. We worked to stay true to participants’ intended meanings and consulted Spanish transcripts as appropriate. We were also reflexive about potential biases in the data. For example, we found that the women were more comfortable speaking from the perspective of a mother, wife, or activist than a victim. This was a key way they simultaneously performed traditional gender roles and resisted the (re)production of female victimhood.

In accordance with feminist scholarship’s concern with the protection and empowerment of participants (Olesen, 2011), we asked our participants to choose their pseudonyms, so they may identify themselves in the project. Those who elected to use their real name were afforded the right to do so. During the interviews we remained attentive to participants’ emotional states and adjusted questioning as appropriate. A few women implied they survived domestic violence, sexual assault, or other crimes, but they chose not to elaborate. If it appeared we might ignite harm by probing about abuse, we elected to avoid (re)traumatizing them. We also ended each interview by asking participants if they had ideas for how to reform immigration law in an effort to leave them somehow empowered by the interview. We did not maintain contact information of women deported to El Salvador, but we provided women in the United States an option to review this article prior to publication.

Caught By (Cr)immigration Enforcement

The women we interviewed entered (cr)immigration custody in similar ways as men. They are apprehended at the border, in work and home raids, after interactions with government agencies, and as a result of contact with the criminal justice system. Several were placed in custody shortly after attempting to unlawfully enter the United States. For instance, Cecilia Flores entered undocumented in 2008 to be reunited with her 7-year-old U.S. citizen daughter. She was immediately caught, sent to a detention center, and placed in deportation proceedings. Other participants were given orders to appear at removal hearings. They absconded out of fear of deportation and were later apprehended by ICE agents during home and workplace raids. Ana Maria García was in the shower when ICE agents arrested her. Alma Sánchez was at a friend’s house eating pizza when ICE raided the home under false pretenses and arrested her for lacking documents. She said, “They got there looking for the girl’s dad. And there were a few of us there that didn’t have our papers . . . The guy was already inside their van. So it was a trap.”

Attesting to the role of crime in policing contemporary migration, most study participants were transferred to immigration custody after contact with the criminal justice system. Such was the case for Lupe López. After residing in the United States undocumented for 14 years, Lupe’s husband was pulled over for a routine traffic stop in 2012. He was driving 8 mph over the speed limit while Lupe was in the passenger seat. The police officer who stopped them also worked for ICE, presumably under a 287(g) agreement made possible by IIRIRA in 1996. According to Lupe,

The first thing they did was ask for a driver’s license . . . When he saw that my husband was handing him his consulate ID card as an identification, he was able to tell that we were Mexican, and that’s where the further investigation started. The officer called for more backup . . . They asked us if we knew the language well, if we were here legally or illegally . . . They worked with immigration because they had a little metal badge like officers, but when they turned it around it said ICE.

Sometimes, migrants’ attempts to legitimate their statuses lead to the very apprehension by immigration enforcement they wished to avoid. Rocío Cayetano entered the United States in 1998 and did not come in contact with immigration enforcement until 2008. Aware that migrants were increasingly deported after traffic stops, Rocío traveled to Utah to apply for a driver’s license. She explained, “They said I could get my license over there as long as I had an address there and could prove that I had a prior license.” The Department of Motor Vehicles (DMV) accepted a cable bill Rocío opened in her name at her cousin’s address in Utah but rejected her Mexican consulado as a valid license. Rocío obtained a fraudulent Mexican driver’s license, returned to the DMV a second time, and presented the card. Utah claimed that its DMV did not share information with ICE, but in this case, they did. ICE agents arrived, searched Rocío’s wallet, and found four false IDs. Rocío was arrested and taken to detention, where she was denied bond, coerced into a plea for three felonies in the third degree for fraud, and transferred to ICE custody. Rocío believed the state responded to minor harm with violent force. But, “the prosecutor would say that no one can harm Utah, especially someone foreign.”

In some cases, it was migrants’ victimhood rather than their offending that led to entanglements with crimmigration. Such was the case for Isabel Valdez, who arrived from Mexico on a visitor visa to improve her family’s economic status. Although she became undocumented after 6 months, Isabel quickly achieved her dream of opening a beauty salon. Several years later, she tried to renew her cosmetology license, but discovered licensing rules changed and she needed a social security number. Isabel paid a notary posing as an attorney US$7,500 to secure her legal status. The notary promptly defrauded Isabel and disappeared with her money. During a criminal investigation into the fraud, Isabel was turned over to ICE for lacking papers.

A final set of women were engaged in criminal activities by force when ICE apprehended them. Patricia Ramírez was born into a poor family in Honduras. At age 13, a woman posing as a humanitarian approached Patricia, promising her “the American Dream,” including transport and legalization in the United States. The reality was “completely different.” During Patricia’s journey through Mexico, she slept in the streets, saw a man eaten by a crocodile, went a week without food, and was repeatedly raped by her smuggler. Upon arrival in the United States, the woman informed Patricia that she owed US$20,000 for the journey and she must prostitute herself to pay the debt. Patricia and several other girls were sent to work at a strip club as servers, dancers, and prostitutes. Patricia was forced to engage in these activities for 6 months until ICE raided the facility. Apparently, a man who frequented the bar informed ICE that undocumented minors were employed there.

Treated Worse Than Criminals

Regardless of how they entered deportation proceedings, most of the women reported that they were not treated like people with humanitarian claims. Rather they were treated like criminals, and typically worse, while in custody. Such experiences are not unique to women. Migrants are criminalized and dehumanized during each stage of the removal process. As Alejandra Hernández stated, “It’s not just women. Men too.” This equal-opportunity criminalizing experience was highlighted in the case of Lupe López. When she and her husband were pulled over for speeding and arrested for lacking documents, the officers joked about their bond in a way that made them both feel like chattel. Lupe said,

Like, they were making fun of us. When they arrested us, they put a price on us . . . They were telling each other, like, “you think it would be good if we charged them $2,500 for each of them?” And the other one said, “no, of course not, that’s not enough. It’s better if we charge them $5,000 each.” And then they laughed at us. I thought it was very wrong that they played with us, with our feelings. Because we had also told them that we had kids and that we didn’t want anything to happen to them. And they said, laughing, “Oh, don’t worry, Obama is giving you papers.”

Of course, Lupe and her husband did not “walk out” with legal status. They were placed in detention in horrendous conditions, sat in legal limbo for 4 years, and became indebted to family and friends for tens-of-thousands of dollars in legal expenses. Their five children were also growing up in fear their parents could be deported any day. Lupe explained,

Sadly the kids are also affected, not just us as parents. My children are very damaged psychologically . . . they are very distrusting of police . . . they’ll say “mom, I know you have court today.” And it’s like they’re telling me “Are we ever going to see you again?” (crying).

Many women reported criminalizing experiences during apprehension and while in short-term holding cells. When apprehended at the border, Alma Sánchez claimed,

There was some kind of operative and they took us . . . and we didn’t have any water or anything to eat. And when they took us water we hadn’t drank any (in a long time). So we took a lot of it and some people got really sick. I started throwing up right away.

In a similar vein, Cecilia Aguilar was apprehended shortly after arrival and sent to a holding cell known as an hielera (icebox) due to its frigid temperature (Cantor, 2015). She said,

They only gave us . . . just one blanket. And we would tell them that we were cold and we told them but they would tell us it’s not cold . . . and one of the guards that works there, that guard told us that our urine—that if we did not behave that we would have to drink it.

Detention emerged as the site at which our interviewees’ felt the most criminalized and dehumanized. Treatment in detention varied across and within different institutions. Our sample was placed in different types of facilities, including private centers, prisons and jails contracted by ICE, family detention, and alternatives to detention. Not all experiences were bad. For instance, Cecilia reported, “In that one [facility], yes it was, they treated us with more respect . . . It was rare that they would treat us bad.” Differential treatment also turned on women’s (gendered) positions vis-à-vis the law. Patricia’s case was unique because, as an unaccompanied minor sex trafficked into the United States, she was placed in foster care as an alternative to detention. The staff and foster families lacked Spanish skills, cultural awareness, and sensitivity to Patricia’s trauma. But after bouncing through several foster homes, Patricia became her own advocate. “I was always crying and crying and crying until they found me a social worker and a nice lady who spoke Spanish.” Owing to her placement under the Office of Refugee Resettlement (ORR), Patricia also received services denied to detainees categorized as “national security threats,” “aggravated felons” and “flight risks,” including women and children contained in family detention.

Immigration detention is not considered a form of punishment (García Hernández, 2014). Yet women not considered sufficiently worthy or vulnerable for bond or alternatives to detention typically described detention as akin to prison, and typically worse. Alejandra’s case is telling because she experienced a variety of placements in different centers. At a private for-profit center operated by the GEO Corporation in Aurora, Colorado, she explained,

They treat you bad. They yell at you. In the room where they put me there was 6 other women. The rooms are cold and everything is made out of concrete. They don’t care if you’re freezing . . . They call you a criminal and they don’t give you the medical attention that you need.

Alejandra spoke of a male friend who was paralyzed after digesting a piece of metal in his food and only provided aspirin by authorities. In the same facility, Lupe explained that migrants are forced to work for free or US$1 per day under threat of solitary confinement. She said,

We receive some kind of cereal that I would describe as dog food, but even dogs wouldn’t eat that . . . this lady came up to me and said “you have to eat honey, if they see that you don’t want to eat and they see you sad like this they’re going to say that you’re crazy and they’re going to lock you up alone.”

At this same facility, Alejandra was told to accept “voluntary return,” a contracted agreement between migrant and state that would facilitate her expedited removal without seeing a judge (Kanstroom, 2012). This is a common coercive practice in detention and a primary way in which individuals are denied due process (Kanstroom, 2012). Alejandra explained,

The agent then told me to sign some papers. I told him I wasn’t going to sign anything plus you’re telling me to sign where it says I am deporting myself. I told him I didn’t want deportation and wanted a hearing with a judge. I told him I needed someone to translate those papers. He then said, “You live in the United States, you should know English.” I said, “yes, but you work with immigrants from around the world, you should also know another language.”

Migrants are often transferred to various immigration detention centers ostensibly to fill bed quotas, support the immigration industrial complex, and cut immigrants off from their social and legal supports. Alejandra was transferred to a jail in Colorado Springs. Upon arrival, she was expected to submit to a cavity search administered by a male guard:

He then said he had to check our private parts to see if we had drugs . . . I was like, “What’s wrong with you? You’re not going to do that to me. You’re violating my human rights. I am not going to allow you to do that to me. You don’t have to violate my intimacy.”

Several years later, during the process of an appeal of removal, Alejandra left the United States to visit her dying mother in Mexico. Upon returning to be reunited with her children, and she was placed in a jail in Alpine, Texas. She said,

They took everything, even our money. I had $300 that I never got back. They then transported me to another jail named Sierra Blanca where the whole time I was in solitary confinement. I don’t know why. I don’t know if it was because I told them that I was an activist. I was there for 7 days. They then transported us to El Paso processing center. That place is pretty much where they kick everyone out.

When Alejandra’s bond was denied, she organized 80 women within the detention center and immigrant rights community on the outside around her case. She also served as a jailhouse lawyer, helping other women explore their options and file paperwork. She eventually was released on bond and reunited with her children. At the time of her interview, her case was still pending years later. Waiting in legal limbo was incredibly difficult on Alejandra whose marriage fell apart under the stress and financial burden. She said, “My life completely changed and it’s been for the worse. It has destroyed me in all possible ways.” Alejandra believed the effect on her children was the worst. It was especially hard on her knowing they saw her treated as a criminal:

When I had my hearings, I could only see my children from the distance. They don’t allow you to speak to them. And the fact that my kids saw me handcuffed from my hands and legs. And for them to tell me “I love you, mommy,” I believe that was the most difficult part.

Criminalization experiences sometimes continue after deportation. Take Elana Ayala, a woman who was deported from the United States after living 7 years in the United States, She had no criminal record but failed to appear in court and was thus treated as a fugitive. Upon return to El Salvador, Elana did not return with the trappings of successful returnees. After separating from her abusive partner in the United States, she had used all her savings to support herself. Her goods accumulated in the United States were not sent to her when she was removed. She was deported with only the clothes on her back. Because Elana looked like a poor deportee—an identity conflated with delinquency in El Salvador—she was treated like a criminal by some locals in her hometown. This criminalization was also compounded by her status as a woman:

They tell me, and excuse me for the word, “puta (bitch), you came back deported. Why did they deport you?” And sometimes there are people who . . . will grab us and say, “puta, you were also stealing.” And I’m like, “no, never.” And I tell them that they sent me back here not because I was stealing but because I had an arrest warrant for not appearing at court.

Elana revealed that she was 7 months pregnant when detained in the United States. ICE officials still placed her on the top bunk of her cell. At one point, guards hustled her to get out of bed for lunch and she fell down the ladder. When she awoke, she was informed that her baby had died. She was not given the option of a cesarean, which she would have preferred. Instead, her labor was induced. This was one of the hardest experiences in Elana’s life. It is also one she is forced to relive in El Salvador, a country where miscarriage is criminalized. People in her community know she miscarried, but they claimed she abandoned her child. Some people said, “You came to your country and you didn’t bring your child.” Such comments deeply hurt Elana, who said, “Why do they say that to me? Imagine 7 months and everything that happened in the prison—that I went through. But it doesn’t matter. It’s okay. They are always going to be saying that.”

Haphazard Removal Outcomes

Each woman we interviewed mentioned experiences or threats of violence, abuse, rape, or fear of return which may have made them eligible to apply for humanitarian relief. Yet the objectives of the crimmigration era have been eclipsed by the objectives and punitive norms of crimmigration. Not only are migrants treated like criminals or worse while in immigration custody, but they are also routinely deported without the opportunity to explore avenues or make a case for relief. Such was the case for six of the 11 women in our sample. Cecilia was not informed of her right to acquire her own attorney but was granted a “credible fear interview” in detention. Although she feared gang violence in her country, officers determined she did not have a case for asylum and she was deported. Other women were not afforded either right. When asked if she was provided an attorney, Ana María García stated, “No they just told me to sign a paper and I guess that was the paper for my deportation.” She may have been eligible for cancellation of removal, owing to the length of time she was in the United States and that her four children lived in the United States, but she was denied the opportunity to explore the option. Now, she resides in El Salvador, selling pupusas in the street. Similarly, Alma Sánchez may have been eligible for a Special Immigrant Juvenile Visa owing to her status as an unaccompanied minor, but she was deported back to El Salvador without the ability to explore options. She was coerced into voluntary return:

They had me read a pamphlet . . . But I didn’t understand any of [it] because it was in English. I didn’t understand it. I just signed when immigration told, asked me . . . They said look you’re leaving, or you have to stay in here for three months, detained. And in the end you’re still going to have to leave . . . Well, I got scared . . . And in the end I’d just have to leave anyway. So I just said I’ll just leave.

The cases of Sylvia Martínez and Rocío Cayetano further demonstrate that people who have legitimate cases of relief are deported in direct opposition to the norm of nonrefoulement. Sylvia migrated to the United States to improve her economic condition and escape her abusive husband. Sylvia escaped with her children and left “one day from a blink of an eye, disappeared from the house, from the suffering.” Shortly after they arrived to the United States, they were apprehended by ICE. The family was immediately deported back to Honduras. Upon return, Sylvia’s husband almost immediately attempted to murder her. Empowered by her faith, Sylvia fled once again. After crossing the U.S. border, she came in contact ICE and affirmatively requested asylum: “I told him I was fleeing my country because I can’t go back . . . because my daughter’s dad wanted to kill me . . . He is a Mara Salvatrucha and wants to kill me.”

Despite her status as an asylum seeker, Sylvia and her children were detained for 2 months in a family detention center. Sylvia noted,

I was starving, I couldn’t wash my teeth, I couldn’t shower, I couldn’t do my necessities. They would humiliate me. They were very racist there . . . the kids suffered a lot and would tell me they were hungry. They only gave us a burrito per day, sometimes every two days.

Eventually, Sylvia was granted a 1-year stay of removal. She hired an immigration attorney who collected a fee and advised her to “leave because [her] case wasn’t strong enough.” After complying with ICE check-ins for 2 years, Sylvia received a deportation order. Despite her credible claim, the judge decided Sylvia “didn’t fit into the group my lawyer put me in.” Desperate and running out of time, Sylvia reached out to the immigrant rights movement. She came out publicly on Telemundo and garnered the attention of an attorney specializing in gender-based asylum claims. The lawyer appealed her petition. Sylvia could have been deported to death but was instead granted asylum and placed on a path to citizenship.

Rocío’s case demonstrates that women with legitimate claims to relief are often deported under the guise of policing criminality. After being deported for fraud for holding false IDs, Rocío reentered the United States. ICE promptly apprehended her. Like many migrants, she was instructed to sign a voluntary return agreement. Luckily, this time Rocío’s brother advised her not to sign any paperwork. He said, “we’re going to fight this one to see what happens.” He paid for an attorney, and Rocío then discovered she could seek relief on the basis of the domestic abuse she endured from her ex-husband for over 10 years. Rocío explained, “I always fought with the father of my children. He always treated me bad, really bad. He always humiliated me, offended me, treated me awful, and always had a mistress.” Luckily, Rocío had previously pressed charges. She also cooperated with the investigation against her ex. She was able to attain law enforcement certification of her cooperativeness and eventually received a U Visa despite her criminal record. After 4 years in the United States as a U visa holder, she became a permanent resident.

Only one woman in our sample readily received relief. Patricia could have been arrested on prostitution charges, but law enforcement afforded her discretion owing to her unaccompanied minor status and victimization by sex traffickers. She was privileged to acquire a pro bono attorney who secured her a T visa and green card. After acquiring U.S. citizenship, Patricia was also able to petition for her family. Nevertheless, the intersection of humanitarian relief with criminal justice facilitated a problematic blowback effect. Patricia’s cooperation with law enforcement to secure her T visa inadvertently led to her father’s death. Her traffickers believed her dad entered the United States not only to reunify with his daughter but also to seek retaliation. Uncomfortable in the United States, her father voluntarily returned to Honduras shortly after arrival. Members of the transnational trafficking ring murdered him shortly after return. At the time of her interview, Patricia was also separated from her husband and father of her child. He was an undocumented migrant who returned to El Salvador to care for his dying mother. A few months after her interview, Patricia texted the Principal Investigator (PI) to inform the study team, “I am divorcing.” The distance and inability to reunite across borders broke her family.

The other women we interviewed were in the midst of lengthy battles over whether they were “worthy” of relief. Their cases pended for years as a de facto penalty for acquiring legal representation. Their lives and families continued as they sat in legal limbo, uncertain but aware that their lives could change at any moment by a deportation order or declaration of immigration relief. Consider Isabel Valdez, whose cancellation of removal claim was pending for more than 10 years at the time of her interview. Over the decade of waiting, Isabel and her children continued to build lives in the United States. Her daughter received a 4.0 grade point average (GPA) at a reputable liberal arts college but struggled to find employment because of her unlawful status. The daughter was eligible for Deffered Action for Childhood Arrivals (DACA) but refused to apply as an act of resistance against the government’s treatment of her mom. Isabel had to prove to the court that her removal would cause “exceptional and extremely unusual hardship” on her family, which is incredibly difficult to demonstrate. Her case was also complicated by a child neglect charge which undercut her credibility as a vulnerable migrant. Isabel’s daughter (interviewed for another project) explained the nature of the neglect as a dangerous but not uncommon parental mistake:

One day she left my siblings alone to go run an errand [and] as siblings often do they started bickering. My brother was bothering my little sister and making her angry. She called the police. My mother arrived a little after the police had gotten there [and] she was charged with neglect. That small incident has haunted us.

Isabel understands that “any behavior that is inappropriate has consequences,” and she completed a year of probation and parenting classes for her offense. She also believes that a decade of legal limbo constitutes a form of state violence and that her treatment in custody constituted a kind of double jeopardy. She said,

They have treated me like I was a true criminal . . .What did I do? It is unjust . . . They take such a long time to resolve . . . they don’t have a resolution date . . . there are moments when you don’t want to live anymore, when you see the injustice. [It’s been] over, almost, a decade of waiting.

The agony Isabel and her family experienced was exacerbated by legal expenses that put them into debt. Isabel also could not attend her parents’ funerals in Mexico because she could be barred from reentry and permanently separated from her children. Thus, like many undocumented migrants, she remains “confined within” the United States (Coutin, 2010). She is indefinitely waiting on a decision that cannot be predicted.

Conclusion: Gendered Implications and Women’s Resistance

This study contributes to feminist, criminological, and immigration scholarship through a critical examination into the ways poor Latin American women are affected by the modern deportation regime. We argued that, since the 1980s, the United States witnessed the militarization of borders and associated rise of “crimmigration law” rooted in the decline of the welfare state and rise of neoliberal and colorblind ideologies. Just as the criminal justice system now disproportionately targets Black and Latino men for incarceration and disenfranchisement, crimmigration law targets low-waged Latino and Black male noncitizens for criminalization, detention, and removal (Golash-Boza & Hondagneu-Sotelo, 2013). The criminalization of migration is supported by a host of institutional practices designed to identify, apprehend, and remove individuals deemed unworthy of presence in the United States on account of racialized and classist presumptions and the discourse of migrant criminality. It is upheld by a lucrative immigration industrial complex, including the private prison industry.

Nearly 25,000 women are deported from the United States each year, and tens-of-thousands more women are apprehended and held in immigration custody. These women experience the same institutional process and report similar treatment as men and persons of other genders. Owing to noncitizen women’s increased presence in public spaces, women are apprehended at similar sites as men, including at the border, during home and work raids, after routine traffic stops, and during interactions with the broader criminal justice system. Although immigration enforcement is a civil/administrative process, women report being treated like criminals—and typically much worse—during apprehension, in detention, at court, and in the aftermath of removal as a result of their deportee status. Owing to a longstanding national tradition of providing humanitarian relief to populations considered vulnerable, options for relief are available, and sometimes granted on gendered grounds. But we find that punitive and enforcement norms and objectives take precedence in the crimmigration era. People eligible to stay are deported without the opportunity to explore options for relief in direct opposition to the internationally recognized norm of nonrefoulement. This is due to low legal consciousness, a lack of legal aid, variable implementation of the law at every level and across jurisdictions, and innumerable other institutional barriers and backlogs.

More men are affected by detention and removal than women. But our interviewees’ negative experiences with crimmigration were compounded by their status as women. As Alejandra said, “Yes, women do have to fight more and with more passion.” They must “fight more” due to their roles as mothers and wives and treatment as sex objects. Consider Elana Ayala, a deportee in El Salvador. She was abused by her partner and thus eligible for a U visa. Yet she was unable to make her case for relief due to low legal consciousness and the unavailability of pro bono legal aid. She was deported to El Salvador where she experienced similar stigma as criminalized male deportees. Yet because she was also a woman, she was viewed not only as a failed migrant and criminal but also as a neglectful mother. In reality, the gendered violence of the crimmigration regime was complicit in, if not directly responsible for, Elana’s miscarriage. Had she, as a woman fleeing Central America in the contemporary era, not been categorized by the state as part of a “national security issue” (National Immigrant Justice Center, 2016) and placed in detention and on the top bunk in her cell while 7 months pregnant, she would not have fallen and lost her child. Had she been provided an attorney, she and her child may have entered a path to U.S. citizenship instead of deported to stigma and precarity.

The availability of (gendered) humanitarian provisions mitigates the impact of the deportation regime. It may even help explain why men are deported at higher rates than women. But humanitarian relief does not override the power of crimmigration law in shaping the culture and treatment migrants face in custody and after. In the current moment, individuals in immigration custody are treated less as “Americans in waiting” than as criminals and national security threats. We thus consider them “deportees in waiting,” regardless of their gender (Motomura, 2006).

The women we interviewed did not passively accept this treatment. Nearly all of the women in our study were more comfortable speaking from the perspective of an activist than a victim of male or state violence. Such advocacy not only challenges crimmigration and mass detention/deportation but also flies in the face of portrayals of Latin American migrant women as powerless victims. We spoke to a few extraordinary activists, such as Alejandra, who used the injustice of crimmigration to fuel a life of advocacy. Known for her tireless work to mobilize immigrants in detention and in the community, Alejandra became the face of the immigrant rights movement in Denver. Other women faced everyday struggles as they fulfilled roles as laborers, wives, and mothers that prevented them from fully engaging in activism. Some were deported and thus were geographically removed from the core of the U.S. immigrant rights movement. Yet all of the women resisted the modern deportation regime by sharing testimonies, joining solidarity groups, participating in research, and educating others. We do not have space to comprehensively review their critiques here, but Lupe’s comments are representative. She eschewed criminalizing labels in her poignant critique of the violence of crimmigration:

In my mind and in my heart, I feel like no one is illegal . . . And there are many people who are not criminals . . . To me the word “criminal” is something very bad. Like, what you do here in the U.S., that for me is criminal.

The women in our study experienced different outcomes. They were protected by humanitarian visas, neglected by the state for years in legal limbo, and were ejected through deportation and coercive practices of “voluntary return.” Regardless of status-outcome, they offered policy recommendations. These included amnesty, closing private detention, improving detention conditions, eliminating bars on reentry, advancing “know your rights” campaigns, and providing indigent immigrants legal aid. The women’s stories further suggested that judges should take seriously the gendered conditions from which women in Latin American women are fleeing. Lawmakers should reform U and T visas such that relief is not dependent upon migrant’s compliance with law enforcement. The case of Patricia, whose father was murdered by her sex traffickers as a form of retaliation, underscores the feminist claim that survivors of abuse should never be coerced to testify against their offenders to receive a (humanitarian) benefit.

Our findings ultimately speak to the contemporary trend of governing social problems like gender violence, unauthorized migration, human trafficking, and street crime through an enforcement-first or enforcement-only lens. Simon (2006) notes that a dominant feature of the contemporary era is an overreliance on discourses, performances, and policing of criminality that are, in turn, reliant on the (gendered) production of victimhood. This pattern not only fails to reflect the complexity of human behavior and identity but also has helped move the United States toward a police state in which everyone—not just migrants, women, and children—is a potential suspect.