Introduction

The immigration detention literature explores the intersections between administrative and criminal law as a means for abrasive social control over immigrants, expediting the conduits towards deportation, and extending the punitive arm of the state (Chase 2019; Hernández and Cuauhtémoc 2019b; Stumpf 2006). We expand on this literature by analyzing the institutionalized deportation of those serving criminal sentences for non-immigration-related issues. The Institutional Hearing Program (IHP) is a federal initiative to enforce immigration law by placing immigration courts in prisons and jails to initiate removal proceedings for those nearing the completion of their criminal punishment. We examine “crimmigration” enforcement, inequality, due process, and enhanced punishment in the IHP context, to assess whether immigrant protections in places considered “sanctuary” extend to those convicted of crimes.Footnote 1

Of the 713,459 noncitizens deported between 2017 and 2019, 57% had criminal convictions (ICE 2020). Many of these so-called “criminal aliens”, were found guilty of immigration-related offenses (Bier 2018), yet others were removed based on non-immigration-related convictions. Despite severe-sounding names, the categories of offenses that make immigrants deportable—“aggravated felonies”, “crimes of moral turpitude”, and controlled substance, domestic violence, and firearm offenses—comprise a wide variety of convictions, including many nonviolent crimes and misdemeanors (Das, 2020a, b). While noncitizens, regardless of legal status, have constitutional protections in any court of law, immigration court, as an administrative body, lacks due process standards required in the criminal system, such as the compulsory provision of legal counsel (Kaufman 2008). Immigrants funneled toward removal along the “criminalization-to-deportation pipeline” experience enhanced punishment, as they confront legal processes that further the erosion of due process, such as mandatory detention or indefinite custody without bond (Avila and Ibanez 2023; Cook 2008). Criminal histories also deter available legal providers from engaging in immigration cases. Only 37% of immigrants nationally—and just 14% of those detained—are represented in their deportation or removal proceedings (Eagly and Shafer 2015). Criminal-removal defense is particularly difficult, with legal complexities and lengthy appeals (Area 2018; Robbins 2017; Podgorny 2008); not having access to legal counsel worsens the probability of success (Ryo and Peacock 2018), especially since criminal records often bar individuals from common forms of immigration relief (Das 2020a, b; Tosh 2023).

We center our analysis on the case of New York City in the context of New York State. NYC—whose 8.6 million residents include 3.1 million immigrants—is known for its protective policies and sanctuary status. Yet Immigration and Customs Enforcement (ICE) remains free to make immigration arrests throughout NYC—with the stated aim of removing immigrants with criminal convictions (Devereaux and Knefel 2018; Stringer 2019)—and is home to some of the busiest immigration courts in the country, with several thousand people ordered deported each year (The Marshall Project 2018; TRAC 2020). New York State is also home to the first IHP court and continues to receive millions of dollars in federal funding for its active participation in the program (Eagly and Schafer 2020; BJA 2021). We elaborate critically on how sanctuary provisions in NYC exclude migrants with criminal records and physically “export” them to state prisons, where specific policies toward their expedited deportation take place, such as the IHP. Drawing on research on the racialized impacts of crimmigration policy, we situate the IHP on a pipeline from “criminalization-to-deportation” that relies on the supposed non-deservingness of immigrants with criminal records to reproduce and enhance existing inequality.

Literature Review

First, we review the history of the IHP development in the federal and NYS contexts. Following this, we explain how the crimmigration framework expands our insights into the reproduction of social inequality.

Criminal-Conviction-Based Deportation and the Institutional Hearing Program

Anchored to the Criminal Apprehension Program (CAP) that prioritizes the “identification, arrest, and removal of incarcerated noncitizens at federal, state, and local levels, as well as at-large criminal noncitizens” (ICE 2023), the Institutional Hearing ProgramFootnote 2 (IHP) further expedites the removal of incarcerated individuals serving criminal convictions through the creation of immigration courts within prisons and jails.Footnote 3 Immigration judges in the IHP determine whether incarcerated individuals are eligible for relief in a “controlled environment” (EOIR 2018), allowing for the uninterrupted use of existing institutions for criminal punishment and immigration adjudication. The IHP was created in 1986, with its first pilot in a state prison in Fishkill, NY, where most cases were held between 1986 and 1988, with around 82% of participants deported. The Fishkill Immigration Court remained a key site until 2022 following the State of New York’s decision to close the Downstate Correctional Facility where the Court was located, transferring all cases to the Ulster Correctional Facility in Napanoch, NY (EOIR 2022). Catalogued as an “extremely effective and efficient use of INS [now ICE] resources,” the purpose of finding and catching individuals was achieved through the criminal legal system, and then funneled toward removal proceedings adjudicated by immigration judges visiting the facility for a week every month (Eagly and Shafer 2020: 11). Today, the IHP operates through a partnership between the Department of Justice’s Executive Office for Immigration Review (EOIR), the Bureau of Prisons (BOP), and Immigration and Customs Enforcement (ICE) Enforcement and Removal Operations (ERO).

By 1998, the IHP was in federal and state prisons around the country, and removals through the program rose exponentially from 1,409 in 1988 to 18,018 in 1997. This trend decreased following the enactment of the 1996 immigration reforms that augmented the list of offenses that made a noncitizen eligible for deportation without appearance in immigration court (administrative removal) (American Immigration Council 2021). Still, as of 2017, more than 200,000 individuals had been deported through the IHP (TRAC 2017). During the Trump presidency, the IHP was re-escalated through a memorandum of the DHS, demanding to initiate removal proceedings against incarcerated noncitizens “to the maximum extent possible,”Footnote 4 leading to its expansion to 14 additional BOP facilities and 6 additional BOP contract facilities (United States Department of Justice 2017). The program was expanded by increasing the number of BOP and contract prisons that were active IHP facilities, enhancing Video Technology Conferencing (VTC) capabilities at federal IHP facilities while improving the existing infrastructure, and formalizing an intake policy between EOIR and ICE (DOJ, 2021).

By 2021, 17 federal prisons participated in the IHP, along with state and local facilities in at least 19 states, receiving federal funding for their participation (American Immigration Council 2021). This funding is enhanced by connected initiatives that incentivize the control of immigrant communities by tracking their incarceration at local and state levels. The State Criminal Alien Assistance Program (SCAAP), for example, administered by the Bureau of Justice Assistance (BJA), ICE, and DHS, provides federal payments to states and localities with correctional officer salary costs for incarcerating undocumented noncitizens with criminal records (at least one felony or two misdemeanor convictions) for at least 4 consecutive days (BJA 2021).

Limited scholarly research on the IHP speaks to its divisive and determinative outcomes: an almost secured pathway to deportation that allows for the segregation of incarcerated noncitizens by national origin, citizenship, and race—challenges further enhanced for noncitizens incarcerated in for-profit facilities impacted by the profiteering industrial complex (Eagly and Shafer 2020). Institutional profiles demonstrate the concentration of IHP-connected jails and prisons in rural areas, and the problems this poses for the administration of legal representation (American Immigration Council 2021). Between 1988 and 2019, less than 10% of immigrants processed through the IHP were represented by legal counsel, and 93% of those tried for removal through the program were ultimately ordered deported (Ibid).

“Crimmigration” Law, Exclusion, and Inequality

The exclusionary capabilities of the Institutional Hearing Program (IHP) are contextualized by a broader “crimmigration” nexus—used by scholars to describe an increased intertwining of criminal and immigration law expanding the punitive potential of both systems (Hernández and Cuauhtémoc 2019a; Stumpf 2006). In this process we see that crimmigration works in distinctly racialized ways through disproportionally marking and punishing those categorized as Black and/or Latino/a/x. A clear example of this is the fact that immigrants from Latin America and the Caribbean experience the most deportations—about 95%—despite comprising about half of the U.S. foreign-born population (Budiman et al. 2018; MALDEF et al. 2014). Further, while Black immigrants account for 7% of noncitizens they comprise more than 10% of individuals in deportation proceedings—and over 20% of those with criminal convictions under immigration scrutiny (Raff 2017; Morgan-Trostle et al. 2016).

In addition, there is an interdisciplinary body of scholarship on the War on Drugs and mass incarceration documenting the racial targeting of economically marginalized communities of color through criminal records and mass detention, which feeds the symbolic construction of Black and Latino criminality and rationalizes inequality to uphold white supremacist racial hierarchies (Davis 2017; Alexander 2012; Provine 2007; Tonry 1995). This reproduction of racial inequality in the criminal justice system is rationalized by the supposed race-neutral or “colorblind” nature of modern criminal law and the furtherance of racially unequal outcomes through the immigration system justified by a “good immigrant/bad immigrant” binaryFootnote 5 (Tosh 2023; Das 2020a, b; Escobar 2016; Golash-Boza 2015). Thus, we find that markings assigned within the bureaucracy of the criminal legal system are taken at face value in the immigration system and trigger processes of enhanced punishment (e.g. deportation).

In connection, crimmigration research uncovers how the disproportionate removal of Latino/a/x people is based on law enforcement’s professed adherence to a “colorblind” ideology (Armenta 2017; Arriaga 2023), but enforces a “racial project” (Provine and Doty 2011), a reflection of “white-supremacist capitalist patriarchy” (Golash-Boza et al 2019). These notions employ critical race theory to analyze the intersections between race, law, and power, whereby laws that appear to be neutral reinforce and maintain white supremacy (Delgado and Stefancic 2023; Haney-López 2006). Additional scholarship emphasizes the central role of anti-Blackness in deciding national conceptions of belonging (Kretsedemas 2012; Kretsedemas and Gow 2024); the over-policing and profiling experienced by Black immigrants and their children (Ellis et al. 2020; Wallace 2018); and the distinct impacts of criminal deportation on Black and Afro-Latino/a/x noncitizens (Aranda and Vaquera 2015; Tosh 2023; Golash-Boza 2017; Brotherton and Barrios 2011; Nopper 2008), not necessarily because of their immigration status (many are Legal Permanent Residents/LPRs), but through the criminal records they are marked by.

The research on criminal-conviction-based deportation is essential in refuting dominant theories in the sociology of migration, which frame immigrant criminality as the result of “downward” assimilation, used to describe under-resourced groups’ assimilation into a criminal “underclass” rather than mainstream society (Portes 2007). Instead, the critical criminological concept of “social bulimia” describes the “inclusion/exclusion” inherent in contemporary immigration-receiving societies. Young (2003: 395) argues that late modern societies consume and culturally assimilate immigrants and other “underclass” groups through education, the media, and participation in the marketplace, indoctrinating them with the “image of what is a normal lifestyle, what goods and level of comfort can be expected if we play the game.” Simultaneously, these groups are excluded from the structural means of reaching these goals—a long-theorized recipe for crime (see also Merton 1938). From this perspective, criminal deportation, especially that of LPRs and other long-term residents, is a story of successful cultural assimilation combined with simultaneous structural exclusion (Brotherton and Barrios 2011). We draw from these critical frameworks to elucidate the unequal and exclusionary impacts of the IHP.

Research Methodology

This article draws on the findings of a broader study of the “criminal deportation pipeline in New York City,” funded by the National Science Foundation’s (NSF) Program for Law and Science from 2021 to 2023. The Institutional Review Boards of Rutgers University and John Jay College of Criminal Justice, City University of New York approved this study. This paper is mainly based on findings from the qualitative portion of this project—particularly 103 semi-structured, in-depth interviews conducted with legal practitioners, community-based advocates, and impacted individuals. Legal practitioners (N = 37) include NYC and NYS-based criminal defense lawyers, immigration lawyers, social workers, and judges with firsthand knowledge of “crimmigration” law and the intertwining legal structures that funnel criminalized immigrants toward deportation. Advocates (N = 39) include representatives of non-profit organizations, as well as grassroots organizers and activists, who work directly with the communities and systems affected by NY’s “criminalization-to-deportation pipeline.” Impacted individuals (N = 37) include noncitizens and family members with personal experience of the intertwining structures and processes that make up this pipeline.

Interview participants were recruited through the personal and professional networks of the study’s Principal Investigators and research team, direct communication with relevant community-based organizations and legal providers, electronic and print info-sheets and flyers, and snowball sampling. Due to the timing of the research, interviews were largely conducted remotely, over telephone or Zoom, and in English or Spanish, based on the preference of each participant. Each interview lasted about 1 h, and participants were offered a $40 gift card or cash transfer for their participation. Interviews were recorded with the consent of participants, and transcribed using Zoom and professional transcription services. While exact interview questions differed for the three categories of participants, they broadly focused on the trajectories through which immigrants with criminal records are funneled toward deportation; the role of criminal justice disparities in deciding which immigrants are subject to enhanced criminalization and removal; the impacts of protective policies for immigrants with criminal records; and how communities resist overlapping processes of criminalization and deportation. Upon transcription, names and other identifying information were removed and participants were assigned pseudonyms, which are used throughout this article. Transcribed and de-identified interviews were stored in a password-protected Dropbox, before being analyzed thematically using qualitative coding software.

Flexible coding allowed systematic analysis of larger samples of interviews (N > 30), departing from a combination of documented prompts derived from the literature review and traditional inductive analysis; this is considered an abductive approach that eases the process to relate variables (theoretically informed) and what the interview data is showing (Deterding and Waters 2021). Once the interviews were transcribed and deposited in the software (MaxQDA), we followed two steps. First, we indexed transcripts relating content to the interview protocol. We created “respondent-level” and “cross-case” memos to document the analytic process where primary relationships between concepts were found. Second, we reduced data by applying analytic codes to specific transcript sections. This allowed prioritizing the reliability of the coding and gave specific conceptualization routes that matched previous literature.

Results

The results below draw from the interviews to describe central themes related to the IHP. Although our questions did not mention the program specifically, participants referred to it when addressing three aspects: (a) the circumvention of “sanctuary” measures through criminal enforcement targeting noncitizens; (b) the reproduction of inequalities related to race, social class, and immigration status; and (c) enhanced punishment and erosion of due process for immigrants processed for removal in incarcerated immigration courts.

“Crimmigration” Processes in a Sanctuary City

Over the past few decades, collaborative organizing by impacted communities and legal providers in NYC spurred the adaptation of “sanctuary” measures for criminalized noncitizens in the city. Unlike in many jurisdictions around the country, NYC law enforcement agencies are officially prohibited from assisting federal immigration enforcement, and the city largely refuses to honor detainers—requests by ICE to hold noncitizens charged or convicted of crimes. Yet sanctuary policies only do so much for those with criminal records. Although the New York Police Department (NYPD) cannot engage in immigration enforcement, the city participates in Secure Communities—a national program that facilitates the sharing of arrest data and fingerprints between local law enforcement agencies and ICE (Alsan and Yang 2022). Additionally, the refusal to honor detainer requests from city jails does not apply to immigrants with convictions in a 170 “serious crimes” list (Robbins 2018). NYC’s sanctuary policies are further circumvented for criminalized immigrants through the Institutional Hearing Program (IHP)—situated by participants as a key example of the punitive intertwining of the criminal and immigration systems, adding deportation as a natural extension of criminal punishment.

Though close to half of the state’s incarcerated population comes from the city (Prison Policy Initiative 2022), laws preventing NYC jails from turning noncitizens over to immigration enforcement do not extend to New York State prisons. Participants processed for removal through the IHP described direct transfers from criminal incarceration to immigration detention. Emmanuel, for example, was detained and deported through the program after immigrating to NYC from Haiti as a green card holder (lawful permanent resident) in his youth. After serving a 16-year prison sentence for a first-time robbery conviction, he explained, “I was getting released that day, ICE [Immigration and Customs Enforcement] came to the jail and picked me up […] they put me in a van and take me to […] a federal detention for ICE.” In many cases, such transfers were unexpected by participants. Andre, another green card holder from Haiti, was removed through the IHP after serving a 10-year prison sentence for crimes committed as a young man in Brooklyn. His fiancé, Lauren, an American citizen, relayed that Andre “thought the whole time he was going to be able to be released and go home.” Instead, he was picked up on his release day and transferred to immigration detention.

The workings of the IHP demonstrate the elusiveness of sanctuary provisions for noncitizens processed through NYC’s active and expansive criminal legal system. In spite of laws preventing their participation in immigration enforcement, participants described how aggressive NYPD enforcement heightens surveillance and social control over immigrants. As explained by Benjamin, an immigrant and community organizer from the Caribbean, “contact [with ICE] really only happens after we have contact with the NYPD.” Participants also spoke to the circumvention of detainer laws through the criminal system’s continued charging and conviction of immigrants for offenses known to be deportable. Ramon, an NYC-based immigration attorney, said that despite laws preventing law enforcement from holding noncitizens for immigration detention, “it didn't change the fact that prosecutors were still not willing to resolve cases in manners that would not create these pitfalls for our clients.”

Several participants described fabricated or exaggerated criminal charges and convictions that led to their incarceration and eventual processing through the IHP. David, who came to the US as a young green-card holder from Haiti, described being arrested at the age of 19 for alleged participation in a robbery he “had nothing to do with.” After involved acquaintances were violently pressured by police to “give some names out,” David was apprehended and “roughed up” by the police to give further names himself. He reported, “they beat me just for me just to speak, they slapped me and punched me in my head and all that.” Though he tried to fight the charge, David was pressured by his lawyer to take a plea deal and was subsequently convicted and incarcerated for attempted robbery—a deportable offense that led to his removal through the IHP. Rafael, a Dominican green card holder who also received a deportation order while incarcerated, explained how he was charged for conspiracy to commit robbery for which “there was no victim” and “nothing was taken,” as well as possession of a weapon that did not exist. The commonality of incarceration based on loose or non-existent evidence was corroborated by lawyers and advocates, such as Paul, an immigration attorney who worked regularly in IHP courts. He described the regularity of cases where clients were “arrested and then steamrolled through the criminal justice system when the context perhaps didn't call for it.”

Plea bargains, used to resolve 94–97% of criminal cases (Eagly 2017), were cited as central in determining the convictions that made participants subject to deportation. Andre—a previously mentioned Haitian green card holder deported through the IHP—described the commonality of plea bargains and how much they affect the outcome of a case:

I could even remember sometimes, where I was arrested for things that I wasn't even guilty of, but I would plead guilty because that was a way to get out of jail. That was a thing. You're arrested, and now you're in central booking. Your legal aid will come talk to you and tell you, “Listen, this is a weak case. This is bullshit. We could take it to trial, but it's going to take some time, or you could just plead guilty and you get to go home today."

In cases with both public defenders and paid attorneys, all participants who described facing deportation based on criminal convictions reported taking a plea bargain in their original case. For some, this was due to pressure by their attorney, like David, who was told he may be subject to 15 years instead of 5 if he took the case to trial. He said, “this scared me. I’m like, I’m 19 [years old]. I’m not taking 15 [years in prison].” In other cases, like that of Andre, the participant doubted the ability of the attorney to fight the case if they did go to trial. He explained, “I'm looking at the [District Attorney]'s table and you know, they have stacks of papers and stuff, files. I look on my lawyer's side of the table, and she barely has anything in there […] It's like, she wasn't prepared for trial at all.”

All IHP impacted participants also described taking pleas while unaware of the impacts they would have on their immigration status. NYC has institutionalized immigration advice for public defenders and other criminal lawyers since the 2010 Supreme Court case Padilla v. Kentucky, which mandates that defense attorneys inform noncitizen criminal defendants of the risk of deportation when deciding whether to plead guilty. Yet before this, no such mandate existed. David said, “The best thing was for me to take a plea, but […] back then, they failed to let us know that taking a plea would actually lead you to getting deported back to your homeland.” Once convicted and transferred to state prisons, NYC’s detainer law no longer applies, leaving noncitizens convicted of deportable offenses subject to expedited processing through the IHP. Andre explained this as an example of the way in which sanctuary laws and discourse mean little once immigrants are incarcerated:

ICE is funded by the federal government. So, if the federal government is paying your prison to hold on to prisoners so that their guys could come and pick them up, you could say this sanctuary city thing all you want, but it's going to go on and nobody is going to do nothing about it.

Lawyers working in IHP courts agreed that the financial incentive for state prisons to participate in the program overrides the fact that immigrants processed through it were originally apprehended in a sanctuary jurisdiction. Immigration attorney Maryanne, for example, explained how Inmate Record Coordination Manuals acquired by her organization through the Freedom of Information Act (FOIA) detail processes for New York State Department of Corrections (DOC) employees to report foreign-born inmates, and describe the direct provision of federal funding for prison staff salaries tied to the extent of such reporting. Information made public through the United States Bureau of Justice demonstrate an infusion of over 14 million dollars of such funding to New York State prisons in 2019 (Bureau of Justice Assistance, 2019).

Immigration System Due Process and Enhanced Punishment

Once exported from the “sanctuary” of NYC to the NYS prisons that participate in the IHP, immigrants are subject to enhanced punishment and questionable legal practices that expedite their funneling toward deportation. Though the broader immigration system is already known for punitive outcomes and a lack of due process, such issues are only magnified for criminalized populations. Participants spoke of the commonality of unscrupulous actions by immigration officers and judges in this context, such as Andre and Victor, who both described being removed from the country despite their immigration court cases being ongoing. Others spoke of being cut off from contact with their lawyers as retaliation by immigration officials, or being coerced into signing removal documents without being allowed to read what they were signing. Andre felt such actions are normalized in IHP cases due to the criminal status of those impacted. He said, “Nobody really cares. Nobody is really looking into what's going on with criminal deportee.”

More general due process concerns, such as a lack of guaranteed legal representation in immigration court, are also particularly impactful for detained and incarcerated populations. While the provision of publicly-funded immigration lawyers through the New York Immigrant Family Unity Project (NYIFUP) was expanded to New York State’s IHP courts in 2018, most participants were processed before this, and were therefore subject to the dearth of legal representation impacting the vast majority of IHP respondents throughout the country—between 1988 and 2019, less than 10% of immigrants processed through the program were represented by legal counsel (American Immigration Council, 2021). A lack of affordable representation was exacerbated by participants’ criminal status, as exemplified by Andre who recalled contacting organizations on a provided list only to find “none of them provide representation for criminal matters.” Others were able to secure private attorneys, only to be scammed out of their money by non-existent or inadequate representation. Most were forced to represent themselves in their immigration court proceedings, such as Omar who described facing removal with “no lawyer, nothing,” and recalled, “I don’t know what to do, how to defend myself. I just have like 3 years in America.” For many, the lack of adequate representation was the crux of their eventual deportation. Emmanuel said if he had more money or better access to legal resources, “I would have beat my case. I would have beat my case, for sure.”

The expansion of NYIFUP to the state’s IHP courts in 2018 has made an important impact for the immigrants subject to this program. The free immigration attorneys provided through the program actively engage in strategies to fight the mark of criminal records on their clients. Yet they are confronted by specific procedural and physical challenges that come with working with incarcerated individuals. Reviews of access to counsel for people detained in the criminal context have identified structural and procedural barriers that impede the ability of jailed populations to obtain quality legal representation, maintain private legal visits and communication, and access information needed to build their cases—including enhanced difficulties for those with language barriers or disabilities (Department of Justice Advisory Group 2023; Kalb 2018). Related difficulties were reported by interviewed immigration attorneys practicing in the IHP, who described physical challenges that complicate case preparation and ability to defend their clients. Lawyers described the lengthy trips they must take when visiting upstate facilities in what they call “the north country” along the snowy northern border of the United States, even when the “weather doesn’t cooperate;” for example, Paul, who reported multi-hour drives between his office, the incarcerated immigration courts, and the prisons and detention centers where his clients were held. The fact that the courts themselves are in an incarcerated setting only furthers a perceived lack of transparency and due process, as explained by attorney Maryanne, who relayed, “the court is in a prison, so there’s guards all around.” She explained, “you have to get a lot of gate clearance if you want any witnesses to appear. In terms of a publicly open courtroom, that's not really what's happening there at all.” She further described the proceedings by saying, “we're in such a closed-off space, and then closed off from the outside world perspective. It feels sometimes like you're in the depths of a dungeon.”

Obstacles to meeting privately with IHP clients make it difficult for lawyers to prepare for cases, conditions made worse under COVID, when incarcerated noncitizens were made to appear by video instead of in person, and exchanges with lawyers were limited to a monthly call of 30 min. Paul said, “my representation for my clients deteriorated when I wasn’t able to go meet with them; when I'm only just knowing my clients by voice and not visually”. Maryanne agreed: “I would say the hardest thing is developing a trusting relationship with somebody that you've never met in person, who is already pretty leery of the criminal justice system”. Not only did COVID make it more difficult to meet with clients, it also impacted lawyers’ ability to effectively present their case. Paul said such conditions impacted this ability “a tremendous amount”, explaining,

Particularly sometimes when we're trying to break down clients who have criminal justice records, who have criminal convictions. I think it's important in my mind for the judge to be able to see that presentation in person, as opposed to on video where they can tune out and they could turn away from what's in front of them.

When asked if it was more difficult to “humanize” criminalized clients for the judge when using televideo, he affirmed, “I think so, yes.” Despite the waning threat of COVID, the use of televideo remains common in incarcerated and detained immigration courts across the country (AILA 2022; American Immigration Council 2021; Tsankov 2023).

Issues around due process and the difficulties of “humanizing” incarcerated immigrants in the eyes of immigration judges are further compounded by strict limits on legal relief from deportation for immigrants with criminal convictions—particularly those classified as “aggravated felonies”, the most expansive and determinative category of deportable offenses (Tosh 2023), and the top cause of removal for immigrants processed through the IHP (TRAC 2023). Immigrants in such circumstances are ineligible for asylum and limited to fear-based relief under the Convention against Torture, an extremely difficult legal avenue that is only granted 1–3% of the time (EOIR 2019). Participants described the results of such ineligibility, including several who were deported to Haiti despite strong claims of political persecution based on family ties with former President François Duvalier. Andre was shot at by supposed government representatives when visiting his father there in his youth, and his brother was murdered in a similar incident a year or so later. Others relayed harassment and abuse by gangs and police upon their deportation to the country. Omar, a Sudanese asylee deported through the IHP, came to the US during the 1990s as a “Lost Boy” fleeing conscription as a child soldier, and said it was in no way safe for him to return. Yet neither he nor any of the participants from Haiti were able to meet the standard for relief under the Convention against Torture. As Omar explained, “They didn’t even care if you go and to die or what. They don’t care. Just you have to be deported back”.

Noncitizens facing deportation based on aggravated felonies are also ineligible for Cancellation of Removal, a common form of relief for lawful permanent residents and other long-time residents, which allows the avoidance of deportation based on discretionary factors such as reform and rehabilitation after criminal activity, as well as community ties and contributions. This ineligibility makes such factors irrelevant in the cases of many immigrants processed for removal through the IHP. Despite serving their prison sentences with “good behavior,” participants described how immigration court did not account for their reform or rehabilitation. Andre’s fiancé Lauren detailed the changes he made during a decade in prison—"he's done plays, he's helped kids out when they brought them to the prison and has taught classes there. He's graduated things from there. He's not a bad person. Even the guards have asked for his autograph for his first book and stuff like that”—as well as the importance of his support in the lives of her and her young daughter. Yet as Andre explained, “I feel like in the immigration court, it's almost like there is no second chances”, no chance to show what “you’ve accomplished”, or that “you’re making attempts to change your life around”. Despite receiving deportation orders through the IHP program, Emmanuel, Victor, and David were all eventually released from detention due to a stay on deportations to Haiti after the 2010 earthquake. Omar was also released due to a similar halt on deportations to the Sudan. All four lived and worked, contributed to their communities, supported family, avoided criminal contact, and submitted to regular immigration court check-ins for several years post-incarceration and detention, yet were still eventually deported based on their earlier criminal convictions.

The Institutional Hearing Program and the Reproduction of Inequality

In describing the role of the IHP in funneling criminalized immigrants from the sanctuary city of NYC through expedited processes of incarcerated deportation, participants were quick to point out that such impacts fell in distinctly unequal ways—reproducing existing criminal system inequities around race, class, and immigration status. Community organizer Jaden explained that former NYC residents are “oversaturating” the state prison system, yet do not hail equally from neighborhoods throughout the city. He specified, “A lot of the guys come from Flatbush, or they'll probably come from Crown Heights, or they'll come from the Northern Bronx […] a lot of these different areas that have a high concentration of Caribbean nationals.” Immigrant organizer Benjamin referred to processes of institutionalized deportation as “exporting [the] mass incarceration problem,” and explained how removals through the criminal system disproportionately impacted Black and Caribbean immigrants in particular. This was echoed by lawyers working exclusively in IHP courts, who described incarcerated client bases largely consisting of people of color from socially and economically disadvantaged urban neighborhoods. Such reports are illustrative of statistical analyses demonstrating how the vast majority of NYC residents incarcerated in New York State hail from underserved areas with substantial populations of Black and Latino/a/x immigrants (Widra and Enclada-Malinowski 2022; Lobo and Salvo 2013). These inequalities are further reflected in the removal numbers from the Napanoch immigration court, where noncitizens subject to the IHP in NYS are processed. Of the 19,067 individuals deported from this court between 1998 and 2023, 92% were from countries in Latin America, Africa, and the Caribbean (17,637), with noncitizens from the Dominican Republic, Jamaica, and Mexico accounting for more than half of those removed throughout this period (TRAC 2023).

These trends stem from targeted processes of apprehension and conviction that disproportionately impact economically marginalized Black, Latino/a/x, and immigrant communities, also recorded in a wide body of existing research (see Cadoff et al. 2023; New York Advisory Committee 2018; Dunn et al. 2013). Such targeting was evident in the reports of participants processed through the IHP, such as Emmanuel, who relayed his experience as a young Haitian green card holder growing up in a disproportionally Black Caribbean neighborhood. He described “police always being around my house” and said, “You could be sitting up on a sidewalk, you could be standing up on a sidewalk, and police check us, think we have guns, think we have drugs”. David, who was also deported through the IHP after coming to the United States a young green card holder from Haiti, described early interactions with police in another of the city’s predominantly Caribbean neighborhoods: “They used to beat us”, and “They used to come around and mess with us.” He explained how once a person had one interaction with the police, “you become a target for them, a magnet.” Rafael, who moved to another Black and Latino/a/x neighborhood in the 1990s as a green card holder from the Dominican Republic, said, “there were so much cops in these schools […] I thought it was normal [for the US]. We don’t have that in the Dominican Republic.”

From arrest to charging to conviction, participants relayed what was perceived as harsher treatment based on race and immigration status. Hector, a Mexican immigrant and organizer, complained of “a bureaucratic system implemented against us Hispanics” and said, “the day I got arrested, it wasn't one or two agents; eight agents came to arrest me and treated me like a delinquent.” Rafael described receiving harsher treatment than the other two defendants in his criminal case. He explained, “I was caught with a White guy and a Puerto Rican guy. Once they realized I was the only immigrant between them […] basically, everything followed me. The other two never end up going to jail.” Rafael was sentenced to 10 years in prison. Emmanuel, who received a 16-year prison sentence for a first-time robbery offense, felt he may have received better treatment if he were not an immigrant. He said, “I never did no crime before. I think it was double jeopardy because I was Haitian and committed a crime, and I wasn't a citizen. I feel that the whole system played me because I did too much time for my first time.” When he got to prison, he remembered others expressing similar surprise at his sentence. “They told me, ‘Oh man, they gave you too much time for your first time. Who you kill? You didn’t kill nobody’”.

In addition to inequities related to race, class, and nationality, some participants spoke about the complexity that criminalization adds for those with documented immigration status, who are disproportionately impacted by deportation based on criminal convictions (Baum et al 2010; Brotherton and Barrios 2011; Golash-Boza 2015; Tosh 2023). “I thought I had my green card, and I'm good, but unfortunately, I got deported after 32 years,” said Victor, a Haitian immigrant deported through the IHP. This experience is also evoked by attorneys who frequently witness such stories play out. As reported by IHP attorney Paul, “We're not seeing people that recently came in, but perhaps seeing people who have been again in the NYC area for a long time and then got caught up in a criminal matter.” This was the case for several of our participants, such as Emmanuel, deported at the age of 36 after arriving from Haiti as a 16-year-old with lawful permanent resident (LPR) status dutifully acquired by his parents, and David, deported at 46 after arriving as a 14-year-old with a green card sponsored by his father, a US citizen. Now, as described by Paul, “we'll see people in their 50s, 60s” who are “long-term LPRs, who just didn’t realize the benefits of naturalizing, where they might have thought about it, or just didn’t naturalize and got caught up in the criminal case.” Aware that many of those trapped in these situations came to the US as children, Andre spoke from a collective responsibility angle: “Criminality and all of this negativity that's embedded in this person now are all from America. Yet it's like you sending this person back to a country that they don’t know nothing about just because they wasn’t born in America”. Benjamin described this as a process of “social cleansing” of “undesirables” or “folks who have had contact with this criminal system, which we all on one hand say it's racist, and it's bogus. Then condone it when it’s a noncitizen who then goes into a federal prison system and in a federal court system, and then to get exiled.”

Discussion and Conclusion

Scholars have largely examined “crimmigration” enforcement in locales where there are official relationships between immigration and local law enforcement (e.g., Armenta 2017, Arriaga 2023, Provine et al. 2016). In exploring the way criminal systems in New York City funnel immigrants toward deportation through Institutional Hearing Program (IHP) courts in New York State prisons, this study contributes to a nascent body of work examining the relationship between criminal justice and immigration enforcement in so-called “sanctuary” cities (see also Lai and Lasch 2018; Chacón 2019; Tosh 2023). Following scholarship on the reproduction of racial and socio-economic inequality through criminal-convictions based deportation (see Brotherton and Barrios 2011; Golash-Boza 2015; Das 2020a, b; Tosh 2023), the IHP is situated as a pivotal site on a “criminalization-to-deportation” pipeline that funnels minoritized and marginalized immigrants toward removal. Through this program, incarcerated noncitizens are subject to institutional assemblages that expedite their funneling toward deportation. The inter-systemic cooperation embodied in IHP appears as a modern construct of bureaucratic rationality, whereby the criminal judge attributes guilt, and the immigration judge continues with deportation as a connected response. In consequence, noncitizens are not only subject to the questionable due process that has been documented throughout the immigration legal system; they are also impacted by concerns that come up in flawed systems of criminal enforcement and law—systems grounded in spatial, ethnic, and racial inequalities long noted by critical scholars of race, crime, and the law (see Davis 2017; Alexander 2012; Provine 2007; Tonry 1995).

Participants described histories of police harassment and abuse in the neighborhoods they inhabited pre-incarceration, before being “exported” from city borders to regional incarceration settings. Not surprisingly, identified areas were often the same disproportionately Black and Latino/a/x New York City neighborhoods with high levels of police stops, arrests, and brutality, as well as high ratios of incarceration in New York state prisons. In addition to criminal system concerns, participants described a further erosion of immigration court due process in the IHP context, magnifying a form of “double punishment” where criminalized immigrants are funneled toward removal post-incarceration. In this way, the criminal system inequalities that shape the demographics of those impacted by the IHP are erased by a “good immigrant, bad immigrant” binary that rationalizes enhanced punishment for immigrants with non-immigration-related criminal convictions (see Das 2020a, b; Escobar 2016). The criminal records of IHP-impacted immigrants become a master status, categorizing them as “bad immigrants” unworthy of relief from an expedited pipeline from criminalization-to-deportation. The fact that many of those so excluded are in fact LPRs in the United States speaks to the relevance of critical criminological theorization on the “social bulimia” inherent in the pipeline from criminalization to deportation (see Young 2003), as the cultural and structural conditions of American society contribute to the criminalization of longtime noncitizen residents, thus allowing for their ultimate expulsion. Despite such immigrants’ legal status, criminal markings known to be unequal in their distribution are used to justify their exclusion.

Thus, the findings demonstrate the tenuous nature of “sanctuary” for noncitizens amid continually aggressive and unequal systems of criminal justice. The central role of criminal enforcement and courts in creating the records that ultimately lead immigrants to deportation makes it so that cities like NYC can in no way be considered safe havens for all immigrants. Rural prisons are positioned as “safety valves” used to circumvent sanctuary measures and remove “undesirables” in less visible ways. Creating a true sanctuary for immigrants would incorporate criminal system reforms, including those that curb the expansive powers granted to local police and address the vast inequalities that continue to shape their ground-level enforcement. It would also involve steps to ensure adequate legal support in criminal court, and changes around norms of criminal plea negotiation. In NYC, the institutionalization of “crimmigration” advisal for criminal defenders is an important step toward achieving immigration-safe convictions for noncitizens. Yet this goal could still be more broadly accepted by prosecutors, and still needs further attention throughout the country (Eagly et al. 2022; Tosh 2023). Overall, protective measures for immigrants must be viewed in connection with the broader aims of criminal justice reform, decarceration, and abolition movements that work to end a vastly unequal system of mass incarceration.

In the immigration system, findings demonstrate the need to eradicate the IHP in its current form. Reforms to immigration law must focus on the expansion of due process, not its stymying through behind-closed-doors programs that only decrease access to justice for marginalized noncitizens. Considering the adversarial nature and punitive outcomes of removal proceedings—particularly those based on criminal convictions—they should no longer be immune to legal norms of transparency and oversight based on their nominal administrative status. However, immigrants subject to the IHP should be guaranteed quality legal representation across the country, provided by independent immigration law providers with full access to clients in advance of their initial processing for removal. Programs of universal representation should be supported through state funds, to ensure their separation from the federal Department of Homeland Security (DHS). Similarly, federal funding for state prisons should cease to be impacted by participation in IHP, nor the number of noncitizens identified for processing through the program. Finally, the findings speak to the problematic nature of remote removal proceedings, in the IHP context and beyond, and support the limited or discontinued use of videoconferencing technology in immigration court, particularly for procedural matters (Booz Allen Hamilton 2018). Beyond suggested reforms, there is a need for expanded scholarly attention to the IHP program and the incarceration-to-deportation pipeline it supports, as it is only through the inclusion of the most stigmatized and concealed populations that we can understand necessary steps toward justice for all immigrants.