Weaponized Bureaucracy at the Criminal Immigration Divide

Authors

• Dorien Ediger-Seto

Abstract

Despite deportation being entrenched as a civil consequence rather than a punishment over 100 years ago, today’s immigration enforcement and deportation scheme relies heavily on state-level criminal arrests, convictions, and data sharing systems. And immigration-based crimes have accounted for between twenty-five and fifty percent of all federal criminal charges over the past decade. But the fact that the systems are bureaucratically and doctrinally separate from each other has practical impacts that go beyond these formalized intersections. Not only do federal law enforcement actors often have dual mandates to investigate and prosecute federal crimes alongside related civil removal cases, but criminal procedure and law may also permit disclosure of information, or demand that non-citizens acquiesce to factual allegations, undertake certain conduct, or waive rights that can adversely affect their immigration status. From the other side, the civil nature of the immigration bureaucracy permits criminal system actors to work around constitutional and procedural protections that those under criminal investigation would normally be entitled to.

This Article looks to the places where the bureaucracies of these two systems touch, focusing on case studies that highlight the relationship between the federal criminal and immigration systems in enforcement and adjudication. It asks at what point applying the coercive tools and resources of the federal criminal law apparatus to civil immigration policing weaponizes the doctrinal divide, moving from resource-sharing to an implicit endorsement of extrajudicial punishment against non-citizens by means of deportation. While due process in civil proceedings is conventionally determined by the nature of the liberty or property deprivation that might result from a government action, this weaponization of siloed doctrines in an integrated enforcement bureaucracy asks us to consider not simply the consequence, but also the manner that state enforcement power is exercised in the actions that lead up to that adjudication. In the absence of more sweeping efforts to de-link the criminal and immigration systems, fairness demands that where a civil enforcement scheme utilizes criminal enforcement power, there should be meaningful accountability mechanisms that cut across doctrinal and bureaucratic silos.

First Page

1

Recommended Citation

Dorien Ediger-Seto, Weaponized Bureaucracy at the Criminal Immigration Divide, 101 Wash. L. Rev. 1 (2026).
Available at: https://digitalcommons.law.uw.edu/wlr/vol101/iss1/4