If Greg Gianforte Were an Immigrant, He'd Be Deported. Not Heading to Congress
César Cuauhtémoc García Hernández is an assistant professor in the Sturm College of Law. He has taught at the University of Denver since 2013. César's academic interests center on crimmigration law, including teaching a seminar on the topic and having published articles about the right to counsel for immigrants in the criminal justice system, immigration imprisonment and race-based immigration policing. He publishes crimmigration.com, a blog about the convergence of criminal and immigration law that is a past recipient of the 100 best law blogs honor by the ABA Journal.
Greg Gianforte body-slammed a reporter. After pleading guilty to assault on Monday and receiving a sentence of community service and anger management classes, he will soon become the newest member of Congress. For doing much less, tens of thousands of immigrants are deported every year.
Gianforte’s assault of Ben Jacobs, a journalist at the Guardian, illustrates a double-standard that runs through immigration law: immigrants are held to a higher standard than citizens. Yet politicians, Republicans and Democrats alike, regularly tout schemes to separate the good from the bad immigrants. Gianforte’s experience illustrates that regardless where they were born, people cannot be categorized so neatly.
Under Barack Obama, the Department of Homeland Security claimed to focus its immigration law enforcement resources on people with criminal records. From the very top, administration officials argued that deporting so-called “criminal aliens” would make the country safer while acknowledging the valuable contributions of otherwise law-abiding residents to communities throughout the nation.
In November 2014, Obama claimed that his administration was focused on “felons not families.” The on-the-ground reality of immigration policing rarely matched the Obama administration’s rhetoric. During Obama’s first seven years in office, 56 percent of immigrants forced out of the country had no criminal history.
In 2014, for example, six out of ten people deported had been convicted of nothing. Of the minority who had been convicted of some crime, assault, the very crime that Gianforte admitted to, topped the list of violent offenses. But only 4 percent of immigrants deported that year had been convicted of assault. That’s one out of 25 people deported in 2014.
This is a snapshot that represents a trend. The vast majority of deportees committed a simple violation of immigration law. Some came here clandestinely. Others came here with permission to stay for a few months or years – then they didn’t leave. Those who do have a criminal history are most likely to have nothing worse than an immigration crime offense on their record – usually a conviction for entering the United States without the federal government’s permission or doing that after having previously been deported.
After immigration crime offenders, traffic law violators and drug offenders tend to come next. These are the kinds of mundane activities that many of us commit every time we get behind the wheel of a car, but are lucky enough not to get caught. In Colorado, where I live, some of these drug crimes power the state’s economy and promote its image as a cutting-edge millennial hotspot.
Donald Trump has unhinged any constraints that the Obama administration imposed on efforts to deport people who have not been convicted of a crime. In a January executive order, Trump ordered the Department of Homeland Security to target people who have been convicted or charged with any crime. Under Trump’s directive, if Gianforte was not a United States citizen he would be a top priority for deportation.
Most people deported were never accused of anything as vicious as what Gianforte was caught on audio doing. The Montana residents and Republican party leaders who stood by Gianforte after his election-eve altercation refuse to let this incident cloud their vision of Gianforte.
Ohio Republican Congressman and the head of the National Republican Congressional Committee, Steve Stivers, exemplified the willingness to see more than this one incident when he explained: “From what I know of Greg Gianforte, this was totally out of character, but we all make mistakes.” I don’t know Gianforte, so I can’t attest to his character. But on this much I am sure, Stivers is correct: like all of us, Gianforte is an imperfect person.
Part of what makes us human is our propensity to fall short of being our best selves. This is true of Gianforte as it is true of immigrants. Yet immigration law does not make much room for imperfect humans. A run-in with the criminal justice system frequently leads into the immigration detention and deportation pipeline. Thanks to the accident of birth, Gianforte heads to Congress despite activity that is far worse than what separates hundreds of thousands of people from their families and friends every year.