When immigration law stops being civil.
Immigration law is criminal law, and it’s time we start applying the same rules and regulations to it.
There is a difference between civil and criminal law.
Criminal law deals with issues that are generally considered to affect an entire society or substantial portion of it. Disputes are brought by the government, not the victims. There is the possibility of a punishment in the form of a fine, the removal of freedoms and rights or even the punishment of ending the defendant’s life through execution in many states. The purpose of criminal law is punishment and deterrence for others considering committing such crimes.
In civil law, the dispute is normally between two individuals or groups or businesses. It does not intend to punish those involved but to solve disagreements. Sometimes this results in actions ordered by the courts to remedy the dispute. Many times the court may order monetary compensation. In civil cases, the government acts as the neutral decider through the court.
There are obviously areas where civil and criminal law can overlap. We can see this clearly when victims of police brutality file civil cases as well as the state or federal government filing criminal cases for the same crime. The criminal case against the officer is charged and prosecuted by the government, whereas the civil case is brought by the victim’s attorney and decided by the government.
When we think of criminal law, we think about murder, rape, assault, fraud and so on. These are all crimes that if left unchecked could affect the whole of society and eventually lead to its collapse. Civil law brings up images of property line disagreements and wills; legal issues that deal with specific parties.
Immigration law is considered by the U.S. government to be civil law. This is based in the argument that because the ultimate punishment of immigration violations is a deportation back to one’s country of origin and that this sentence does not deny life, liberty or property, it is therefore not a punishment. The Court found that deportation was a fundamental right of any sovereign nation. This theory was decided by the U.S. Supreme Court in Fong Yue Ting v. United States, 1893.
This case is also why the government is not required to provide attorneys to those in immigration proceedings, whereas they are required by the Constitution to do so in criminal cases. Immigrants are allowed to hire an attorney in immigration proceedings, but because the Constitution does not expressly require the government to provide counsel in civil law as it does for criminal law, the Supreme Court has decided and reaffirmed in 2010 that those in immigration proceedings are not entitled to legal counsel provided by the government.
But let’s be honest, immigration law has changed since 1893 and even since 2010. Current immigration law is considered to be one of the most difficult areas of law next to tax law which is why legal counsel is so necessary. One only needs to turn on the news at any given time of day in this country to see people in civil immigration proceedings who have been kidnapped off the streets and had their liberty and property taken away without any convictions of a crime.
As this article by Arturo Dominguez states, even the Department of Homeland Security’s own data shows that 95% of over 220,000 immigrants currently held in immigration detention are NOT criminals.
On December 11, 2025, Andrew Free reported the 28th death in ICE detention custody. This has been the deadliest year for those stuck in civil immigration detention facilities. Chaofeng Ge, a Chinese immigrant, is included in this total. He was found hanging in an ICE detention facility. His death was ruled a suicide even though his feet and hands were bound. His family is being forced to sue ICE in civil court to see the documents of the case.
Mr. Ge’s punishment certainly seems criminal to me.
ICE attorneys will undoubtably argue that even if he was murdered, it would be a criminal trial against an individual or individuals who committed the crime and not the institution that sentenced him to death. Yet, Mr. Ge would not have died had he not been sent to ICE detention. ICE attorneys would then argue that he had not been sentenced to that punishment and was merely being held until his civil immigration court hearing could be conducted.
Which brings us to the argument of if detention is really punishment when immigrants are being held while waiting for their hearings. This comes down to your definition of what punishment is. The government has said that punishment entails the denial of life, liberty and/or property. It does not say how long this denial must last or in what type of facility. In criminal trials, defendants are afforded an attorney by law to assist them in their defense and ensure that they are only held in custody if they are deemed a threat to society or are likely to flee. Yet, in civil immigration court, defendants can be held indefinitely without any qualifiers.
This makes no sense.
Today’s immigrants are being denied their liberty, property and sometimes their lives when they are placed in ICE detention centers. They are not free to leave, their property is often seized and too often, their lives are taken prematurely. Those sent to the El Salvadorian gulag called CECOT are an excellent example of this paradox. An immigration system that seizes personal property, sends immigrants without any criminal convictions to detention camps for years denying them their freedom, that allows the government to covertly send immigrants to torture prisons in other countries is literally punishing defendants.
Immigration law is criminal law, and it’s time we start applying the same rules and regulations to it.