Book Review: Welcome the Wretched: In Defense of the “Criminal Alien”  

Guest post by Matthew Boaz. Matthew is an Assistant Professor of Law at the University of Kentucky J. David Rosenberg College of Law. His scholarship is concerned with the intersection of criminal law and immigration law, critical theory, abolition, and issues related to immigration proceedings, including detention and universal representation. E-mail: matthew.boaz@uky.edu 

Review of: Welcome the Wretched: In Defense of the “Criminal Alien” by César Cuauhtémoc García Hernández (The New Press, 2024)  

Prof. César Cuauhtémoc García Hernández has spent more than a decade writing about the intersection of criminal law and immigration law. In his most recent book, Welcome the Wretched: In Defense of the “Criminal Alien,” he offers a bold proclamation – that immigration enforcement in the United States should be untethered from the criminal legal system. Grounding his argument are two equally important assertions: (1) tying deportation to perceived criminal activity does not make the United States any safer, and (2) migrants are ​     ​people, “complicated and contradictory,” but worthy of consideration beyond their greatest missteps.  

In his first two chapters, “Celebrating Criminals” and “Making Criminals,” García Hernández details the ways in which ​Virginia’s ​​     ​governor went from requesting that “rogues and vagabonds” be sent to colonial Virginia, to a hearty attempt to exclude English felons a few decades later​     ​ (29-30). He notes how vigilante violence was celebrated when inflicted upon Chinese migrants living in the Western United States during the late 1800s​,​ and how the Texas Rangers policing force gained notoriety and accolades for their deadly treatment of non-white Mexicans and Texans throughout the 19th century. García Hernández ​     ​goes on to ​explain how racism is embedded in the creation of the 1929 immigration law that criminalized illegal entry and illegal re-entry, ​​     ​violations that now account for the largest category of federal criminal prosecutions.  

Chapters 3, 4, and 6 dismantle the term “alien” by sharing stories of long-term residents of the United States who ​     ​suffered from draconian changes to federal law in the 1980s and 1990s, which resulted in their separation from their families and communities. These chapters explain the ways in which the immigration and criminal legal systems have become intertwined and overly punitive. They detail how changes in immigration enforcement under executive fiat have produced “illegality” by restricting legal avenues for migration and punishing ​​previously permissible activities. García Hernández’s point is that, while the criminal legal system has its own failings, its purpose should not bleed into immigration enforcement; the spectacle of the exceptional immigrant should make way for the reality of the ordinary person. 

To illustrate his point, the author identifies plenty of instances in which U.S. law enforcement officials already observe an ethic of parsing transgressive actions from more serious repercussions. He gestures to the university campus as the prototypical example – a place where plenty of criminal activity is occurring, but for which there are infrequently administered life-altering consequences. In the immigration context, he uses Chapter 5 to describe the high-profile cases of Justin Bieber (a ​white ​Canadian citizen) and 21 Savage (a ​Black British​​     ​ citizen). Despite several convictions, Justin Bieber has never been placed in proceedings and freely travels in and out of the United States; 21 Savage, however, who lacks a conviction on his record, has battled removal proceedings for several years for overstaying the visa on which he was brought to the U.S. as a child. García Hernández chalks this up to race​     ​, and it’s easy to see why, when the 1929 laws criminalizing illegal entry/re-entry include xenophobic and racist language in their legislative histories.  

It is also the existence of these laws which insinuate a societal proclivity for punishing Black and brown migrants, who are more likely to enter the country by crossing the southern land border into the U.S. Later in Chapter 5, “Illegal Isn’t Illegal,” García Hernández explores this idea of “unequal legality” through statistics, noting the tens of thousands of Canadians who overstayed their visas in fiscal year 2018 without penalty​     ​ (133). It is this distinction which leads to García Hernández’s criticism that “[r]ace is never far from decisions about who can lawfully make a life in the United States,” (131) a conclusion that he comes to after sharing perhaps the most intriguing story of the book, in which Louis Loftus Repouille, a white immigrant from the West Indies is granted U.S. citizenship even after being convicted for the murder of his oldest son. 

García Hernández offers these stories not to demonize the protagonists, but as a way of complicating the prototypical sympathetic narrative. The stories he shares are complex, as are most people. This work is an antidote to the simplistic myth-making that undergirds much of this policy making. Whereas missteps, even serious ones, seem permissible in the political arena, even at the highest levels of leadership, immigration law “focuses on [migrants’] worst moments . . . emphasizing their crimes while undervaluing their deep ties to the United States” (99) and the contributions that they have made and will continue to make to their communities.  

The solution offered by García Hernández in his closing chapters – the revocation of the statutes criminalizing illegal entry and re-entry, as well as the untethering of one’s criminal involvement from their ability to remain in the United States – faces intense political headwinds. However, García Hernández is unconcerned. He acknowledges the challenges while indicating how political rhetoric is divorced from the data​,​ and​ is instead​ driven by a desire to cement power by demonizing an entire group of people.  

What García Hernández alludes to in his personal narratives, but says explicitly only in his conclusion, is that immigration law and its enforcement is a system of violence. It is a ledger of rules crafted to create fear and instill terror. Perhaps the most pernicious part of this mythical specter of migrant violence and the resultant rhetoric is that it promotes an ideal of safety grounded in a virtual threat, while denying the real harm that such policies incur – something which I discuss in my own work. The greatest contribution of García Hernández’s most recent work is the observation that policymakers on both sides of the aisle continue to “cling to the possibility – a myth, really – that illegality says something about a person’s soul, and to the fantasy that deporting migrants who commit crime removes a problem without creating a new one.” (173).  

The book concludes with the recognition that the United States was founded by imperfect people, that the first waves of migrants were both “brave newcomers” and “penniless adventurers” who nonetheless committed “petty crimes and violent deeds,” or perhaps participated in “theft and graft,” (231) to say nothing of its enslavement of African peoples and the mass murder of Indigenous people. And yet, these embarrassments are “cloaked in myth” and these forebearers receive “monuments to their achievements, while ignoring their failures.” (Id.) To “romanticize [the] greatness, while overlooking [the] ordinariness” (id.) of our nation’s heroes is fundamental to our understanding of ourselves. The uneasiness that might accompany this narrative is offset through the identification of those who are literally “alien.” Here, “migrants [are] easy targets. It [is] easy to blame them for all that we [don’t] like. It [is] easy to demand that they be the versions of ourselves we wished we were.” (236)​.​ While such an observation may seem pessimistic, clarity about the origin of these policies, their present effect, and the exposition of the myths on which they rely may well lay the groundwork for broadscale changes.  

Prof. García Hernández concludes on a hopeful note, declaring that “[t]he time for radical reimagining is now.” (Id.). He is not alone in this clarion call. Activists such as Silky Shah have called for the dismantling of the violen​t​​     ​ structures of the border and have fought against the expansion of immigration detention centers. Other law professors have encouraged serious policy proposals that embrace decarceral futures, including Amna Akbar and Allegra McLeod. Finally, scholars in the realm of immigration enforcement, including Angélica Cházaro, Laila Hlass, and myself, are wrestling with how to conceive of this radical reimagining that García Hernández calls for in his book.  

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