One initiative stood out as especially (and cruelly) effective in President Donald Trump’s often inept White House: his administration’s monomaniacal attack on immigrants. Starting with an unconstitutional Muslim ban his first week in office, Trump signed more than 400 executive actions against migrants in a single term—curtailing legal immigration, casting out tens
of thousands of refugees and asylum seekers, separating undocumented families
and sowing terror in immigrant communities. Trump’s caging of migrant children
at the border sparked nationwide protests in 2018 under the banner “Keep
Families Together.”
But despite mass outrage among liberals, the
enormous bipartisan machine built to surveil, catch and imprison migrants
predates Trump. While separating children from their parents at the border was
a cruel Trumpian twist, the U.S. immigration system has long torn apart
families through deportation. The current iteration of that system, which
criminalizes migrants for making mistakes once considered paperwork errors,
took three decades to construct before Trump arrived—from the landmark
immigration reform act under the Reagan administration in 1986, to the founding
of Immigration and Customs Enforcement under President George W. Bush in 2003,
to ICE’s massive raids under President Barack Obama.
President
Joe Biden has promised to reverse some of Trump’s most egregious anti-immigrant
policies, but few signs suggest he will address what paved their way: the
ongoing criminalization of simply existing in the United States as an immigrant.
Biden has declared a moratorium on
deportations during his first 100 days in office. He also promises to send an
immigration reform bill to Congress. But neither of these measures, advocates
say, would necessarily effect a meaningful change; the moratorium is a
temporary measure, and a bill could be delayed in Congress and might expand
immigration enforcement as a trade-off for pro-migrant measures.
The
president has already walked back one campaign commitment on immigration: his
promise that “on day one” he would end Trump’s Migrant Protection Protocols
(also known as MPP or the “Remain in Mexico” policy). Under MPP, more than
68,000 asylum seekers have been expelled from the United States since January
2019, sent to some of Mexico’s most dangerous regions to await their U.S. court
hearings. As of December 2020, according to Human Rights First, there had been
at least 1,314 publicly reported cases of murder, rape, torture, kidnapping and
other violent assaults against asylum seekers and migrants forced into Mexico
under MPP. A federal court enjoined the policy as illegal, but the conservative
Supreme Court reinstated it until an appeal is heard.
Biden told reporters, at an event in
Delaware on Dec. 22, 2020, that he would need “probably the next six months” to
rebuild the asylum processing system and secure funding for immigration judges.
He also said an immediate change in policies was “the last thing we need”
because it could lead to “2 million people on our border.”
Brenda Valladares, an organizer with
Movimiento Cosecha, a group that advocates for the permanent protection of all
migrants, thinks the Biden team is raising the specter of migrants at the
border as a ploy “to alarm people and get excuses as to why they won’t do what
they said they were going to do.”
“There’s a lot of fear that this
administration is going to be very timid,” says Jacinta González, senior
campaign organizer at Mijente, a nonprofit that advocates for racial, economic,
gender and climate justice. “That is why we have actually seen tremendous unity
in the immigrant rights movement to be pushing against policies of
criminalization, against detentions, against ICE raids and deportations.”
The Immigration Reform and Control Act of
1986 normalized the idea that any interaction with law enforcement, from a
simple traffic stop to reporting a witnessed crime, could lead to
deportation—even for legal permanent residents. Well-established by the Obama
era, the criminalization strategy of immigration enforcement was aggressively
expanded by the Trump administration.
Gabriela Parra Pérez, a 26-year-old Mexican,
migrated to the United States with her mother and sister in 2001. Fleeing her
violent and sexually abusive father, she and her family came to live with her
maternal grandfather. After living in the United States for nearly two decades,
and after being paroled for a DUI incident in a Portland, Ore., suburb, Parra
Pérez got into a fight with her son’s father, with whom she had “a difficult
relationship,” and broke his car window. She was placed in deportation
proceedings and jailed in January 2020 in a detention center in Tacoma, Wash.,
away from her then-1-year-old son, Ezekiel—“Zeke.”
She tried several legal routes to stay in
the country (10-year cancellation of removal, withholding of removal, relief
under the Convention Against Torture and applying for asylum), but an
immigration judge rejected her applications. The judge argued that Parra Pérez
had not proven her son would suffer “exceptional and extremely unusual
hardship” if she were deported. The boy now lives with his father.
The judge
reasoned that, because Parra Pérez and her son had spent only one year
together, Zeke “does not even know me,” Parra Pérez told In These Times over the phone.
Biden’s campaign platform promised to
reunite families separated at the border, and in the Oct. 22, 2020,
presidential debate, Biden spoke witheringly of the “kids ripped from their
[parents’] arms” by Trump, calling the practice “criminal.” But Biden has been silent
on the separation of families through detention and deportation, like Parra
Pérez’s.
Parra Pérez pleads, “I would ask [President
Biden] to be aware that families in detention [across the United States] are
also separated.”
Parra Pérez took her case to the Board of
Immigration Appeals, the highest administrative body for interpreting
immigration rulings, currently packed with Trump appointees. In January, they
denied her appeal and ordered that she be deported.
The board wrote in its ruling, “The lack of
a stable home is not ideal for a young child, but this is often the case when a
parent of a young child is ordered removed from the United States.”
The power of the pen
Unpacking immigration courts that have been stacked with judges sympathetic to the
Trump administration will take time and effort. So, too, will reversing Trump’s
more than 400 changes to immigration rules, says Sarah Pierce, senior analyst
at the Migration Policy Institute (MPI).
The office of the president, however, does have considerable authority to interpret and enforce immigration laws.
“If anything, the Trump administration
taught us how much executive power there is on immigration,” says Silky Shah,
executive director of Detention Watch Network, a national coalition dedicated to
abolishing immigration detention.
Biden seems reluctant to wield those
executive powers broadly. In a Dec. 8, 2020, meeting with civil rights leaders
about a range of issues, Biden said, “Executive authority that my progressive
friends talk about is way beyond the bounds.”
Progressive
immigration advocates are demanding concrete and immediate steps forward. The
Migrant Justice Platform is a blueprint of actions for the next administration
and Congress, issued in 2019 by a commission of migrant rights advocates from
various organizations, including the Refugee and Immigrant Center for Education
and Legal Services (RAICES), the National Day Laborer Organizing Network, the
Black Alliance for Just Immigration, the Coalition of Immokalee Workers and
Movimiento Cosecha. The platform recommends the White House eliminate obstacles
to asylum, demilitarize the border and impose indefinite moratoriums on all ICE
operations, deportations and detentions—a strategy that moves beyond the slow
and costly “comprehensive reform” legislation attempted during previous
administrations.
Within
the immigrant rights movement, the memory of the Obama administration looms
large. During the Obama years, while Congress endlessly debated reform, more
than 3 million migrants were forcibly removed from the country, a record
number. In fiscal years 2012, 2013 and 2014, Obama deported more than 400,000
people per year (a record), compared to Trump’s peak of 267,000 in fiscal year
2019.
Biden was
asked in February 2020—as Sen. Bernie Sanders surged in the Democratic
presidential primary—whether he would apologize for the number of deportations
carried out while he served as President Barack Obama’s vice president. “I
think it was a big mistake,” Biden said. “[It] took too long to get it right.”
Biden disputed, however, that the Obama administration held the record on
deportations. That distinction goes to President Bill Clinton when people
apprehended at the border are included in the tally.
Shah,
from Detention Watch Network, says that what Biden meant by “a big mistake” in
2020 remains “a real question mark.” She asks, “What are the parts of the Obama
strategy he sees as mistakes and how is he going to reckon with that?” (Perhaps
tellingly, in a town hall meeting in 2019, when confronted about Obama’s
deportation legacy by an activist from Movimiento Cosecha, Biden sarcastically
snapped, “Well, you should vote for Trump.”)
“Biden does not have the motivation to make
profound changes because he is not a progressive,” says Maru Mora Villalpando,
founder of La Resistencia, a grassroots and undocumented-led organization. The
incoming administration “won’t be willing to address the root of the problem,
which is precisely what Biden and Obama strengthened.” That root, she says, is
treating migrants as expendable commodities. Despite their contributions to the
United States, undocumented migrants live exposed to poor health and
quality-of-life conditions, ever in danger of removal from a country that
refuses to acknowledge basic human rights.
The
Covid-19 pandemic has rendered the exploitation of migrants more visible.
Although half of the 10.5 million undocumented migrants in the United States
are considered essential workers, they have not received financial aid from the government—as if they did not exist. Migrant workers,
notes the Migrant Justice Platform, subsidize the U.S. economy: “That’s not up
for debate.”
While Biden has made a new Covid-19 aid
package a priority, he has not mentioned assisting undocumented workers.
Biden did not respond to requests for
comment for this article on the topics of Covid-19 assistance for undocumented
workers, deportation proceedings, detention and immigration enforcement
policies.
“We never
believed that Biden was going to be our savior,” González says. “That is why we
are being so unequivocal about demanding policies that are against
criminalization, that are for racial justice and that really dismantle the
enforcement system that has created so much harm in our communities.”
Obama 2.0?
When Biden first announced
the plan for a 100-day moratorium on deportations, in February 2020, he seemed
to suggest deportations would resume only for those convicted of felonies. “The
only rationale for deportation will be whether or not—whether or not you’ve
committed a felony while in the country,” he said. Such a policy would
eliminate the terror many migrants experienced under Trump, who signed an
executive order to detain undocumented migrants regardless of their criminal
records in 2017. Biden’s directive, nonetheless, could simply mean a reprise of
one of Obama’s most harmful policies.
After an
outcry over the Obama administration’s mass deportations in 2014, Obama
announced a policy informally known as “felons, not families” to focus on the
deportation of those with a felony in their background. But in immigration law,
what constitutes a “felony” is expansive, and migrants can be considered “aggravated felons” after committing less serious crimes, such as misdemeanors
(like one “felon” who stole some Tylenol). Migrants who reenter the U.S. after
being deported can receive felony convictions, as can those who get a job and
pay taxes under a false Social Security number (considered a crime of “moral
turpitude”).
“We are looking at millions of people being
deported if we continue to have this language of ‘felons, not families,’ ” says
Valladares. “[When Biden] said, ‘We should have done better,’ he actually did
not learn. We can see an apology but it is empty.”
Advocates
demand the Biden administration shut off programs that entangle the criminal justice
and immigration systems, such as the Secure Communities program and the 287(g)
program. Both programs enable cooperation between ICE and local law enforcement
agencies, and both ensnare people regardless of their criminal records. They
have caused the deportation of migrants who reported or were victims of crimes
or were unlawfully arrested—even with legal immigration status. The programs,
then, actually deter migrants from reporting crimes, seeking protection from
domestic violence and serving as witnesses in criminal prosecutions, all of
which arguably make the country less safe.
In 2018, the call to “Abolish ICE” became a
shorthand for ending the criminalization of migrants and dismantling the
detention and deportation system (and became a polarizing demand within the
Democratic Party). Now, advocates are taking a broader approach.
“The
problem is not just one agency,” says Valladares. “It’s the whole system,
designed to have people come to this country, be forced into an undocumented
status, be abused at the workplace for cheap labor and then be detained and
deported.”
Private detention
The new Biden administration immigration platform does offer “alternatives” to the current system of detaining migrants—which makes sense, considering that most people in deportation proceedings show up to their court hearings. According to the Transactional Records Access Clearinghouse, a research center at Syracuse University, migrant families with legal representation have a 99% court appearance rate.
Advocates are pushing for more, however,
with the demand to end migrant detention entirely. They call for the federal
government to end its detention contracts with private corporations and local
jails, as well as its contracts for surveillance and facial recognition
technologies used to target migrants.
The
pandemic enabled advocates to win a partial victory in their decades-long push
against detention. Given detainees’ vulnerability to Covid-19, activists
successfully pressured ICE to release some migrants. In December 2020, there
was an average of 16,135 migrants in detention each day, compared with more
than 30,000 a day during the Obama administration and more than 50,000 a day in
fiscal year 2019.
“We are now in a very important moment: We
have the lowest number of detainees in a very long time,” says Mora Villalpando
of La Resistencia. The Biden administration will decide whether the detention
centers will return to pre-pandemic levels.
Detaining migrants is expensive, and the current U.S. migrant detention system is the most expensive in the world. The more than 200 ICE-administered centers cost $3.2 billion in fiscal year 2019, according to Detention Watch Network. It’s also deadly. Unlike defendants in criminal proceedings, migrants are not granted public attorneys and are often denied urgent medical attention. More than 210 people have died in ICE custody since 2003.
Just a fraction of that $3.2 billion budget
could provide legal representation for migrants in court, Shah says, and render
the migrant detention system unnecessary. “Instead, the U.S. invests in a model
that retraumatizes people and that can cause them long-lasting damage.”
Biden has stated his intention to end the
use of private prisons by the Federal Bureau of Prisons, a repeat of a 2016
Obama directive scrapped by the Trump administration. He has also pledged to
“make clear that the federal government should not use private facilities” for
immigrant detention. For-profit corporations administer 81% of all detention
beds. But the two largest private prison
companies, Geo Group and CoreCivic, are in fact “not panicking” after Biden’s
victory, according to an investigation by nonprofit reporting organization The
Marshall Project. Both companies derive about half their revenue from contracts
with the federal government, mostly through their migrant detention facilities.
The struggle ahead
Biden’s historic nomination
of three Latinos to his Cabinet—Miguel Cardona
at the Department of Education, Xavier Becerra at the Department of Health and
Human Services, and Obama alumnus Alejandro Mayorkas at the Department of
Homeland Security (DHS)—has not assuaged advocates’ concerns.
“We cannot confuse representation with power
in these moments,” says González from Mijente. “I think it is dependent on
communities to stay vigilant.”
Advocates
worry that, with Trump out and Mayorkas at the head of DHS—the agency that
oversees ICE and Border Patrol—liberals may be lulled into a sense of
complacency about immigration issues. Local pressure on Democratic mayors led
to the strengthening of “sanctuary” policies, in which municipalities refused
to work with ICE. Mora Villalpando fears that local elected officials may stop
advocating for migrant rights, expecting Biden to push for an immigration
reform bill. (In an email to In These Times, the
office of Chicago Mayor Lori Lightfoot affirmed the mayor’s commitment to
strengthening the city’s sanctuary policy.)
It’s unclear if Congressional Democrats who
rallied around demands like “Abolish ICE” during the Trump administration will
push Biden for executive action or will wait to hash out legislation. Members
of the Congressional Progressive Caucus did not respond to In These Times’ request for comment.
Valladares
says immigrant rights groups will not take a “wait and see” approach with the
Biden administration. “We have already experienced a Democratic administration
that told us that everything would be okay, and we know that we should not
trust that,” she says. Instead, expect the migrant rights community “to take
actions and to take to the streets [in 2021] and beyond.”
Indeed,
advocates did not wait for Inauguration Day to bring their concerns to Biden’s
doorstep. On January 13, undocumented activist Jeanette Vizguerra (who has been
living in sanctuary at the First Unitarian Society of Denver since 2015)
accompanied a grassroots coalition at Biden’s transition headquarters in
Wilmington, Del. The coalition demanded immediate action on immigration and an
end to detentions and deportations.
“I am here
today to personally ask Joe Biden … to act immediately when he takes office
next week,” said Vizguerra, who risks arrest by ICE just for stepping out of
the church. “[Biden must] protect families like mine that have been hunted and
terrorized simply for daring to exist in this ‘land of the free.’ ”
