Debating the big questions on immigration, part 2: How Bill Clinton paved the way for Donald Trump's deportation policy

Part 2: The pernicious legacy of Clinton's 1996 immigration reform — and how progressives can begin to fight back

Published April 2, 2017 12:00PM (EDT)

ICE operation. (Getty/Bryan Cox)
ICE operation. (Getty/Bryan Cox)

In the second part of our attempt to add nuance to the immigration debate, we hear more from three of the nation’s foremost experts on immigration, criminal justice and constitutional law, taking on not only what we already know about President Donald Trump’s travel ban and deportation policy but also expected future initiatives from this administration.

These scholars address the thorniest issues in immigration, the ones at the root of our present crisis, with all the ballast we need to oppose simplistic talking points: Should immigrants, regardless of status, have constitutional rights? How solid in law and morality is Trump’s reliance on the plenary power doctrine to implement far-reaching changes? Is Trump’s deportation policy an anomaly, or does it have roots in recent bipartisan legislation? And what can the states, as a last resort, do to counter federal anti-immigration initiatives? (You can read the first part of this debate here.)

John S.W. Park is chair and professor of Asian American Studies at the University of California at Santa Barbara. He is a specialist in race theory, immigration law and policy, and Anglo-American legal and political theory. His books include “Elusive Citizenship: Immigration, Asian Americans, and the Paradox of Civil Rights,” “Probationary Americans: Contemporary Immigration Policies and the Shaping of Asian American Communities,” with Edward J.W. Park, and “Illegal Migrations and the Huckleberry Finn Problem.”

Kevin R. Johnson is Mabie-Apallas professor of Public Interest Law, professor of Chicana/o Studies, and dean at the University of California at Davis School of Law. His books include “How Did You Get to Be Mexican? A White/Brown Man’s Search for Identity“ and “Immigration Law and the U.S.-Mexico Border.” He is president of the board of directors of Legal Services of Northern California and has served on the board of the Mexican American Legal Defense and Education Fund (MALDEF). He blogs at ImmigrationProf and SCOTUSblog.

David Brotherton is professor of sociology at the John Jay College of Criminal Justice at the City University of New York (CUNY). His recent books include “Keeping Out the Other: A Critical Introduction to Immigration Control,” edited with Philip Kretsedemas, and “The Almighty Latin King and Queen Nation: Street Politics and the Transformation of a New York City Gang,” with Luis Barrios. His current research projects include a performance-based sociological study of immigration removal hearings in New York.

What are some of the most pernicious effects of the 1996 immigration legislation that you have experienced as a scholar or practitioner? Will the Trump administration be able to count on the “expedited removals” provision of the 1996 law, or even expand it, as it targets specific racial groups? How do you feel about retroactive punishment for minor transgressions, or any transgressions?  

John S.W. Park: Indeed, Congress and President Bill Clinton passed a set of rules in 1996 that expanded the category of persons eligible for “removal,” that limited common forms of relief for people facing removal and that made removal based on criminal convictions more “expedited.” These rules said that judges could not consider relief in removal proceedings when the person facing removal had a criminal record.

These rules governing “criminal aliens” were part of a broader set of legislative rules designed to reduce the “cost” of immigrants in general — new legal immigrants, for example, were ineligible for public assistance, and poorer American citizens and legal residents could no longer sponsor immigrants under family reunification provisions. By removing a much larger share of “criminal aliens,” Congress thought that it could reduce financial burdens on the states and the federal government, in light of how they were spending money on law enforcement, criminal prosecution and incarceration for non-citizens. Many Americans still embrace the idea that non-citizens who misbehave must go.

Presidents Bush and Obama executed these rules throughout their presidencies, and so now, we remove more people in a single year than we used to in 10-year periods. Obama was removing more than 400,000 persons per year, until it dawned on him that the Republicans in Congress were never going to approve comprehensive immigration reform, as they’d once promised earlier in his presidency. “You enforce the law, and then we’ll talk comprehensive reform,” they said.  They never got to that second clause, and so Obama felt emboldened to do “reform” anyway, through DACA and then DAPA. He retained an emphasis on criminal deportations, however, and so the United States still deports hundreds of thousands of people each year, even for nonviolent crimes.  

This mass deportation system has resulted in strange American diasporas: In Mexico, Guatemala and El Salvador, the arrival of so many deportees from the United States has exacerbated social and economic problems that were already terrible. What happens to a society, any society, let alone those torn apart by civil war, when tens of thousands of people with criminal records arrive every year? What if a small fraction really are violent and quite horrible, and what if they are members of criminal gangs that, thanks to American deportation policy, are now transnational?

Daniel Kanstroom, Tanya Golash-Boza and several other scholars have given thick accounts of how American deportation policy has undermined fragile societies, even as it’s not obvious how these policies have “helped” the United States. In one area, namely drug trafficking, we seem to have provided an unusual labor force for international criminal organizations interested in selling and distributing drugs into the United States.  

Deportation policy is one area of immigration law where a straight nationalist approach doesn’t work, while also being immoral. We still spend billions on our criminal justice systems, but Americans also consume illicit drugs at a clip, and small planes, sophisticated submarines and tunnels can simply bypass a “big, beautiful wall,” even if we do spend billions to build such a thing. By destabilizing societies to the south of us, we almost guarantee that more people will also attempt to cross here, if just to avoid the chaos and violence in San Salvador or in Guatemala City.

And in the last two decades, as we remove more immigrants, many of whom have deep family and community connections, we’ve caused untold misery to people who aren’t so different from American citizens. Many people have been removed for drug offenses, for instance, and yet how many college students and professors do I know, all of them American citizens, who use drugs or even have minor drug offenses? When the law treats people with similar offenses in radically different ways, based solely on status, the present law evokes the worst of laws past.

Many scholars and practitioners and even law enforcement officials have criticized federal deportation policy. They’ve called for restoring common forms of relief, as when the removal of an immigrant will have a clear negative impact on his family and community, or when it seems disproportionate to his offense. Some law enforcement officials and prosecutors have changed their practices to drop or reduce criminal charges in cases where a defendant might also face deportation, thus behaving as though mindful of federal immigration consequences that can arise from local criminal prosecutions. And in many instances, jurisdictions have said that they will not cooperate with federal authorities as they pursue deportations. Proponents of “sanctuary cities” tend to agree that deportation policies have gone too far, and they’ve moved to protect their residents from that system.

Kevin R. Johnson: In 1996, Congress passed immigration reform legislation that has had dramatic impacts. Among other things, the reforms expanded crime-based removals and created a new system of “expedited removal,” which might better be described as summary deportation with few protections for non-citizens. The Trump administration proposes to use both tools in pursuit of its aggressive immigration enforcement agenda and the impacts will be pernicious.

  1. a) The racial impacts of expanded crime-based removals

Crime-based removals, as expanded in 1996, are the centerpiece of contemporary immigration enforcement. The Obama administration prioritized the removal of “criminal aliens.” Ramping up immigration enforcement by focusing on the criminal justice pipeline for removals proved to be an efficient strategy. Immigrants in jail are not hard to find. Moreover, removing criminals raises far fewer civil rights concerns than, for example, locating and removing undocumented workers through the use of workplace raids, with employers as well as workers protesting  Importantly, immigrants with criminal histories have few political defenders. Opposition to their removal is not nearly as great as popular resistance to removing other groups of immigrants, such as undocumented college students.

With the 1996 immigration reforms expanding crime-based removals, the Obama administration refined programs that allowed state criminal justice systems to directly feed immigrants into the federal immigration removal system. Such refinements made it possible for President Obama to set a series of removal records. Some years saw the removal of as many as 400,000 noncitizens, including lawful permanent residents, from the United States. During the eight years of his presidency, more than 2.5 million noncitizens were deported—more than during any other U.S. presidency. Immigration and Customs Enforcement data show that, in fiscal year 2016, crime-based removals represented more than 90 percent of the noncitizens removed from the interior of the United States.

The U.S. criminal justice system is notorious for producing racially disparate results. African Americans and Latinos continue to be disproportionately arrested and incarcerated as they have been throughout U.S. history, as described in Michelle Alexander’s influential book "The New Jim Crow." As a result of focusing removal efforts on “criminal aliens,” the U.S. immigrant removal system has yielded similarly unequal results.  

Consequently, increases in crime-based removals under President Obama resulted in the removal of a disproportionate number of Latino immigrants. Today, more than 95 percent of removals in the United States are of Latino noncitizens, despite the fact that the total immigrant population in the United States is much more diverse. Latino immigrants comprise only about 50 percent of lawful immigrants, and around 70 percent of undocumented ones.

Donald Trump began his presidential campaign by claiming that Mexico was sending its criminals to the United States, and promised to deport Mexican immigrants en masse. Two executive orders issued on Jan. 25, 2017, demonstrate that the Trump administration plans to expand on the Obama administration’s focus on removing “criminal aliens.” President Trump’s executive orders will likely have devastating impacts in terms of crime-based immigrant removals. They expand the noncitizens who will be the targets of immigration enforcement efforts and will likely continue to have disparate racial impacts on Latinos.

  1. b) Expanded expedited removals

The 1996 immigration reforms created what is referred to as “expedited removal.” Under that procedure, an Immigration and Customs Enforcement (ICE) officer may order an individual removed from the United States without a hearing or further review, if the officer determines that the individual is inadmissible to the United States for fraud or misrepresentation or does not have a valid visa/entry document.

Since being created in 1996, expedited removal — and its abbreviated procedures and unreviewable decisions — had been limited to noncitizens (1) apprehended within 100 miles of the U.S. border; and (2) in the country for less than 14 days. Persons close to the border for such a short period of time are likely to have fewer ties to the United States than longer term residents. One of President Trump’s immigration executive orders expands expedited removal. It eliminated the geographic limits to expedited removal and made the summary procedures applicable to noncitizens in the country for as long as two years. Summary deportations of persons, including those with ties to the United States and family (including U.S. citizen children), friends, community and a job, raise glaring due-process red flags. Once the Trump administration seeks to implement the executive order, we are likely to see lawsuits challenging the constitutionality of the expanded expedited removal procedures.

President Trump will not likely focus expedited removal on particular racial or religious groups or nationalities. However, such removals almost certainly will have disparate impacts on noncitizens from Mexico and Central America, who often are profiled as undocumented immigrants and comprise a large portion of the undocumented population.

David Brotherton; In 1997, the first year this legislation was in effect, there were nearly 115,000 removals and the next year this increased to around 175,000. By the end of Clinton’s presidency, the man who pledged to end welfare as we knew it also ended immigration as we knew it and banished to their homelands nearly 900,000 persons. Bush went further still, forcibly removing more than 2 million immigrant residents during his two terms. By the time President Obama finished his fifth year in office he had taken the art of banishment to the next level, equaling Bush’s achievement in three fewer years.

Aided and abetted by the Patriot Act of 2001 and the Anti-Terrorism and Effective Death Penalty Act (AEDPA) of 1996, that legislation has created a deportation juggernaut with Congress further burnishing its anti-immigrant credentials by mandating the Department of Homeland Security through its Immigration apparatus (i.e., the Department of Immigration and Customs Enforcement) to fill the detention camps with 34,000 detainees daily. It is the only federal department to have such human quotas placed upon it.

Thus, these laws are incredibly punitive, vindictive and irrational. For example, people can be placed in removal proceedings based on crimes they committed in the past and for which they were duly sentenced. Hence deportation can be viewed as a form of double jeopardy in many cases. Also, since deportation is considered an administrative action rather than an act of punishment, the law does not require that “deportable aliens” be provided with legal representation. Further, the crimes for which someone is deported, often referred to as “aggravated felonies,” vary from the passing of bad checks to homicide.

Clearly the extreme consequence of permanent removal for crimes which are, in many cases, quite minor, is wildly disproportionate with levels of social, psychological and economic harm both to the deportee and to his or her family of unimaginable proportions. Finally, we need to think of the broader repercussions to entire societies created by these mass expulsions, particular those countries with few resources and weak state structures, e.g. the countries of Central America that currently boast the highest rates of homicide in the world, in part caused by the floods of deportees who brought with them their gang subcultures learned in the U.S.  

Certainly, Trump will be able to process more cases of expedited removals as his executive order changes the priorities for ICE and its agents and makes any offense in the past committed by a non-citizen a reason for deportation rather than the so-called “violent criminals” that Obama had said should be the main focus of the country’s deportation regime.  

Can the states counter some of the existing anti-immigrant federal legislation on the books, or potentially stall or prevent implementation of further restrictionist executive orders by the Trump administration? If Arizona and other states can pass anti-immigrant legislation, why can’t individual states go in the other direction and pass legislation favorable to immigrants, granting them full rights? 

Park: Several scholars have studied state and local responses to federal immigration law over the past two decades, and they say that most of the states and local jurisdictions have moved to support federal rules, not so much to limit them. Virginia, Georgia and South Carolina do not allow students who are out of status to matriculate at the public colleges and universities, for example, and cities like Escondido, California, and Hazleton, Pennsylvania, have passed rules prohibiting landlords from renting to anyone who cannot prove lawful immigration status.

Costa Mesa, a city in Orange County, California, declared itself as a “rule of law” community in 2010 — in a resolution, the city suggested that local law enforcement officials should “check for papers” even in routine stops, and then remand persons suspected of being out of status to the proper immigration authorities. Federal policies approved by President Bush in 2008 encouraged local police cooperation: Under the Secure Communities program, local jurisdictions could receive federal resources and training if they agreed to participate in immigration enforcement. Costa Mesa was among several dozen cities that were participating by 2010.

But Santa Ana is maybe 20 minutes away from Costa Mesa by car, and Santa Ana has moved in the opposite direction. The city’s police force tended only to collaborate with federal immigration authorities in cases of violent crime—in other respects, public officials tended to be deliberately inattentive to immigration status when considering requests for city services, police protection and even public employment for the city. Many residents of the city did not have legal status, and yet they attended and participated in city council meetings, on school boards and in other public settings. After the 2016 election, Santa Ana passed a resolution calling itself a “sanctuary city,” as if to defy the new president.

Santa Ana was part of a larger statewide trend, perhaps exemplified best in California’s Trust Act, signed by Gov. Jerry Brown in 2013. That state rule directed state and local officials not to hold immigrants facing deportation in state and local facilities, unless federal officials offered proof that the person being held was already convicted of a deportable crime. Democrats controlled the state, and they were more sympathetic to the Santa Anas than the Costa Mesas.  President Trump, though, spoke in Costa Mesa during his campaign, vowing to crack down on illegal immigration, to build that wall and to withhold federal funds from cities that did not help federal immigration officials, or that otherwise provided “sanctuary” to illegal immigrants.

In other contexts, I’ve argued that the last time that some states and local jurisdictions were so at odds with the federal government about a “removal” policy was during the 19th century. This was when fugitive slaves were running north, when some Northern jurisdictions moved to protect them, and when Southerners passed stringent rules designed to help them “recover their property.”

I’ve reminded my own students that the Underground Railroad was a form of resistance to slavery during a time when slavery was legal, when black people were property, and when the Constitution and several federal laws protected white property owners to recover “their people.” George Washington, Thomas Jefferson and Andrew Jackson had all posted ads in popular newspapers that described their fugitive slaves, and as president, they signed or supported rules favoring white slave owners. Andrew Jackson and Roger Taney both owned many slaves. Levi Coffin, Harriet Tubman, the students and faculty at Oberlin College — they assisted runaway slaves, however, and they encouraged others to break the law, even if that meant jail or murder for them, or a civil war to purge the nation of slavery.

It’s hard to say whether President Trump will pass his own version of the Fugitive Slave Act of 1850, that infamous rule that punished state and local officials for failing to detain runaway slaves and to assist slave owners. The act insisted that “all good citizens” had an obligation to help masters locate their slaves. Citizens who helped runaway slaves could be punished, too; they were not “good citizens.” One can imagine a President Trump and his Republican Congress passing a set of rules that require us to assist in the removal of undocumented persons, no matter the length of their residency here or the depth of their connections. Before we comply, we should study our own history, to give us clues as to how best to consider our own dilemmas.  

The past is not even past: President Trump has re-hung, in the Oval Office, just to the left of his desk, a portrait of Andrew Jackson. And yet even during his presidency, the $20 bill will have a new face — Harriet Tubman’s — a change approved under President Obama’s administration. I’d recommend that Americans take a good long look at the new face of the $20 bill, then also consider President Trump’s own heroes, and then think hard about which side of history seems most pleasing and inspiring for our own future.

Johnson; On one hand, the U.S government decides which noncitizens to admit to, and deport from, the United States. Congress has passed a comprehensive immigration law, the Immigration and Nationality Act, which regulates immigration. On the other hand, the states are the primary enforcers of the criminal laws and otherwise are responsible for integrating noncitizen residents into the community. The legitimacy of the conventional demarcation of sovereign powers between the federal and state governments can be seen in Supreme Court decisions, such as Arizona v. United States (2012) in which the Court struck down central provisions of an Arizona law that intruded on the federal powers to enforce the immigration laws.  

Room exists for state and local governments to work with the U.S government in federal immigration enforcement. However, the U.S. government must consent to state and local assistance. In addition, state governments have sovereign powers that cannot be infringed upon by the U.S. government in efforts to compel cooperation with immigration enforcement efforts.  In the exercise of their police powers, some states have exercised their lawmaking power to improve the access of undocumented immigrants to public higher education, foster immigrant trust in local law enforcement offices and otherwise seek to integrate immigrants into the community.

In recent times, the lines between the state, local and federal governments in immigration enforcement have become blurred. Under a program called Secure Communities, which President Obama dismantled, state and local law enforcement agencies shared arrest information with federal immigration authorities, and detained immigrant criminal offenders. Criminal offenders were then taken into custody by federal immigration authorities.   

Complaints had been registered that Secure Communities was overbroad and subjected minor criminal offenders to removal. In November 2014, the Obama administration responded to the criticism and replaced Secure Communities with the Priority Enforcement Program (PEP), which was narrower in scope. In bringing back SeCURE Communities in one of his Executive Orders, President Trump dismantled PEP and expanded the scope of crime-based removals.

In addition, the Trump administration in a Jan. 25 executive order has sought to mandate state and local assistance in federal immigration enforcement by threatening to eliminate federal funding to “sanctuary cities.” Trump’s threat to defund such cities would seem to require congressional authorization. In addition, the Executive Order fails to define “sanctuary cities.” If Congress were to pass legislation defunding “sanctuary cities,” state and local governments could challenge the law as infringing on the sovereign powers of the states.

Efforts by the U.S. government to compel cities to cooperate in federal immigration enforcement efforts are already encountering formidable resistance. The California legislature is preparing a game plan, including the retention of former Attorney General Eric Holder, for a showdown with the Trump administration on immigration enforcement. Legislators have proposed legislation, for example, which would limit state information sharing about immigrants with the federal government.

It is important to recognize the important state and local criminal law enforcement concerns at stake in their cooperation with federal immigration enforcement. Some state and local law enforcement leaders worry that immigrants lose trust in local police when they are perceived to be deeply involved in federal immigration enforcement. Loss of trust, in turn, can reduce the willingness of immigrants to help authorities combat crime and undermine state and local law enforcement efforts.

Local police need the cooperation of all people in the community, including lawful and undocumented immigrants, in reporting crime and aiding criminal prosecutions. To that end, the Los Angeles Police Department’s Special Order 40 limits police inquiry into the immigration status of crime victims, witnesses, and suspects. The separation of criminal law enforcement from federal immigration enforcement is consistent with the Supreme Court’s finding in Arizona v. United States (2012) that the federal government has the authority to admit and remove immigrants, with ordinary law enforcement primarily in the hands of local law enforcement agencies.

To foster state and local cooperation with federal immigration enforcement, one of President Trump’s Jan. 25 executive orders brings back “287 agreements” — authorized by Immigration and Nationality Act 287(g) — between state and local governments and the federal government to enforce the immigration laws. Such agreements had been largely abandoned by the Obama administration.

The civil rights impacts of local police involvement in immigration enforcement impacts are an issue of concern. A federal court in 2015 found that the Maricopa County Sheriff’s Office in Arizona, in the guise of assisting federal immigration enforcement, had engaged in a pattern and practice of racial discrimination against Latinos, U.S. citizens as well as immigrants. These civil rights abuses show the potential costs of state and local law enforcement assistance in federal immigration enforcement efforts. The same risks will exist for the Trump administration as it enlists state and local law enforcement cooperation in immigration enforcement.

Brotherton: It’s very difficult for states to do anything other than establish sanctuary cities that will prevent local police collaborating with ICE. ICE is an extremely powerful national police force and can operate anywhere with few restrictions. Essentially, we have allowed ICE to develop with few constraints and little oversight and this has happened under both Bush and Obama and has been given even more legal powers and budgetary increases under Trump.

For the past two decades the deportation-industrial complex has been allowed to grow almost unhindered and now we are paying an enormous price both socially and politically. If the states refuse to work with ICE, particularly over the application of 287g, which seeks to have local police forces partner with ICE agents, then it sets up a conflict between the powers of the federal government and those of the states and certainly under the Trump administration it is difficult to see how the states could mount a successful defense of their residents. However, this is not to say that they should not try or that immigrant’s rights advocates should not do everything possible to expose the invasive and destructive practices of this agency and its threat to democracy and human rights.

What are the failures of our immigration system that most worry you? What anomalies in recent court decisions toward the rights of immigrants are least understood by the general public? Should we do away with detention for immigrants altogether? Where in this country have you seen signs of movement in a pro-human rights direction that people need to be more aware of?

Park: In a forthcoming book and in other venues, I’ve argued that immigration law and national sovereignty have shown symptoms of much deeper problems, problems rooted in modernity itself. We’re living through two ongoing revolutions, in communications technologies and in transportation technologies. The first allows us to see one another across vast distances much more than ever before; the second allows people to fling themselves here and there much faster and further, too. Imagine the United States in 1800 — no Panama Canal, no telephone or telegraph, no steam engines and certainly no airports. I once had to persuade my own children that there was once no internet or cell phones when I was a bitty kid, that Instagram is a really new thing.

These changes have become a part of our lives, they’re a part of the world now, even in some of the most poor, most desperate and most chaotic places on the planet. When people there “see,” through their own televisions and mobile devices, that they can maybe go to Europe or parts of Asia or the United States, and then live decent, relatively comfortable lives, they’re going to want to leave.

Their arrival in large numbers is the result of very, very large numbers: nearly a third of the world’s population lives in places that are food-insecure, politically dysfunctional or otherwise falling apart, and so even when a small fraction of those folks migrate, they’re soon very visible in countries that don’t want them. No wall, fence or other heinous barrier will likely change the underlying math that causes so much unwanted movement and human suffering. Unless we tend to conditions outside our boundaries — to work with others to create just, stable societies — we will feel overwhelmed, and we will fall prey to those who offer easy answers and empty promises.

Thinking beyond ourselves and our boundaries — this has precedence, too, and we should learn from that history. In the ashes of World War II, for its own strategic interests and for humanitarian reasons, the United States did not punish the “losers,” Italy, Japan and Nazi Germany. Instead, the United States worked with allies there, floated giant loans and grants for reconstruction, and developed thick ties to these former adversaries. Now, we don’t have large populations of illegal Japanese or illegal Germans living in the United States, people who are fleeing their own countries, because the United States itself helped to make Japan and Germany more livable.  

Thus, instead of criticizing Mexico or other sending countries, the United States ought to work with its partners and other wealthier nations to develop decent, just societies in these places, and to create circumstances where the people there will not see a need to leave their homes. Americans should fess up to policies that may have made things worse. Americans should quit taking drugs, or they should at least consider how a single line of cocaine, multiplied millions of times, can cause misery far away from where they’re getting high. Instead of making conditions worse, through our foreign policy or through thousands of acts of carelessness, Americans should try harder to make things better for everyone, everywhere. That is when we are best, when we show, through our own example, a willingness to sacrifice and to assist people who aren’t just like us.

We should acknowledge and cope with a much smaller world, where we can see and be with one another ever more easily than before. Many other problems reflect this new reality: Pollution in one country, for instance, can become a problem for every country. Despite the skeptics, I and you and everyone really should be concerned about coal plants outside Beijing, because their contribution to carbon levels will screw up the climate in Santa Barbara. The weather in Santa Barbara is spectacular, and so if I love it, I should care about pollution in China and in India and in the United States, too, as this is part of my own enlightened self-interest.

And aside from just self-interest, seeing children, much like my own children, suffering from more direct forms of pollution in Beijing and in Delhi is simply heartbreaking, so much so that we should wish and work for another world where no kid is trapped indoors because the air is toxic. My child is not somehow more entitled to clean air than another child.

That whole cliché about injustice anywhere being a threat to justice everywhere — that’s actually profound and wise and right. To put your own nation and your own people first, to build walls and to cut off and to disengage — it’s self-defeating, it simply isn’t going to work, and it’s ill-suited to our interconnected world.  

Johnson: As discussed above, crime-based removals, and their disparate racial impacts, are a problem that should be addressed. The use of detention in immigration enforcement implicates similar concerns. President Trump has set in motion efforts to ramp up immigrant detention. His executive order on border security and immigration promises to increase the use of the detention of immigrants while they await removal hearings and removal from the United States. Trump’s order announces the end of “catch and release” of undocumented immigrants after their apprehension. Historically, unless found to pose a public safety or flight risk, noncitizens have been allowed to post a bond and be released from custody while their removal proceedings moved forward.

Detention has long been a tool in the arsenal of the U.S. government in immigration enforcement. It goes at least as far back as the detention of Chinese immigrants on Angel Island in San Francisco Bay, which began processing immigrants in the late 1800s. Detention of immigrants as a method of immigration enforcement saw an upswing at the tail-end of the 20th century. In the 1980s, for example, the Reagan administration employed detention to discourage Central Americans, thousands of whom were fleeing civil wars, from migrating to the United States. Several U.S. presidents responded to mass migrations of Cubans in the 1980s, who came in the Mariel boat-lift, and Haitians fleeing political violence in the 1980s and 1990s, with detention.

The Obama administration generally allowed for noncitizens to bond out of custody while their removal proceedings were pending. But it also employed immigrant detention liberally in some instances, including the mass detention of Central American families.

Just as old as immigrant detention are legal challenges to immigrant detention. One of those suits, Orantes-Hernandez v. Thornburgh (1990), was a class action brought against the U.S. government by asylum applicants from El Salvador. The asylum applicants challenged the mass detention of Salvadoran asylum seekers and various policies that violated their right to counsel.  The court found that the U.S. government had been transferring asylum seekers from major urban areas where they could readily secure counsel to detention in remote locations where they could not. The U.S. Court of Appeals for the Ninth Circuit affirmed an injunction barring the U.S. government from restricting access to counsel.

Despite many successful challenges, the use of detention in immigration enforcement increased with the immigration reforms of 1996. Immigrant detention continues to be criticized — and litigated. In Jennings v. Rodriguez, the Supreme Court currently has before it a class action raising the question whether immigrants, like virtually all U.S. citizens placed in criminal and civil detention, must be guaranteed a bond hearing and possible release from custody. Similarly, in response to an increase in women and children fleeing widespread violence in Central America, the Obama administration began detaining thousands of unaccompanied minors and entire families. In Flores v. Lynch in 2016, the Ninth Circuit found that the detention of Central American minors violated a settlement agreement.  

The long history of detention has an equally long history of legal challenges. These challenges will likely continue during the Trump years, with the president making detention a cornerstone of his immigration enforcement plans.

Brotherton: There are numerous threats to immigrants which are probably some of the most severe since World War II. The vast majority of undocumented immigrants are not engaged in criminal activities and should not be penalized for wanting to reside in this country. In fact, first-generation immigrants, be they legal or undocumented, are the population with the least connection to criminal activity of anyone. But this doesn’t stop Trump from saying the exact opposite and, of course, this is in line with his basic philosophy that objective reality and “facts” should not be taken seriously if they conflict with his ideological goals. Yes, the detention camps should be shut down, the raft of anti-immigrant laws should be abandoned and a whole new set of laws should be developed that give undocumented immigrants a pathway to legality.

Right now we have allowed the development of a vast population of American children who grow up without one or both parents lost to the deportation process. Further, around the world we now have a new diaspora of millions of displaced people all of whom were in some way socialized by the United States, many of them with permanent family links to this country that can never be restored. The U.S. has become the world’s No. 1 deportation nation, responsible for massive levels of family fragmentation and global destabilization. These policies have no place in a so-called civilized society that boasts of its adherence to democratic principles.

Consequently, we have to ask ourselves: What kind of society have we become? Given that we were one of the major signatories to the U.N. Declaration of Human Rights in 1948, following the genocidal crimes of fascism and the extraordinary social destruction associated with World War II, it is both tragic and ironic that we are now one of the biggest transgressors of this historic agreement as we turn refugees and immigrants into the despised and unwanted Other.

We must hope that the U.S. can get beyond this present dark phase of its development. The next couple of years will see to what extent we prize democracy and social solidarity over the reactionary impulses that have been unleashed by years of punishing neoliberal policies meted out to the majority of U.S. residents.

By Anis Shivani