On a chilly October morning, hours before sunrise, armed agents of an enormous, unaccountable government agency dragged a terrified teenager from his home, handcuffed his wrists and ankles, and transported him to a holding cell to begin a period of indefinite detention. It was a secret arrest, based on secret evidence, with no possibility of bail, no right to counsel, and no right for the defendant to face his accusers or review the evidence against him.
The arrest of this nineteen-year-old from El Salvador, whom I’ll call Juan, took place not in Iran, Egypt, or North Korea—where such gross abrogations of the social contract are part of daily life—but in Chelsea, Massachusetts, a tiny, majority-Latino, working-class community within swimming distance of Boston. Juan was taken into custody not because of a criminal conviction or suspected terrorist sympathies, but for a handful of admittedly juvenile Facebook posts and comments that any urban teenager might have made.
As an immigration attorney specializing in deportation defense, I have spent almost every day of the past decade putting my mind and body between my clients and the massive, ever-growing apparatus responsible for Juan’s arrest and detention. While this machine remains out of sight for most American citizens, we should all have reason to be concerned about the remarkably small minds that now operate its levers.
Donald Trump’s presidential campaign capitalized on a familiar brand of nativist anti-immigrant slander usually reserved for our nation’s most desperate times. It was an ugly old vein to mine, but now that he’s managed to strike electoral gold there, he is not wrong to view his election as a mandate to carry out his promise to enforce federal immigration law to its fullest extent. This would be alarming to friends of the Constitution under any circumstances, but especially so given Trump’s open embrace of white supremacy—as a concept, if not a movement—in the primaries. We haven’t encountered such an openly bigoted presidential campaign on the right since Pat Buchanan’s last failed insurgent run at the GOP nomination in 1996, and we have never seen an avowedly white-nationalist leader accede to the Oval Office.
Nor should any of us expect the chastening experience of actual governing to temper his outlook. Trump has proven at every opportunity that he is all but ineducable about even the simplest details of how immigration to the United States actually works. And this, it turns out, is probably one of the few things he has in common with a considerable majority of Americans.
Down the Golden Stairs
The immigration system I keep hearing about from pundits and politicians (all of whom should know better) is almost entirely unmoored from actual fact. It seems to be a chimerical pastiche of the one we had before Ellis Island closed, the one we had just before the moon landing, and some sort of rosy Tomorrowland fantasy in which visas would be awarded to the undocumented if only they would do it the right way. This is not the system I work with every day.
When a white, native-born American says, “my family came here the right way,” what the speaker almost invariably means is that one or more of his ancestors came to the United States without a visa during a time of virtually unrestricted European migration. They boarded a trans-Atlantic ocean liner, stood in line at an immigration inspection station for the better part of a day, answered a standard series of twenty-nine questions, were subjected to a medical exam, and were admitted indefinitely to the United States. That’s how my Scottish great-grandparents did it in 1916. If you were born in the United States with European ancestors, it’s probably how you came to be here too. That system ended in 1924. Its successor, the “national origins” quota system (a more restricted but still relatively open “line”), was abolished in 1965. But I still regularly meet well-meaning fellow citizens who believe that anyone who deserves a chance can simply “fill out the forms,” “get in line,” and “come the right way, like my family did.” At which point, I have to patiently explain that they can’t.
For most of my undocumented neighbors, in East Boston and beyond, there are no forms. There is no line. There never was. Telling an undocumented Mexican dishwasher that he should “wait in line, like my family did” is no more realistic than advising him to switch to the same model of iPhone your great-grandfather used. Yet the lie persists, with nearly every presidential candidate since George H. W. Bush invoking the imaginary “line.”
The immigration system I keep hearing about is a pastiche of the one we had before Ellis Island closed, the one we had just before the moon landing, and some sort of rosy Tomorrowland fantasy. This is not the system I work with every day.
Senator Ted Kennedy often described the view from his office in the John F. Kennedy Federal Building. He saw across Boston Harbor to the “Golden Stairs” that his great-grandparents ascended into East Boston within hours of coming ashore as aspiring Americans. I walk the same stairs in my five-minute commute from home to office almost daily, and have never failed to notice the JFK Building. Kennedy’s pride in his family’s achievements is a poignant reminder for anyone (like me) whose family was the beneficiary of an era of virtually open borders, when “doing it the right way” meant nothing more than walking down the ramp from a Cunard liner to Pier 3 and up the Golden Stairs into a new life in East Boston. Now, however, the Boston federal building that honors the author of A Nation of Immigrants houses the overworked engine of New England’s deportation machine.
“Immigration policy,” President Kennedy wrote, “should be generous; it should be fair; it should be flexible. With such a policy we can turn to the world, and to our own past, with clean hands and a clear conscience.” LOL, JFK.
Our current immigration system is far from generous, fair, or flexible, and every branch of government is culpable. There are entire pages of our immigration statutes that read as though they were drafted by congressional interns, using nothing more than a dartboard for their research. And the demagogic cast of our immigration policy debates has provided them with no incentive to do better. Executive orders, policy memos, and implementing regulations come and go with each election, and maddeningly disparate holdings from federal courts around the country, currently overseen by a deadlocked Supreme Court, preclude any realistic possibility of a coherent interpretation of the laws.
The Crime of Being Here
Trump’s now-famous opening remarks on the first day of his campaign slandered undocumented Mexicans as drug dealers, criminals, and rapists. These comments were followed with the thought, which apparently had only just occurred to him, that “some, I assume, are good people.” This bigoted nonsense set the tone for the ugliest, silliest presidential campaign in modern American history, but there is nothing new under the nativist sun. Well before Trump and the recent paranoid war on “Sharia creep,” nativism relied upon the presumption that foreigners are unable to conform their conduct to American standards. Nineteenth-century California courts would not accept sworn testimony from Chinese witnesses, since it was accepted as a matter of law by the state’s highest court that “[their] mendacity is proverbial.” The Immigration Restriction League of Boston of the late nineteenth and early twentieth century was particularly obsessed with Southern European and Slavic immigrants, whom one publication described as “a lower stratum of civilization” and “probably altogether less improvable than are the Irish.” The INS may have been the first organization to publicly make the connection between unlawful presence and other unlawful activities. An INS official asserted without evidence in 1954 that because “the wetback” starts out by violating one law, “it is easier and sometimes appears even more necessary for him to break other laws since he considers himself to be an outcast, even an outlaw.”
This libel was recycled a generation later into a Trumpian shouting point: the undocumented are criminals simply by virtue of their unauthorized physical presence in the United States. This is false, factually and legally: unless the non-citizen has re-entered without permission after deportation, unlawful presence—just as likely to arise from overstaying a lawful visa as from an unlawful border crossing—is not and has never been a criminal offense. It is, rather, merely a civil violation of the Immigration and Nationality Act. But the lie lives on. (House Republicans floated the idea of making unlawful presence a federal crime during George W. Bush’s second term, but the Senate roundly and sensibly rejected it. It seems all but certain that this proposal would be more favorably received in both houses today.)
Trump has praised the Eisenhower administration’s mass deportation program, a prolonged campaign devoid of humanity, discretion, or due process, which bore the appropriately ugly name of “Operation Wetback.” (“Wetback,” now a slur, was at the time an actual legal term used by the Immigration and Naturalization Service to designate recent border crossers.) Viewed today as one of this country’s more notable human rights disasters, Operation Wetback represented an organized federal initiative in a country that drew the vast majority of its population from immigrants and their descendants. It was animated by INS commissioner Joseph Swing’s unshakable belief that the wave of Mexican workers who had entered the country under the aegis of FDR’s bracero temporary worker program constituted (in language familiar to anyone who follows today’s hard-right talk radio) “an actual invasion of the United States.”
Trump uses the same rhetorical ploy in his bid to re-legitimize the program. Here is how he defended it in an interview with fellow conservative provocateur Bill O’Reilly:
O’REILLY: Believe me when I tell you, Mr. Trump, that was brutal what they did to those people, to kick them back. The stuff they did was really brutal. It could never happen today. That was brutal—
TRUMP: Well, Bill, I’ve heard it both ways . . . we would do it in a really humane way . . .
O’REILLY: But I also don’t think you could deport these people because the federal courts would stop you. And they would say—
TRUMP: Well, Bill—
O’REILLY: They would say that each person that President Trump wants to deport has to have due process—
O’REILLY: So in the year 2050 you’d finally get around to it.
TRUMP: Bill! They’re here illegally! Bill!
O’REILLY: Doesn’t matter.
TRUMP: They’re here illegally!
O’REILLY: The Supreme Court would absolutely rule that they all have to have due process because they’re on American soil. You know that!
TRUMP: [Pauses, changes subject to “anchor babies.”]
O’Reilly was too charitable. There is no reason to believe that Trump has ever understood the basic precepts of due-process protection. Commitment to due process would have been fundamentally incompatible with Trump’s record as a casino magnate, a New York City landlord, or an authoritarian game show host given unlimited license to “fire” contestants at whim.
Trump has signaled the likely place of due process in his immigration system by promising to immediately deport 2 to 3 million “criminal aliens.” This staggering number, nearly the entire urban population of Chicago, would represent more deportations than Obama (the current record-holder) completed in eight years, and more than twice as many as were carried out during Operation Wetback.
It also exceeds the number of non-citizens presently in the United States with criminal histories, by the Department of Homeland Security’s own count. But Trump has already signaled that he’s prepared to expand the definition of “criminal” to include those with arrests. For millions of unsuspecting people, “innocent until proven guilty” will be quietly amended to “innocent until proven foreign.”
Leviathan on Auto-Pilot
At Juan’s custody review hearing, the attorney representing the DHS informed the court that unspecified “changed circumstances” justified my teenage client’s arrest and indefinite detention after his initial release on bond. The DHS’s position was that it was under no obligation to share the secret evidence on which it based this conclusion with me or my client, or to have any court review it. I wouldn’t have expected a representative of the federal government to mount such an outlandish set of Constitution-defying claims anywhere outside of Guantanamo Bay.
As might be expected of any government body executing a mandate of such scope, our immigration system is a sprawling bureaucracy designed by and for experts. This also means that its implementing statutes and regulations, along with the case law that guides their interpretation, are many thousands of pages. Taken as a whole, immigration law might be the most complex and rapidly changing field in which any American attorney can practice. The odds of the average non-citizen—especially one caught up in deportation proceedings—responsibly learning everything necessary to prevail against this leviathan are vanishingly small in all but the simplest cases. This is why we in the immigration bar bristled when presidential candidate Mitt Romney told the nation in a 2012 debate against Barack Obama that “you shouldn’t have to hire a lawyer to figure out how to get into this country legally.” He might as well have said that you shouldn’t need an accountant to prepare a company’s taxes, a mechanic to replace a tractor-trailer’s brakes, or a doctor to amputate a gangrenous limb.
I have specialized in deportation defense for more than a decade now, and it has taken its toll. Many of my clients are detained, and even those not in custody face the prospect of losing established lives in the United States. I do this work nearly every calendar day of the year. I am fortunate if I am able to pay all of my bills at the same time in any given month. I would never do anything else.
In fifty-eight immigration courts nationwide, immigration judges are operating (per a recent study) at a degree of mental stress equivalent to that of an emergency-room doctor. “This case,” sneered federal judge Richard Posner in a recent dissent, “involves a typical botch by an immigration judge.” Posner, punching down from the lofty heights of a federal appeals court, went on to concede graciously that the immigration court’s status as “the least competent federal agency,” might have something to do with congressional underfunding and the resultant “crushing workloads.”
Our nation’s roughly 250 immigration judges are now responsible for managing a record backlog of more than five hundred thousand pending deportation cases, with thousands more pouring into the system each day. The judges I appear before in the Boston immigration court are humane and learned experts who work long hours, in circumstances that couldn’t be less familiar to Judge Posner, but they are as susceptible to human error as any judge anywhere.
In an executive order signed within days of his inauguration, Trump authorized Congress to triple the number of Immigration and Customs Enforcement agents on the ground. He has made no mention of any plans to extend the courts the same courtesy, but this new flow of cases simply cannot be sustained within today’s judicial plumbing.
Fear of a Mongrel Country
Immigration to the United States was not regulated by the federal government until the late nineteenth century. The matter was initially assigned to the Treasury Department in 1891, and then transferred to the Commerce and Labor Department in 1903 to accommodate a rapidly expanding nation in desperate need of more workers. In 1940, following a massive depression in which President Hoover offered up recent immigrants as economic scapegoats, the Immigration and Naturalization Service became a division of the Department of Justice. And in 2002, a year after a group of lawfully admitted Saudis committed the worst act of terrorism ever perpetrated on American soil, all twenty-two immigration-related federal agencies were folded into the Department of Homeland Security.
There are entire pages of our immigration statutes that read as though they were drafted by congressional interns, using nothing but a dartboard for their research.
Treasury, Labor, Justice, Security: in just over a century, the purpose driving our national immigration policy went from pure economic benefit, to bolstering the workforce, to locating potential domestic criminals, to screening potential foreign threats. And it’s no coincidence that this transition from open borders to militarized fences was occurring as the complexions of Emma Lazarus’s “wretched refuse” darkened and the “teeming shore” of Europe was swapped out for Central America, Asia, Africa, and the Middle East. Our immigration policy has been consistently racialist, if not openly racist; racial discrimination was never an unforeseen consequence, but always the intended goal. As Senator David Reed, one of the cosponsors of the 1924 legislation that introduced “national origins” quotas explicitly designed to limit non-white immigration, explained in a committee hearing:
The American people want us to discriminate, and I don’t think discrimination in itself is unfair . . . we have got to discriminate. The only question that I think worries the committee . . . is the more plausible method of attaining that discrimination which is the object we are all seeking. The question we are tackling is which is the more plausible, the more reasonable, and the more defensible method of achieving that end. Practically all of us are agreed that this is an end that should be attained.
In this sense, the Trumpist immigration crackdown is a reversion to form. Much as Reed and his fellow lawmakers closed the fabled Golden Door to American opportunity on immigrants they deemed insufficiently WASP-ish, Donald Trump now seeks to leverage the blunt machinery of immigrant exclusion and expulsion in the service of a white nationalist ideology that enjoys the imprimatur of the GOP establishment. In this way, we are now assured, America will be made great (read “white”) again.From Bad to Worst
Barack Obama inherited the single largest immigration enforcement machine ever assembled by one sovereign nation, and he seldom hesitated to use it. He oversaw the deportation of nearly a quarter more non-citizens than George W. Bush did—in total, more than all other presidents from 1892 to 2000 combined. Illegal border crossings were at a near-historic low toward the end of his second term, with more Mexican citizens returning from the United States than coming to it.
Federal immigration enforcement already consumes more resources than all other federal law enforcement combined, including counterterrorism. Yet Trump has, through recent executive actions, not only tripled the number of ICE agents on the ground, but also broadened the scope of their enforcement far beyond anything previous presidents had ever proposed.
The outer frontiers of American conservatism have always been populated with anti-immigrant nativists, but Trump has given them the keys to Washington. Within weeks of the election, the lobbyists of the extreme-right Federation for American Immigration Reform (FAIR) submitted their Christmas wish list to the incoming administration’s transition team. FAIR has been in the vanguard of white-supremacist immigration policy for more than thirty years, and the Southern Poverty Law Center officially classifies the lobby as a “hate group.”
Until Trump, FAIR and the rest of the nativist lobby were part of—but never driving—the national conversation on immigration. One week into the new administration, that changed when Trump ordered an ugly, legally messy surprise suspension of all new refugee admissions, along with a revocation of visas for citizens of seven majority-Muslim nations. It may not have been the full-on “Muslim ban” Trump had promised at his campaign rallies, but it could take us there faster than anyone predicted. If Hillary Clinton set her sights on the glass ceiling, Trump is aiming straight for the Overton window.
Kris Kobach, counsel to FAIR’s legal arm and architect of some of the most odious state and federal immigration-related proposals of the past fifteen years, is now directly advising Trump on immigration policy, and there is every reason to believe that FAIR will get everything it wants—including former FAIR director Julie Kirchner as Customs and Border Protection’s chief of staff. This will mean more exclusions, more “emergency” visa cancellations, more secret arrests, more mass deportations, less humanitarian discretion, and less concern than ever for working toward the “generous,” “fair,” and “flexible” system of President Kennedy’s imagination.
Juan’s removal was ordered by an immigration judge in early January. He remains in federal custody awaiting deportation, and he will be in El Salvador by the time you read this. His choices upon arrival will be to die trying to resist the transnational criminal gang that kidnapped him and held him for ransom when he was thirteen, or to surrender his humanity to them for the remainder of what I fear will be a short and perilous life.
“We are entitled to warn,” the Boston-based federal Court of Appeals for the First Circuit wrote in one of my favorite immigration rulings,
when the machinery that we help administer is breaking down. The current structure of deportation law, greatly complicated by rapid amendments and loop-hole plugging, is now something closer to a many-layered archeological dig than a rational construct. The regime is badly in need of an overhaul.
That was written eleven years ago. The machinery, badly broken and wheezing, lurches forward.