The Breakdown of Legal Protections for Migrants is an Expansion of Lawlessness
If you are wondering how things are going in America one bad sign is that in January of this year 2020 a nonfiction book came out written by Philip G. Schrag that was entitled Baby Jails: The Fight to End the Incarceration of Refugee Children in America.
Let’s get one thing out of the way: the idea that putting children in cages began under Obama, is just false. Under President Obama six children were found near the border with Mexico and temporarily sheltered in detention facilities. Under the law of the land which is conditioned by the 1997 Flores agreement, the United States agreed not to jail migrant children for longer than 72 hours. Under Trump families that are caught crossing the border are split up. The children who arrive with their parents are labeled “unaccompanied minors” and taken to separate detention facilities from their parents. The latest number I could find was from the fall of 2019 when the Trump administration had detained nearly 70,000 children, and 5400 children have been separated from their parents.
When Trump supporters claim that he is merely enforcing the law they are correct. Obama was also enforcing the law, although in a very different way, at once kinder and reckless. Simple support for either policy is insufficient to the moment. It is true that undocummented immigrants can legally be deported. It is also true that undocumented immigrants can legally be allowed to stay. Either outcome is a matter of the will of the president and his administration, and that is part of why we are in a very dangerous situation.
The law of the land is almost 60 years old. Immigration in the US is still governed under the Immigration and Nationality Act (INA) of 1965, which was designed to replace the Bracero program. Bracero was a guest worker program that existed between 1942 and 1964 which brought 4.5 million workers into the country from Mexico. (Andreas, p. 31). This cheap labor source replaced other exploited minorities in the hierarchy of US labor, and the expectation employers had for this cheap source of labor became a permanent and to date unchallenged priority in crafting immigration policy. It tarnished the federal government to be involved in regulating such a practice, so close was it to slavery, that the INA had to be crafted so as to allow this trade in the most exploited labor, relieve the employers of any of the responsibilities to this labor force that they would have had to workers protected by the National Labor Relations Act, all without meaningful government regulation. Liberal supporters of the law could tell themselves that even if it allowed certain unfair labor practices, it allowed immigrants to enter the country and benefit from American public services, maybe even have a chance at becoming citizens or at least that their children would. Nevertheless, the basic premise was that this would be a population that had no regular legal status, with certain protections offered via memoranda dictated without consulting the people impacted, who would not get the full protection of law enjoyed by citizens. In a crisis, these kinds of populations are most vulnerable to being dehumanized and abused.
The INA was always a contradiction: it was a law that was designed to allow for the broadest possible discretion in immigration matters so as to allow for unfair labor practices. Discretion was to be available at every enforcement opportunity so that the legal system could always turn its attention away from the unfair labor practices that the business community engaged in, could always feel itself to be showing clemency to a population that existed at its mercy. What is new in the Trump era is that this discretion has been largely done away with, with the result that a heavy handed policy that bans a native population, the immigrant community the US invited in for cheap labor. This is tyranny; when a people are exploited, categorized as superfluous and then disposed of.
Here are some key memorandums that shaped the practice of discretion in deportation sentencing. The November 20, 2014 Johnson memorandum “instructed DHS to consider the amount of time spent living in the United States and ‘compelling humanitarian factors such as poor health, age, pregnancy, a young child, or a seriously ill relative… [further on] Absent special circumstances or aggravating factors, it is against ICE policy to initiate removal proceedings against an individual known to be the immediate victim or witness to a crime.” (Wadhia, p. 39). In 2017 the Trump administration annulled the Johnson memorandum. “As described in one fact sheet by DHS, ‘Under this Executive Order, ICE will not exempt classes or categories of removal aliens from potential enforcement. All of those present in violation of the immigration laws may be subject to immigration arrest, detention, and, if found removable by final order, removal from the United States.” (p. 41) Moreover, ICE has been directed to no longer hold back pursuing immigrants in certain privileged places such as hospitals and courts. So, if someone is an immigrant who has been settled in the US for no matter how long, regardless of the contribution their labor has made to build this country, having no matter what familial responsibilities to other US citizens, regardless of infirmity, they are now targeted by federal agents in hospitals, courts, work places, grocery stores and even in the USCIS offices were they must go to pursue legal status.
Immigrants entering the US justice system are given certain rights under the law of the land. In any of the legal vehicles for deportation, from Notices to Appear to Speedy Deportations, immigrants have the right to appeal, hence the right to council, at the discretion of DHS. Speedy deportations including expedited removal, reinstatement of removal and administrative removal all occur without a formal hearing. The systems in place for appeal are Kafkaesque; as if they were designed to be confusing, which they must surely be given that often official documents are provided in English. “While it is too early to quantify speedy deportation numbers and trends in the time of Trump, policy guidance issued early in the Trump administration supports increased use of speedy deportation programs. On expedited removal, one DHS memo, dated February 2017, reads, ‘It is in the national interest to detain and expeditiously remove from the United States aliens apprehended at the border’… President Trump tweeted the following statement on June 24, 2018: ‘We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. Our system is a mockery to good immigration policy and Law and Order. Most children come without parents.’” (p. 88). Experts were quick to point out that Trump is factually wrong: even in speedy deportation immigrants are supposed to be screened with those facing persecution being allowed to stay. Trump’s zero tolerance policy has flooded an overwhelmed legal system, and thus largely thwarted the real availability of asylum requests. “Prosecuting anyone who enters the United States irregularly can complicate an asylum claim because of the time, expense, and chilling effect of prosecution as well as the criminal bars to asylum. Because asylum is a discretionary remedy, those who apply despite these impediments may be more susceptible to being denied asylum as a matter of discretion notwithstanding their eligibility for asylum under the statute… A blanket policy of prosecution is troubling to the rule of law and leads to a failure of discretion in a universe of limited resources.” (p. 108).
The Trump administration has a long record of illegal activity, not limited to the Muslim bans that have been struck down and the final Muslim ban was upheld by the Supreme court 5-4 in June of 2018. Other parts of Trump’s campaign of cruelty against migrants have been tied up in the courts. These things are constantly changing, and it’s likely that I don’t have the most up to date information. If anyone knows better please @ me. One example, of many, is the ongoing lawsuit on the part of the NAACP against Trump’s rescinding of Temporary Protected Status for Haitian immigrants. That protected status was given by the Obama administration, and even the most conservative Democratic candidates are likely to renew it. If these people were forced to return to Haiti, it is clear they would not find housing and resources for their basic needs (p. 75). There are one million people who could be targeted if Trump successfully gets Temporary Protected Status overturned in the courts, something each day in office brings closer to being achieved (more on that later). “As of July 20, 2018, the Trump administration has announced that TPS will end for nationals from the following countries: El Salvador, Haiti, Honduras, Nicaragua, Nepal, Somalia, Sudan, and Yemen.” (p. 73). A second Trump term will be a disaster in the lives of all of these people, and a further element destabilizing all of these other countries.
We offer these considerations because they shed light on what kind of legal protections, or lack thereof, we ourselves can expect if a second Trump term occurs and he is thereby allowed to continue stacking the courts. If that happens the law will become to a much greater extent an expression of racial hierarchy, with one law for those at the top and another for those at the bottom.
The undocumented population has been effectively terrorized against appearing in public, against even reporting crimes committed against them. And this was always the point: to force people of color into a state of exception, into a space where there are no legal protections, no rights and no witnesses, at least none that count as valid in the existing courts. In any of these circumstances, an immigrant’s freedom can be taken, they can be separated from their loved ones, their labor exploited in a detention facility and face deportation to states that are undemocratic and often that pose a threat to their lives.
American Imperialism was much kinder, in the sense that it promised to uplift from a “white man’s burden;” no such responsibility is felt by these new reactionaries. There will be no uplift. There is no proselytized culture because there is no culture. There is not even capitalist exploitation. There is simply the disposal of excess humanity.
Let’s consider the situation of immigrants to the US through another lense. Kimberley Crenshaw considers the formal legal equality of Blacks in the US after the civil rights movement: “White race-consciousness, which includes the modern belief in cultural inferiority, furthers black subordination by justifying all the forms of unofficial racial discrimination, injury, and neglect that flourish in a society only formally dedicated to equality. Indeed, in ways more subtle, white race-consciousness reinforces and is reinforced by the myth of equal opportunity which explains and justifies broader class hierarchies” (p. 116). The undocumented immigrant, on the other hand, does not enjoy even formal equality under the INA, but rather, is subject to a sovereign right, to decide life and death, without any support from the source of sovereignty, the permission of those ruled. Whereas widespread racial animus has led to the abuse of discretion in the courts against black people, the lack of discretion imposed on immigrants has been the key to unleashing white supremacist violence against them.
Currently families who are in ICE detention are being given a choice. They can stay together in detention, or they can separate and the child will either be sent to live with a relative or be put up for adoption. It’s legal for these families to be released together, but instead they are being offered the choice of separation or risk of contagion and death (https://twitter.com/neveragainactn/status/1261354365014683649?s=12). Public health officials predict that something like 72 to 100% of immigrants held by ICE will contract COVID-19 in the next three months. I’m posting a link in the transcripts with a call to action from Amnesty International (https://rightsnow.amnestyusa.org/free-people-from-ice-detention/). If you are in the Memphis area, you can donate to help immigrants assailed by the recent economic depression by clicking the link in the transcripts and donating to Vecindarios 901: www.undocufund.com. If you see ICE agents in Memphis threatening immigrants call or email Vecindarios 901, who provide legal observers wherever immigrants are under threat. (https://www.facebook.com/MariposasCollective/posts/if-you-see-ice-call-vecindarios901-rapid-response-team-at-901-329-7979-message-v/2483525781927780/). Email at: email@example.com
On May 6th Carlos Escobar-Mejia, a 57 year old man from Venezuela died of coronavirus in ICE custody. Before being arrested in January of this year he had lived in the United States for 40 years, working, paying taxes, contributing. On April 15th he was denied bond by an immigration court because of a domestic abuse charge from years before that was dropped because it was a case of mistaken identity, and a week later he was hospitalized. He is survived by his sister Maribel Escobar. The coronavirus is something we can manage, something we could have much better managed. It’s something Trump made a lot worse by doing nothing but warning his close friends to sell off stocks for the entire month of February. Every day he is in office we face the possibility another crisis will arrive that he will make worse. The poor response to the coronavirus isn’t because of capitalism: it’s not because capitalists need profit or workers are oppressed. All of that is perfectly compatible with a strong reaction to a crisis. It’s not in the interests of Capitalists to let large groups of workers die. The collapse in the realization of profit in the retail sector is something that would have been less bad for capitalists if a stronger response to the crisis had occurred. Indonesia is capitalist, and Italy has Universal Health Care. Indonesia has had a good reaction to COVID19, and Italy has not. Trump is the crisis, and people know that.
We have an election in November, and as we approach that opportunity to stand against fascism, I want you to remember Maribel Escobar’s words to the judge that denied her brother bond before he contracted COVID-19 in custody: “I want you to know that it was on your hands to save his life,”
Andreas, Peter. Border games: Policing the US-Mexico divide. Cornell University Press, 2012.
Wadhia, Shoba Sivaprasad. Banned: Immigration Enforcement in the Time of Trump. NYU Press, 2019.
Crenshaw, Kimberly, et al. “Critical race theory: Thekey writings that formedthe movement.” (1995).
Schrag, Philip G. Baby Jails: The Fight to End the Incarceration of Refugee Children in America. University of California Press, 2020.
Cover: Original artwork by Erin Bakken