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.”
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.”
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.’ ”
Maurizio Guerrero is a journalist based in New York City. He covers migration, social justice movements and Latin America.