America’s Mass Deportation System is Rooted in Racism

By Kelly Lytle Hernandez
University of California, Los Angeles
February 26, 2017

A rowdy segment of the American electorate is hell-bent on banning a specific group of immigrants from entering the United States. Thousands upon thousands of other people – citizens and immigrants, alike – oppose them, choosing to go to court rather than fulfill the electorate’s narrow vision of what America should look like: white, middle-class and Christian.

Soon a series of U.S. Supreme Court rulings could grant unrestrained power to Congress and the president over immigration control. More than 50 million people could be deported. Countless others might be barred from entering. Most of them would be poor, nonwhite and non-Christian.

This may sound like wild speculation about what is to come in President Donald Trump’s America. It is not. It is the history of U.S. immigration control, which is the focus of my work in the books “Migra! A History of the U.S. Border Patrol” and “City of Inmates: Conquest, Rebellion, and the Rise of Human Caging in Los Angeles.”

Historically speaking, immigration control is one of the least constitutional and most racist realms of governance in U.S. law and life.

Made in the American West

The modern system of U.S. immigration control began in the 19th-century American West. Between the 1840s and 1880s, the United States government warred with indigenous peoples and Mexico to lay claim to the region. Droves of Anglo-American families soon followed, believing it was their Manifest Destiny to dominate land, law and life in the region.

But indigenous peoples never disappeared (see Standing Rock) and nonwhite migrants arrived (see the state of California). Chinese immigrants, in particular, arrived in large numbers during the 19th century. A travel writer who was popular at the time, Bayard Taylor, expressed the sentiment settlers felt toward Chinese immigrants in one of his books:

“The Chinese are, morally, the most debased people on the face of the earth… their touch is pollution… They should not be allowed to settle on our soil.”

When discriminatory laws and settler violence failed to expel them from the region, the settlers pounded Congress to develop a system of federal immigration control.

In response to their demands, Congress passed the 1882 Chinese Exclusion Act, which prohibited Chinese laborers from entering the country for 10 years. The law focused on Chinese laborers, the single largest sector of the Chinese immigrant community. In 1884, Congress required all Chinese laborers admitted before the Exclusion Act was passed to secure a certificate of reentry if they wanted to leave and return. But, in 1888, Congress banned even those with certificates from reentering.

Illustration, ‘How John may dodge the exclusion act’ shows Uncle Sam’s boot kicking a Chinese immigrant off a dock.
Library of Congress

Then, when the Chinese Exclusion Act was set to expire in 1892, Congress passed the Geary Act, which again banned all Chinese laborers and required all Chinese immigrants to verify their lawful presence by registering with the federal government. The federal authorities were empowered by the law to find, imprison and deport all Chinese immigrants who failed to register by May 1893.

Together, these laws banned a nationally targeted population from entering the United States and invented the first system of mass deportation. Nothing quite like this had ever before been tried in the United States.

Chinese immigrants rebelled against the new laws. In 1888, a laborer named Chae Chan Ping was denied the right of return despite having a reentry certificate and was subsequently confined on a steamship. The Chinese immigrant community hired lawyers to fight his case. The lawyers argued the case up to the U.S. Supreme Court but lost when the court ruled that “the power of exclusion of foreigners [is an] incident of sovereignty belonging to the government of the United States” and “cannot be granted away or restrained on behalf of anyone.”

Simply put, Chae Chan Ping v. U.S. established that Congress and the president hold “absolute” and “unqualified” authority over immigrant entry and exclusion at U.S. borders.

Chinese exclusion cases

Despite this loss, Chinese immigrants refused to comply with the 1892 Geary Act, submitting themselves for arrest and risking both imprisonment and deportation rather than registering with the federal government.

They also hired some of the nation’s best constitutional lawyers. Together, they swarmed the courts with challenges to the Geary Act. In May 1893, the U.S. Supreme Court agreed to hear its first deportation case, Fong Yue Ting v. U.S. and quickly ruled that deportation is also a realm of “absolute” authority held by Congress and the president. The court wrote:

“The provisions of the Constitution, securing the right of trial by jury and prohibiting unreasonable searches and seizures, and cruel and unusual punishments, have no application.”

In other words, the U.S. Constitution did not apply to deportation. Immigration authorities could develop practices to identify, round up and deport noncitizens without constitutional review.

It was a stunning ruling even by 19th-century standards. So stunning that three of the justices issued scathing dissents, arguing that the U.S. Constitution applies to every law enforced within the United States. As Justice Brewer put it:

“The Constitution has potency everywhere within the limits of our territory, and the powers which the national government may exercise within such limits are those, and only those, given to it by that instrument.”

But such dissent held no sway. Six years later, the U.S. Supreme Court tripled down on immigration control as exempt from judicial review. In that 1896 ruling, Wong Wing v. U.S., which was issued on the same day as the court upheld racial segregation laws in its infamous Plessy v. Ferguson decision, the court held that the Constitution does not apply to the conditions of immigrant detention.

By 1896, the U.S. Supreme Court had granted Congress and the president nearly unrestrained power over excluding, deporting and detaining noncitizens, both at U.S. borders and within the national territory. To date, they have used that authority to deport and forcibly remove more than 50 million people and ban countless others from entering the country. Most of them are nonwhite, many of them poor and a disproportionate share non-Christian.

Making America great again

Over time, Congress and the courts placed several limits on what is allowable in immigration control. For example, the 1965 Immigration Reform Act prohibits discrimination on the basis of “race, gender, nationality, place of birth, or place of residence.” And several court rulings have added a measure of constitutional protections to deportation proceedings and detention conditions.

But, in recent weeks, Trump and his advisers have tapped into the foundational architecture of U.S. immigration control to argue that the president’s executive orders on immigration control are “unreviewable” by the courts. As Trump’s senior advisor Stephen Miller put it: The president’s executive powers over immigration control “will not be questioned.”

On Feb. 9, the U.S. Court of Appeals for the Ninth Circuit turned down the administration’s “unreviewable” argument regarding the so-called Muslim ban. But Trump’s immigration enforcement order still stands. This includes a provision that subjects even those unauthorized immigrants who are simply suspected of crime to immediate removal. It also denies many of the immigrants who unlawfully cross our borders the due process protections recently added to deportation proceedings.

If implemented as promised – that is, with a focus on “bad hombres” and the U.S.-Mexico border – Trump’s immigration plan will exacerbate the already disproportionate impact of U.S. immigration control on Latino immigrants, namely Mexicans and Central Americans. U.S. immigration may no longer target Chinese immigrants, but it remains one of the most highly racialized police projects within the United States.

Trump’s executive orders are pulling U.S. immigration control back to its roots, absolute and racial. The U.S. Court of Appeals for the Ninth Circuit pushed back against this interpretation, affirming the reviewability of the seven-country ban. But the decisions made during the Chinese exclusion era are likely to protect many of the president’s other orders from judicial review. That is, unless we overturn the settler mentality of U.S. immigration control.

To learn more about the history of U.S. immigration control, see #immigrationsyllabus.

Kelly Lytle Hernandez, Associate Professor, History and African-American Studies, University of California, Los Angeles

This article was originally published on The Conversation.

Trump’s Immigration Policies Will Affect Four Groups Of Undocumented Immigrants

January 26, 2016

President Donald Trump is expected to order the deportation of millions of “criminal aliens” this week. During his campaign, he stated his intention to remove all 11 million “illegal immigrants” from the country, although some may be allowed to return.

However, terms like “criminal aliens” and “illegal immigrants” gloss over the various immigration statuses and histories of millions of individuals. We’d like to offer a more nuanced description of the individuals who may be targeted by President Trump’s immigration enforcement plans.

Our discussion is informed by our research. Since 2014, we have followed the lives of some 50 Southern California immigrants, many of whom either lack or never had legal status in the United States. Each of these individuals has a different story of how and when they came to the United States. Some are related to U.S. citizens and some are not. They have had unique experiences studying, working and living in this country.

And now, these differences could play a major role in how individual immigrants are impacted by the new administration’s enforcement of immigration laws.

Immigrants with criminal convictions

Administrations prioritize the removal of some immigrants over others because immigration enforcement resources are limited. Since the mid-1990s, previous administrations have focused on removing immigrants with criminal convictions, regardless of whether they have legal residency. The Trump administration may prioritize some of the same groups. However, Trump may be more aggressive in defining who is eligible for deportation.

Trump has pledged that his administration will rapidly deport 2 to 3 million “criminal aliens.” His website cites a 2013 Center for Immigration Studies report for this figure. Immigration scholars have suggested the actual number is significantly lower. For example, in 2015, the nonpartisan Migration Policy Institute reported there are 820,000 unauthorized immigrants with criminal convictions in the U.S. Many were charged with misdemeanors or unlawful entry.

This is unsurprising. Research from criminologists shows that immigration actually lowers the rates of violent crimes.

Trump, however, has signaled that the category of “criminal aliens” may be much broader than individuals convicted of serious crimes. It may include individuals arrested, but not convicted, or individuals with unsubstantiated gang affiliations. But even this incredibly broad definition of criminal aliens does not cover all immigrants.

There are three other broad groups of individuals who generally fall outside of this priority deportation category.

Immigrants who arrived as children

About 750,000 young people qualified for the 2012 Deferred Action for Childhood Arrivals (DACA) program, which grants two years of permission to work and protection from deportation to certain undocumented immigrants who came to the U.S. as children.

Mexican farm worker Maria Amalia Ruiz shares ‘Faces of DAPA/DACA+’ exhibit.
AP Photo/Edwin Tamara

In order to qualify for DACA, the children must have arrived in the United States before June 15, 2007, completed high school or its equivalent and have a criminal record that is clear of anything more than minor misdemeanors.

Most individuals who received or were eligible for DACA will not likely be among those prioritized for enforcement. Trump pledged to rescind DACA immediately. But, after being elected, he expressed sympathy for these young people and suggested he might be willing to find a solution to their problems.

If DACA were rescinded, those young people, who are culturally Americans, would face numerous challenges, including unemployment, the inability to go to college and the risk of deportation. To alleviate these burdens, senators Dick Durban and Lindsey Graham introduced the BRIDGE Act in December 2016. This legislation would provide DACA recipients and similarly situated young people with “provisional protected presence” – temporary permission to remain in the country but no path to citizenship.

In the current highly polarized political context, it’s unclear if the bill will have majority support in the House, and President Trump has made no promise to sign it.

Immigrant parents of Americans

Another 4 million immigrants would potentially have qualified for the Deferred Action for Parents of Americans (DAPA) program, or an expansion of DACA known as DACA+. President Obama announced these programs in 2014.

DACA+ broadened the DACA Program to allow more young people to qualify. DAPA would have enabled undocumented parents of U.S. citizens or lawful permanent resident children to qualify for permission to work and a temporary protection from deportation with two conditions: They had to be in the country continuously since Jan. 1, 2010, and not be convicted of any disqualifying crimes.

But, due to a lawsuit, the programs were never implemented.

Trump promised to immediately rescind DAPA and DACA+, and he may do so before their legality is resolved in court. With the possible exception of those who have committed minor misdemeanors, individuals who would have been covered by these programs likely will remain a low enforcement priority.

Some undocumented parents of U.S. citizens might qualify for residency through their children. However, they will still face steep barriers to legalization. For example, wait times for these family visas stretch for years. Even when visas become available, those who have spent more than one year in the country without lawful status face a 10-year bar on being able to enter the country legally. Many cannot afford legal counsel to assist in this process. And some of these individuals may have missed prior immigration court hearings and been ordered deported without being present.

Workers and recent arrivals

A third group consists of several million adults who are not parents of U.S. citizens or permanent residents, do not have criminal records and are currently working in the country. These individuals are unlikely to be a named priority for deportation. But if the new administration engages in an enforcement strategy of high-profile workplace raids, as were common under President George W. Bush, these individuals could still be vulnerable.

Even if they are not apprehended and deported, it seems unlikely that they will receive authorization to work in the United States or legal protection from deportation.

Immigrants who have recently entered the U.S., such as unaccompanied minors fleeing violence in Central America, had already been prioritized for removal by the Obama administration. Trump’s promises to stiffen border enforcement will likely ensure their continued prioritization for deportation.

Other factors

The groups identified above are further affected by legal histories that can create opportunities or barriers.

For example, close relatives of U.S. citizens, certain crime victims and those with a well-founded fear of persecution in their country of origin may be able to qualify for visas or asylum. On the other hand, those who failed to attend an immigration court hearing, left and reentered the country without authorization or previously claimed to be U.S. citizens may be at heightened risk of deportation.

Trump’s rhetoric about building a wall with Mexico also suggests that immigrants from Mexico are perceived to be a problem, even though Mexicans constitute a declining share of the unauthorized population. Individuals perceived to be Mexican nationals therefore may be particularly at risk for enforcement efforts, including those that target individuals based on their racial or ethnic appearance.

It is still unclear how priorities set by Trump will trickle down to the officers who are actually carrying out enforcement practices. Immigration and Customs Enforcement agents and Customs and Border Protection agents who felt constrained by Obama’s policies and programs may feel more empowered to engage in aggressive and racially targeted enforcement efforts.

The new Department of Homeland Security secretary, retired General John Kelly, has no legal training. He could either serve as a check on overly zealous enforcement efforts or devise policies that facilitate them.

Trump’s focus on deporting “criminal aliens” and his suggestion that he might offer reprieve to certain immigrant youth suggest there could be some continuity between his enforcement priorities and those of Obama. But the new president’s emphasis on mass deportation promotes fear. This, in turn, may make noncitizens less likely to apply for naturalization, attend school, seek medical care or challenge violations of labor laws.

Despite fear, however, some immigrants have expressed renewed commitment to activism. As one interviewee told us, “The struggle continues.”

Susan Bibler Coutin, Professor of Criminology, Law and Society and Anthropology, University of California, Irvine; Jennifer Chacón, Professor of Law, University of California, Irvine; Sameer Ashar, Clinical Professor of Law, University of California, Irvine, and Stephen Lee, Professor of Law, University of California, Irvine

This article was originally published on The Conversation. Read the original article.