Better than Trump is not Enough on Immigration
Biden Needs to Move Beyond the Rhetoric of Law and Order and Create a Truly Humane System
Joe Biden is charting a new course on immigration, moving away from the Trump era’s punitive and racist approach to the border. He has talked about ending family separation policies, and creating a more humane system, but it is unclear just how far he is willing to go.
Returning to the pre-Trump status quo on immigration is not enough. We need to make a decided break with the pre-Trump past, with the record number of deportations of the Obama era and the law-and-order immigration rhetoric of Bill Clinton, and not just reset the clock to Before Trump while offering a modernized version of the Obama immigration regime.
In this respect, the U.S. Citizenship Act — which Biden sent to Congress and was recently introduced — is a mixed bag. The bill, which takes the priorities outlined by Biden in January and puts them in the form of legislation, goes much farther than almost any previous administration in recognizing the rights and needs of the millions of undocumented immigrants currently in the United States, while also revamping our refugee program and rethinking our role in the developing world.
California Democrat Linda Sanchez, the chief House sponsor, said it “provides long-overdue permanent protections, and restores humanity and American values to our immigration system.”
The bill includes four basic components: a path to citizenship for the approximately 11 million who are here illegally; a streamlined asylum/refugee process designed to give migrants a chance to claim asylum status before reaching the border, and more judges and courts to handle the current backlog; economic aid designed to stabilize the nations from which most refugees flee; and a shift in enforcement spending from personnel to high-tech surveillance systems.
Democrat Bob Menendez of New Jersey, the bill’s chief sponsor in the Senate, said it “leaves no one behind, addresses root causes of migration, and safeguards our country’s national security.”
Advocates have initially focused on the path to citizenship, calling it an important step to bring immigrants out of the shadows. Deyanira Aldana, the lead immigration organizer at Make the Road New Jersey, said the legislation is “overdue.”
“After decades of mass deportations, devastating family separations, and bigoted policies, a swift pathway to citizenship for all 11 million undocumented immigrants will bring much needed relief for our communities,” she said in a press release.
Others were also cautiously optimistic. Christian Estevez of the Latino Action Network said it is a comprehensive approach, which is needed, even if it is not perfect.
“We’ve been long supporters of comprehensive reform that provides a path to citizenship,” he told me recently. “We may have feedback on specific parts of the bill, but our position is this is the right direction.”
A key complaint of advocates, however, is that the bill also ramps up surveillance and maintains a damaging classification of immigrants by worth, essentially separating them into groups of good and bad. The “carve outs,” or rules regarding past criminal convictions, could limit who has access to legalized status, while the bill leaves in place enforcement as a main priority.
The immigration advocates I’ve talked with praised the pathway to citizenship — a truly game-changing move — but they remember the record deportations of the Obama years and the law-and-order rhetoric of the Clinton administration, even if the much of the public does not. They support the effort to repair the refugee and asylum systems, and they are hopeful that the aid being promised to Central and South American nations will fix what’s broken there and stem the flow of refugees. But they are concerned that the legislation leaves in place a false divide between deserving and undeserving immigrants, and they are critical of Biden’s high-tech efforts, seeing them as a virtual wall — cheaper, perhaps, but just as forbidding and more prone to spread north.
“I hope (the bill) is a signal of a new direction,” Estevez said. “The reality is that Obama thought he would placate conservatives and get them to come along if he deported more people. It didn’t work. They weren’t going to come along, no matter what. And all it did was result in the breaking up of so many families.”
Amy Torres, executive director of the N.J. Alliance for Immigrant Justice, said the bill was a huge step forward, but also disappointing because it does not address the larger issues of why 11 million people are in this position in the first place.
“While we affirm the 11 million brought into the process by this legislation, we have to recognize why they were not brought in from the onset.”
Torres cites systemic issues. Racism in the criminal justice system affects the way immigrant communities are policed and surveilled, she said, as does a general criminalization of poverty that leaves low-income people vulnerable to the court system. A single, small fine can snowball, she said, because the person being cited either cannot afford to pay or because they fear engaging with the system. A larger fine ensues, followed by arrest warrants and more extensive charges. In the case of an undocumented immigrant, this could mean jail and deportation. The legislation does nothing to address these problems, meaning many immigrants will continue to be ensnared in the web of detention and deportation.
Chia-Chia Wang of the American Friends Service Committee has seen these failures first hand, as an advocate who works with immigrants who have been pulled into the criminal justice system. A person may have gotten into a fight and been charged with aggravated assault, or incurred a small drug possession 15, 20 years ago, but has otherwise been a model citizen. That charge could be used to “prevent them from qualifying for legal status” or it could place someone in detention. The Citizenship Act continues to include these “criminal carve outs,” though it does narrow them — increasing the threshold from a single, minor arrest that could include problems with regularizing their immigration status to having at least two convictions. This will leave far too many immigrants unable to apply.
“The problem with that is that any kind of conviction can count,” including minor drug charges and criminal charges for unpaid fines, Wang said. “We never thought that was fair to begin with. These are people who served their sentence, and the price for that is now extremely high because it means they can be deported and separated from their family.”
The carve outs — like the distinctions made by many politicians between the so-called Dreamers (those who came to the United States as children) and older immigrants — create a binary arrangement in which you have deserving and undeserving immigrants. This parallels the ways in which the broad U.S. welfare system polices those in need with various behavior clauses and a massive bureaucracy.
It is language we have been hearing for several decades to varying degrees. And it is the kind of language that allows anti-immigrants groups like the Federation for American Immigration Reform and the Center for Immigration Studies to continue using law-and-order rhetoric to press for greater restrictions on immigration.
In the past, Democrats have allowed this rhetoric to guide their proposals. For many years, most mainstream Democrats did not support a path to citizenship for the unauthorized, and many were opposed to giving the undocumented access to driver’s licenses or college aid. And it is important to note that the efforts to kill comprehensive immigration reform often featured members of both major parties.
The last real effort at major reform came in 2011-2014. That bill called for increased enforcement and a 13-year pathway to citizenship with significant restrictions, and sailed through the Senate. House Republican leaders refused to post the bill and it died.
In response to this failure, Obama further ramped up enforcement and unveiled an expansion of the DACA program — Deferred Action for Childhood Arrivals, his 2012 program that allowed hundreds of thousands of young immigrants to come out of the shadows and work legally. More younger immigrants would be eligible and a separate, companion program would be created to allow parents of childhood arrivals to stay in the country. (The two programs were shut down by federal courts and never went into effect.)
Obama, in his 2014 speech on immigration, repeatedly turned to the language of legality. He spoke of “families who enter our country the right way and play by the rules watch(ing) others flout the rules.”
All of us take offense to anyone who reaps the rewards of living in America without taking on the responsibilities of living in America. And undocumented immigrants who desperately want to embrace those responsibilities see little option but to remain in the shadows, or risk their families being torn apart.
He returned to this theme later in the speech:
Even as we are a nation of immigrants, we’re also a nation of laws. Undocumented workers broke our immigration laws, and I believe that they must be held accountable -– especially those who may be dangerous.
This is the language of good and bad immigrants that Trump would use and ratchet up, that Trump would racialize, and that his base would buy into. Biden is moving away from this rhetoric, but it remains a part of the legislation — even as its pathway is shorter and covers more people than the 2014 bill that failed.
“We favor the shortest path possible, especially since so many people who would be applying for this have been in the country for a very long time already,” Estevez said. The efforts by politicians “to make distinctions of which immigrants are more worthy of having their status normalized” is divisive and counterproductive, he said. Pitting Dreamers against their parents, for instance, is dangerous and inhumane.
“We are all proud of the Dreamers,” he said, “but remember that the whole family contributes toward the young person getting an education and becoming a productive member of society. If we value families, we need an immigration system that reflects that.”
The failure of federal and state lawmakers to extend COVID relief to the undocumented, many of whom work in essential jobs or who were the first to lose their jobs when the pandemic hit, is an indication that the rhetoric of good-and-bad immigrants continues to hold sway.
“It feels like the lawmakers and society, most members of society, would like to see that (distinction) stay in place,” Wang said. “They do not believe that everyone should get relief. What we are trying to tell the policymakers is that everybody is worthy. Nobody’s life should be taken away nobody’s dignity should be taken away.”
This underlying assumption, Torres added, means that the 11 million number “is not going to maintain its wholeness,” which would undercut a potentially revolutionary change in direction.
“We are not going to going to get to 11 million, and we will not be able to fix those ills if we are funding increased surveillance and intelligence as part of (the bill),” she said. “Modernizing and consolidating were the same words used by Bush to create (the Department of Homeland Security) and increase surveillance. Anything that leads us on a path to investigating communities of color is more dangerous and it rips communities apart.”