Immigration in the United States: Overview, Concepts, Solutions

On August 3, 2018, 18-year-old Sergio Salazar, who was part of Occupy ICE SATX protesting the Trump administration’s decision to continue separating immigrant families in detention centers, was arrested by ICE officials.  Salazar was born in Juárez and came to Texas with his father on a visa in 2003. When the visa ran out, Salazar was classified under the Deferred Action for Childhood Arrivals in 2016. According to The Intercept, who reported Salazar’s story, “He was taken behind an abandoned Walmart and stripped of his belongings. Only later would he learn that ICE officers had been monitoring him, online and in person, for weeks.”[1] The primary reason Salazar was being monitored was due to his anarchist and antifascist comments on Twitter which flagged him as a potential “terroristic threat” by the Texas Department of Public Safety, Department of Homeland Security, the FBI, and the Joint Terrorist Task Force. As The Intercept explains, “During an assessment, [FBI] agents can conduct interviews, examine travel records, run names through intelligence databases, do some physical surveillance, and collect information from informants.” Through their investigation of Salazar, it was discovered that he was a DACA recipient, and therefore, a noncitizen. He was arrested one day after his DACA expired, which suggests that he was specifically targeted. The reasons for his deportation are transparent: “Salazar’s case combined a number of the Trump administration’s favorite bogeymen—antifa, undocumented immigrants, threats to law enforcement—into one package, onto which a terrorism label was slapped.”

Salazar is not the only noncitizen to be actively targeted by government agencies for deportation. The Intercept reports that “There have been more than a dozen such instances recorded—including 22-year-old DACA recipient Daniela Vargas, who was arrested minutes after giving a press conference; Manuel Duran, a Spanish-language journalist in Tennessee; and Jose Bello, a farmworker detained after he read a protest poem….” It is safe to say that Salazar was also detained and deported by ICE due to his activism: “The protest in San Antonio, which lasted about three weeks starting in mid-July, was never large: Organizers said it grew out of a vigil of about 35 people, but the overnighters were often as few as five. Salazar said the group had set up a free store, and they collected and distributed toys and snacks for the families who came to the ICE facility to check on the cases of their loved ones.” It is important to note that, under current immigration laws, noncitizens who are detained in immigration prisons experience a special kind of discrimination:

Because it’s an administrative rather than criminal procedure, a person in immigration detention doesn’t have all of the same protections that a person in the criminal justice system does. And though the two populations are locked up all the same, government lawyers and judges in the immigration world are not required to present and consider the same level of evidence that they would in the criminal justice context before rendering a life-altering decision.

Because Salazar lacked the means to defend his case, on September 14, 2018, he accepted his deportation. To make matters worse, “Salazar was then driven in an unmarked vehicle to the bridge connecting Laredo and Nuevo Laredo and told to walk.” Having no friends and no close family in México, Salazar was essentially exiled from the United States. As Salazar proclaims, “What else would you call being torn away from your family or your home, from your job, from everything from your whole life, and being contained in a prison, and then at the end of it, forcefully removed from a country?” In addition to being an anarchist and an antifascist, Salazar identifies as a “gender abolitionist” and no longer uses the he/him pronouns. At the time The Intercept article was written, Salazar was living in an apartment in Monterrey being paid for through donations, attending film school, and attempting to learn Spanish. Salazar understands that they inhabit an ambiguous space as an immigrant: “I’m not from Mexico. I was born here, but I do not know this country….But I’m not from the States either, because I was never accepted in the States.”

Salazar’s situation is not unique. Countless immigrants have undergone similar experiences of profiling and exclusion at the hands of the U.S. government. This problem did not begin with the Trump administration, but rather, has roots going all the way back to nineteenth-century immigration policy which served as a way to control the movement of poor immigrants. The goal of this essay is to give an overview of how the immigration crisis developed throughout U.S. history, discuss a few core concepts that fuel and define it in its current state, and put forth tangible solutions with the overall goal of ending the immigration crisis permanently. This essay will pull from the important scholarship of Anis Shivani, Hidetaka Hirota, César Hernández, as well as intelligent commentary from immigration experts such as David Brotherton, John S.W. Park, and Kevin R. Johnson. This essay also seeks to explain why immigration laws have never been the appropriate way to handle migrating peoples due to their racist roots, and instead have contributed to the U.S. government’s oppressive authoritarian militarized police state on a national and international level. This essay recommends abolishing all immigration laws and suggests an open border policy as a liberative, humanitarian solution to the long-standing immigration crisis.

The biggest challenge to the immigration crisis is also the oldest one: the status of the immigrant. As Anis Shivani notes, “An immigrant is always in a tenuous situation—as our predecessors knew well, before we formalized whom we wanted and whom we didn’t want—as he or she moves from temporary to permanent, denizen to resident, illegal to legal, or in the reverse direction, with ambiguity clouding the definition at any given time.” The American conception of the immigrant has always been shrouded in uncertainties and subjected to contrasting states of being: “temporary/permanent,” “denizen/resident,” and “illegal/legal.” As a result, the immigrant occupies a gray space in American society that reinforces a crisis of identity and hinders the cultivation of a healthy personhood. This issue has historical roots; it stems from a singular debate between politicians and political thinkers that has never been effectively resolved: “Is the constitution a kind of contract that primarily benefits and binds American citizens to one another? Or is it a broader statement of principles—perhaps reflecting commitments to fairness and justice and other important values—that are distinctive of a classical Enlightenment moment?”[2] In other words, what does the U.S. Constitution seek to do: define a common bond between American citizens or represent a vast array of progressive ideas that establish what it means to be an enlightened human being? To narrow this question down even further as it applies to immigration: “Should constitutional rights apply to citizens only, or to all persons present in the United States?”[3] This essay takes up the notion that the U.S. Constitution represents Enlightenment principles, and it operates from the perspective that constitutional rights apply to all persons present in the United States, citizens and noncitizens alike.

In order to get a fuller understanding of the immigration crisis in its current state, it will be necessary to give a brief historical overview of how immigration regulation developed within the United States. Hidetaka Hirota gives a detailed analysis of how U.S. immigration law evolved throughout the nineteenth century in Expelling the Poor: Atlantic Seaboard States & the 19th-Century Origins of American Immigration Policy. To begin, he explains that

The roots of immigration law in America dated to the British poor law, a seventeenth-century set of poor laws that established each parish’s financial obligation to support the local poor and its right to refuse to relieve the transient poor who did not belong to the parish. This arrangement allowed parishes to return wandering beggars back to their own neighborhoods. Transplanted to America during the colonial period, the British poor law became the foundation of American immigration law.

All of the immigration regulation that occurred during the nineteenth century was created and enforced by state officials in New York and Massachusetts. The reason for this was because both states acquired large populations of Irish immigrants due to the Potato Famine during the mid-1840s. As a result, officials in both states began to enforce strict policies toward the Irish in order to control the population. This meant that Irish immigrants were targeted and deported to keep them from becoming a financial drain on the cities’ treasuries and immigration policies were exercised to the fullest and harshest extent possible:

To facilitate the removal of foreign paupers from almshouses, the commissioners would authorize their agents to visit all almshouses and other charitable institutions in Massachusetts at least once a year. The agents would then, “from actual examination and inquiry,” ascertain the locations of inmates’ settlements. Upon confirming a pauper’s lack of settlement in Massachusetts, the commissioner agents would arrange deportation to the place “where he belongs” under the removal law. By enhancing the activities of the Superintendent of Alien Passengers with more personnel and duties, Massachusetts policymakers refined the system of state-level immigration control.

It is also worth noting that Massachusetts immigration policies were much stricter than New York’s, and primarily practiced a restrictionist ideology toward immigrants. In the 1850s, California began to develop immigration laws in order to restrict Chinese immigration:

In 1855, the legislature passed a passenger act which required shipmasters to pay $50 in head money to the Commissioner of Emigration for the landing of each passenger “so disqualified from becoming a citizen of the United States.” The act clearly targeted Chinese immigrants, based on the assumption that Asians were not entitled to naturalization as “free white persons” under the Naturalization Act of 1790. Applying to all unnaturalizable passengers regardless of economic conditions, the 1855 act aimed exclusively to discourage shipmasters from landing Chinese passengers with an exorbitant rate of head money, which never exceeded a few dollars in Atlantic seaboard states.

California’s passenger act was based off of New York and Massachusetts passenger laws which required shipmasters to pay bonds for destitute immigrants as well as capitation taxes (head money). These fees were charged to shipmasters in order to discourage them from landing destitute Irish immigrants. The California passenger act was specifically designed to keep shipmasters from landing Chinese immigrants as a way to avoid economic conflict with white and European workers.

Immigration law, prior to the Civil War, was regulated by state governments rather than the federal government. This allowed states like New York and Massachusetts to lay the foundation for federal immigration laws that would come into existence in the latter part of the nineteenth century. Conversely, as northern states exercised a restrictive type of immigration policy that sought to expel “undesirables” (poor Irish immigrants, criminals, and those with physical and mental disabilities), southern states encouraged European immigration as a way to maintain a racial majority over their enslaved populations. Additionally, citizenship was not regarded as an essential right until the ratification of the Fourteenth Amendment in 1868. Hirota clarifies that “…the rights and disabilities of citizens were defined on a state basis in the antebellum period. In pre-Civil War America, state citizenship, rather than national citizenship, was a primary marker of people’s rights.” He goes on to assert that “Legal statuses—master and servant, husband and wife, guardian and ward—were more critical than citizenship, as was membership of local associations such as private corporations and religious societies.” This placed the concept of citizenship in ambiguous territory even for those who were considered naturalized citizens. It often meant that those who were born to Irish immigrants could still be deported even though they were technically American citizens. These individuals were marked by their race rather than their status as citizens; if they became destitute or developed mental or physical disabilities and required state care, they were highly likely to be deported. State officials also used the LPC clause as a benchmark when making decisions about who to deport long before it became the federal standard:

The introduction into federal immigration law in 1891 of the “likely to become a public charge (LPC) clause, which originated from state passenger laws, made the seeming incapability of self-support—due to poverty, physical and mental defects, or disease—a principal ground for exclusion. As the term “likely” implies, the LPC clause was open to varying interpretations by officers at points of entry who oversaw the admission of immigrants. Federal immigration inspectors in the early twentieth century, as a contemporary scholar observed, abused the provision by extensively and arbitrarily applying it as “a kind of miscellaneous file” for cases “where the officers think the alien ought not to enter, but the facts do not come within any specific requirements of the statutes.”

The LPC clause allowed state officials to wield unlimited power over immigrants; their decisions were highly subjective and reflected racist views. It also meant that if an immigrant was to be deported, it was at the discretion of the official, who had little regard for the personal circumstances of the immigrant. Immigrants who had been living in the United States for weeks or even decades were deported without support or financial assistance, leaving them even more vulnerable than they were before. As the federal government strengthened after the Civil War, it began to centralize. As a result, immigration laws were subsumed by the federal government. Instead of restructuring the system, they adopted the laws already established by New York and Massachusetts and applied them across the board:

Officials in both New York and Massachusetts fundamentally influenced the development of national immigration policy in the late nineteenth century by playing a central role in the making of the federal Immigration Act of 1882. Passed three months after the enactment of the federal Chinese Exclusion Act of 1882, which suspended the immigration of Chinese laborers, the Immigration Act was the first general legislation that applied to all foreigners at a national level and set the groundwork for subsequent federal immigration laws. It banned the landing of undesirable aliens, such as paupers and people with mental defects, and included a deportation clause for criminals. Modeled on existing immigration policies in New York and Massachusetts, these provisions came from a draft bill that the two states’ officials created. In addition, the act left the enforcement of its provisions to the hands of state officials.

What needs to be understood is that the immigration laws that were developed and culminated with the Immigration Act of 1882 and the Chinese Exclusion Act were primarily based off of ideological beliefs that stemmed from racist attitudes toward Irish immigrant paupers and were later transferred to Chinese immigrants. Hirota explains the general sentiment of American society during the nineteenth century that promoted immigrant exclusion:

In the antebellum period, economic self-sufficiency based on free, independent labor defined the quality of ideal white American citizens, especially those in the North. The presence of racial slavery led them to assume that its antitheses, unfreedom and dependency, were conditions reserved for blacks. The dominant social thinking after the Civil War that all free Americans should earn their bread through contract wage labor—a supposed symbol of freedom and upward mobility in postbellum America—enhanced the virtue of self-support as an indispensable capacity for American citizens. The rising capitalist order in the late nineteenth century that prized productivity further reinforced this ideological trend.

As a result, this exclusionary mindset based off of racist and classist attitudes toward immigrants has continued to perpetuate itself through immigration laws. Historically, immigrants have inhabited an oppressed space within American society upheld by laws that seek to maintain their unequal status.

Just as Irish and Chinese immigrants were targeted and restricted from becoming naturalized citizens, Mexican immigrants have endured a long history of governmental abuse stemming from racism. César Hernández discusses this extensively in his article “Abolishing Immigration Prisons,” published in the Boston University Law Review. According to Hernández:

In fact, of the groups most frequently imprisoned today because of migration-related activity, Mexicans in particular have long been exploited and their bodies commodified for the benefit of the United States. During the period of the United States’ westward expansion, Mexicans were regularly murdered through extralegal means, including lynching, and stripped of rightful claims to property through legal processes. In the mid-twentieth century, they were valued for their manual labor and encouraged to come to the United States en masse through the Bracero Program, an agricultural guest worker initiative that was so rife with abuse that, for a time, the Mexican government actually barred any employer in Texas from participating. Even when abuse was not so harsh, Mexicans were conceived of as inexpensive, disposable labor.

While Irish immigrants were excluded due to their impoverished state and Chinese immigrants were excluded for economic reasons, Mexican and Latin American immigrants were the first group to be officially criminalized by the federal government. As Hernández explains:

Following the model of the policy reforms shaping criminal law and procedure in the late 1970s and 1980s—best illustrated by the “broken windows theory” of criminal policing—the regulation of migrants and migration took a punitive bent. Security became the prism through which migration was examined, and policing became the key response of choice. Military personnel began to be assigned on a regular basis to various points along the United States’ border with México. Meanwhile, the federal government’s principal border policing agency during the 1980s and 1990s, the now defunct Immigration and Naturalization Service (“INS”), saw its funding and law enforcement responsibilities increase substantially.

During the War on Drugs in the 1980s, the U.S. government began to intertwine immigration law with criminal law, which allowed immigrants to be viewed and treated as criminals. As a result, a few key laws were created that directly impacted immigrants in terms of how they could be criminalized. The Anti-Abuse Drug Act of 1988 “limited immigration judges’ power to release migrants from detention by enacting a provision that requires people who meet broad statutory definitions to remain in government custody pending removal proceedings.” In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act; these are the laws that serve as the foundation for how the immigration crisis is regulated and perpetuated in the current moment.

There are several components to the current immigration crisis in the United States that are physical and ideological in nature and they will be discussed now in brief detail. The first component is the immigration prison, which functions as a holding center for immigrants who are either awaiting trial for crimes committed or are being detained temporarily until they can be deported. Immigration prisons are not a recent creation. According to Hernández, “Since the mid-1980s, private prison corporations have been involved in detaining migrants on behalf of, first, the INS and, now, ICE. More recently, they have taken on that task on behalf of the federal government agencies responsible for housing immigration prisoners awaiting criminal prosecution as well as convicted offenders.” An important question worth asking is: how did immigration prisons come into existence? Hernández gives a thorough answer:

After simmering under the influence of the War on Drugs throughout the 1980s and early 1990s, immigration imprisonment was easily deployed in response to the terrorism events of 1995 in Oklahoma City and, with renewed vigor, those on September 11, 2001. In those tense periods, fear was augmented and reactions were as swift as they were racially skewed. In the frenzy to respond forcefully to fears of lurking threats, law enforcement officials turned to the flexibility of immigration imprisonment to do what they could not do using traditional criminal incarceration powers.

Racism is the most basic answer. Immigration prisons became the paranoid response to racist fears about the possibility of more terrorist attacks occurring in the United States, especially after 9/11. Rather than address the root cause of the War on Drugs and terrorism (systemic racism, inequality, capitalism, militarism), the quickest and most convenient solution was to criminalize all immigrants and detain them. However, this is not an actual solution because it fails to account for the U.S. government’s involvement in facilitating racism, drug wars, and terrorism. Immigration prisons create a state of fear and distrust toward anyone who is a noncitizen, marking them as potential enemies. Additionally, immigration, in its current state, has been redefined as a criminal act. In the past, poor immigrants were targeted as welfare drains and regarded as economic threats to white working-class Americans. With the creation of immigration prisons, immigrants are now marked as criminals. According to Hernández, “federal, state, and local governments collectively imprison well over 500,000 people every year” and “between 1994 and 2012, the number of immigration crime defendants booked into custody by the USMS grew by an astonishing 893%.” Another major reason for the drastic upsurge in immigrant crime is financial in scope. Not only do private prisons benefit from housing immigrants, other third party entities (“financial services companies to construction firms and food vendors”) rely on immigration prisons to help generate revenue. Also, “many local governments have come to rely on money that the federal government is willing to pay for immigration prisons as a vital component of their budgets.” The immigration prison industry has created an ecosystem where various invested groups benefit economically from the business of detaining immigrants. As a result, the immigration prison industry has evolved into an extensive network supported by the federal government:

As of 2011, ICE used approximately 250 sites annually, many of which were nothing more than jails and prisons from which the agency contracted bed space. On the criminal side, the BOP relies heavily on twelve private facilities designed for low-security offenders that are part of its CAR initiative. Likewise, state and local governments house immigration prisoners in their existing jails and prisons. In addition to relying on state and local governments, the federal government also relies heavily on private prison contractors to meet its immigration prison bed needs. As many as sixty-five percent of civil immigration detainees are held in private facilities.

Because third parties benefit monetarily from immigration prisons, they “maintain pressure on policy makers to support policies that identify more people for confinement.” This is how the immigration prison industry continues to be fueled, through the efforts of third parties who encourage government officials to find ways to criminalize immigrants. The biggest influencers are the private prison corporations as well as local governments that seek to justify their existence:

Private prison corporations such as MTC and its much larger competitors, the Corrections Corporation of America (soon to be named CoreCivic) and GEO Group, are the most visible third party actors. But they are far from alone. Just as private prison corporations are financially invested in keeping beds filled, local governments like Willacy County are just as dependent. Without migrants identified for imprisonment, DHS, USMS, and the BOP would have no reason to contract with private prison corporations that operate the facilities that local governments often own. And without those contracts, neither the private corporations nor the public entities receive the revenue that has become a perilous lifeline for many cash-strapped jurisdictions.

The immigration prison industry is held together by a series of legal terms and laws that link immigration with criminality. The most powerful term that has been used within the last few decades is the “criminal alien.” This label strips the humanity from the immigrant and replaces it with two words that reinforce the paranoid notion of a dangerous unidentified “other.” This term has been the most damaging in its relabeling of who an immigrant is. They are no longer migrating peoples seeking a new place to live, but rather, law-breaking foreign entities intent on causing harm. Another contributor to the immigration prison industry is CIR (Comprehensive Immigration Reform). CIR does exactly what it intends to do: it refines the criminality of immigration and reinterprets it in economic terms. According to Shivani, “All CIR consists of a three-pronged strategy: Increase enforcement, move to a guest worker program, and offer some limited legalization under extremely harsh conditions.” Paired with CIR is the IIRIRA. Created in 1996, this act brought the term “aggravated felonies” into existence which broadened the list of crimes that an immigrant could be detained, charged, and deported for, such as “passing bad checks, shoplifting, driving under the influence, minor drug possession, child abuse and neglect, and domestic violence.” These crimes are committed by citizens on a regular basis, but in this instance, they are used specifically to target immigrants for imprisonment and deportation. Even worse, “aggravated felonies” can be applied to immigrants retroactively. Shivani elaborates on this problem by saying that

…for instance someone could have been in this country thirty, forty, or fifty years, and yet in an encounter with the authorities, if the past crime, for which a person had been duly punished already, came to light, then that person was deportable; indeed, under this law, untold numbers of people have been deported from the country, who had otherwise been law-abiding and had established families and businesses and community involvement here, because their past offense, which was not deportable when it was committed, became known.

Under the IIRIRA, immigrants who served time and were rehabilitated for past crimes committed can still be detained and deported as criminals. Another negative feature of the IIRIRA is how it treats refugees and asylum seekers. Rather than give them proper protection, the U.S. government detains them in immigration prisons, “dramatically reducing the possibility of any refugee or asylee gaining a path to legal status.” This is highly problematic for the simple fact that much of the political turmoil refugees flee from were caused by the U.S. government due to their deplorably violent foreign policies over the last several decades. As Shivani explains

In many parts of the world the existence of refugees has been, for seventy-plus years, the direct consequence of our interventions: Vietnam, Cambodia, Afghanistan, Iran, El Salvador, Guatemala, and Honduras are a few examples, and most recently the refugees caused by our intervention in Syria. Sometimes we have taken special responsibility toward refugees created by our actions, while at other times we have outright refused them acceptance, as in the case of Iran, and now increasingly in the case of Syria. We have taken in refugees from Central America during the 1980s and 1990s, granted them temporary status, then threatened to withdraw such status, depending on the political winds.

It is completely logical to say that the U.S. government created the modern conception of the refugee the same way it created the modern conception of the immigrant as a criminal. The solution to these manufactured problems has been to detain immigrants rather than address the underlying systemic racism that creates and reinforces inequality. The solution has also been to develop a financially lucrative industry around the immigrant where profits are made from their imprisoned bodies which are now regarded as dangerous enemies to American society.

The biggest enforcers of these horrifically racist policies developed by the U.S. government is ICE (Immigration and Customs Enforcement). This agency replaced INS and seeks to target specific groups of immigrants in order to detain and deport them from U.S. soil. According to David Brotherton, “ICE is an extremely powerful national police force and can operate anywhere with few restrictions. Essentially, we have allowed ICE to develop with few constraints and little oversight and this has happened under both Bush and Obama and has been given even more legal powers and budgetary increases under Trump.”[4] Governmental support is the primary reason ICE has been allowed to flourish. ICE is the main force behind the detention and deportation of immigrants. Since 1996, deportations have skyrocketed. As Shivani states

In 1997, the first year this legislation was in effect, there were nearly one hundred and fifteen thousand removals and the next year this increased to around one hundred and seventy-five thousand. By the end of Clinton’s presidency, the man who pledged to end welfare as we knew it also ended immigration as we knew it and banished to their homelands nearly nine hundred thousand persons. Bush went further still, forcibly removing over two million immigrant residents during his two terms, and by the time President Obama finished his fifth year in office he had taken the art of banishment to the next level, equaling Bush’s achievement in three years less.

The immigration crisis, as we know it, has been in effect since the mid-1990s, and has been upheld by both democratic and republican presidents and their administrations. Neither party has been receptive to the immigration crisis or to the hardships the immigrant must face under the degraded status as the “criminal alien.” Even worse, the Obama administration, which has been viewed as both sympathetic and progressive after eight years under Bush’s authoritarian administrative regime, has done more damage to the immigration crisis than any other presidential administration. According to Kevin R. Johnson

With the 1996 immigration reforms expanding crime-based removals, the Obama administration refined programs that allowed state criminal justice systems to directly feed immigrants into the federal immigration removal system. Such refinements made it possible for President Obama to set a series of removal records. Some years saw the removal of as many as four hundred thousand non-citizens, including lawful permanent residents, from the United States. During the eight years of his presidency, more than two and a half million non-citizens were deported—more than during any other U.S. presidency. Immigration and Customs Enforcement data show that, in fiscal year 2016, crime-based removals represented more than ninety percent of the non-citizens removed from the interior of the United States.[5]

Historically speaking, the Obama administration will be known for its incredibly cruel and inhumane attitude toward immigrants. It will be seen as not only oppressive, but a major force in the ongoing problem of systemic racism in its current form, through the aggressive removal of immigrants, most of which were non-white and non-English speaking. At the core of this crisis is the problem of detention. It is not only a false, racist, profit-fueled solution, it is demoralizing. Shivani gives a poignant account of what it means to be an immigrant refugee in the contemporary moment:

Imagine arriving from a country like Sudan or Iraq, after having already undergone torture or other human rights violations, and being put into the brutal private American detention system, or in faraway county jails with hardened criminals, because you’re presumed to be a criminal before you’ve had a chance to prove your case, and with very little prospect of eventual success during the course of appeals. Mandatory detention for asylum seekers is indefinite and can last for years, despite several court rulings suggesting that indefinite detention is illegal.

Many immigrants are not merely leaving their countries of origin to find new places to live; they are fleeing horrific conditions stemming from social and political instability due to global inequalities caused by the racist, violent, and capitalistic exploitative actions of the U.S. government. Immigrants who enter the U.S. are labeled as criminals and treated as such, due to no fault of their own. Their first, and sometimes, only experience of being in the U.S. involves detainment in a holding cell, separation from their families, and being stripped of their culture, their identity, and their humanity.

One of the valuable tools at our disposal is our ability to take a closer look at some of the core issues that not only contribute to, but fuel the U.S. immigration crisis. A productive way to do this is to think of these issues as concepts. Racism, the most damaging of all issues pertaining to immigration, dominates U.S. government, law, and its history, and is pervasive throughout contemporary American society. Racism is very real and tangible; it can be pinpointed by specific laws that are created and enforced, and by the visible actions of individuals and groups of people through their use of violence, propaganda, and manipulative rhetoric. Racism enacted is horrific in its own right, but it is even more destructive as a concept because it serves as the foundation in which all oppressive actions occur and are justified through laws, educational systems, religious beliefs, and societal norms. Through the lens of racism, immigration has a deep historical connection to slavery. Hernández explains what “The slave, the death row inmate, the incarcerated criminal, the immigration prisoner” all have in common: they are “all people denied essential ingredients of citizenship, all framed as dangerous to the political community, all exploited for labor, all marked by race.” Immigrants have always been closely identified with racially oppressed groups throughout U.S. history, most specifically Black people. According to Hernández:

Blacks in the late-nineteenth and early-twentieth centuries found that slavery’s demise created a vacuum in the regime of racist social control that was quickly filled by other dehumanizing institutions. Whether through sharecropping, violence, or imprisonment under a newly invigorated criminal law regime, black people in the United States were systematically targeted by an array of old and new social institutions centered on a similar morality to that of the “peculiar” institution only just abolished. They continued to be treated as barely human creatures whose greatest value lay in their exploitability.

For Black people, the abolition of slavery ended one form of brutal oppression and landed them in another set of equally troubling and demoralizing circumstances: institutional racism. Wage labor, segregation, criminalization, and racial targeting continued to ensure the stigmatizing notion that Black people were not full citizens; this was reinforced through a legal system that failed to adjust to the shift to Black liberation from slavery and instead further exploited them and kept them locked within the confines of second-class status. When thinking about slavery in terms of the immigration crisis, John S.W. Park argues that

…the last time that some states and local jurisdictions were so at odds with the federal government about a “removal” policy was during the nineteenth century. This was when fugitive slaves were running north, when some northern jurisdictions moved to protect them, and when southerners passed stringent rules designed to help them “recover their property.” …the underground railroad was a form of resistance to slavery during a time when slavery was legal, when black people were property, and when the constitution and several federal laws protected white property owners to recover “their people.” George Washington, Thomas Jefferson, and Andrew Jackson had all posted ads in popular newspapers that described their fugitive slaves, and as presidents, they signed or supported rules favoring white slave owners. Andrew Jackson and Roger Taney both owned many slaves. Levi Coffin, Harriet Tubman, the students and faculty at Oberlin College—they assisted runaway slaves, however, and they encouraged others to break the law, even if that meant jail or murder for them, or a civil war to purge the nation of slavery.[6]

Park astutely points out the role that the Underground Railroad played in assisting slaves to attain their freedom: it was created and operated by politically conscious, enlightened citizens who took matters into their own hands—and it was illegal. He goes on to connect the fugitive slave laws with the current immigration crisis:

It’s hard to say whether President Trump will pass his own version of the Fugitive Slave Act of 1850, that infamous rule that punished state and local officials for failing to detain runaway slaves and to assist slave owners. The Act insisted that “all good citizens” had an obligation to help masters locate their slaves. Citizens who helped runaway slaves could be punished, too; they were not “good citizens.” One can imagine a President Trump and his Republican Congress passing a set of rules that require us to assist in the removal of undocumented persons, no matter the length of their residency here or the depth of their connections. Before we comply, we should study our own history, to give us clues as to how best to consider our own dilemmas.

Park is right to focus in on the “good citizen” who was expected to comply with racist laws prior to the Civil War. They were legally obligated to assist white slave owners who had full backing of the U.S. government rather than enslaved peoples who were regarded has having no constitutional rights. Racism is and has been enforced through laws and it is used to justify and support power structures that benefit those at the top, namely wealthy white men. Immigration laws serve an identical function; they seek to maintain inequality as a way to lock immigrants into one category: cheap labor. This is the same function Black people have traditionally performed, first through slavery, and then through sharecropping and wage labor. This is also how racism continues to proliferate: through laws and through pressure placed on citizens to uphold those laws that only benefit those who are in power.

Racism, as applied to immigrants, is equally as cut and dry. As Hernández explains: “To many Latin American migrants, there is a direct link between their past experiences of exploitation in Central America and México and today’s immigration enforcement policies in the United States. They frequently view enforcement policies through a historical lens that contextualizes their presence in the United States within earlier experiences of suffering economic and political repression in their countries of origin.” Here, Hernández points to racism as a historical construct that stretches beyond U.S. borders. It is international in scope. Immigrants experience racism in their countries of origin and they internalize those experiences and carry them with them when they migrate. As a result, the concept of racism is already entrenched in their consciousness. This is akin to the collective Black experience in regards to the history of slavery and the ongoing struggle to live with racial oppression. To go further, Hernández shows how racism creates inequality between different immigrant groups:

DHS authored a first-of-its-kind report about migrants who enter the United States with the federal government’s permission but fail to leave when that permission expires (called “overstaying” one’s visa). It revealed that these types of civil immigration law violations are most commonly committed by Canadians—at just shy of 100,000 people per year, representing almost twenty percent of the annual total. More than 125,000 Europeans (twenty-four percent of the total) do the same. Combined, Canadian and European immigration law violators could fill half of ICE’s detention population every year, but they do not. While Canadians and Europeans appear to benefit from immigration imprisonment enforcement practices, an analysis of a decade of ICE detention data reached a troubling conclusion regarding Mexicans and Central Americans: immigration officials are more likely to detain Mexicans and Guatemalans. Three-quarters of Mexicans and sixty-one percent of Guatemalans encountered by ICE during its first ten years in existence were detained, suggesting a systemic predisposition to confine citizens of these countries. The leniency offered immigration law violators from countries whose citizens are largely racialized as white, paired with the severity with which migrants of color are treated, illustrates racially disparate policing.

ICE reinforces racism by who it targets for detention and deportation. Canadians and Europeans who overstay their visas are not tracked, raided, detained, criminalized, and deported from U.S. soil the way Mexicans and Guatemalans are. Racism, as a concept, informs government agencies about who to target and who to overlook. ICE’s primary function is to assert racial inequality, to rid the U.S. of whom it deems “undesirable”: non-English speaking people who are not white. Conceptually speaking, racism is the biggest and most damaging force that determines how immigrants are viewed and treated in the U.S. They are regarded much the same way enslaved peoples were: as expendable nonbeings who provide cheap labor.

Citizenship is another concept intertwined with the immigration crisis. For most immigrants, the end goal is to become U.S. citizens because as such, they will have access to constitutional rights. There are two big questions we as citizens can meditate on in order to understand why citizenship is linked to constitutional rights: 1. What is citizenship? and 2. What does it mean to be a citizen? In the current moment, the most basic definition of citizenship is that anyone who is born on U.S. soil automatically becomes a citizen. As a result, citizenship is a natural right; it goes into effect as soon as a newborn breathes its first breath. The second question is more complicated: what does it mean to be a citizen? Newborns are not expected to prove their citizenship through government-issued tests or through their display of patriotism. They are born into citizenship. Growing up in American society, citizens are not continually required to justify their citizenship rights. In fact, many citizens may not even think of themselves as citizens because it is an inherent right for them. Immigrants are not granted citizenship as an inherent right. For them, the path to citizenship is lengthy, burdensome, and in most cases, nearly impossible to attain. They must prove that they deserve to become citizens; it is not a natural right for them. They are expected to go above and beyond in order to show they are deserving of citizenship. This is the biggest contradiction surrounding the immigration crisis. It implies that there are two sets of standards: for one group, citizenship is a natural right; for another group, it is only attainable if certain individuals are deemed worthy. Additionally, full constitutional rights are only granted to those with citizenship. This means that constitutional rights are also inherent rights, but only for a select group of people: U.S. citizens. Hernández elaborates on this problem by saying that

Most United States citizens obtain their privileged legal status through birth within the nation’s territorial boundaries rather than through any active acceptance of the responsibilities of membership in the political community. While there is much to be said for such a broad approach to birthright citizenship, there is no doubt that citizenship obtained in this manner is not earned by the infant who receives her citizenship passively through happenstance: her mother happened to be in the United States. There is nothing about passive conveyance of citizenship that renders the recipient morally superior to others. The corollary is likewise true: there is nothing morally inferior about lacking status as a United States citizen.

If newborns can be granted automatic citizenship, so can immigrants. Citizenship is not a privilege; it is a natural right. As such, those seeking citizenship should be granted that inherent right in the same manner as a newborn child: it should be automatic. What is also important to remember is that historically, full citizenship was not an option for many groups of people; it was only granted to white male property owners—a very small portion of the U.S. population. This means that U.S. citizenship, from the beginning, has always been rife with contradiction; it was a natural right for an elite group, not for the entire population. Even as the conception of citizenship has expanded to include more people, it still operates on a double-standard: it is automatic for some; for others, it has to be earned, or it is not attainable at all.

As a result, the American conception of citizenship has in essence created two groups of people: citizens and noncitizens. And since constitutional rights are only granted to those with citizenship, it widens the gap even further—citizenship, ideologically speaking, determines who is human and who is nonhuman. This has devastating implications. Those without constitutional rights are the most vulnerable to exploitation; they inhabit slave status. This is detrimental to all of humanity because it means that citizenship and constitutional rights are not fixed things after all—they can be denied, and they can be taken away. According to Shivani

Once we go down that path and create two regimes of law, one for citizens and one for everyone else, then it is inevitable that the regime created for immigrants will start affecting citizens as well, and constitutional rights will become restricted for all, as indeed has been the case in the last few decades. We cannot pretend anymore that what happens to “them,” as immigrants, does not affect “us,” as citizens. In every area of law, from the rights of consumers against corporations to the rights of citizens against the police, we have seen a drastic diminishment. Much of that has to do with our callousness toward immigrants.

There should not be two sets of laws—one for citizens and one for noncitizens. This is why birthright citizenship is so crucial; it means that constitutional rights begin at birth. Therefore, constitutional rights are also natural rights and should apply to everyone on U.S. soil. As long as contradictory standards are applied to citizens and noncitizens, there is the possibility that the concept of citizenship can be reshaped to benefit oppressive power structures. Shivani clarifies:

When civil liberties are abrogated for one group, this ends up being so for all groups. When due process and equal protection are constrained for immigrants, this eventually affects citizens as well. The farther the gap between immigrant and citizen, the more pressure it puts on citizenship to be downgraded to the status of the lowly immigrant, because citizenship becomes something so hyperlegal, so liberated from ordinary human rights discourse, that its traditional foundations, in ordinary notions of community and membership, become unstable.

Therefore, Shivani suggests “To make sure that excessive law enforcement does not erode the rights of citizens, the gap between immigrant and citizen must be closed, not broadened.” It is important to understand that laws are not created in order to protect; they are created in order to punish. Laws set up a division between those who are law-abiding and those who break the law. However, as history has proven, citizens have had to break the law in order to aid those who have been oppressed by them, as with the example of the Underground Railroad. This brings us back to the second question: what does it mean to be a citizen? As citizens, it is our obligation to actively aid those seeking the same rights we were granted from birth. One of the most impactful ways we can do this is to start viewing the immigration crisis as a human rights issue and to take steps to eradicate it. Shivani echoes this sentiment by saying that “Legalization per se should not be the focus, but the extension of human rights.” Citizenship includes constitutional rights. Both should be applied to immigrants automatically. Shivani is right to assert that “As soon as a person steps on our soil, he should have full constitutional rights, so that he is not subject to exploitation.”

If we begin to think about the immigration crisis as a human rights issue, specific solutions become apparent. Ideally, there are three major solutions that would not only liberate immigrants from their oppressed status, it would create a more just and efficient society. The first solution consists of decriminalizing immigration and this solution can be enacted immediately. As Shivani points out: “By definition, the federal bureaucracy since the 1880s has existed to enforce exclusion of various sorts, which is usually politically motivated, irrational when it comes to the public good, and counterproductive at the economic, philosophical, and moral levels.” IIRIRA and ICE are both enforced by the U.S. government and have successfully rendered the immigrant a criminal. By doing away with both the IIRIRA and ICE, the troublesome terms “criminal alien” and “aggravated felonies” will cease to exist. This alone will help to re-conceptualize the immigrant as a human being rather than a criminal. The second solution is to abolish immigration prisons. Hernández explains why abolition is the preferred solution over reform:

Given the United States’ long history of racial subordination, it is no surprise that prominent abolitionist movements have sought to dismantle institutions, the immorality of which is inextricably tied to racial oppression: slavery, the death penalty, and criminal incarceration. Importantly, the justifications for seeking abolition of these institutions—rather than mere reform—are based upon the impossibility of divorcing them from their entwined racist projects. Instead of merely creating disparate impacts on racial groups as a result of implementation failures, these institutions have been critiqued for their racist underpinnings. Reform simply cannot address this immoral root.

CIR does not solve systemic issues surrounding governmental institutions. They are racist at their core because they were designed to reinforce inequality. In most cases, reform merely refines institutions to the point where they become incredibly efficient as oppressive forces. Abolishing immigration prisons is the final step in decriminalization because it also does away with the process of detention and deportation. Additionally, it dismantles the immigration prison industry and opens up a dialogue about the larger problem of the prison industry—which is highly racist and financially lucrative. In essence, abolishing immigration prisons sets the foundation for conversations about which other institutions can be done away with.

The third solution is ambitious in scope, but one that is worthy of serious consideration: the idea of open borders. This is the most comprehensive solution that would have the biggest impact on humanity at the national and international level. Shivani is a strong advocate for open borders: “It is only a completely free movement of people, with open borders, or rather the end of borders as such, that will eliminate the human rights crisis that we are currently facing. To move in that direction would be as significant as our abolition of the concept of slavery after the Civil War, with the same national and worldwide repercussions for liberty.” Open borders would remove massive amounts of restrictions; it would alleviate the governmental burden of having to manage and dictate the movement of all peoples, not just immigrants. Open borders will accomplish many things: it will eliminate the racist stigma of the immigrant as an economic and cultural threat; it will allow us to rethink the concept of citizenship so that it becomes inclusive rather than exclusive; it will do away with criminalization, and it will foster better relationships with other countries. Above all, open borders is an ideological solution. It tells the rest of the world that we are mindful of our interconnectedness as human beings. It also asserts that migration is a human right, that we are open to all peoples regardless of their race, sex, or class, and the idea that those who would like to live on U.S. soil may do so, and those who would like to live in other places may do so as well, because it is a natural right. It also challenges the current issue of immobility. Most people do not have the ability to migrate simply because it is too costly—and in many cases, a fatal risk. Deaths along the U.S.-México border would hopefully become nonexistent because there would be no border for people to risk their lives in order to cross. They would be welcome to come and go as they please without the threat of dehydration, starvation, and violence. Open borders would allow society to reorganize itself in ways that benefit all humanity. People would be able to truly choose the communities they want to be part of and it would encourage new communities to develop. As a whole, all communities would become more progressive, productive, and life-affirming. And, hopefully, the immigrant, as a classifiable term, would cease to exist. Instead, immigrants would be seen as migrating peoples and fully liberated human beings.

In February, Joe Biden, the 2020 democratic presidential candidate, claimed in an interview with Jorge Ramos for “Real America with Jorge Ramos” that both the Clinton and Bush administrations deported twice as many immigrants as the Obama administration. His claim, however, is only a half-truth. Miriam Valverde of PolitiFact determined that Biden got those figures by combining removals and returns.[7] Removals include official deportations where immigrants underwent legal proceedings (those who were in the U.S. “illegally” and were officially deported from American soil). Returns refers to immigrants who were apprehended at the border and were given the option to return to their country of origin without having to undergo legal proceedings; returns are considered unofficial removals. Valverde verified that there were “5.3 million total deportations during the Obama administration, around 10.3 million during Bush’s tenure, and about 12.3 million under Clinton’s presidency.” However, this does not take away from the fact that the Obama administration forcibly removed 3.2 million immigrants from the United States—more than any other presidential administration in U.S. history. Additionally, Zack Budryk of The Hill reported that deportations under the Trump administration have gone down: “While the Obama administration deported 1.18 million people in his first three years, the number of deportations has been a little under 800,000 so far under Trump, according to the [Washington] Post.”[8] Budryk points out that this is due to a few key factors: overall immigration determent due to ICE’s aggressive deportation policies, the increase of immigrants from Central America who are more difficult to legally deport, longer detainment periods for immigrants, and the slowing down of the judicial process due to the Trump administration’s desire to legally prosecute all immigrants (criminal and non-criminal) and making it harder for them to seek visas or obtain citizenship. These figures make an even stronger case for the decriminalization of immigrants, abolishing immigration prisons, and employing an open border policy. From a humanitarian perspective, no person should be forcibly removed from U.S. soil; no person should be turned away from the border.

As history and our current moment have shown, laws do not solve social issues; they exacerbate them. Laws do not solve systemic racism; they in fact support and perpetuate it. This is why open borders is an ideal solution. It eliminates the need for laws and immediately liberates and humanizes immigrants. The overarching goal of immigration law has always been to control the movement of people—particularly poor immigrants—and lock them into second-class status through exclusion and temporary cheap labor. It is time to start thinking about the immigration crisis as a human rights issue. This means taking steps to treat immigrants as human beings who have been negatively impacted and traumatized by brutal policies enforced by U.S. government officials who harbor harsh, racist attitudes toward immigrants. Even those officials who believe they are helping immigrants must realize that the system is not set up to assist them into becoming U.S. citizens. The goal has always been to mark, stigmatize, exclude, and criminalize them in order to maintain a power structure where profits end up in the pockets of a small portion of the population and everyone else suffers the catastrophic results of monetary hoarding and greed. What we need is a radical transformation in terms of how we interact with immigrants. Constitutional rights should be immediate; citizenship should be applied automatically for those who desire it. As we become more connected globally, open borders makes the most sense. We are already headed in this direction and have been for the last thirty years. It is the most progressive, intelligent, and compassionate solution to the immigration crisis. If we truly value human life the way we claim we do, then we can take tangible steps to support that belief by opening our borders and allowing people to move freely, migrants and citizens all.

July 6, 2020

[1] “How an Occupy ICE Activist and DACA Recipient was Deported for Tweeting” written by Ryan Devereaux and Cora Currier for The Intercept: https://theintercept.com/2019/11/02/deportation-occupy-ice-daca/

[2] Question put forth by John S.W. Park in “Immigration Roundtable: Three Top Immigration Scholars Address the Most Pressing Immigration Controversies in Shivani’s This is the Only Way to Solve the Immigration Problem.

[3] Question put forth by Anis Shivani in “From Immigrant Rights to Human Rights: A Radical Reconceptualization Beyond Left and Right” from his book This is the Only Way to Solve the Immigration Problem.

[4] Quote taken from “Immigration Roundtable: Three Top Immigration Scholars Address the Most Pressing Immigration Controversies in Shivani’s This is the Only Way to Solve the Immigration “Problem.”

[5] Quote taken from “Immigration Roundtable: Three Top Immigration Scholars Address the Most Pressing Immigration Controversies in Shivani’s This is the Only Way to Solve the Immigration “Problem.”

[6] Quote taken from “Immigration Roundtable: Three Top Immigration Scholars Address the Most Pressing Immigration Controversies” from Shivani’s This is the Only Way to Solve the Immigration “Problem.”

[7] https://www.politifact.com/factchecks/2020/mar/13/joe-biden/facts-behind-joe-bidens-claim-obama-era-deportatio/

[8] “Deportations lower under Trump administration than Obama: report”:  https://thehill.com/latino/470900-deportations-lower-under-trump-than-obama-report