Fear itself: Donald Trump's real immigration policy

Originally published by VOX

The Trump administration wants to send a message to unauthorized immigrants living in self-identified “sanctuary cities”: your local government can’t actually keep you from getting deported.

In September, Immigration and Customs Enforcement (ICE) conducted a weeklong operation in which it arrested nearly 500 immigrants. Most of them deliberately sought out by ICE for having prior criminal convictions; some, as has happened in the other high-profile raids whose frequency has increased under Trump, just happened to be in the wrong place at the wrong time. But all of them lived in “sanctuary cities.”

Some ICE officials have acknowledged (anonymously) for months that the Trump administration is deliberately targeting unauthorized immigrants who live in cities that are trying to protect them from the Trump administration.

Because, under Trump, reminding immigrants that they might be deported — and should be worried about deportation — is both a matter of principle and an important policy weapon. It’s the cornerstone of this administration’s immigration enforcement policy — and its foremost policy accomplishment.

“If you’re in this country illegally, and you committed a crime by entering this country, you should be uncomfortable,” acting ICE Director Tom Homan told Congress in May. “You should look over your shoulder.”

It’s a variation on the “self-deportation” theory immigration hawks have been putting forth for years — the idea that if you put enough pressure on unauthorized immigrants, from enough different directions, you can make them so miserable that leaving the US after years of living here looks like an appealing option. But instead of pressuring immigrants from multiple directions, Trump is hammering down, again and again, to activate their single biggest fear: that the system will catch them, arrest them, and throw them into a pitiless and grinding deportation machine.

Call it the politics of fear.

Trump’s policy is marked by a little more enforcement — and a lot more vulnerability

It only took five days for the administration to make its agenda clear to unauthorized immigrants in the United States.

On January 25, Trump signed an executive order addressing immigration enforcement in the interior of the United States. Among other things, the order officially rescinded a series of Obama administration memos that laid out which immigrants should be considered priorities for deportation — and which should not.

Under the new policy, the following types of immigrants are among those prioritized for deportation: immigrants who “have committed acts that constitute a chargeable criminal offense” (which includes driving without a license in states that don’t give licenses to unauthorized immigrants); immigrants who engage in “fraud or willful representation in any official matter” (which could include paying taxes under a fake Social Security number); and immigrants who, despite not having committed any act that constitutes a “chargeable criminal offense,” are still a “risk to public safety or national security” in the eyes of the ICE agent arresting them.

Under the new policy, the following types of deportable immigrants are low priorities for deportation: none.

Photo by Joshua Lott/Getty Images

Photo by Joshua Lott/Getty Images

When President Trump, then-Homeland Security Secretary John Kelly, and other Trump officials bragged about “unshackling” immigration agents, this is what they meant. Agents had more power to decide which immigrants to arrest and put into deportation proceedings, because the pool of immigrants most vulnerable to deportation had expanded by millions.

The number of immigrants actually getting arrested and put into deportation proceedings did not, of course, expand by millions.

 

On the ground, the Trump administration expanded enforcement mostly by going after “low-hanging fruit” — immigrants whose locations were already known. Sometimes that means going after “criminals” (in its first few months, the administration took a much more aggressive approach than its predecessor did in asking jail officials to hold immigrants for ICE pickup), but it sometimes means going after people who are coming to ICE offices for check-ins, or even going to US Citizenship and Immigration Services to interview for their green cards.

But the administration has done just enough to keep any immigrant who isn’t already on ICE’s radar from feeling really safe. It’s conducted a few high-profile, coordinated immigration raids — in which it’s arrested both the people it was seeking out and anyone else who happened to be around and deportable. One ICE source said in March that the government was deliberately planning raids in “sanctuary cities” — an effective way to remind immigrant communities that even if their local government was trying to lower their risk of deportation, it couldn’t actually protect immigrants from the feds.

Trump’s ICE is arresting more immigrants than it did under Obama’s last couple of years in office. From October to December 2016, ICE arrested an average of 9,134 immigrants a month; from February to June 2017, it arrested an average of 13,085. That’s simultaneously a big increase — a 43 percent jump — and a drop in the bucket, compared with the expansion in the pool of immigrants made vulnerable to deportation.

Under the last two years of the Obama administration, the government’s official position was that immigrants would be prioritized for deportation if they were convicted of certain serious crimes, or if they were recent border crossers or had recent final deportation orders. There were 750,000 “convicted criminal aliens”; it’s unclear how many people fell in the other two categories, but the total number of people prioritized as of January 19, 2017, was almost certainly less than 2 million — possibly much lower.

On January 25, 2017, the pool of immigrants “prioritized” — or at least not unprioritized — for deportation swelled to something like 10 million.

From mass deportation to self-deportation to mass fear

The Trump administration’s eyes were much bigger than its capacity.

The administration is operating on a budget and with a workforce set under its predecessor — which devoted much more effort to deporting immigrants from within the US than the government ever had before, but was still equipped for no more than 400,000 deportations per year. And due to the staggering immigration court backlog, those deportations are often of immigrants who were arrested years prior.

A government capable of deporting all 11.1 million unauthorized immigrants over two presidential terms would need four times the deportation capacity it currently has. Even modestly increasing deportation capacity would require an investment, in the Department of Justice (which runs immigration courts) as well as the Department of Homeland Security, that’s likely to sit uneasily with congressional Republicans who aren’t even enthusiastic about paying $1.5 billion for a few dozen miles of border “wall.”

Actually carrying out mass arrests and deportations of long-resident, law-abiding unauthorized immigrants — “good” immigrants — could generate a serious outcry (fueled by photos of families being separated by ICE agents). Many Republicans are already concerned about the politics of Trump’s decision to end the Deferred Action for Childhood Arrivals program, which currently protects over 700,000 young unauthorized immigrants from deportation and allows them to work in the US legally; the politics of deporting them, along with their parents, would be even worse.

This isn’t a new problem. It’s why intellectual immigration hawks have long preferred “self-deportation” (also known as “attrition through enforcement”) over mass deportation. It might not be as brutally effective — even the most optimistic accounting suggests that 5 million immigrants could eventually be pushed to “self-deport” over the course of several years — but it’s much cheaper.

What Trump is doing isn’t quite “self-deportation” either, though. The point of “self-deportation” is that the government is using all the tools at its disposal to make it hard to support a life and a family in the US without papers — and the centerpiece of that is making it impossible to get a job under the table, by mandating all businesses use the E-Verify system and cracking down on employers who hire unauthorized workers.

The Trump administration isn’t doing that. Its legislative agenda on immigration is focused on “the wall” and on cutting legal immigration rather than E-Verify; it hasn’t stepped up workplace immigration enforcement much (drawing ire from Laura Ingraham’s website, which called workplace enforcement the “soft spot” of Trump’s policy).

Instead of using a variety of tools, it’s using a combination of policy and messaging to keep the threat of deportation hanging over immigrants’ heads. It’s not trying to get them to go home because they can’t stay here; it’s making sure they don’t get too comfortable here because they could be taken at any minute.

Irfan Khan/Los Angeles Times via Getty

It’s a general law enforcement principle. Here’s how US Border Patrol agents in the Rio Grande Valley put it: When they have enough agents on a shift to catch all of the people or drugs they expect to enter the US during that time, they use their resources to catch those people and drugs. It’s only when they show up and realize they’re way undermatched (something they emphasize hasn’t happened in several years) that they bring out the floodlights and do circuits through the streets with sirens blaring — the “high-visibility” tactics.

ICE, the Border Patrol’s sister immigration force, appears to be doing something similar — not to deter immigrants from coming, but to remind those already here that their existence in the US is not a secure one.

Fear is hard to attack because it’s hard to see. It doesn’t spark political protests. It may not even be noticed by Americans who don’t know any immigrants. It’s easy to deflect onto others for causing fear — blaming immigrant organizations, for example, for spreading rumors of ICE raids. It leaves few fingerprints. And it takes little cash.

The six-month countdown clock

The January executive order let exactly one Obama-era protection stand — the DACA program — despite Trump’s promises to end Obama’s “unconstitutional executive orders” on “day one” on the campaign trail.

For months, the administration publicly weighed DACA’s fate (even as, behind the scenes, ICE got more active in stripping protections from DACA recipients, sometimes based ondisputed claims of gang affiliation). Every time Trump or his government declared that the program was still in effect, a DHS spokesperson hastened to clarify that they meant “for now.”

That “for now” is over.

Trump has already mischaracterized his DACA decision as one to keep the program for the next six months while it waits for Congress to act, and then start allowing protections and work permits issued under the program (which last for two years) to expire. (Democrats have announced they’ve reached the broad outlines of a deal on DACA, but the exact details have yet to be worked out.)

The reality is that the program is winding down now. Immigrants who would have qualified for the program had they turned 15 in August, but instead turn 15 in October, will be locked out; immigrants whose DACA protections are set to expire on March 4 have only until October 5 to collect their paperwork (and $495) and apply for one last renewal.

For immigrants whose DACA protections are set to last through the next six months — who, in theory, aren’t supposed to be worried — there’s a world of difference between knowing when their work permits will expire and being able to quiet their minds until then. The expiration date isn’t a start date; it’s an end date. President Trump says the DREAMers should be turning their hopes to Congress, but his White House’s talking points urge them to start making plans to leave the country when their work permits expire.

And in the meantime, the Trump administration is already tightening the reins on DACA recipients. Border Patrol has started to detain DACA recipients at internal checkpoints, “for accuracy and verification of status,” sometimes holding them for several hours.

The Trump administration knows that telling people they have six months before being returned to the pool of vulnerability is a warning rather than a reprieve. It’s used that strategy deliberately with Haitians living in the US under Temporary Protected Status, issued after the 2010 earthquake — who are currently months into a six-month extension of protections that the government has all but promised will be their last.

Temporary Protected Status is issued to people who are living in the US from a particular country, who don’t have a legal status that allows them to stay (either because they’re here on short-term visas or because they’re unauthorized) but, due to a natural disaster or other crisis in their home countries, can’t safely return either. The longer that people are protected in the US, however, the more they put down roots here, and the less sensible it appears to revoke their protections — especially because the alternative is returning to a country that may still be on the long road to recovery from crisis. So previous governments have tended to extend TPS protections when a country comes up for review.

DHS under Kelly, however, wanted to put the “temporary” back in “Temporary Protected Status.” When TPS for Haitians came up for review in spring, Kelly granted a six-month extension but warned, “I believe there are indications that Haiti — if its recovery from the 2010 earthquake continues at pace — may not warrant further TPS extension past January 2018.”

Kelly openly acknowledged he was sending a message to Haitians — and other TPS beneficiaries. “The message is: By definition, TPS is temporary," he said in a press conference in Miami in June.

And by sending that message, he wanted to get recipients to “start thinking now about what will happen in the not-too-distant future.” The memo extending TPS through Januarymade that a little clearer. “The Department of Homeland Security urges Haitian TPS recipients who do not have another immigration status to use the time before Jan. 22, 2018 to prepare for and arrange their departure from the United States — including proactively seeking travel documentation — or to apply for other immigration benefits for which they may be eligible.”

It’s the same language the White House talking points would use, months later, for DACA recipients.

Some Haitians have already “prepared for and arranged” their travel — to Canada, where they’re seeking asylum. But others, clinging to the fact that the Trump administration hasn’t officially declared that TPS will end, are resistant to make plans to leave the country that many of them have lived in for most of their lives. “I have nothing to go back to,” Uber driver and would-be college student Jean Jubens Jeanty told the New York Times in July. “Why not keep me here?”

This isn’t optimism. It’s simply not having alternatives. “It’s very unsettling,” a Queens College senior told the Times, “to know that you’re here and you don’t know what tomorrow is going to bring, or what is going to happen in the next couple of months.”

Losing TPS wouldn’t create certainty — it would just open up a deeper anxiety, in which fear of being deportable is replaced with fear of actually getting deported.

The government’s official line that Haitians should prepare to leave the US isn’t a promise to deport them if they don’t, or at least not a promise the government can keep. There are 58,000 Haitian TPS recipients; the government will have to make a decision by Januaryabout whether to keep protecting 86,000 Hondurans with TPS, and a decision by March about the fate of 263,000 Salvadorians.

Those are numbers too big to round up and arrest with the resources the government has now, or can get in the next six months. But dumping them into the pool of vulnerability, and making it clear that they could get arrested at any time with no legal recourse? It costs much less to send a message.

The law doesn’t deport people. People deport people.

The fact that anyone living in the US without papers could be caught by ICE at any time is only part of the politics of fear. The other part is making it seem that anyone caught by ICE is inevitably going to get deported, and there’s nothing they or their lawyers can do to stop it.

The biggest practical obstacle to mass deportation is the immigration court backlog — in practice, it takes years to deport someone who hasn’t already been ordered deported. The Trump administration hasn’t yet put much effort into moving people through immigration court faster. Instead, it’s tried to portray the deportation process as a one-way journey — slow, but inevitable.

“Trump doesn’t deport people,” John Kelly used to say as head of DHS. “The law deports people.”

Kelly has left the department for the White House, but that sentiment remains; on a press briefing about the process of DACA rescission, one DHS official praised Trump as “the first president who’s asked us to enforce the law as written, and not some executive interpretation of the law.” (That official, somewhat ironically, went on to assure reporters that even after losing DACA protections, DREAMers would remain “low enforcement priorities” — something that is neither in the text of “the law” nor in the text of any of the Trump administration’s guidance on the matter.)

This isn’t just rhetoric; it’s policy.

Under Obama, immigrants and their lawyers could often persuade ICE that they weren’t high enough enforcement priorities to merit spending resources on an immigration court prosecution; the immigration court case would be “administratively closed,” and the immigrant would be given a stay of deportation.

That practice has all but ended.

From February to June 2016, the Obama administration administratively closed an average of 2,400 cases a month. From February to June 2017, the Trump administration closed an average of fewer than 100.

Transactional Records Access Clearinghouse

An immigration lawyer told Vice that the key to closing immigration cases used to be “shaming the government” — but “now, the government is shameless.”

It’s certainly worked to appear shameless. Immigrants whose arrests provoked widespread media alarm and protests, like Guadalupe Garcia de Rayos (arrested in February after 22 years in the US), might have been spared by the Obama administration’s desire to avoid bad press. The Trump administration deported Rayos in the middle of the night.

But it’s not actually true that the government isnever showing discretion or leniency. There are cases where it has, in fact, been successfully shamed.

Jeannette Vizguerra spent most of the spring in the basement of a church in Denver; she heard about people like Rayos getting arrested when they went in for ICE check-ins, and decided not to risk it. Because she missed her check-in, she was ordered deported in absentia — meaning she could be deported without going through immigration court. But she stayed in the church for months, and ICE agents didn’t dare go in and get her.

And then in May, ICE granted Vizguerra (and another Denver-area immigrant who’d taken church refuge) a stay of deportation. She was able to return home in time for Mother’s Day; “I have missed my kids. The fight is for them,” she told reporters.

Vizguerra’s stay was granted thanks to the involvement of local members of Congress, under a procedure that has become more stringent under Trump. In other cases, the administration has simply decided to grant extensions (often short-term ones) to particularly sympathetic immigrants.

In June, ICE was set to deport Florida resident Reina Gomez, a 49-year-old with a terminal cancer that she claims can’t be treated in her home country of Honduras — making deportation a “death sentence.” But after a public outcry, she was given, first, a two-week extension to consider her asylum application — then a one-year stay. The government was shamed.

Shame isn’t guaranteed, and a last-minute reprieve isn’t something anyone can count on (not to mention the fact that a one-year stay of deportation is no more permanent than the six months for Haitians with TPS). The Trump administration is using discretion much less frequently than its predecessor. But it’s using discretion more frequently than it allows when it claims that it’s really “the law” that deports people. Because sending people the message that there is something they can do to remain in the United States would undermine the politics of fear.

Even when the administration is trying to say that immigrants are safe from a particular fear or rumor, it’s unwilling to say that they’re safe. In a highly unusual move in early September, ICE put out a statement declaring it had no planned nationwide raid operations for the coming weeks — as a denial of widespread rumors that it was planning a massive nationwide sweep called “Operation Mega” to arrest more than 8,000 immigrants in mid-September. But the statement explicitly pointed to hurricane relief efforts in Florida and Texas as the reason the calendar had been cleared — leaving the obvious possibility that it could simply be rescheduled at a later date.

Similarly, the administration has all but said that it won’t send ICE lists of all immigrants who are set to lose DACA, allowing ICE to round up and arrest them as their protections expire. But it hasn’t made that promise explicitly, or promised to issue new guidance to agents about when they should and should not use DACA information for enforcement.

The rumors outstrip the policies — which is exactly the point

When a community is this taut with fear, any news or sign or rumor attracts disproportionate attention. So any policy change — or any sign that a policy change is being considered — is often greeted as a signal that “mass deportation” is coming, or that it’s already here.

Some DACA recipients are incredibly worried about getting rounded up when their protections expire. Some have even voiced a fear that they’ll be put in camps (an image that evokes not only the concentration camps in which Japanese Americans were put during World War II but the “tent cities” of Trump pardon beneficiary Joe Arpaio). The panic is happening behind closed doors, far from the public debate over the fate of the DREAMers (in which DACA recipients feel the need to portray themselves as brave, optimistic heroes), but it’s happening.

Those who never had DACA have spent the past several months making the daily calculation about safety. Jeannette Vizguerra decided not to go to her ICE meeting because she had heard about what happened to those who did. Central American families have stopped showing up to immigration court proceedings because they’re worried they’ll lose their asylum cases — and their best chance to stay in the US is to hide out of ICE’s sight.

Irfan Khan/Getty

Soon after Trump’s inauguration, local law enforcement started noting that Latinos were becoming less willing to report crimes. Judges have urged ICE not to make arrests in courtrooms because they might scare away victims from showing up to court. Immigration advocates in Houston believed it was likely, when Hurricane Harvey hit, that some unauthorized immigrants might have died because they stayed in their homes rather than evacuate along a route that featured a Border Patrol checkpoint.

The Trump administration tends to react to these fears with something resembling annoyance. Immigrants “should feel safe to go and report criminal activity,” acting ICE Director Homan told the press in July. But barely minutes later, he criticized, at length, the idea that “we concentrate too much on those that are not criminal”: “We got to stop sending the message that people that don't commit yet another crime should be forgotten,” he said.

The message, he said, had to be as clear as possible: “There is no safe haven here.”

Unauthorized immigrants themselves have gotten that message. Even without doing the heavy lifting of mass deportation, the administration has put together an enforcement regime that does just enough to remind immigrants they’re vulnerable — and lets fear do the rest.

Read more: www.vox.com/policy-and-politics/2017/9/14/16293906/trump-immigration-deportation