Justice in America Episode 8: Crimmigration
Josie and Clint talk with Alida Garcia, an attorney and advocate at FWD.us, about where immigration and criminal law increasingly overlap.
Historically, immigration law and criminal law have functioned separately. But over the past few decades, we’ve seen them slowly merge, as the criminalization of immigrants increased. Now, under Trump, the result has been policies like family separation. On this episode, we talk to Alida Garcia, an attorney and Vice President of Advocacy at FWD.us, about America’s shameful trend of criminalizing immigrants.
More about Alida’s organization, FWD.us, is found here.
Here’s the organization Alida referenced, Kids In Need of Defense to defend immigrant kids in courts.
The blog crimmigration.com is run by César Cuauhtémoc García Hernández, a professor at University of Denver. We highly recommend checking it out. He also wrote a great primer on the topic, called What is Crimmigration Law?, for the American Bar Association.
A great Justice Policy Institute report called “The Costs of Crimmigration: Exploring the Intersection Between Criminal Justice and Immigration” can be found here.
What immigration looks like in Texas, from The Appeal newsletter, which you can sign up for here.
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Our email is firstname.lastname@example.org.
Alida Garcia: At any one time, any immigrant, regardless of what they’ve accomplished in their life, is at risk of immense criminalization and so making a choice or the standard of excellence being so high, you know, you must be a Harvard graduate with a 4.0 that’s now going to go like cure cancer with your master’s degree or whatever, as how we judge how an immigrant should then be allowed to naturalize in the United States shouldn’t be our collective standard.
Josie: Hey everyone. I’m Josie Duffy Rice.
Clint: And I’m Clint Smith
Josie: And this is Justice in America. Each show we discuss a topic in the American criminal justice system and try to explain what it is and how it works.
Clint: Thanks so much to everyone for joining us today. You can find us on Twitter @Justice_Podcast, like our Facebook page at Justice in America and obviously subscribe and rate us on iTunes. We’d love to hear from you and every rating helps.
Josie: You just heard our guest, Alida Garcia, an attorney and the vice president of Advocacy at FWD.us. Alida has been someone on the front lines of the immigration fight for years and today we’re going to talk to her about immigration and it’s criminal consequences. As everyone surely knows, immigration is an incredibly important topic right now. Of course it’s always important, but for many the stakes have been really heightened after the recent presidential election and Trump’s victory. You know, during his campaign and ever since he was elected, the president has employed a lot of racist rhetoric around immigration and he is implemented some draconian, harsh and discriminatory immigration policies.
Donald Trump Clip #1: When Mexico sends its people they’re not sending their best. They’re bringing drugs, they’re bringing crime, they’re rapists and some I assume are good people.
Donald Trump Clip #2: What I’m doing is I’m calling very simply for a shutdown of Muslims entering the United States. They want a global jihad. Now, George, we can take it sitting back. You will have many more world trade centers. It’ll only get worse.
Donald Trump Clip #3: We have to have strong borders. We have to keep the drugs out of our country. We are, right now, we’re getting the drugs, they’re getting the cash. We need strong borders. We need absolute, we cannot give amnesty, but we have some bad hombres here and we’re going to get them out.
Josie: But immigration is kind of detailed and complicated and it’s often misunderstood by people on both sides of the aisle. So today we’re going to try to break some of this down for you.
Clint: In particular, we’re going to focus on some of the ways that immigration is misunderstood and how America has made a concerted effort in the past few years to criminalize immigration. So it was always, let’s start with the basics. First, one thing to note is that most of the action in the criminal justice system happens at the state or local level. About 84 percent of people serving time right now are in state prisons. Federal policy certainly has an impact, but to be sure it’s a much smaller one, but that’s not the case for immigration. States and localities don’t make immigration policy in America. That’s done by Congress and the president. In fact, immigration is an area where the president has an enormous amount of control.
Josie: So here’s a question: How many immigrants do you think live in the United States? Just take a guess. You got it? Okay. The answer is 40 million. That number is from May 2017. The new administration hasn’t released any updated numbers about the immigrant population in America, but immigrants account for about 13 percent of our population. According to Pew, more than 75 percent of immigrants in America have authorization to be here. That includes greencards, active visas, etcetera. Again, these numbers are from last year in ICE has been very, very busy since then, but the approximation is that about three quarters of immigrants have authorization. Today though, we’re primarily talking about the other 25 percent, undocumented immigrants.
Clint: Oftentimes we talk about undocumented immigrants as if they’re one big group of people with the same issues as far as their immigration status goes. But that’s not the case. For the sake of this conversation, we can think of undocumented immigrants as existing in kind of two major buckets. One group we’ll call inadmissible and the other we will call removable. Inadmissible immigrants are those who entered the country unauthorized. They include families crossing the southern border. And the removable category are people who have been authorized to enter the country but stayed in the country even after that authorization expired. Their visa, for example, might have expired, but they continued to stay.
Josie: We didn’t make up these terms inadmissible or removable. They’re general terms used in immigration policy ever since the Immigration Nationality Act of 1965 and the punishments that an undocumented immigrant faces depend on which category they’re in. The discussion around undocumented immigrants tends to focus on those that cross the border, in other words the immigrants considered inadmissible who entered the country without authorization.
Clint: If you listen to our president who’s constantly yelling about “building the wall,” you’d probably think that most undocumented immigrants were inadmissible, but the truth is that the vast majority, two thirds of immigrants are actually in the removable category. They entered America legally, but remain beyond their permissible window.
Josie: Donald Trump and Jeff Sessions insist that they are so concerned with all immigration, but we’re skeptical. After all, they’re not nearly as focused on the removable category as the inadmissible category. Part of the reason for that is because of who is in the inadmissible category. Hispanic and Latino people, including immigrants from Mexico and Central America, make up a higher percentage of inadmissible immigrants. The truth is though, whether you’re inadmissible or removable, it’s very difficult to obtain legal status in America if you’re undocumented. The idea of, ‘these people should just get in line,’ that’s a farce. If you’re undocumented in America, it’s almost impossible to actually obtain legal status while in the country.
Clint: Now, you may have heard the term illegal immigration. That’s big among people on the right, but we don’t use that term on our show under any circumstances. For one thing, people cannot be illegal, but the term is also wrong for another reason. See the word illegal relates to criminal law. It denotes some sort of criminality and criminal law is what we talk about almost exclusively on the show, but traditionally it’s important to note that immigration has been a separate thing from criminal law. They’ve operated in different spheres, different categories. Immigration is a civil issue, not a criminal one. Immigration court is a separate thing from criminal court. Immigration judges are separate from criminal judges, in fact, simply being in the country unlawfully is not actually a crime. It’s a civil violation. This doesn’t jive with the way that our country discusses immigration, of course, where undocumented immigrants are almost always framed as criminals. But this mass characterization, this sort of caricature of immigrants as criminals is largely due to the increase in what some people are referring to as “crimmigration.”
Josie: A professor named Julie Stumpf coined the term crimmigration back in 2006. Basically, crimmigration describes the combination of two formerly distinct bodies of law, criminal law and procedure with immigration law and procedure. And more clearly in America, it describes the way that our harsh and racist criminal justice system and our harsh and racist immigration system have worked together to excessively punish immigrants. Now, crimmigration, understandably is a loaded term and our guest Alida Garcia will talk more about why that is a little later. Some understand it as another way to indict immigrants as criminals, but the explosion of crimmigration policies aren’t an indictment of the system, not the immigrants. Crimmigration describes the policies that essentially result in punishment under the criminal justice system, like incarceration, as well as the immigration consequences, like deportation.
Clint: According to Cesar Garcia Hernandez, who was a scholar on this issue, crimmigration policy has three main features. (1) it dramatically expands the list of crimes that can result in deportation from the United States, (2) it freely relies on crimes that apply only to migrants and (3) it depends on detention as a way of policing.
Josie: To expand on what we said before, for most of our history, immigration law and criminal law existed and functioned separately. Criminal law involved prosecutors and defense attorneys, incarceration and judges in criminal court. And immigration law on the other hand dealt with immigration courts within the federal government, specifically again, the executive branch. Immigration attorneys and judges and prosecutors have always been part of what used to be known as the Immigration and Naturalization Service and what is now known as the Department of Homeland Security.
Clint: America’s treatment of immigrants has at many points throughout history been inhumane. This particular manifestation of our cruelty though can be largely traced back to a few things. (1) Ronald Reagan’s presidency, enough said, and (2) the increase in Cuban, Haitian and Central American immigrants from the late seventies through the early nineties. In other words, there were more brown immigrants. One of the major things that Reagan did was expand immigration detention. In the decades following World War II, America had rejected the mass detention of immigrants. Even as we implemented stricter immigration regulations, the actual detaining of immigrants was pretty rare until of course, an increasing number of Haitian immigrants began coming to America.
Josie: Reagan really didn’t like the idea of more Haitians coming into the country, so in order to deter them, he began to detaining all undocumented Haitians without the possibility of bond holding them until they can be seen by an immigration judge, at which point they would usually be deported. Over time, the detention of immigrants expanded dramatically. It became normal even though it’s essentially a criminal punishment for a civil infraction. The way that Reagan expanded crimmigration was also created out of another failed policy, the war on drugs.
Clint: The Anti-Drug Abuse Act of 1988 was part of Reagan’s war on drugs legislation that helped expand our mass incarceration system. But the harms of the law went beyond the criminal justice system, it created a new category of criminal offenses called aggravated felonies. Eventually, this aggravated felony thing became part of what is considered the primary immigration law called the Immigration and Naturalization Act. Any noncitizen convicted of an aggravated felony was (1) barred from obtaining citizenship (2) barred from getting a US visa and (3) placed in removal proceedings.
Josie: So at first, only the worst crimes were considered aggravated felonies, but over the next 20 years, the category expanded dramatically. Over time, tons of crimes included immigration consequences. Eventually gambling or possessing a tiny bit of marijuana could now get you kicked out of the country. Much of that expansion happened during the Clinton years under the Antiterrorism and Effective Death Penalty Act of 1996, otherwise known as AEDPA. AEDPA was a harmful law for many reasons, not the least of which was how it expanded the immigration industrial complex. Not only did an increasing number of criminal laws include immigration consequences, but the actual criminalization of immigration increased as well. During the eighties and nineties, prosecutions for illegal entry began to expand.
Clint: Now, this might be confusing because as we said, immigration is a civil offense, not a criminal one and just being in the country without authorization is a civil violation. But in 1965, as part of the Immigration and Nationality Act, a misdemeanor called illegal entry was created, so being here was a still a violation, but the actual act of entering or attempting, was now a crime. Still it was just a misdemeanor and for the next two decades there weren’t a ton of illegal entry prosecutions. But as mass incarceration grew, so did the number of people prosecuted for unauthorized entry. According to Pew, between 1992 and 2012, the number of people prosecuted for immigration related crimes, which are overwhelming to be sure, those charged with entering the country without authorization more than double. In 1992, there were 37,000 cases. In 2012, there were 76,000 cases.
Josie: So like Clint said, the number of people charged about doubled, but the number of people convicted multiplied by 28. In 1992, only 690 people were convicted of unlawful reentry. In 2012, almost 20,000 people were convicted. Today immigration offenses make up a large part of federal law enforcement. Fifty percent of people arrested and booked by federal law enforcement have been accused of immigration related offenses. Immigrant defendants are more likely than any other type of federal defendant to be held in pretrial detention on criminal charges and almost 97 percent of immigrant defendants are convicted.
Clint: So we try not to talk explicitly about him too much on this podcast because this is bigger than him, but we have to acknowledge that President Trump has made a lot of things worse and there’s no question about that. From zero tolerance policies, which means that every single person who enters without authorization is criminally prosecuted, even those who are seeking asylum, to the family separation policy, which put not only adults, but children in literal cages and separated babies and toddlers from their parents.
Josie: So here’s a clip obtained by ProPublica of children crying because they’ve been separated from their families.
[Clip of children’s voices sobbing and crying]
Josie: One child cries for their father. The other begs to be reunited with his aunt and here’s a mother, as she realizes her own child doesn’t recognize her.
[Clip of crying and talking in Spanish]
Josie: “I’m your mother,” she tells him as he tries to get away from her. Then crying, she asks, “What is wrong with my son?” All of it from the Muslim ban to family separation has been horrible and heartbreaking and like Clint said, Trump is the worst president we’ve seen on immigration in a very long time.
Clint: But every president from Reagan to Clinton to Bush to Obama has set the stage for this. Trump is able to do terrible things because the rest of them helped build the immigration industry into what it is today.
Josie: But while it’s true that other presidents help set the stage, under Trump, detainers have gotten longer. In 2017, the average length of stay at any one immigration prison or jail was 34 days compared to 22 days in 2016. He’s also tried to increase boots on the ground. He announced the eminent hiring of 10,000 more ICE agents and 5,000 more Custom and Border Patrol agents. And he’s spent a lot more money. All in all, last year the combined budget of immigration enforcement agencies was $19 billion, about 2.3 million people are currently part of the crimmigration system in the United States.
Clint: And one last thing, one of the main winners in the criminalization system is private prisons. The two biggest private prison corporations, the GEO Group and Correction Corporation of America, as it was formerly known, now known as CoreCivic, detain thousands of people. Most are from Mexico, followed by El Salvador, Honduras and Guatemala. In 2017, the GEO Group made $184 million just from detaining immigrants alone. That was followed by the Correction Corporation of America, followed by CoreCivic, which received $135 million for immigration detention related services and obligations.
Josie: So there’s much more to say about Trump’s immigration policy, but now we’re going to bring on Alida Garcia, an attorney and vice president of Advocacy at FWD.us.
Clint: Stay tuned.
Josie: So we’re here today with Alida Garcia and she’s been doing work around immigration advocacy for years and we’re so happy to have you on Alida. I thank you so much for joining us.
Alida Garcia: Thanks for having me.
Josie: We’ve been talking today about crimmigration, which is something I know you have a lot of insight on and I was hoping you could first tell us a little bit about what you’ve done in your career as an immigration rights advocate.
Alida Garcia: Uh, yeah. Well, my boss would be mad at me if I didn’t reject the term crimmigration. (Laughs)
Josie: (Chuckles) Okay. Great.
Alida Garcia: Because I think it is a great policy framework to talk through the overlap of multiple systems and people, but we are trying to move away from defining immigration from a frame of criminality.
Alida Garcia: So just wanted to say that up top.
Josie: Well that’s good because that’s actually what we want to talk about is how it is a civil issue that has been kind of co-opted by this language of criminality.
Alida Garcia: Totally. And so I’ve been working at FWD.us for a little over five years now, um, primarily on federal immigration policy. That’s included the comprehensive immigration reform fight of 2014, taking the deferred action for parental arrivals case to the Supreme Court in the United States versus Texas. Um, and we’ve had, you know, a shift in climate over the last couple of years and so that’s really been in a frame of defense around the Dream Act and trying to protect DACA recipients, um, and then also most recently organizing efforts around family separation and family reunification.
Josie: And so can you just tell us what that actual work looks like? I just want listeners to have, to be able to kind of picture what you’re doing day to day.
Alida Garcia: Totally. So my job is a little bit of everything related to national policy advocacy campaigns and so that is around setting legislative strategy, meeting with members of Congress, convincing them to care about the policies that we care about as an organization, get them to do events, meet with people impacted by the policies and vote the right way ultimately. But also running those campaigns in states and congressional districts across America as well. So a lot of my work is sort of the intersection of mobilization and policy advocacy directly to policymakers.
Clint: Alida, I’m curious, over the last several years we’ve seen different iterations of movement on the immigration reform front and there was certainly a moment I remember for me when I was a high school teacher and I was teaching in a school with a large immigrant population and a large undocumented population. And this was also a moment where we came closest to passing the Dream Act. I think we, the Act failed by five votes. And it’s interesting because it was also a moment in which the activism and advocacy around undocumented immigrants was centered on young people wearing caps and gowns and sitting in the middle of the streets and going to their representative and, and making the case. And we saw lots of Ivy League undocumented students or students who represented the sort of “best” of that community, if you will, best in air quotes. But we’ve also had a lot of conversation recently about the sort of false dichotomy between quote, “good” immigrants and “bad” immigrants. Um, and I’m wondering from an advocacy position how you all think of what it means to be effective in the advocacy space in building a platform with which to develop policy that has legs but also not to fall into the trap of lifting up one group of immigrants as the sort of ideal immigrant without then falling to the trap subsequently of implicitly demonizing a different group? How do you all sort of think about that balance in your work?
Alida Garcia: So that is a, a great question that I’ve debated over many a tequila over the last few years. So a couple of things that you brought up Clint is, um, I think you’re actually referring to the 2010 Dream Act Senate vote.
Alida Garcia: That lost by five votes. The Dream Act is a policy that would help undocumented young people who arrive to the United States as children to be put on a path to legalization. So these are children that are raised in the United States, they’ve been here for years on end, they are for all intents and purposes American in culture, in language and in their lives. And the Dream Act would help them be able to access both work authorization, not be at risk of deportation and get to a green card and eventually naturalized. And so this has been a long movement for about 17 years now to try to move forward this policy. Um, and in 2010 when Democrats controlled the house, the Senate and the White House, the Dream Act actually failed and did not become law. And it’s really sad if you think about it, had Democrats and Republicans, uh, also voted to pass that law in 2010, those dreamers then would have already been naturalized, uh, about three years ago and in theory could have been petitioning for their undocumented parents, um, to get green cards in the future. Versus the framework in which we exist now, which is DACA, which is a temporary program to supplement a lot of the protections of the Dream Act is no longer in existence with the exception of renewals and all of that is hanging on by a thread in the courts right now. And so I think globally it’s sad to see the transition of where we’ve been and the fights we’re having now, but I think over that period of time, the lessons we learned are the things that you speak to Clint, which is at any one time, any immigrant, regardless of what they’ve accomplished in their life, is at risk of immense criminalization. And so making a choice or the standard of excellence being so high, you know, you must be a Harvard graduate with a 4.0 that’s now going to go like cure cancer with your master’s degree or whatever as how we judge how an immigrant should then be allowed to naturalize in the United States, shouldn’t be our collective standard. And so there were a lot of lessons learned in the Dream Act campaign to make sure that we’re rounding out the storytelling of the experience of young immigrants and their families because it’s not just about them, it’s about their parents, it’s about their siblings, about their aunts and uncles. Um, and it’s this generation that has had the access to education, but that doesn’t make the courage and the sacrifice of their parents any less.
Josie: I love that. That’s a great answer and a great question Clint. So what we wanted to kind of highlight on this episode is that we’ve gotten to a point where people think that immigration is inherently, or even exclusively a criminal issue. And I think this goes obviously, particularly for people who are undocumented, there’s a conversation right now I think particularly on the right, that is don’t break the law and you don’t have to suffer any of these indignities, right? Obviously that is not just ill informed but malicious, but I was hoping you could talk about how, you know, immigration has traditionally been a civil issue and the shift that you’ve seen over the years in your own work and that could also mean seeing what states and localities are doing to kind of criminalize even more.
Alida Garcia: So I think that that is a great question and sadly it’s not one that has a clear answer. Um, which is why there’s a lot of confusion. So if we take a step back and look at the entire undocumented population, I think oftentimes people stereotypically assumed that all undocumented immigrants are Mexicans and arrived by crossing the southern border. That is actually not a reflection of the undocumented population in the United States. Only about 55 percent of undocumented immigrants came through the southern border. About 45 percent of undocumented immigrants actually came to the United States legally on a visa of some sorts, whether it be a tourist visa or a green card or a student visa and then stayed past the deadline of those visas and became what is called an overstay. Those two populations are sort of the violations in those acts are different. So if you cross the southern border, that is in theory a crime and a misdemeanor, if you overstay a visa, that is completely a civil violation. However, for any of those individuals, if they are in the United States and just the presence of being in the United States without status, that is a civil violation. And so immigration courts are civil courts and that is a lot of wonkiness. But it’s important to note that I think often times we’re like, ‘oh, immigrants, criminals, crime, criminal justice system,’ and that’s not how any of this works.
Alida Garcia: Where it gets very complicated and I’m sure we’ll dive into today is when all these systems sort of overlap and feed into each other and further criminalize communities within the process. But what we’ve seen over the years is really around the criminalization of the acts of being an immigrant versus the immigrating act itself. And so there were federal laws that were passed 1996 in the Clinton administration that made the penalization of undocumented immigrants in the United States significantly high in a manner that basically prevented a lot of the undocumented population from ever naturalizing and also putting them at much greater risk of deportation. So after 9/11, basically a lot of money went into immigration enforcement. So when you hear ICE or abolish ICE in the news, ICE is Immigration and Customs Enforcement. Um, and also into CBP, which is Customs and Border Protection. Those are two separate enforcement agencies that essentially are the, for lack of a better analogy, the police officers that detain and deport immigrants. After 9/11, the country started investing significantly in the budgets of these agencies and so while they used to only detain and deport in the tens of thousands, by the time President Obama was in the first Obama administration, they had the capacity to detain and deport around 400,000 immigrants in any one year. All of that is not necessarily the shift of criminal versus civil, but the expansion of resources to build the interior enforcement apparatus that targets and breaks apart communities.
Clint: So building on that, one thing I think a lot of people don’t know in the context of this conversation and in the context of immigration and even, you know, people seeking asylum and legal ports of entry in the context of their own immigration journey and that being criminalized, is that generally in the United States, people have access to counsel and it’s guaranteed, especially when they’re facing criminal charges. But that’s not the case as we know in immigration courts. And recently we’ve had all of these horror stories of, um, you know, even young children standing in front of judges without a lawyer that’s sort of been making the rounds and I’m wondering if you can tell us a little bit about the efforts to provide counsel to people in immigration court and the pushback that you’ve experienced either on a state or federal level and also are there sort of model programs out there that are providing representation for immigrants in a way that can be scaled or followed in other, in other places?
Alida Garcia: So this gets to what we were discussing between criminal and civil. So because immigration court is civil court, individuals have a right to counsel, but they don’t have a guarantee for council and that includes adults and children. What we’ve seen over the course of this summer from the zero tolerance policy, um, are a lot of stories that have emerged about existing or lack thereof, of any access to counsel within immigration proceedings. And that includes children because every year thousands of children arrive in the United States unaccompanied. And those children are then put into essentially deportation proceedings. And so what we’ve seen is a majority of those children actually never have a lawyer and 80 percent of children who show up unrepresented end up being deported, which makes a lot of sense because I don’t know if when you were four years old, you would be able to go to court and argue, you know, legal rights for yourselves. But that’s what’s happening. You know, there’s a lot of studies that have been done on this population. They found that immigrants overall, when they have access to counsel are 10.5 more times likely to succeed on their cases. But the challenge we also have with immigration enforcement, especially for those immigrants that are in detention, is that detention centers, which are essentially jails that house immigrants across the United States. There are about two hundred of them. They are frequently in very rural areas. And so in many detention centers, there are basically no operating attorneys. Um, it’s really hard to get attorneys to live in these regions. There’s not a lot there. These are like essentially prisons that live in the middle of nowhere, that house immigrants that are waiting for their deportations. There are access to counsel issues both just on, there’s no sort of guaranteed to council. Then there’s the geographic logistics and because there’s no guarantee to counsel you have to pay for your own attorney. And obviously this population doesn’t have access to legal work authorization in the United States. So a lot of them don’t have the money to pay for a private sector attorney to represent them. Because this is just sort of like, in my opinion, of vast miscarriage of justice or lack thereof, in the United States, a lot of people agree and there are efforts that have emerged over the last few years. So in New York, for example, New York City started the New York Immigrant Family Unity Project in partnership with the Vera Institute and it essentially created the nation’s first public defender, um, to help detained noncitizens where they basically helped make sure that immigrants going through immigration court in New York City had representation and it resulted in over a 1,000 percent increase in successful outcomes for immigrants going through that process. And so the success of that program in New York has really served as a model to both mobilize and investigate the ability to create similar models in other jurisdictions across the United States. We’ve seen places like California in the state budget, in other cities, smaller cities like Columbus, Ohio, start to invest in their budgets of their localities resources that go to deportation legal defense to better equip the residents with the legal services needs that they require, especially in this increased enforcement environment. The other thing I would say as it relates to the children, there is an organization called Kids in Need of Defense and they operate in a number of locations across the United States, but not everywhere. And so what they do is they recruit private sector, big firm lawyers to essentially represent the children who are housed in shelters across the United States, um, when those children have their immigration proceedings. And so KIND is a great organization that is really focused on making sure that children have more access to legal services.
Josie: On that same point, just talking about the fact that cities are looking into how they can provide access to counsel for undocumented immigrants in, you know, by looking at their budget, we hear about sanctuary cities, right? And we hear about other, um, sort of localities or even states that fundamentally don’t agree with the priorities of federal immigration enforcement and want to help protect the people in their jurisdiction from prosecution. Can you talk about other things that states and localities can do and should be doing to protect immigrants in their jurisdiction?
Alida Garcia: Sure. So there are a number of states that have taken initiative, um, over the last few years to do what they can within state policy. Obviously immigration is primarily managed through the federal system, but states like California and Colorado and others have done awesome stuff over the last few years like making sure that they pass driver’s licenses bills so that undocumented people can get a driver’s license. When you think about how transformative a driver’s license could be, um, in protecting a family, it’s the ability to move. It’s the ability to not have the same level of fear if the police pull you over where your consequence isn’t going to be immigration related consequence that could result in your deportation. And so that has really helped sort of restrict the access of police officers acting in agreements with the federal government in a way to sort of expand immigration enforcement. Other things that states have done have helped high school, uh, undocumented youth access in state tuition. So people don’t think about this a lot, but basically undocumented immigrant high schoolers, if they apply to college, they are treated, even though they, let’s say they lived in New York state for I guess at that point, 17 years, and they apply to college as a New York state resident, they would be treated as though they’re like an international student or out of state and have three times the tuition. But then their parents are working under the table without work authorization. So this isn’t a family that could ever afford that level of education cost. And so states have been passing in state tuition bills. But on the enforcement side, basically there’s something called a 287(g) agreements, which is when the federal government tries to create a formalized arrangement with local law enforcement that essentially allow them to work in coordination and this is really where the immigration system and the criminal justice system and policing overall really start to expand the reach into community. What sanctuary means really differs from city to state to county across America. But it’s really about how are local resources being used to increase the pipeline of access of the federal government to access our residents to move them into deportation proceedings. That’s like ultimately what the framework of sanctuary is. And that can be done in a variety of ways. You have places like Texas that has passed a law that essentially makes police officers have the ability to racially profile it’s residents or you have places where jails will be asked for detainers, which essentially means if someone is arrested and put in a jail, the government can ask that jail to hold that individual for a series of time so that, uh, the federal government can go pick up that individual and take them into immigration detention or proceedings thereafter. And so that collaboration is what the movement has been trying to deconstruct because it really sort of uses the overall criminal justice system to expand massively the reach of the immigration enforcement entities.
Clint: So we’re in this moment right now in which immigration is at the forefront of our political discourse. Not in a way that is unprecedented necessarily, but in a way that is much more, seems much more cruel, outrightly cruel than that which we might have seen in sort of previous administrations. It’s manifesting itself in a different way. But even that idea brings up a lot of different opinions for people. So, you know, Obama, for, for some immigration activists, uh, was known as the deporter in chief, right? And people talked about how Obama in fact deported over 2 million people and that in, in many ways with his tough immigration policies he set the stage for Trump while others have said, well, you know, he was doing this as a, as a means of trying to give the Republicans something so that there could be a larger immigration reform package and they didn’t respond in good faith. And then he had DACA and created more progressive immigration policies when he realized that they weren’t operating in good faith. And so I’m curious how, how you think of that entire landscape of interacting issues and where you come down on, on what Obama did in setting the stage for Trump or if you think that he’s sort of unfairly characterized as the deporter in chief?
Alida Garcia: Oh, Clint, you keep asking the questions that I’ve just had many long nights at the bar. (Laughs)
Clint: I know I ask because I’ve also had these long nights at the bar.
Alida Garcia: (Laughing) Um, so I should say with full disclosure that in 2012 I served as President Obama’s National Latino Vote Deputy Director, and I am very proud of that choice, um, and stand by it. Um, I took up that job because I believed he wanted to pass comprehensive immigration reform in his second term and I do believe that he wanted to do that and tried because I worked on the outside, but very closely with his administration, um, that first 2013 and 2014 year trying to move that ball forward. So I set that context so that people know where my opinion is coming from and perhaps some bias in my answer here. I think there are a couple of things. President Obama did not create DHS and did not walk into the DHS budget and sort of the growth we saw from 9/11 that sort of emerged into the capacity in which he had. I think that he made, he and his administration made a good faith effort to try to pass comprehensive immigration reform in 2013, which would have legalized the overwhelming majority of the undocumented population. That bill got stalled in the House of Representatives and it didn’t pass. And so then what happened was advocates pivoted toward him and that’s when sort of the deporter in chief narrative emerged to pressure him to do what he could within his executive authority to make the lives for the undocumented population at least marginally better. And so that push was around the Deferred Action for Parental Arrivals program, which essentially is the DACA program for parents of United States citizens who are undocumented. That program would have ultimately helped about 4.5 million people. So if you combined that with DACA, which is about another 2 million of the undocumented population, President Obama did announce policies that would have given work authorization and create deportation protections for over half of the entire undocumented population over the course of his presidency. However, and this is where the asterix come in, that policy was challenged by Ken Paxton, the Attorney General of Texas, and not a single immigrant ever received that work authorization card from the DAPA program. It was completely derailed. Um, and so we never saw that impact. So I think that there were great attempts to provide awesome solutions, at least the ones that were achievable within the executive branch. However, those victories were in great part due to the advocacy and pressure from the outside from undocumented youth, um, and uh, the undocumented community at large. And so, you know, there’s no ‘whose fault is it’ perfect answer that, that I feel like I can give because I was very much so in the middle of it all and feel like there were a lot of good people who tried really hard. But President Obama ultimately did not succeed in a lot of his objectives on immigration and simultaneously caused a lot of harm. One of the things that people critique him about a lot is a complicated one and I think really interesting for your listeners, which is the concept of enforcement priorities. What the president, what President Obama did was he essentially said, we’re going to almost rank which people we are just not going to spend our DHS resources in targeting and deporting. But what happens when you do that is like you say, okay, we’re not gonna use our resources to pull over a mother on the side of the road and deport her because she’s undocumented. We’re going to weigh the equities of her being a mom, being here for 20 years and have some discretion in that decision making. But what that did was put the people on the bottom of that list at most risk and those people were individuals who have criminal convictions. That is where, in many ways, immigration land and criminal justice land tend to have conflicts. When you look at compromises around immigration policy, the people that get kicked out of compromise frequently would be immigrants that have seriously violent or violent criminal convictions. If you look at criminal justice policy sometimes protections would be in place for individuals or resources for individuals except if they are an undocumented immigrant. And I think what the two movements that are emerging into this sort of crimmigration framework of higher solidarity and focus is really trying to sort through those mistakes, recognize the crossover, these are the same families, the same communities, the same racialized politics. Obviously unique histories and unique migration patterns, um, but overall criminalization of people of color in the United States and that we should not take the bait to throw any sectors of our community under the bus in the process. And so that was something that President Obama did that resulted in a lot of people who had encountered the criminal justice system previously, put them at much greater risk and is subject to a lot of debate. So that’s my, like, you know, round-the-way answer to your question, Clint.
Clint: No, no round-the-way at all. I thought it was really, really nuanced and thoughtful.
Josie: I’d like to hear from you how the Trump administration is expanding criminal consequences for immigration offenses and about their policies more generally about zero tolerance and family separation and how this does differ from what came before.
Alida Garcia: Yeah, so this is an argument that I am very happy to take on with anybody at any time that things are much worse under the Trump administration than the Obama administration when it comes to interior enforcement. And that’s in many part because we need to be mindful of what this administration is trying to do. And they are trying to stop all immigration to the United States and that is both enforcing from the interior and removing the undocumented population, but they are also trying to cut avenues for lawful immigration into the United States through different visa categories and whatnot. And it’s important to have that global framework because then it starts to make sense what they’re doing. And on essentially the, I don’t know, maybe the fourth or fifth day of the Trump administration, we all heard about the Muslim ban, right? Everyone remembers that day when that policy was announced. What people don’t know from that day was they actually announced three immigration executive orders. And one of them was an interior enforcement order, which essentially removed the priorities that I just described from the Obama administration completely, which essentially then made all 11 million undocumented people subject to both the prioritization of removal from ICE, um, and in a far more vulnerable state. Essentially what this did was give a green light to ICE to go rogue however they wanted in their regions and start terrorizing communities. They also, as a part of that, started to open up things like or reopen things like workplace raids. Once they greenlighted ICE agents to be able to sort of detain and deport everyone, they essentially gave ICE agents all the discretion and now they’re trying to remove all discretion from judges. The context is give ICE the freedom that they need and DHS to find detain and deport people and then Jeff Sessions overseeing the immigration courts is basically saying, ‘how do I remove discretion and turn immigration judges into deportation machines?’ Um, and so he is starting to basically tell judges what they can and can’t do, tell them how quickly they need to do it. Um, and his goal is to basically churn through the immigration backlog but remove discretion so that any case that gets before his judges results in deportation. They are trying to sort of increase the pipeline in that front. Um, but other things that they’re doing are workplace raids and storming into workplaces that employ a number of undocumented people in rural areas across America. And those workplace raids, the fear that then is subsequently instilled across community is so great and the devastation that is happening to children is so traumatizing because those communities that are rural, it’ll be like a whole family that works at these places. And so the kids are at school, they come home and the parents are nowhere to be found. Simultaneously, they are trying to basically deplete asylum as, as a legal channel of immigration to the United States. So pursuing asylum is a lawful act and people that are seeking asylum are fleeing from Central America, some of the most horrific, violent circumstances across the world. Um, and they are treated as quote unquote “illegals” when they arrived in the United States. But these are essentially refugees arriving by foot in the United States. And so what we saw in the Summer with the zero tolerance policy was essentially Jeff Sessions said, ‘anyone who enters the United States between a port of entry,’ so like they didn’t go through like the formal door ‘will automatically be referred for criminal prosecution’ and what that did was essentially take people that were seeking asylum, which is lawful, and move them into the custody of the US Marshal, take them into court houses where there would be dozens of them, you know, forty people in jumpsuits with the judge, where they’d all be mass sentenced. And then during that period of time their children would be taken from them and their children were then put in shelters across the United States. And so it was the tool of the criminal justice system used by the attorney general, that fueled the ability for this administration to rip children from mothers and separate them. Over 500 that continue to this day to be, at least for now, separated from their parents. Uh, it’s important to know that especially right now with the attorney general that we have, whose sole goal is to remove and harm as many immigrants as possible every day when he wakes up, that he will use all of the tools at his disposal to both increase the pipeline and cause as much harm along the way.
Clint: So Alida, with all of this said, and you’ve given us some really important context for everything that’s going on, what do you think should be the priorities of Congress and immigration policy advocates moving forward? Obviously, you know, so much of this depends on the sort of makeup of Congress in 2019 after the midterms, but maybe it doesn’t, I don’t know. How are immigration advocates thinking about their legislative fights on, on a national or on a state level in this political moment?
Alida Garcia: So, most urgently Congress every year votes on a budget that funds these agencies. And so how I talked about earlier, how since 9/11, basically the enforcement budgets of DHS have skyrocketed, uh, members of Congress can choose to support a smaller budget for ICE and CBP. Why after family separation would we want to give them more infrastructure to build family detention centers, to increase, you know, those warehouses we saw with the fences and the mylar blankets? That’s where that money goes. So we have a moral question as a nation to decide are we going to continue to increase the budgets and reward the behavior of the agency ran and enforced by essentially individuals that used to work at white nationalist organizations, um, now run portfolios within the Department of Homeland Security?Do we want to give those individuals more money to hurt DACA recipients like they have, to create the Muslim ban, to do family separation? All of these acts are committed by the Department of Homeland Security and so members of Congress have a moral choice in the next couple of months to decide if they’re going to reward those individuals with more cash or they’re going to decrease the amount of cash they have. And so that’s one very urgent priority. Secondly, I would say DACA is hanging on by a thread in the courts, thanks to the Ninth Circuit and the Second Circuit in DC, but we believe that Texas is going to try, and the government through Jeff Sessions, are going to try to challenge the injunctions that we have that are maintaining DACA renewals and take that case to the Supreme Court to disrupt that and end DACA completely. And so we still need a Dream Act passed immediately. There are also TPS recipients from countries that have faced natural disasters and other horrific incidences and those individuals, there’s a hundreds of thousands of them, are all set to be deported in 2019 and they require a legislative solution. So, you know, those are just like three things that are very, very urgent. But there’s, you know, there are things that are happening like the Trump administration’s trying to remove the work authorization of H-4 visa holders, which is basically 100,000 women who have spouses that are immigrants to the United States and they would be kicked out of their jobs. And so it’s every week they’re announcing something. Um, and what we need to commit to with the next Congress is that we all rally together to restore all of the harm that’s been done, but then ultimately fight to legalize the full undocumented population and that’ll take a few years. So it’s a long fight ahead.
Josie: Great. That’s such, this has been so enlightening. A little depressing given what the reality looks like, but I’m really grateful for you taking the time to talk to us and I’m also super grateful that you’re on the front lines of this because there is no one better to be doing this work. So thank you so much Alida.
Alida Garcia: Y’all have a good day.
Clint: You too.
Josie: That was Alida Garcia, an attorney and the vice president of Advocacy at FWD.us. Thank you so much for joining us Alida.
Clint: And thank you for listening to Justice in America. I’m Clint Smith.
Josie: I’m Josie Duffy Rice.
Clint: You can find us on Twitter @Justice_Podcast, like our Facebook page at Justice in America and subscribe and rate us on iTunes. It really helps a lot.
Josie: Justice in America is produced by Florence Barrau-Adams, the production assistant is Trendel Lightburn and additional research support is provided by Johanna Wald. Thank you and join us next week.