By Phil Kretsedemas and David C. Brotherton – The following is an edited excerpt from the introduction to “Immigration Policy in the Age of Punishment,” which was published earlier this year by Columbia University Press – Studies in Transgression Book Series.
We should resist the temptation to treat the Obama era as a golden age of progressive immigration policies. The draconian overtones of Trump-era immigration policy—epitomized by its controversial travel ban targeting Arab Muslim nationals—certainly invite this way of framing things. But the differences in Obama- and Trump-era policies, which are not inconsequential by any means, also operate within a continuum.
At the time of this writing, the Trump administration has distinguished itself, most apparently, in the overall scale of its enforcement actions. As of May 2017, arrests by Immigration and Customs Enforcement were up by 37.6 percent over arrest rates during the same period of 2016. Immigration judges are also issuing deportation orders more frequently. As of May 2017, the proportion of deportation hearings ending in a final order of deportation was approximately 10 percent higher than the year-end average for 2016. These enforcement trends are consistent with the objectives laid out by the executive orders on immigration that were issued by president Trump in January 2017. Of special significance is the order titled, “Enhancing Public Safety in the Interior of the United States,” which expands the discretionary authority of immigration enforcement to arrest and detain noncitizens that had been routinely exempted from the Obama administration’s enforcement priorities. These developments have led some observers to speculate that the major change introduced by Trump era enforcement priorities has to do with “who” is at risk of deportation rather than “how many” are being deported.
These developments have lead some observers to speculate that the major change introduced by Trump era enforcement priorities has to do with “who” is at risk of deportation rather than “how many” are being deported.
This change in enforcement practice undermines the idea that there are such things as “protected categories” of noncitizens; creating a situation in which almost any noncitizen can imagine themselves a candidate for deportation—irrespective of whether they have broken a law or had a run-in with immigration enforcement. As De Genova (and several other immigration scholars) have explained, the micro-macro impact of immigration enforcement should be viewed in light of this potential-to-be-deported, which shapes the behavior of the vast majority of noncitizens who are never brought before an immigration court. But if we accept these arguments, it becomes more apparent how the features that appear to distinguish Trump-era immigration enforcement underscore its continuity with the enforcement strategies that precede it.
It is important to keep in mind that theories of deportability and neoliberal prudentialism (among others) were developed over a decade before the election of Donald Trump, to explain an enforcement stratagem that can be traced at least as far back as the Clinton era (though as Calavita’s research indicates, its germinal features were present in the Bracero era). This is why the unprecedented toughness of Trump’s immigration agenda can be understood as operating within a “normal” that has been cultivated by the past several decades of U.S. immigration policy. Even the intensification of immigration enforcement under the Trump administration can be understood as a “normal” feature of a linear escalation that has unfolded from the 1990s onward; whereby the enforcement actions of each new administration outpace those of its predecessors.
The unprecedented toughness of Trump’s immigration agenda can be understood as operating within a “normal” that has been cultivated by the past several decades of U.S. immigration policy.
But ironically, deportation rates have been sluggish in the first few months of the Trump administration—despite its record high arrest rates. The Trump administration has actually deported 12 percent fewer noncitizens in its first one hundred days than were deported by the same time in 2016. This is partly because the deportation case load of the immigration court system is very backlogged; a collateral effect of its massively expanded size. The inability of the Trump administration to accelerate deportation rates has also been compounded by its failure to get many of its immigration priorities funded in the May 2017 federal budget (including construction of the border wall, expansion of detention beds and a hiring increase for immigration enforcement and border patrol agents). But it is even more telling that Trump administration officials have played down the scale of their enforcement agenda, by insisting that they are not carrying out a mass deportation program—which begs the question of how exactly one distinguishes a mass deportation program from a major increase in immigration enforcement actions (also considering that the annual rate of enforcement actions that we take as “normal” today exceeds the scale of “mass deportation” programs like Operation Wetback which Trump touted on the campaign trail). These statements illustrate how the Trump administration is simultaneously attempting to position itself as tougher on immigration than the Obama administration, and also operating within the normal rule of law.
But as we explained above, this is not only rhetoric. The Trump administration has been able to channel its get-tough enforcement agenda through programs, policy levers, and executive powers crafted by prior administrations, because there are real continuities in the way immigration enforcement has been used by all of these administrations. For example, although one of Trump’s executive orders terminated the Priority Enforcement Program (PEP) that was initiated by the Obama administration, it replaced PEP with the more aggressive Secure Communities enforcement program that had been initiated by the George W. Bush administration (and was active through most of Obama’s tenure as president). The Trump administration has also created incentives for local police to enforce federal immigration laws by reviving the 287(g) program, authorized by the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) that was enacted under the Clinton administration.
The Trump administration has been able to channel its get-tough enforcement agenda through programs, policy levers, and executive powers crafted by prior administrations, because there are real continuities in the way immigration enforcement has been used by all of these administrations.
In a surprising departure from his campaign trail rhetoric, president Trump has also decided not to terminate the Deferred Action Childhood Arrivals program created by president Obama, which grants qualified undocumented migrant youth an indefinite reprieve from deportation. It is also worth noting that Trump had nothing to do with the de facto termination of Obama’s follow up to DACA (Deferred Action for Parents of Americans, which aimed to protect undocumented parents with legal resident children), which resulted from a Supreme Court split decision in 2016. Even so, the Trump administration has underscored its enforcement priorities by escalating the deportation of DACA recipients facing criminal allegations (increasing DACA revocations for criminal reasons by 25 percent, during the first few months of 2017). Meanwhile, DACA continues to operate as it had under the Obama administration. The DHS is still accepting new applicants to the DACA program, and since Trump’s inauguration, it has been processing hundreds of these applications on a daily basis. Furthermore, president Trump has suggested that he might approve a comprehensive immigration reform bill that grants permanent status to some undocumented migrants (with DACA recipients being among the likely candidates).
The Trump administration has taken a similar approach in its treatment of H-1B visa holders. H-1B is another program that Trump promised to eliminate on the campaign trail, which he has since decided to let stand. The administration has used its discretionary authority to end the expedited review of H-1B visa applications—a decision that effectively reduces H-1B admissions—and has drawn criticism from the business community accordingly. But Trump has also signaled his intentions to overturn an Obama-era legal precedent that held all parties in jointly owned companies more accountable to charges of worker exploitation (which includes abuses of work-visa programs).
The trade-off the Trump administration seems to be offering the business community is reduced access to H-1B visa holders in exchange for a labor policy that strengthens the hand of employers in the workplace. The willingness of the Trump administration to frustrate employer demands for guest workers may lend more credibility to its economic nationalism, which has been amplified by an April 2017 executive order titled “Buy America and Hire American.” However, the executive order does not create any new programs or procedures for vetting work visa applicants. It only affirms the Trump administration’s commitment to protecting U.S. jobs, using existing legal channels and has been assessed, by many analysts, as being little more than a symbolic statement, comparable to Trump’s use of the bully pulpit to shame multinationals into bringing jobs back to the United States. The end result for H-1B visa recipients, however, is similar to that for DACA recipients.
In both cases, noncitizens are being reminded of their precarious legal status while being given the impression that they still have a shot at gaining a secure status. The possibility of removal (or visa non-renewal), conditioned by the right combination of incentives, sets the stage for an extralegal mode of power that encourages the subject to let go of an expectation of guaranteed rights and adapt to the prerogatives of a sovereign decision maker (which could be an immigration officer, an employer, or any person with the authority to set in motion a process that leads the subject to be charged with a deportable violation). This exercise of power has arguably always been a feature of U.S. immigration law and can be traced to the plenary power principle, which was first clarified in the late nineteenth century.
Neoliberal governing priorities, which are distrustful of binding legal agreements, give this mode of power more room to operate. This is one reason why temporary legal status has become the new normal for migrants today. Noncitizens today often spend ten years or more living under probationary status (as quasi-stateless people) before their application for permanent status is accepted, and a great many have adjusted to a life that is permanently defined by legal precarity.
Noncitizens today often spend ten years or more living under probationary status (as quasi-stateless people) before their application for permanent status is accepted, and a great many have adjusted to a life that is permanently defined by legal precarity.
Meanwhile, the neoliberal push to marketize almost every aspect of social life has produced a similar weakening of social, political, and civil rights for citizens. The Trump administration may be exercising this mode of power in a more freewheeling way than have prior administrations, but it is also exploiting a discretionary authority that has been cultivated and expanded by these same governing administrations.
Editor’s Note: In September 2017, President Trump rescinded DACA. Federal court injunctions have kept DACA going for those currently enrolled, but no new applicants can apply.