American Immigration Laws Have Always Been About Preserving Whiteness

Weekly Article
Sept. 22, 2020

On September 14, several legal advocacy groups filed a whistleblower complaint against ICE, accusing the agency of systematically administering forced hysterectomies to immigrant women at its detention facility in Ocilla, Georgia. While the details of this latest case are alarming, they are consonant with the United States’ history of a violent and increasingly carceral immigration regime.

Despite the quintessential melting pot rhetoric, immigrants to the United States have long had to contend with xenophobia, racism, and economic exploitation. This legacy has been reanimated and exacerbated under the Trump administration, which has heightened immigrant communities’ economic precarity and vulnerability to state violence. And this had been made worse still by the spread of COVID-19, which has hit immigrants, particularly detained immigrants, particularly hard.

To unpack some of this history, I interviewed Alina Das, law professor at New York University School of Law, co-director of the NYU Immigrant Rights Clinic, and author of No Justice In The Shadows: How America Criminalizes Immigrants. We discussed the development of American immigration law, how we got to our current detention-deportation system, and how to fight back.

The following interview has been lightly edited for clarity and context.

Your book traces the racist logic that formed our first laws policing migration, which were created to capture and detain runaway slaves. Racism undergirds much of how our immigration laws have been bent and shaped until the present day, from the Chinese Exclusion Act to today’s detention-deportation system. What were the motivations of the United States to establish and maintain a race-based immigration system?

When European nations first arrived, they had a very specific purpose to colonize and settle the land for themselves. That goal drove many of the laws that eventually became the foundations of immigration law. The laws that were then created were designed to encourage voluntary migration from propertied, white, Protestant men, and then to encourage forced migration both of enslaved people and indentured servants so they could provide labor for those who were colonizing the land.

Originally, there was never a sense that foreignness in and of itself was a problem. It was much more about the racial, religious, and gender prejudices that people carried over from Europe as they came here. And, of course, there was concern about people who were originally here—indigenous people, who were initially promised some measure of trade and cooperation, but were eventually forced out through violence.

The Constitution itself didn’t say much about immigration, but it did ask Congress to come up with a uniform rule of naturalization. When they did that in 1790, they specifically had Black people in mind and limited citizenship to free white persons. Even when it came to birthright citizenship, which was understood to be part of the foundations of the Constitution, Black people were not considered [eligible] to receive citizenship at birth. So from the beginning, race had everything to do with who belonged in the United States and was a significant driver of these concepts of citizenship and immigration—much more than this idea that being born somewhere else made you suspect.

This fear of the freed Black person was a significant driver for local, state, and federal laws that controlled movement. The Fugitive Slave Laws—which allowed people to be removed from free states and sent back to slave states—required Black people to carry their papers at all times in order to prove they had a certain kind of status that allowed them to be in a particular place. This regulation of movement and this idea of status crime developed in the context of controlling freed Black people. There was already fear of Black immigrants as early as the early 1800s, when slavery was abolished and Black people were free—this fear that the United States could become what became Haiti, where independence was achieved through a massive revolt of enslaved people in the early 1800s.

So states started to pass laws to prevent the migration of Black people into their states, because there was a fear that freed Black immigrants would encourage enslaved Black people in the United States to also revolt against their slave owners. These laws were designed to control the movement and settlement of Black people to prevent them from becoming part of white communities within the United States. This fear of Black migration and settlement, and the techniques and protocols used to control this, were then applied to other disfavored groups—the first among them being Chinese immigrants. When the 1875 Page Act, the first restrictive immigration law, was passed and enforced, it did not explicitly say they were targeting all Chinese people. Instead, it excluded prostitutes and convicts from the United States, which was a reflection of language that was used to describe Chinese women and men in California through state legislation. This laid the groundwork for the Chinese Exclusion Act and, later, national quotas and what we now know as Border Patrol.

This history cuts into the good versus bad immigrant binary that even immigrant advocates are often guilty of utilizing. In our desperation to get some sort of legislation for legalization passed, we’ve put forth the rhetoric that immigrants like the Dreamers, who are educated and pay their taxes, are worthy of U.S. citizenship, while “criminal aliens” aren’t—and should be prosecuted and deported via a militarized enforcement mechanism. What are the ramifications of this narrative? What should we be demanding instead?

In terms of who is the desirable immigrant: The kind of principles we now encourage, such as diversity, are not actually reflected in immigration law and never have been. In part, that’s because the era of Chinese exclusion was soon followed by the eugenicist era, where immigration law was structured around national origin quotas and very explicitly designed to keep out anyone other than people from certain European countries who were designated as “desirable” white immigrants. The definition of whiteness was debated in the law for a very long time and generally used to keep African, Asian, and other immigrants out of the United States.

That was until 1965, when civil rights protests and a fear of communism pushed the United States to finally get rid of what was seen as an openly racist immigration system. We got our system of family and employment-based immigration through the 1965 Immigration Act. We also got new caps on visas that were applied to people from Central and South America. Suddenly, we had a new way of talking about undesirable immigrants: people who overnight became undocumented became “illegal,” simply because was no path for them to come to the United States.

At the same time, there was rising fear of racial mixing and Black migration from the South to the North. “Law and order” came into effect, as white communities responded to the civil rights movement by expanding policing, prosecution, and prisons. Suddenly, anyone who is coming here unlawfully, or who arrives and develops a criminal record, is by definition a “bad” immigrant.

When you have these two phenomena happening at the same time, criminalization of immigration and escalation of racialized policing, we get to the point where we are today—where one in three Americans has had some sort of contact with the criminal legal system as an adult. So criminalization rhetoric ends up taking the place of language that was openly directed at Black, Asian, and Latinx immigrants before. That’s partially why the good vs. bad immigrant myth is so problematic: It’s rooted in restrictive immigration policy that has only allowed the worst aspects of our immigration enforcement system to grow.

What does it mean to abolish ICE and the criminalization of immigrants? How do we reimagine public safety?

When we tinker with immigration law and policy, and pick some groups to benefit and leave others vulnerable, the groups who remain vulnerable will still drive this massive deportation machinery. A call to abolish ICE is a recognition that anything less than foundational change will leave us with a system that will still target people because of their race, religion, and factors that we, at least in principle, believe should not be the basis of how you’re treated under the law. So if you want to achieve change, you have to scrap the system we have and start over—and that’s fundamentally what abolishing ICE calls for.

It’s about reimagining what the immigration system could look like if we didn’t have a massively funded federal agency of people with badges and guns who believe they are targeting people for the safety of the country, when in fact they are targeting our neighbors, our loved ones, people in our schools, workplaces, and communities. It’s a fundamentally flawed agency driven by a mission that reflects many of the same underlying principles we saw when immigration law was openly and admittedly racist.

The good vs. bad immigrant myth is so problematic because it’s rooted in restrictive immigration policy that has only allowed the worst aspects of our immigration enforcement system to grow.

To give an example of tinkering, Secure Communities was a pilot project under the George W. Bush administration that would take people’s fingerprints if you were arrested through interaction with local law enforcement. Those fingerprints would then be sent to the Department of Homeland Security (DHS), allowing DHS to go after what the Bush administration described as “the worst of the worst” and ensure that those people were deported. Many of the people who, at the time, wanted federal agencies and local police to cooperate with each other, thought that this was the way to solve terrorism and keep people protected. That program started at the end of the Bush administration.

Then comes President Barack Obama. Here you have a man who is very clear that he cares deeply about immigrant communities, who ran a pro-immigrant platform—but also felt he needed to achieve immigration reform by proving his administration was going to be tough on “bad immigrants.” So President Obama took Secure Communities, expanded it, and eventually required it across the United States, despite the fact that many cities and states made it clear that they did not want to participate. They saw that it was becoming a funnel and drag net for deportation and said they wouldn’t voluntarily implement Secure Communities in their jurisdictions.

The Obama administration pushed it through despite this criticism. It defended Secure Communities by repeating the lines of the Bush administration, stating that this is a program that goes after the “worst of the worst.” It accepted the idea that having contact with the police is a sign that you’re a bad person, even though having contact with the police is often more indicative of the color of your skin, the neighborhood you live in, and your resources. But even knowing that, this administration championed Secure Communities. As a result, interior enforcement—this idea of deporting people inside the United States—skyrocketed under the Obama administration.

It was only very late in his second term that he started trying to make piecemeal reforms to curb that practice, because data showed that the vast majority of people who were being targeted through this program were people with very minor interactions with law enforcement: traffic stops, drug possession, the kinds of offenses that certainly take place in many wealthy white communities, but aren’t deemed worthy of this kind of punishment.

At some point, Obama tried to make changes. But it wasn’t abolition, he didn’t withdraw the Secure Communities Program—he tinkered with it, and, as a result, it continued to funnel tens of thousands of people into the deportation machine. This led to, or at least led a significant part to, the Obama administration forcibly deporting more people than any other administration before him, and the growth of deportation machinery that the Trump administration was able to capture and expand even further.

So, this example of Secure Communities is a perfect example of why, when you structure policy around this idea that there are good immigrants who deserve a path to citizenship and bad immigrants who deserve deportation, it’s that group of bad immigrants that will always expand and justify deportation machinery—which will in turn harm countless numbers of people. People with the most serious convictions who are picked up through this program are, by definition, people who have already served their time in the community, and still have family members who love them.

My second example relates to COVID-19. As COVID-19 started spreading throughout the United States, we saw very different reactions coming from DHS compared to other agencies at both the federal and state levels where people were confined. Under the last several administrations, tens of thousands of people have been locked up in immigration jails every day, facing a deportation process in those jails and prisons. They are extremely vulnerable because like any jail or prison, these are in closed, confined spaces that are not designed to provide a humane environment for people even in the best of circumstances.

Medical professionals sounded the alarm, making it clear that there would be significant risk of exponential growth of COVID-19 spread and death unless people were released. In this context, we saw many states and localities releasing people from jails and prisons—not at the rate the community demanded, but certainly adopting policies pretty early on. In contrast, ICE, which is in charge of the majority of immigration detention centers, maintained steadfastly that they would not release anyone. They insisted on not releasing people even as they were fighting lawsuits and courts were forcing them to adopt somewhat different policies. They have continued to hold people in their facilities and have prevented them from being released. Their justification for doing so is “public safety.”

ICE claims that, unlike all the other jails and prisons in this country, they have to keep people in their jails and prisons because they are a threat to public safety. I represent many people who have sought their release from immigration jail, and in every single case, ICE says no and fights it in court, claiming our client is a safety risk. But ICE is not the only one to blame for that: In many of the calls that medical professionals and immigration advocacy organizations have made for ICE to change its policies, they too have adopted that language, asking ICE to release everyone who’s not a threat to public safety.

I think that’s part of the reason why dividing immigrants into good and bad, deserving and undeserving, lets agencies like ICE, Border Patrol, and others get away with constantly expanding their budgets, developing increasingly violent and militarized tactics, and treating immigrant communities like they are the enemy as opposed to a group of people who are no different from anyone else living in this country, other than the fact that they lack a piece of paper.

Back in July, Customs and Border Protection (CBP) agents were deployed to Portland, Oregon to counter Black Lives Matter protests. In your book, you say, “American policy routinely conflates immigration, public safety, and national security.” To see federal officers kidnap people off the street is terrifying, but for immigrants, being surveilled, stalked, and kidnapped off the street has been a default reality. How do CBP actions at Portland reflect this history?

The origins of Border Patrol go back to the period of U.S. history when we were crafting immigration law through an openly eugenicist frame—that America was for white people and that immigration law should be written in a way that preserved whiteness. As the national origins quotas were being written in the 1920s, a compromise was reached to exclude some countries in the Western Hemisphere—namely, Mexico and Central American countries—from the quotas in order for them to come to the United States and work in agriculture. The same year the National Origins Quotas Act went into effect in 1924, Border Patrol was created to police Mexican immigrants who were not actually coming to do farmwork or didn’t have the proper paperwork, even though they were exempt from the visas.

Nativists were never satisfied with Mexicans being exempt from visas. By 1929, we had the first illegal entry and reentry law on the books, a tool to control Mexican immigrants in particular. The very origins of Border Patrol were to police our borders to preserve white supremacist immigration law and control Mexican migration by allowing Mexican migrants to enter the United States only under certain circumstances, and deport them when they were no longer exploitable.

Since then, Border Patrol has only grown. It is a deeply politicized agency that has used public relations campaigns to actively portray immigrants as violent and dangerous in order to secure more funding and become more militarized. It has participated in numerous murders on both sides of the border, killing even children south of the border. Communities in border towns have been complaining about the violence they've been experiencing at the hands of Border Patrol for years, and the lack of accountability. The history of violence is well documented but not well publicized because of their ability to operate in the shadows of the border.

But when those same forces are unleashed in a primarily white community like Portland, you see a very different reaction. People are opening their eyes to what it looks and feels like to have officers who are heavily clad in militarized gear, toting guns, disappearing people into vans. Those scenes happen every day in border towns, but we don't see it on the nightly news. We don’t see the spectacle of violence. It’s important for the country to be aware that this is what CBP is. Hopefully, there will come a historical reckoning that Border Patrol, which is a subcomponent of CBP, has done what it was designed to do.

In terms of using these powers to repress political speech, that’s another example of how what we're seeing in Portland is really just the latest example of a trend where immigrants were the first targets. Fairly soon after President Trump came into office, the first people targeted were immigrant activists. Across the country, immigrant activists have been surveilled and deported to repress their free speech. It was only a matter of time before this expanded toward U.S. citizens as well. It started with immigrant rights activists who were immigrants themselves, then moved to immigration advocacy groups affiliated with these issues, including U.S. citizens who are attorneys, journalists, clergy. No More Deaths, for example, was federally prosecuted for providing humanitarian aid for immigrants. This all culminates in what we saw in Portland, with a crackdown against mostly U.S. citizens protesting the murders of Black people.

From the beginning, race had everything to do with who belonged in the United States and was a significant driver of the concepts of citizenship and immigration.

These agencies have been told and understand that their job is to quell dissent, and that no one will hold them accountable. For the most part, they have not been held accountable for what they did to immigrants, so turning that power against U.S. citizens is just one link in the chain. That’s why they are so incredibly dangerous, and Congress has a lot of work to do to ensure that anyone who is targeted by these agencies has recourse to share their stories and stand up for themselves through the judicial process. One of the reasons most Americans weren’t aware of what was happening to other activists and immigrants exercising their freedom of speech was because we have immigration laws that cut many people out of the judicial process, preventing people from going to court and making it easy for people to literally be disappeared in the middle of the night without anyone knowing that they were targeted or why. We shouldn't have agencies that can do whatever they want to people and provide whatever justification they want in order to keep their coffers full and their agents on the streets.

As a law professor, scholar, and movement lawyer, how do you see yourself in the broader immigrant rights movement?

As a professor, I do this work in the context of a law school clinic where I'm working with law students who are learning about the ins and outs of immigration law and immigrant rights in the legal sphere for the first time. Doing this as a movement lawyer is incredibly important to me because I’ve witnessed the way that the law is written specifically to oppress immigrants. The law is not written to be a tool for social change. It’s written to be a tool for oppression and has never fully shaken its white supremacist origins.

Our struggle as lawyers is to take the law back for immigrant communities and use it as a tool for our own vision of justice, while recognizing that truly fundamental transformative change is not going to come from the courtroom—it’s going to come on the streets. We've seen that time and time again in our own work, where we will fight a battle to free someone from immigration jail—but it's when people show up at the courthouse or at city hall demanding change that the wheels of justice actually start to turn. That’s when politicians, legislative bodies, and even the courts listen—not to the arguments we made in court, but to the voices of people on the street.

Law students should learn that you need to do many different things as a lawyer and recognize that we have a small place in an overall movement. Our job is to listen to those on the ground who are directly impacted by the laws we're trying to fight and change. I’ve worked with so many people who've experienced jail and prison either by way of the criminal legal system or the immigration system. Jails and prisons are fundamentally harmful. They don’t solve problems; they produce problems. They don't resolve harm; they create harm. As a society, we in 2020 can find better ways to address the problems we face than by locking our loved ones away in a cage. COVID-19 could have been an opportunity for our jails and prisons to be emptied, for us to show as a society that we value the lives of people, all people, in our community over whatever concerns that are driving them into jails and prisons in the first place. But we see, through the failure to exercise clemency and reform—and, in the immigration space, failures to exercise discretion to release through parole and bond—that it is so difficult to achieve change and free people within the system.

In response to COVID-19, we have been working very hard to convince a federal court to release our clients at Elizabeth Detention Center or, at minimum, give them an opportunity to be heard about why they should be released. The most beautiful thing about this work is that we do it in solidarity and in concert with organizing on the ground. People have staged protests and have been calling out the horrors of Elizabeth Detention Center for years. It opened over 25 years ago, and within its first year, immigrants within the facility led an uprising to protest their conditions there. They have continued to call out the terrible medical care they’ve received during the pandemic; they have led hunger strikes and protests both inside and outside of the facility. So it’s really a testament to organizing that the development corporation that owns the property that Elizabeth Detention Center is on actually agreed to the demands of protesters and said they would no longer be in relationship with Core Civic, and would be ending their lease as soon as they were able to.

The demands on the streets led to a different level of accountability than the law provides. And it’s because of long-term, deeply dedicated organizing by people who've experienced detention and deportation, and who demand nothing less than transformational change. The most transformative changes have come—and will come—from the power of the people collectively demanding the justice they envision for their communities.