Humanizing Immigration: How to Transform Our Racist and Unjust System

PREFACE

MY FIRST ENCOUNTER with a federal immigration agent occurred when I was a law student in 1973. I was working on landlord-tenant cases at the Chinatown-North Beach office of the San Francisco Neighborhood Legal Assistance Foundation (SFNLAF) and wrapping up a successful rent reduction case on behalf of a Spanish-speaking client, Jorge Guzman. Because the attorney working on the case couldn’t speak Spanish and I have some fluency, I worked on the case as a law clerk and as an interpreter. The housing attorney asked me to hand a check over to Jorge at the final meeting and explain the terms of the settlement. Jorge was ecstatic at our success in the battle with his landlord, but he told me that he was troubled by something that happened at what was known at the time as the US Immigration and Naturalization Service (INS) the day before. It seemed that Jorge had gone to the INS building to ask how to file an immigration petition for his wife, who was in Mexico. Jorge was a lawful permanent resident of the United States. He happened to run into an immigration agent in the hallway, who asked to look at Jorge’s green card. Jorge obliged, and the agent asked Jorge to accompany him to his office. Jorge took a seat opposite the officer, who shocked Jorge by shouting, This card looks fake! Jorge assured the agent that the card was real. In front of Jorge, the agent took a pair of scissors and cut the card in half to inspect it. The agent then said, Actually, you’re right. It is real, and handed the pieces back to Jorge and told him to leave.

As Jorge showed me the pieces of the card, I sat in disbelief and outrage. I asked Jorge if he remembered where the agent’s office was, and he told me he did. We walked the several blocks from the SFNLAF office, at 250 Columbus Avenue, to the Appraisers Building, at 630 Sansome Street, where the INS was located. Jorge told me that the agent’s office was on the seventh floor, so we took the elevator up. Jorge recalled the exact door he had been led to the day before, and I knocked loudly. The door opened to a room with about eight desks, and an agent asked what we wanted. I asked Jorge if he saw the agent from the day before, and Jorge pointed to an agent across the room. I said, We’d like to speak with the agent over there. The agent across the room greeted us with a stern What do you want? I said, My client tells me that you took his green card yesterday and cut it in half with a pair of scissors, even though it’s a real card. I really want you to do something about your mistake. The agent responded: Yes, that happened. Don’t worry about it. Just go down to Room 100 and tell them that Agent Smith sent you. They’ll take care of you. I thought to myself, Wow, vindication for Jorge! As I explained to Jorge what happened, we happily rode the elevator back down to the first floor and looked for Room 100. It wasn’t hard to find. It was a public information room that had a long line of about fifty people waiting to ask questions or pick up immigration forms. I admitted to Jorge that it wasn’t such a victory after all. By the time we got to the front of the line, an hour later, the person on the other side of the counter handed us a form for a replacement card and told us to send it in with the appropriate filing fee. It eventually took over six months for Jorge to get a new card.

Agent Smith was the first, but certainly not the last, jerk working for the immigration service I would encounter over the course of my career. That first experience that Jorge opened my eyes to is emblematic of the institutionalized racism and othering in our immigration system that has led to the dehumanization of noncitizens that I have witnessed over the course of my career. The framework and policies that immigration officials work within seemingly gives them license to act cruelly, rudely, and even violently.

Working in that particular legal aid office as a law student was a blessing. The location stood at the border of the Chinese and Italian immigrant communities, with fascinating cultures and great food spots. Most importantly, from the perspective of an aspiring lawyer, the wide-ranging issues that clients brought to the legal aid office provided a great learning environment. Looking back, I can hardly believe that in the summer after my first year of law school, Ed Steinman—a veteran of the office who was starting his career as a law professor—asked me to assist him in representing Kinney Lau, a nine-year-old student, whose case was before the US Supreme Court. Kinney could not understand English but was placed in a classroom where everything was conducted in English. That sink-or-swim environment might work for some, but it wasn’t working for Kinney. His case led to the landmark decision, Lau v. Nichols (1974), in which the Supreme Court ruled unanimously that the San Francisco Unified School District violated a provision of the Civil Rights Act of 1964 by not providing equal educational access to non-English-speaking students. Lau has become the basis for bilingual education and other innovative approaches that have been implemented across the country to allow immigrant children to participate in public education programs.

After graduating from law school, I jumped at the chance to work at SFNLAF and accepted the job offer to take over the immigration caseload. I mostly took on family immigration petitions and deportation defense cases for clients of Chinese and Mexican descent. Among the people I represented in dozens of deportation cases was the Cabral family. They had moved to San Jose, California, from Mexico in 1974, about the time I was graduating from law school. The father, Felipe, was a baker in a local panaderia, a Mexican pastry shop. Lucrecia, the mother, was a stay-at-home parent. The couple had four children—two daughters and two sons. The family entered without inspection by paying a smuggler to help them cross the border to, in Felipe’s words, seek a better life. But a couple years later, someone—a friend, or enemy, or neighbor, or coworker—reported them to federal immigration agents, or la migra, as they are called in the Mexican community.

The arrests were violent. Agents came at four in the morning, surrounding the house and pounding on the front door. After several minutes, Sylvia, one of the daughters, answered the door and denied that anyone else was home. But the agents busted in, and eventually found the rest of the family hiding under the house. Everyone was arrested and dragged into federal detention. The date was May 20, 1976. Days later I met the Cabral family when I was doing my rounds as a legal services attorney assigned to interview immigrants who had been taken into custody by la migra. Many years later, another daughter, Maria Reyna, who was seventeen at the time of the raid, told me that the incident was the most terrifying and traumatic experience of [her] life.

Unfortunately, there wasn’t a whole lot that I could assert on behalf of the Cabral family, given the lack of rights provided under federal law to noncitizens without proper documents. In those days, however, it was easy enough to convince an immigration judge to allow Lucrecia and the children out of custody, pending the deportation hearing. Felipe was also released, after the family came up with $2,000 bail. So at least the family was out of custody as we prepared for the deportation hearing.

I visited the family in San Jose on a Sunday afternoon to prepare for the hearing. They showed me around their house and pointed out the trap door that family members had used to hide under the house. They were upset about the way that the agents had pushed their way into the house at 4 a.m. Sylvia said the agents had even looked through the kitchen cabinets. The family wanted me to develop a strategy that would allow them to complain at the hearing about the intrusive behavior. We decided that they would refuse to admit deportability at their hearing, thereby setting up a procedure that would allow us to object to the introduction of incriminating statements made at the time of arrest, on the grounds that members of the family were questioned during an illegal search and seizure by the agents. We knew that that wouldn’t get too far under prevailing law at the time, but at least the family would be able to testify and complain about the conditions of the arrests. That was important to them.

The Cabral family took me in from the start. They were like families that I grew up knowing, loving, and respecting in my hometown of Superior, Arizona, a small copper-mining community in central Arizona that is predominantly Mexican American. The Cabrals, like the hundreds of other families I knew in Superior, were kind, warmhearted, friendly, hardworking, and decent. The children were fun-loving; the parents unwaveringly committed to their children, neighborhood, and church. They were in the United States to share a part of the American dream, not unlike the Gold Mountain image of America that Chinese migrants I knew had as well. (When word of the discovery of gold in California in 1849 spread across the ocean throughout Chinese provinces, thousands of Chinese migrants moved to the land that some, like my parents, came to call gam saan, or gold mountain.)

Although the immigration judge was not sympathetic and ruled against the Cabrals, the family was passionate about their plight—so much so that, over the next decade, I made special motions and filed administrative and judicial appeals (including one to the US Supreme Court) on their behalf, and I tried to get Congress interested in their case. Fortunately, in 1986, Congress enacted the Immigration Reform Control Act, which granted legalization to individuals without documentation who were in the United States for at least five years, and the Cabral family was able to obtain legal status. Felipe passed away many years later, but I’m still in touch with the rest of this great familia. Maria Reyna, who now has her own family and works full time for an automobile company, volunteers on evenings and weekends for an immigrant rights organization in Redwood City, California. This is her way of helping others who are now facing what her own family endured.

The violence exhibited against the Cabrals, the rudeness toward Jorge, and the countless other demeaning experiences my clients have suffered through unnecessarily in search of a better life serve as the impetus for this book. It may sound like a cliché, but it really has been a privilege to work and fight with my clients arrested by immigration agents in the fields of the Salinas Valley; Iranian students rounded up by the Carter administration in 1979; Mexican migrants forced to look for work across the border because of US economic policies; those fleeing civil wars from Guatemala, El Salvador, and Nicaragua in the 1980s; Filipino war veterans seeking just recognition for their service to our country during World War II; Arabs and Muslims targeted by hate after 9/11; Cambodian refugees targeted for deportation; and more recent migrants from the Northern Triangle countries of Central America fleeing gang, cartel, and domestic violence. Certain clients, like Peter McMullen, the former member of the Provisional Irish Republican Army, and Leonid Kustura, who was deported on drug charges even though he had lived here since the age of three months, are hard to forget. It’s also hard to forget some of the enforcement officials I’ve encountered, like Michael Smirnoff, an immigration agent who loved his nickname Mr. Filipino because he liked to target Filipinos for enforcement. There was the immigration detention guard, Mary Ann, who always chided me for speaking Spanish to my clients, because you shouldn’t help them because there’s just too many of them coming. And the border patrol agent who stomped on my client’s back after tackling my client during a farmworker raid. My good friend Mark Silverman was in the courtroom when I cross-examined that agent, and Mark had to restrain me because I got so upset at the agent’s privileged and cavalier nature. Of course the actions and attitudes of these characters only fueled my drive to fight for immigrant rights, as did the fact that, around 2002, I learned the full extent of my parents’ separate detentions in harsh conditions on Angel Island in San Francisco Bay in 1915 and 1926. In this book, I write about a few of my clients, including Luz Cardoza-Fonseca, Fethawit Tewelde, Juana Lopez-Telles, John Wong, Corazon Ayalde, and Antonio Sanchez, whose stories help to highlight potential or realized injustices and the craziness of our current immigration system. I also describe the experience that haunts me to this day: the inspection of the border patrol station at Clint, Texas, where many children and toddlers were separated from their caregivers at the border, left to fend for themselves.

I acknowledge that the country has the power to deny admission, to deport, and to criminalize noncitizens. However, that power should be implemented morally and ethically, with an understanding that we are dealing with real human beings. Furthermore, that power should be implemented in a nonracist manner. In order to accomplish all that, I believe we have to restructure the entire system, and what follows is an attempt to make the case for abolition and transformation.

CHAPTER 1

AN INTRODUCTION TO THE RACIAL INJUSTICE OF IMMIGRATION LAW

THEY SAY A PICTURE is worth a thousand words. Images of US Border Patrol officers on horseback in September 2021 using long reins or whips to stop Haitian migrants from entering an encampment on the riverbanks near the Del Rio Bridge, and grabbing some migrants by the shirt, say it all.¹ Nana Gyamfi, executive director of the Black Alliance for Just Immigration, denounced the racist actions as callous, cruel, and inhumane.² To Rep. Ilhan Omar (D-Minn.), the incidents constituted human rights abuses . . . . Cruel, inhumane, and a violation of domestic and international law.³ Even the White House press secretary, Jen Psaki, acknowledged that the images were horrific. Taking the analysis a big step forward, however, Rep. Alexandria Ocasio-Cortez (D-New York) vilified the immigration system [that] is designed for cruelty towards and dehumanization of immigrants. We can all agree that this corralling of Haitian asylum seekers was racist, but Ocasio-Cortez was right to call out the system because it enabled the abuse.⁴ Without a doubt, calling out and punishing the heinous actions of the individual officers are important, but if we are to stop a repetition of such actions in the future, the system needs to be dismantled.

Abolish ICE is more than a catchy phrase—it represents a political movement whose most fervent adherents seek to put an end to the US Immigration and Customs Enforcement (ICE) agency.⁵ Support for the movement grew in 2018 after Ocasio-Cortez, in her election campaign, advocated abolishing ICE, and when then president Donald Trump separated children from their parents at the border.⁶ The movement has developed into a kaleidoscope of different advocacy efforts. There are a variety of views, and there is tension within the Abolish ICE movement. Some proponents want to eliminate all immigration enforcement, while others believe in reforming enforcement to make it more humane.

For more than fifty years, I’ve represented noncitizens caught up in the US immigration policy and enforcement meat grinder. I’ve witnessed senseless emotional damage to my clients, their families, and others similarly situated, because of racist and inhumane policies. So the need to abolish ICE is a no-brainer for me. In fact, I count myself among those who call for the abolition of the immigration system altogether. Migrants should have the right to free movement across borders and the right to live free of harassment over immigration status. Our system must be transformed into one that prioritizes our humanity first.

In the chapters that follow, I target specific areas for abolition and transformation. For example, I explain why the deportation of longtime residents who have committed crimes should end. I argue that deporting a noncitizen who lacks proper immigration documents and who has citizen children also makes little sense; in fact, there are millions in that situation who should be freed from the threat of removal. I explain why the current approach to asylum should be turned on its head, and how we should grant asylum to applicants unless the government can prove beyond a reasonable doubt that applicants will not be persecuted. I expose the dysfunction of the immigration courts and outline why they need to be replaced with a new system of humanitarian adjudication that can deal humanely and nimbly with challenging cases. And, finally, I make the case for why immigration detention should be ended: it is both cruel and unnecessary. In essence, by reviewing critical aspects of the current system, I make the case for dismantling ICE. I call for continued disruption until transformation of the system is accomplished.

Let me be absolutely clear about my starting point: immigration laws and enforcement policies are racist. In fact, those laws and policies are the quintessential examples of institutionalized racism. Think only of the foundational immigration laws that began with the Chinese Exclusion Act (1882) and the national origins quota of the Immigration Act of 1924, which favored Western Europeans, and infamous immigration roundups, such as Operation Wetback (1954), which targeted Mexican braceros, who had been issued temporary US work permits to ease labor shortages. In the appendix for this introduction, I provide a quick summary of these and other well-known, and some not-so-well-known, examples of historical racist US immigration laws and enforcement efforts targeting Latin and Asian immigrants: the 1848 shifting of Mexico’s northern border by the Treaty of Guadalupe Hidalgo; the recruitment and exploitation of Mexican workers; the Asian exclusion period, which went beyond Chinese to sweep up Japanese, Indians, and Filipinos; the 1986 law against hiring unauthorized workers, which targeted migrants of color; the seemingly race-neutral immigration visa reforms of 1965 and 1976 that severely reduced visas for Mexicans; the US Supreme Court’s endorsement of racial-profiling immigration enforcement away from the border; and the so-called diversity program that began as an affirmative action program for white migrants.

Congress may have repealed some of those laws and the raids may seem like historical artifacts, but their stench lingers on in the laws and policies that followed. The chapters on detention, deportation, and asylum that follow will cover unfair practices, onerous legal requirements, strange outcomes, and harsh conditions that may appear to be race-neutral on the surface. But peel that layer back, and you’ll begin to see that those unfair, onerous, strange, and harsh results have been developed on the backs of noncitizens of color who have been dehumanized, then commodified as illegal alien.

But first, I highlight the impact of immigration laws on Black migrants, because that topic is all too often ignored.

ANTI-BLACKNESS AS MANIFESTED IN IMMIGRATION LAWS AND ENFORCEMENT

The murders of George Floyd, Ahmaud Arbery, Breonna Taylor, and too many others have ignited a racial justice movement that places defending Black life at the center. The slaying of Black community members by the police, the targeting of Black people and communities of color, and the racist rhetoric spewed by hate groups are continual reminders that anti-Blackness and racism pervade our society and imperil efforts to promote diversity and uphold the rights of all people. As a result, countless individuals and organizations across the country are committed to supporting anti-racism, diversity, equity, and inclusion, declaring that Black lives matter.

Not surprisingly, immigrant rights organizations are among the groups committed to racial justice for Black Americans. For some immigrant rights organizations, the commitment to supporting justice for Black Americans is consistent with the commitment expressed by others: it’s simply the right thing to do in the face of discrimination and police brutality toward Black Americans. For others, fighting for Black rights is a natural part of the battle for immigrant rights because the immigration system is itself racist.⁷ Both rationales make sense to me, especially because many victims of the harsh immigration enforcement regime are Black migrants.⁸ And for those reasons, many immigrant rights advocates and their allies engaged in the Abolish ICE campaign in parallel with the Defund the Police efforts in the broader racial justice movement.

The treatment of Haitian migrants in September 2021 was emblematic of the intersection of immigrant rights and racial justice. That intersection demonstrates how immigration laws and enforcement policies are strong prima facie evidence and a concrete manifestation of systemic and institutionalized racism. In short, this critical race theory analysis explains why the battle for immigrant and refugee rights should be viewed as an important part of the battle for racial justice. Worse still, being Black outside of US borders, or a Black migrant within our borders, subjects the person to double-barreled racism.

As the racial justice revolution in defense of Black life raged on in the summer of 2020 after the murder of George Floyd, Black immigrants were targeted by the Trump administration in immigration proceedings while the coronavirus pandemic took center stage across the nation and the world.⁹ Dozens of Cameroonian activists from the country’s Anglophone minority were deported, in spite of clear evidence that they would be tortured or subjected to extrajudicial killings. The action followed Trump’s offensive reference, during a 2018 discussion about immigration, to Haiti and African countries as shithole countries.¹⁰

This target on Black noncitizens continued into 2021, as the Biden administration failed to end the deportation flights of African migrants that had begun under Trump.¹¹ President Joe Biden attempted a moratorium on deportations for the first one hundred days of his presidency, but a federal judge temporarily blocked the deportation pause, and ICE continued to deport Black immigrants. On its own, however, the Biden administration continued to invoke Title 42, a US health law provision to prohibit prospective migrants’ entry to the United States when the surgeon general believes there is serious danger of the introduction of [a communicable] disease into the United States.¹² The tragedy is that such expulsions returned hundreds of individuals, including children, into hostile and dangerous countries, such as Haiti or Mauritania, at the outset of 2021.¹³

Just to drive home the racist choices under Title 42, consider this: On March 21, 2022, the Biden administration announced a Title 42 exemption for Ukrainian migrants seeking asylum at ports of entry, as it considered new programs to allow displaced Ukrainians to apply for asylum in the United States. On the one hand, the Biden administration welcomed Ukrainian refugees, while on the other it continued to reject Haitian, Black, and brown asylum seekers.

For those who pay attention to the racism in US immigration laws, the first things that might come to mind are the treatment of undocumented Mexican migrants, or the recent hurdles established for Central American migrants seeking asylum. The detention of unaccompanied minors also receives sporadic media attention. Those examples are certainly important, and I summarize some of them below, but first consider some lesser-known examples of racist immigration laws and enforcement policies that particularly impact Black migrants.

Message to Haitians: Don’t Come

In June 2021, in her first foreign trip as vice president, Kamala Harris announced in Guatemala that the Biden administration wanted to help Guatemalans find hope at home. For those thinking of making the dangerous trek to the United States, she sent this blunt message: Do not come.¹⁴ Given the severe violence that asylum seekers from Guatemala and other Central American countries are facing at home, Harris’s admonition was insensitive and demonstrated a lack of commitment to asylum seekers. That message is reminiscent of the stay-away message that the United States conveyed to Haitians, long before the Del Rio nightmare in September 2021.

Consider the plight of Haitian refugees in the 1980s.

In response to the repressive Baby Doc Duvalier regime, which caused political and economic havoc in Haiti in the 1970s, many Haitians fled to the United States seeking refuge. Large numbers sought asylum once they reached the shores of Florida. A backlog developed, so immigration officials implemented an accelerated program to deal with the situation. The program—termed the Haitian program—embodied the government’s response to the fact that between six thousand and seven thousand unprocessed Haitian deportation cases were pending in the Miami office.

The Carter administration response essentially was to deny asylum and grease the deportation wheels. Arriving Haitians were detained, and there were blanket denials of work permits for Haitians whose asylum applications had been pending. Haitian cases were calendared for hearing, and immigration judges were ordered to speed things up and spend only a few minutes per case. The Immigration and Naturalization Service (INS), the predecessor to today’s ICE in the Department of Homeland Security, was fully aware that only about twelve attorneys were available to represent the thousands of Haitians being processed, and that scheduling made it impossible for counsel to attend the hearings. It was not unusual for an attorney representing Haitians to have three hearings at the same hour scheduled in different buildings.

The results of the accelerated program were catastrophic. None of the more than four thousand Haitians processed during the program were granted asylum. In the end, a federal court struck down the accelerated program as a violation of procedural due process. The government was forced to submit a procedurally fair plan for the orderly reprocessing of the asylum applications of the Haitian applicants who had not been deported.

Poverty and infant mortality rates in Haiti ranked the highest in the Western Hemisphere, and the flow of refugees continued. But rather than recognize the crisis and provide assistance, the United States sought new tactics for denying asylum. The government’s new strategy was premised on the idea that if the Haitians could be turned away on the high seas before they reached US shores, they could not then seek asylum.

On September 29, 1981, President Ronald Reagan authorized the interdiction on the high seas of vessels containing undocumented aliens from Haiti. The president based this action on the argument that undocumented aliens posed a serious national problem detrimental to the interests of the United States, and that international cooperation to intercept vessels trafficking in such migrants was a necessary and proper means of ensuring the effective enforcement of US immigration laws.¹⁵ By executive order, the Coast Guard was directed to return the vessel and its passengers to the country from which it came.¹⁶ Disappointingly, in Haitian Refugee Center v. Gracey (1985), a federal court upheld the actions, determining that the president has inherent authority to act to protect the United States from harmful undocumented immigration.

Visa Requirements for African Migrants: Go to the Back of the Bus

US immigration laws have never facilitated significant voluntary immigration from Africa. After the Civil War, in 1870, Congress extended the right to citizenship through naturalization beyond free white persons to those of African descent.¹⁷ But the 1917 enactment of a literacy test for immigration became a major barrier to African immigration. In 1924, the national origins quota system was enacted. The law limited the annual number of immigrants who could be admitted from any country to 2 percent of the number of people from that country who were living in the United States in 1890. That meant that the quota for Africans was tiny. Significantly, the 1924 act also designated students as nonimmigrants rather than immigrants, helping to permanently establish in immigration law the notion of foreign students as temporary sojourners. Since students were not classified as immigrants, they could reside in the United States only temporarily and were ineligible to apply for citizenship through naturalization.

Under current