Illegal

CHAPTER ONE

Enforcement Gone Rogue

IT CAN BE VERY DIFFICULT TO PERCEIVE THE PRECISE POINT AT which a democracy unravels and becomes a police state. But if you lived near the US-Mexico border in Texas in 2018, your daily routine may already have forced you into contact with characteristic features of authoritarianism like checkpoints, fortifications, heavily armed police, and constant surveillance. To accommodate the terrain around the Rio Grande River, large segments of the border wall have been located well within the United States. This leaves students, workers, and anyone else who needs to get from one side of the wall to the other with the choice between traveling through checkpoints or compromised sections of wall. People going about their daily business might never leave the United States but must still cross a border because of where border fortifications have been situated. Property owners have to use remote controls to open gates just to reach parts of their own land that have been walled off. Above, the buzz of Predator B drones, Black Hawk helicopters carrying armed agents, and man-hunting radar are now as much a part of the soundscape as the wind rustling brush. Sometimes armed civilians with no legal authority at all—self-appointed citizen militia border patrols—profile and harass people who they decide are suspicious.

Meanwhile, near the northern border of the country, residents who need to travel by train or bus are likely to be detained while armed Border Patrol agents search the vehicle they’re on and question passengers, regardless of whether they are crossing the border or even if they are particularly near it. Actually crossing the border is even more fraught. Many remember a time when they could take day trips to Canada and maybe flash a driver’s license if they crossed at a checkpoint. Now everyone waits in long lines, sometimes for hours, to prove their right to exit and enter. At times people crossing the border are required to divulge sensitive biometric data that can later be shared with other agencies without their consent or even a warrant.¹ Once they cross, US Customs and Border Protection (CBP) agents, whose stated mission is to police the border, might continue surveilling them in Canada. CBP can even fire tear gas at civilians trying to claim asylum, or close a busy entry or exit point with no notice, making thousands of people’s daily commute impossible.²

In the vast interior of the country, where CBP is a less prominent presence, Immigration and Customs Enforcement (ICE), in pursuit of deportable residents, has been reaching further and more aggressively into the daily lives of Americans. ICE performs the bulk of immigration enforcement work, which is increasingly brutal toward the immigrants it targets. ICE is also starting to encroach on the civil liberties of citizens. ICE’s work includes identifying and seeking out undocumented immigrants, giving them notice that they are going to be deported, incarcerating them, and deporting them. Each year, ICE raids infiltrate more of our workplaces and disrupt a wider array of neighborhoods, schools, and communities in increasingly indiscriminate searches for undocumented immigrants. ICE has also pushed to establish a shockingly large network of prisons, both public and private, where detainees languish, often for months at a time. ICE agents, facilities, and activities become a more potent and visible part of US communities with every passing year. ICE also gathers data to surveil citizens’ political beliefs and activities—including protest actions they have taken on issues as far afield as gun control—in addition to immigrants’ rights.

Slowly, sometimes even imperceptibly, the United States is becoming a fortress encased in steel and razor wire, guarded by dogs and a heavily armed paramilitary force. ICE and CBP form the heart of a broken immigration enforcement system that is gradually eroding the rights not only of noncitizens but of US citizens. So egregious have been their oversteps that an “Abolish ICE” movement gained surprising traction in 2018. CBP escaped hashtag status even as it engaged in abuses easily as reprehensible as those conducted by ICE, eventually becoming infamous for agents joining secret racist Facebook groups and committing gross human rights violations against people in its custody.³ In fact, ICE frequently is blamed for actions that were actually taken by CBP. (People’s confusion is understandable: prior to 2003, one agency, the Immigration and Naturalization Service, oversaw both border control and interior enforcement.) And it was CBP agents that Donald Trump reportedly ordered to illegally deny entry to possible asylum seekers, promising the agents pardons if they did so.⁴ It is a distraction to worry about which is worse when both are demonstrably dangerous. ICE and CBP are two arms attached to one body that is working on the same task: immigration security. But immigration laws are enforced amid an institutional culture of abuse and impunity.

Together, ICE and CBP form a sprawling law-enforcement apparatus in search of a justification for its own size and scope. The undocumented immigrant population in the United States stopped growing in 2007 and has declined since then by 13 percent.⁵ The number of people arrested for entering the country without a valid visa or without an inspection by a United States Citizenship and Immigration Services (USCIS) agent, as opposed to overstaying a visa, is as low as it has been since 1972; enforcement methods had little to do with that fact. Some even advise that harsh enforcement and border fortifications serve to trap people inside the United States who would prefer to move back and forth over the border.

Data from Pew Hispanic Center, Center for Migration Studies, Mexican Migration Project, and Department of Homeland Security (DHS) all show the downward trend in undocumented immigration. The decline started around 2000 and picked up momentum in 2008, during the Great Recession. Levels have been dropping or have plateaued since then. The trend developed as increasing numbers of undocumented immigrants began leaving the country each year just as inflows fell. It is easy to forget this when anxiety about a periodic spike reaches a fever pitch. Observe CBP’s own data estimating undetected unlawful entries over time:

It is worth noting that this decline is not due to any immigration enforcement policies but derives from changes in the economies and societies of immigrant-sending countries. (Migration is highly age dependent—you’re more likely to migrate out of a country when you are in your early twenties than when you’re thirty—and Mexico, for example, has become an aging society, with an average age that has risen from 16.6 in 1970 to 28.6 in 2018.)⁶ Not only have these changes drastically reduced the likelihood of Mexicans migrating to the United States without authorization; more undocumented migrants from Mexico are now leaving the United States than entering it. If there are increases in the future, those, too, will be driven by circumstances in the sending countries rather than by a failure to aggressively enforce immigration laws. Furthermore, the low and declining birthrates of native-born Americans caution against discouraging immigration as the population ages and requires younger workers to support older retirees.⁷

Crises can be manufactured—for example, when asylum seekers are prevented from presenting themselves at the border to request asylum, thus creating confusion, fear, and chaos on the Mexican side of the border. But those are humanitarian crises for the families seeking shelter, not security crises for the United States. Even when we include recent spikes in asylum-seeking, it remains the case that undocumented immigrants are not coming to the United States in nearly the numbers that they were in the 1990s and early 2000s. The bigger immigration picture is one in which the need for enforcement is shrinking even as expenditures on enforcement are rising. Often this wasteful spending comes at the expense of measures to process backlogs of asylum claims, visa applications, and even naturalization paperwork.

In fact, undocumented immigrants do not pose a grave danger to anyone, they do not deprive US citizens of jobs, and they do not burden the collective resources of the country. Overall, violent crime rates decline as immigration rises.⁸ Not only do US citizens commit crimes at higher rates than immigrants,⁹ but the only infraction most undocumented immigrants are guilty of is the federal misdemeanor of undocumented entry—a violation they committed in large part because the US government has gone to great lengths to foreclose legal ways to enter or reside in the country. The majority of ICE detainees do not have a criminal record, and four-fifths of all ICE detainees have nothing more than a minor offense such as a traffic violation on their record.¹⁰ Of those with a serious “level 1” offense on their record, a large proportion is for infractions like possession of small amounts of marijuana, which isn’t even a crime in all states. Some studies show that using borders to combat drug trafficking can actually rebound, causing new, more dangerous drugs to appear.¹¹

In the realm of employment, the presence of immigrants arguably has been stabilizing in recent years; immigrants do not suppress wages, and when immigrants—even undocumented ones—are not in the labor pool, companies tend to automate rather than hire, causing job markets to contract.¹² Further, undocumented immigrants actually subsidize US social programs, because a substantial proportion (around 40 percent) pays income taxes, contributing to programs like Medicaid, Medicare, and Social Security even though they are ineligible to draw on those programs.¹³ Overall, many calculate that the tax contributions of immigrants exceed the costs associated with their presence, though some states bear more costs than others.¹⁴

You would never know any of this from the way we behave on our borders or from the way we treat our country’s undocumented population. Public policies are supposed to be made rationally, and public resources are supposed to be used wisely, in accordance with the wishes and the interests of the public as well as the larger principles to which the country is committed. But when it comes to current immigration policy, neither prudence nor democratic will guides our policies.

Of course, given the armed-police presence and military-style fortifications being used to guard against the supposedly dire threat of undocumented immigrants infiltrating the country, it is unsurprising that some people have been persuaded that the undocumented immigrants already living in US communities pose a grave danger. For decades, nativist and white nationalist campaigns have worked to convince the public and its elected officials that undocumented immigrants are hardened criminals who take jobs away from US citizens and drain resources from social programs.¹⁵ These anti-immigrant activists want us to believe that muscular enforcement practices will return law and order to an out-of-control country. They make the intuitive but almost entirely false argument that those entering and residing in the country without authorization are gangsters, rapists, and freeloaders, upending law and order and sucking up resources, and that we ought to remove them from our midst by any means necessary. Both anti-immigrant activists and a sizable number of ordinary citizens believe that brutally harsh enforcement is the best possible course of action when people are in the country without papers. A few may even think that undocumented immigrants should not have any rights at all.

At the urging of these activist lobbies and some prominent elected officials, our government has poured billions of dollars into policing the border and the interior of the country while searching for people to question, detain, and deport. This campaign was not triggered by Donald Trump, or even by post-9/11 security concerns. It is the product of a long-term policymaking endeavor that has deep roots in the origins of US federal immigration enforcement and that has been shaped by a few powerful elite groups with a white nationalist agenda. We’ll examine these efforts in detail in the pages ahead.

In fact, it is our enforcement agencies, and not undocumented immigrants, who are flouting the law and soaking up more than their fair share of resources. These agencies and the private companies who receive contracts from them have amassed enormous budgets and accrued immense powers with disturbingly little oversight or accountability. Just think: the budget for ICE—only one of the three divisions of DHS devoted to the administration and enforcement of US immigration policy—is now ten times larger than the budget for the entire Immigration and Naturalization Service agency back in 1993, when undocumented immigration really was on the rise and national security had come into sharp focus as a justification for harsh enforcement. Even before the Trump buildup, in the middle of the Obama administration, Congress appropriated $18 billion for immigration enforcement—$4 billion more than it did for all other federal criminal law-enforcement agencies combined.¹⁶ CBP is the country’s largest law-enforcement organization—larger than the FBI, DEA, and all other federal enforcement agencies. Slowly and quietly, DHS and its subsidiary agencies—particularly ICE and CBP—have gained access to military-grade weapons, sprawling prison complexes, an army of field officers, and, critically, exemptions from some of the supervision that is supposed to keep law-enforcement officers from going rogue. What these agencies are doing with their power, often quite secretively, is sinister. Under the rationale that tolerating undocumented immigrants sabotages the rule of law, they routinely behave in ways that bespeak an utter indifference to the law and the rights it protects.

Many US citizens, even if they know about and are unsettled by the lawlessness of ICE and CBP, think that harsh enforcement and infringements on immigrant rights don’t really affect them personally. They believe they are protected by the firewall of citizenship, sheltered from any harms that may be done to noncitizens. Some may even welcome the idea of roughing up immigrants, who they have been told are lawbreakers. But a rising tide of evidence suggests that Americans’ trust in their own government, faith in the good intentions and effectiveness of enforcement, and belief that the power of citizenship will protect them from abuses of power and mistakes may be dangerously naive.

In fact, by overstepping the bounds of the law, overspending already bloated budgets, and overreaching their mandates, the US immigration enforcement apparatus endangers citizens’ safety and their civil liberties. As you’ll see in this chapter and the next, ICE and CBP abuse US citizens and actively seek to subvert laws and civil liberties that exist to protect against government overreach. ICE and CBP deport Americans—not just accidentally, but through the use of false claims and forcibly extracted fraudulent confessions. They also incarcerate US citizens, sometimes for many months or even years, in facilities that are widely known to be unsafe. When these agencies are caught, they will fight all the way to the highest courts in the land rather than back down. They ignore not just outside legal challenges but even the government’s own internal investigations. Neither CBP nor ICE wants us to know what they are up to. CBP has even gone so far as to monitor, detain, and report on journalists who they fear may expose their unsavory and sometimes illegal practices, a fact that should alarm anyone who cherishes the First Amendment and understands how crucial a free press is to a free people.¹⁷ Student demonstrators have been targeted as well, sometimes leading to their being charged with crimes for protesting CBP.¹⁸ The growth of CBP’s and ICE’s power, the expansion of their jurisdiction, practices and procedures that regularly skirt law and violate human rights, lax documentation and reporting requirements, the agencies’ continued immunity from many of the laws and court rulings that regulate governmental and police activities in every other sphere—all of these threaten our security and our liberty.

Let’s look more closely at just a few of the ways in which immigration enforcement agencies, policies, and practices flout our laws and principles.

ICE AND CBP are each large, poorly understood, and dangerous agencies. Although the name CBP refers to the border, its jurisdiction encompasses an enormous swath of the country: a hundred miles into the interior from any point on the border. Two-thirds of the US population is located in this region. Not only is CBP larger than any other federal law-enforcement agency; it dwarfs the others. Its twenty-one thousand Border Patrol agents make it larger by far than the FBI (thirteen thousand agents); ICE and Homeland Security Investigations (HSI; around six thousand agents each); Alcohol, Tobacco, Firearms and Explosives (ATF; four thousand); and the Drug Enforcement Administration (DEA; forty-six hundred). CBP has a total of around sixty thousand employees, ICE around twenty thousand (not counting private contractors). But ICE and CBP agents are not always the well-trained professionals that we would hope and imagine them to be. The situation is so bad that in 2014, CBP’s head of internal affairs decided to blow the whistle, saying that post-9/11 hiring surges had led to the recruitment of thousands of officers “potentially unfit to carry a badge and gun.”¹⁹

Even after this attempt to spur CBP to clean house, officers have been arrested for drug smuggling, assaults, and an array of other illegal activity. CBP officers are five times more likely than any other law-enforcement agents to be arrested.²⁰ Every month, it seems, another scandal arises from CBP’s corrupt traditions and practices. As we’ll see later, lax hiring standards are part of a long-standing institutional culture at CBP that dates to the agency’s earliest origins. In one grisly story from 2018, the country learned that a serial killer was working as a CBP agent.²¹ From 2005 to 2012, CBP agents were arrested over twenty-one hundred times for crimes.²² From 2010 to 2015, its agents caused thirty-five casualties in the field.²³ CBP officers have killed people in predictable places like California, Arizona, and Texas but also in Michigan, Washington, and Maine. Ten of the people they killed were US citizens. Six of the others, including three minors, were not even on US soil when they were shot; they were on Mexican soil.²⁴ At least nine of the thirty-five killed in this period were only throwing rocks when CBP agents shot with intent to kill.²⁵ Between January 2009 and January 2012, CBP received 809 complaints about its agents’ use of excessive force and physical violence.²⁶ In the next three years, the number of such complaints nearly tripled, to twenty-one hundred.²⁷ And these are just the reported incidents. We know with certainty that fear keeps a sizable number of people from ever reporting physical and sexual assaults by law-enforcement officers, particularly when someone is afraid that their immigration status or the status of a loved one may make them vulnerable. Yet, from 2005 to 2014, no incidents in which Border Patrol killed people resulted in discipline for the officer, including cases in which video evidence contradicted officers’ accounts of what led to the shooting.²⁸

CBP officers have abused, assaulted, and sexually molested both children and adults in their custody.²⁹