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How America's Lawless Immigration Regime Threatens Us All
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Under the Trump administration, US immigration agencies terrorize the undocumented, target people who are here legally, and even threaten the constitutional rights of American citizens. How did we get to this point?
In Illegal, Elizabeth F. Cohen reveals that our current crisis has roots in early twentieth century white nationalist politics, which began to reemerge in the 1980s. Since then, ICE and CBP have acquired bigger budgets and more power than any other law enforcement agency. Now, Trump has unleashed them. If we want to reverse the rising tide of abuse, Cohen argues that we must act quickly to rein in the powers of the current immigration regime and revive saner approaches based on existing law. Going beyond the headlines, Illegal makes clear that if we don’t act now all of us, citizen and not, are at risk.
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TO MANY WHO MAY BE DRAWN TO THIS BOOK, THE SADISTIC theatrics of Trump-era immigration policies have come as a shock. Images of families sleeping on gravel under a highway overpass, children in cages, and relatives separated by a racist Muslim ban contradict national self-understandings of the United States as a country of immigrants, or at least of humane laws. But this self-understanding never actually reflected the everyday experiences common to immigrants. The lives of most immigrants in the United States have often been marked by violence, cruelty, and exploitation. For a long time, social mobility dictated that those immigrants’ children and grandchildren would never know how bad things were for their forebears, allowing all of us to view our history and ourselves through a rosy lens.
My own family—my mother, her sister, and their parents—arrived in the United States in 1950, after surviving the Holocaust and living for years in a displaced persons camp outside Vienna. Did they do things the “right way,” as some people define it when distinguishing documented from undocumented immigrants? They had their papers—visas and clean bills of health. But their papers came by accident, as a matter of luck and persistence, not through a welcoming invitation to become American. They had evaded the numerous laws that were in place to keep as many immigrants like them as possible out of the country. Jews, Eastern Europeans especially, had not been welcome in the United States for a long time.
I carry with me everywhere the passport picture of my mother, Reggie, as a young child about to set foot on the boat that took them to the United States. In the photo, she sits, bright eyes shining, smiling, hands clasped in front of her with anticipation. She still adopts that expression today, when something we have long hoped for comes on the horizon. Going to America was the dream her family had nurtured as they made do in a refugee camp where they lived with other displaced families, separated only by sheets hung from the ceiling. She will also be the first to tell anyone who suggests otherwise that this country was and remains a disappointment. It wasn’t just the cottony, flavorless loaves of supermarket bread, or the fact that Christmas, which is when they arrived, turned out to be the only time of the year when all the radio stations played beautiful classical music. The letdown had much deeper roots. My grandfather, Chaim, had longed for a formal education since he had been forced to leave school at age nine. But it wasn’t possible to both go to school and work the grueling hours of backbreaking labor required to wrench the family out of insecurity and into the middle class. Worse, no one around him seemed to find this surprising or wrong. As a young man in Europe, in a brief moment of freedom, he had been drawn to discussions of socialist politics and theory. In the United States he could belong to a union, but there wasn’t much socialism to be found, particularly of an intellectual variety. In the land of opportunity, most of the opportunity consisted of bosses and company owners helping themselves to the benefits afforded by immigrant labor, race privilege, and other forms of power.
In school, my mother observed among her peers the same lack of interest in education for education’s sake. She applied to Union College, which wasn’t yet accepting women, because it was inconceivable to her that she would not be allowed to attend. She was accepted, matriculated, and graduated, and then she faced even larger obstacles when she entered a PhD program where no one wanted to supervise women researchers. Each university she worked for was more corrupt than the last, and vulnerable people around her—immigrants, disabled people, and people who came to the Northeast from poorer, more rural places—were treated terribly, often in plain sight of others who could have helped but were indifferent or complicit.
To people who have been disappointed in our country for a long time, the Trump era is not a shock. They already knew that the United States is prone to nativism, sexism, and racism, and that among those who aren’t nativist, sexist, and racist are people who prefer to believe myths about liberty and justice rather than see the country for what it is. To the cynics, “This is not who we are” is self-delusion. The United States is a country that had trafficked in chattel slaves but didn’t repeal restrictions on immigration from African countries until 1965; a country that aggressively executed a genocide of indigenous people in order to expropriate their land; a country that admitted Chinese workers and then succumbed to a movement to drive them out; a country where employers felt comfortable telling the Irish they need not apply; a country that rounded up people of Japanese descent, took their possessions, and tried to repatriate them; a country that violently drove Mexican Americans off land that had not too long prior been forcibly taken from Mexico.
The Muslim ban; the rejection of refugees and asylum seekers; the ease with which people ask, “What will we get out of the deal if we let you come here?”—all of “this” is exactly who we are and who we have always been. Those of us who do not like “this” do not have to accept the past as prologue. But we have our work cut out for us if we want to reframe narratives about nonexistent border crises, illegality, and dangerous immigrants.
Illegal is just a small part of that larger project. Its chapters contain a narrative about modern nativism, much of which is predicated on the supposed illegality of people trying to enter the country. Undocumentedness itself is a status that we legislated into existence—and one we can also legislate right back out of existence. Because any rules about what is legal or illegal start with legislative action, I have worked hard in this book to show where there is a legislative path out of our current conundrum, in which it has become impossible for most people who want to immigrate legally to do so. Achieving a legislative consensus on any changes will be tremendously difficult. But we can take some comfort from the fact that, in the past, moments of extreme nativism have been followed by opportunities to undo the damage. Smart, persistent activism over a period of years can propel us away from “this” and toward the country we want to be.
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
- "A concise but unflinching look at the barbaric state of immigration in America...The author is a sharp examiner of the relevant data and research, and she is shrewd enough not to drown in the political quicksand surrounding immigration. However, she doesn't shy away from controversy, exploring the dangers of white nationalism and taking into account the pragmatic reasons to formulate a fair immigration policy that doesn't prostrate itself before communal fear...An even-keeled examination."—Kirkus
- "Cohen draws on a wealth of historical evidence to present her dire portrait of America's immigration system, and her commonsense solutions feel both necessary and attainable...[A] trenchant call to action."—Publishers Weekly
- "A timely and unsparing account of how our immigration enforcement regime has 'gone off the rails'. Cohen shows that we had a system we could have built upon that was far less brutal to immigrants and more representative of democratic values. But instead, for political reasons as diverse as 9/11 and the steady beat of xenophobia, we abandoned it. Is there a way forward? In a clear and compelling statement Cohen shows us that our democracy is in danger, what must change, and how to make change happen. An urgent and powerful book."—Janelle Wong, University of Maryland, CollegePark
- "A fascinating dive into our country's lawless immigration enforcement regime and how it developed."—Alex Nowrasteh, the Cato Institute
- On Sale
- Jan 28, 2020
- Page Count
- 272 pages
- Basic Books