by Miranda Cady Hallett and Lynnette Arnold
Published September 27, 2018
Disuadido, detenido, y denegado: Deterred, detained, and denied
In recent months, the Trump administration has ramped up the violent separation and imprisonment of already traumatized refugee and migrant families, primarily from El Salvador, Honduras, and Guatemala.
In early June, Attorney General Jeff Sessions overturned legal precedents to exclude domestic violence and gang persecution as bases of asylum claims. Shortly after, the administration insisted that it would detain families beyond 20 days in contravention of legal standards and court orders. Meanwhile, the Department of Justice is drafting a proposal to disqualify anyone crossing the border between ports of entry from ever applying for asylum in the United States. On July 12, Citizen and Immigration Services (CIS) released new internal guidelines to restrict access to asylum rights.
The broad scope and aims of this spectacle of enforcement are clear: the administration will deter, deny, and disqualify asylum seekers by multiplying obstacles to sanctuary and due process.
This deployment of law and policing as a mechanism of exclusion is the latest manifestation of a long legacy of violence against Central American families enacted through U.S. foreign, economic, and immigration policy. Scholars Cecilia Menjívar and Leisy Abrego have referred to this as “legal violence”—the terrorizing practices and insidious impacts inflicted by immigration regimes on marginalized groups.
From the founding of the United States, citizenship and immigration policies and enforcement have been sites of contestation and exclusion, defining who belongs and who has rights. Many of the most egregious policies, like the 1882 Chinese Exclusion Act and “Operation Wetback” in the 1950s, emerged due to racial fears and political panics, and resulted in extensive and systematic violations of civil and due process rights.
Because this history is often overlooked in favor of a nationalist mythology built on notions of the country as a safe haven and a land of opportunity for immigrants, the current moment can be challenging for many to understand and interpret. The media maelstrom of information and misinformation about what is happening, what is new, and what is a continuation of the status quo, compounds this difficulty.
Why are such harsh policies being implemented now, when numbers of unauthorized border-crossers have dropped to the lowest levels seen since the 1970s? How can we understand this legal violence against Central American families within a broader historical and political context?
Lo viejo con lo nuevo: The old with the new
Although the public spectacle of violent enforcement really kicked off in May 2018, the groundwork for mass separation and detention of migrant families has been laid throughout the past few decades of increasingly punitive turns in immigration policy and alarmist public discourse about migration.
Over this time, immigration enforcement has often been used as a political instrument for social exclusion. During the 1980s civil war in El Salvador, hundreds of thousands of migrants fled the ravages of the conflict, in particular the scorched-earth counterinsurgency campaign conducted by the Salvadoran military. Because the Salvadoran army received training and funding from the United States, they were viewed as a “friendly” government and less than 3% of asylum applications were approved—later this discrimination was recognized publicly. The exclusion of these refugee families from legal recognition upon their arrival was a form of legal violence with long-lasting negative impacts on those families and communities, forcing many Salvadoran immigrants into a long legal odyssey to combat their exclusion.
Compared to the exclusion of the 1980s, the recent repression looks like more of the same: once again, a wave of Central American migrants fleeing violence are being blocked from their claims to sanctuary and legal belonging. Yet the current moment has unique and particularly dehumanizing elements.
The current wave of anti-immigrant policy dates back to the 1990s, which saw the origin of Operation Gatekeeper, the emergence of virulent bipartisan anti-immigrant rhetoric, and the initial militarization of the border. During the 1990s, both economic inequality and demographic diversity was visibly increasing under corporate globalism, and record-high levels of both legal and unauthorized migration became a flashpoint for those tensions and anxieties.
Political leaders such as Bill Clinton both exploited and expanded the scapegoating of immigrants by shifting political rhetoric towards narratives of invasion and the alleged social problems produced by illegal immigration. Clinton signed the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), which stripped some rights and protections from legal immigrants as well as expanding deportation.
In the aftermath of the attacks of September 11, 2001, rhetoric falsely linking foreign-born people to security threats intensified. Following this logic, border enforcement was moved to the newly formed Department of Homeland Security, and Immigration and Customs Enforcement (ICE) was founded. The Bush administration expanded internal enforcement, including dramatic workplace raids, although the president himself favored a path to citizenship for undocumented migrants who had set down roots in the country.
Barack Obama had the opportunity to shift away from security-based and punitive responses, especially as rates of unauthorized migration dropped dramatically starting in 2008. The demographic shift of the past 15 years, with increasing numbers of Central American asylum seekers, children, and families crossing the U.S.-Mexico border, provided another justification to shift back to an administrative rather than militarized approach to migration.
Despite his campaign rhetoric, Obama embraced a security-based logic rather than a humanitarian one. He is often referred to as the “deporter-in-chief,” a title he earned by deporting more people than any previous president. Less well-known is the Obama administration’s role in the vast expansion and extension of immigrant detention, both for asylum seekers and for families. Over the course of a few months during the 2014 “border surge,” the nation went from having less than 100 detention beds for women and child migrants to almost 4,000 such spaces, thanks to the opening of three prisons for immigrant families in Texas and New Mexico run by private corporations.
The Trump administration has taken this punitive approach to another level. Trump laid the groundwork for the mass separation of families in his first days in office through an executive order, “Border Security and Immigration Enforcement Improvements,” issued on January 25, 2017, which encouraged the criminal prosecution of all migrants. Rather than prioritizing the deportation of certain persons, the new guidelines make everyone a priority for deportation—even children.
Prior to 2017, it was not standard practice for migrant families to be funneled into the criminal justice system. Crossing the border without inspection or authorization is a federal misdemeanor, punishable by a fine of $50-$250 or up to six months in prison. Generally speaking, border enforcement agents have used discretion in the past, electing not to prosecute parents who have small children with them.
The federal government had also generally also used their power of discretion to choose not to criminally prosecute most asylum seekers, because once a person expresses a credible fear of persecution, their legal case enters another set of standards overseen by international and federal refugee policies. Because they are fleeing from a well-founded fear of targeted violence, refugees’ movements across borders are lawful.
In violation of legal standards within federal policies and within the broader framework of human rights law, this April Attorney General Jeff Sessions announced a new “zero-tolerance” policy instructing border agents and prosecutors to criminally process all those who crossed the U.S.-Mexico border without authorization, including families with small children and those seeking asylum.
Because of this policy, close to 3,000 children were taken away from their parents, often using deception or force. Just a few weeks after announcing “zero tolerance,” the number of migrant children separated from their parents by the U.S. government more than quadrupled. Although the government has refused to release statistics regarding the ages of children separated from their parents, the policy quickly filled three shelters for “tender age” children under the age of 13. The majority of separated children appear younger than ten, and some are too young to talk.
The spectacle of babies snatched from their parents’ arms led to a massive outcry, and on June 20, Trump signed an executive order that purported to end family separation. He deceptively represented this action as a humane response to an impossible dilemma. But indiscriminately prosecuting and separating families was a policy implemented by the Trump administration, and could be ended at any time. They didn’t need an executive order, because the enforcement policy was entirely discretionary to begin with. Not only does the July Executive Order fail to resolve the mistreatment of this wave of migrants and asylum seekers, the administration’s continued insistence on the “zero tolerance” approach creates a contradictory and unfolding situation in which new forms of legal violence against children are emerging.
Indeed, Trump’s executive order contained the first legal step towards detaining migrant children indefinitely in family detention, in conjunction with a Supreme Court ruling this February that permits the indefinite detention of all non-citizens, including asylum seekers. In further expanding the family detention system built under Obama, the nation could soon be locking up massive numbers of migrant children and their parents for long periods of time, contravening protections for migrant children that forbid their indefinite incarceration.
A decision in a 1993 Supreme Court case Flores v. Reno, followed by a consent decree in 1997 often called the “Flores settlement” set the terms for treatment of unaccompanied minor children in the custody of immigration authorities. Children must be held in the least restrictive setting possible in facilities that meet basic needs and should be released to their parents or another sponsor as soon as possible.
In response to vocal protests led by detained mothers, a 2015 decision by District Judge Dolly Gee (subsequently upheld in 2016 by the 9th Circuit Court of Appeals) extended these standards to children held with their mothers, essentially outlawing long-term family detention. The Trump administration argued that these standards should be overturned so that these children can be “with their parents,” waiving the protections in Flores that require the government to release children from prison-like conditions as soon as possible.
On July 9, Judge Gee denied the administration’s petition, although the response from the Justice Department suggests that parents may now be forced to choose between remaining detained together or allowing their children to be released alone. While these legal decisions were still in question, some migrants were told that they could only be reunited with children if they desisted with their asylum claims and accepted deportation.
In spite of the steadfast judicial interpretation of the rights of detained minors, the administration continues to use children to gain cruel leverage over both individual migrant claimants and within the broader political debates around immigration.
By establishing a false dilemma—lock up the children indefinitely or take them from their parents—the administration seeks to leverage the public’s desperation to end the cruel practice of separation to make a far more insidious policy change to increase the incarceration of migrants, benefitting the “recession proof industry” of for-profit immigrant detention.
Detaining immigrants is expensive, costing $208 per person per day; family detention costs twice that amount. Private prison corporations use some of their profits to fund a strong lobby and make campaign contributions to politicians on both sides of the aisle, driving policy that supports their taxpayer-funded boom. Since Trump signed his executive order and moved to expand capacity by adding 15,000 new detention beds for mothers and children, the stock values of these private prison companies have shot up.
Detaining asylum seekers and families is financially irrational; proven and effective alternatives to detention exist and are a far more prudent use of taxpayer money. Moreover, detention harms families by imposing institutional regimens that undermine parents’ decisions about how best to raise their children. Most family detention facilities hold only mothers and their children, meaning that fathers are often separated from their families.
Detention also violates human rights, both in principle—neither children nor asylum seekers should be detained under current law—and in practice. Numerous reports document unacceptable conditions in immigrant detention, including a 2017 DHS report by the government itself; in addition to poor food and dangerously substandard medical care, a recent report highlights more serious violations including sexual assault and involuntary drugging of detainees, including children.
The violence that detention inflicts on families and other migrants makes it extraordinarily difficult for them to pursue their claims to asylum or other legal proceedings. As a form of legal violence, ramped up detention is thus a win-win for the Trump administration, lining the pockets of for-profit prison companies, while continuing to exclude immigrants and placating the fears of citizens primed by decades of increasingly rabid anti-immigrant rhetoric.
Entre la espada y la pared: Between violence and prison walls
Despite the increasingly aggressive deterrence strategy against Central American migration, migrants from the Northern Triangle region of Honduras, El Salvador and Guatemala continue to arrive in record numbers, and increasingly these migrants are minors traveling alone or vulnerable families with small children.
Why do they continue to come, despite the crackdown? Because high rates of violence, death on the migrant trail, the possibility of incarceration and even family separation upon arrival look like a better bet for many desperate families than the risks they face at home.
While the region has long struggled with problems of violence, the last two years have seen a precipitous rise in the targeted persecution of vulnerable social groups, especially children and youth. In March, a United Nations Special Rapporteur on Extrajudicial Executions released a report showing widespread extralegal killing and human rights abuses in El Salvador, not only by transnational gangs like the MS-13 but also by the police, military, and other agents of the Salvadoran government, in particular the special reaction anti-gang forces who are equipped and funded by the United States. The U.S. State Department’s own country human rights report for El Salvador, released earlier this year, also notes unlawful killings by state security forces as a significant issue.
Civilians targeted and abused by their own governments are precisely those that refugee and asylum law is intended to protect. All nations have the obligation to provide safe haven for those fleeing targeted violence and to give migrants an opportunity to demonstrate their credible fear of persecution. This moral obligation is greater when the nation in question has been financially supporting some of the bloodshed.
The mass incarceration of Central American migrant families in the United States multiplies the violence and trauma these refugees are fleeing. Equally important, it is often successful in deterring people—not from making the desperate journey, but from persisting with their case when they have a valid legal claim.
La lucha sigue: The struggle continues
The actions of the Trump administration build on the deep foundation of legal violence enshrined in U.S. immigration law, ratcheting up enforcement and imprisonment in ways that carry out the projects of marginalization and exclusion at their basis. Even seeming triumphs, such as the executive order to end family separation, often push forward this exclusionary agenda. It is therefore crucial to take a historical view on emerging new spectacles of enforcement.
The counterpoint to this history of violence is the ever-present struggle of immigrant and refugee communities and their allies, from the Sanctuary movement to today. It is only through this long view that we can avoid being deceived by political games and remember that struggle is the one constant: la lucha sigue y sigue. Understanding current events as part of this longer history of oppression and struggle offers important lessons about how to disentangle, comprehend, predict and finally to resist contemporary forms of state violence towards displaced people.
Lynnette Arnold is a Mellon Postdoctoral Fellow affiliated with the Cogut Institute for the Humanities, the Department of Anthropology, and the Swearer Center. Miranda Cady Hallett is Assistant Professor of Cultural Anthropology and Human Rights Research Fellow at the University of Dayton. This piece is republished with permission and first appeared here on July 24, 2018 on the website the North American Congress on Latin America (NACLA), an independent, nonprofit organization.