Have We Reached Peak Xenophobia Yet? (ep. 56)

July 18, 2019
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It’s been a dizzying few days in U.S. immigration policy. Earlier this week, the Trump administration issued rules to ban most refugees arriving through the southern border. Despite legal setbacks, the administration continues to try to build a border wall. And at the same time, the president has launched sustained attacks on four American congresswomen of color. Cecillia Wang, deputy legal director at the ACLU, talks to At Liberty about all of these developments, and the ACLU's legal efforts to push back.

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[00:00:05] From the ACLU, this is At Liberty. I'm Emerson Sykes a staff attorney here at the ACLU and your host.

It's been a dizzying few days in U.S. immigration policy. Earlier this week the Trump administration issued a new rule to ban most refugees arriving through the southern border. A day later, the ACLU filed suit in federal court to block the rule. At the same time the president has promised widespread deportation enforcement raids spreading fear through immigrant communities. And despite legal setbacks the administration continues to try to build a border wall. Here to talk us through the latest immigration related developments is Cecillia Wang, deputy legal director at the ACLU and former director of the ACLU Immigrants Rights Project. Cecillia, thank you very much for taking time away from reviewing Supreme Court briefs to speak with us. Welcome back to the podcast.

My pleasure. Thanks, Emerson.

So the ACLU’s Immigrants Rights Project filed yet another lawsuit this week, I think David Cole tweeted that it was episode 195 in the ACLU versus Trump. But this one challenges the Trump administration's newest immigration rule. Can you tell us about it?

Sure. So this was by my count the eighth action that Donald Trump and his administration have taken against people who are seeking asylum in the United States under U.S. and international law. So the latest move that he took was that on July 14th, 2019, he announced that people who are coming in through the U.S.-Mexico border can't apply for asylum or won't be eligible for asylum, if they have passed through another country other than their home country and haven't sought to get asylum in that third country.

[00:02:00] So this new rule out of the Trump administration is completely contrary to existing U.S. law. And, especially coming on the heels of seven previous actions, or seven or eight previous actions, at the U.S. Mexico border, really shows that Donald Trump and his cabinet are trying to deliberately deter people who are fleeing torture, death threats, intolerable persecution, in their home countries in Central America, and for that matter around the world, and prevent them illegally under a U.S. law from seeking asylum here here in our country.

So is this just an extension of the “Remain in Mexico” policy that was rolled out over the last several months?

Yeah, it comes on the heels of the remain in Mexico policy. To maybe start at the very beginning, just give a recap of the the six seven or eight different policies that are targeting people fleeing from torture and persecution. President Trump started right out of the box, on his third and fifth days in office, announcing three separate executive orders on immigration and refugee law. Of course, the first action that went into effect was his Muslim ban, carrying out his promise during the campaign to carry out a complete shut down of Muslim immigration into the United States. That was of course challenged in court by the ACLU and many others. And ultimately, in a parallel case brought by the state of Hawaii, the Supreme Court let that Muslim ban in its third version go forward. The second thing that the president did was to announce this horrific policy of tearing infants and young children away from their parents arms as the families are coming to the US-Mexico border and turning themselves into Border Patrol, seeking asylum. He announced specifically that he was doing that to deter people from from fleeing to the United States and filing asylum applications here. That again, the ACLU brought suit against and got a court order blocking that really horrific family separation policy.

[00:04:14] The third thing that he did against asylum seekers in the United States was to suddenly direct, through a matter of practice, all of the immigration officials around the country and 14 different field offices to keep people seeking asylum in immigration jails while they are fighting their cases. Previously, immigration judge, left to their own devices, were letting people out to live in the community with sponsors or family members in the United States. And the grant rates for releasing people on bail was in the 90 percentile or above. After Trump took office what we showed in the lawsuit is that those numbers went down to close to zero, in some of these I.C.E. field offices. Again, the ACLU brought suit there and got a court order enjoining that policy. Just to speed up through the other issues: Attorney General Sessions, in one of his last actions before departing the Department of Justice, unilaterally issued an opinion that really tried to undermine gang based asylum claims and domestic violence based asylum claims, the two major categories of asylum claims that are being brought by Central Americans from the three countries that are that are represented among the large numbers of people who are seeking asylum at the U.S.-Mexico border.

[00:05:45] The president then issued another proclamation, officially announcing that he was barring the entry of people who are seeking asylum, except through official ports of entry at the U.S- Mexico border. And that came alongside the “Remain in Mexico” policy that you just mentioned, Emerson, where they were artificially bottle-necking, metering, asylum applications at the ports of entry. There were thousands of people who were now at the ports of entry trying to turn themselves in and apply for asylum, and the U.S. policy was, our practice was to artificially keep the doors shut, literally. And that led to this horrific sight of these refugee camps just on the Mexican side of the border in places like Tijuana, where families, including infants, are living in just atrocious conditions while they're waiting to file asylum applications.

And, of course, then we have our border wall case where the president defied Congress, which had denied his request for billions of dollars in funding to build a useless wall that damages the environment as well as U.S. asylum law. And we won an injunction blocking the government from using funds that Congress had denied to the Executive branch. So that's the total picture of all of the many things that the Trump administration has done, officially, in terms of policy and practice that we have to enjoined here at the ACLU, through our litigation.

It's a really helpful recap in tracing the progression of the Trump administration's policy. You know, the message is unequivocal: That enforcement and punishment and deportations are the rule of the day. But it sometimes makes me wonder, where do these ideas come from? Because at some point, it seems like some of these policies have been a case of “policy making by presidential tweet”-- sort of these are the ideas that popped into the president's head at any given time, and then officials are scrambling trying to make it work. Some of them are so legally unprecedented that it seems like they must be that. But also, some of these ideas have their roots in the fringe of conservative academia and they're just now starting to get a welcoming ear at the White House. To what extent can you trace the roots of this new asylum policy and its origins?

[00:08:12] You're absolutely right, Emerson. The roots of all of these anti-immigrant and anti-refugee policies come from the really far right fringes of of the United States. President Trump, throughout his campaign for the presidency, made blatantly anti-Mexican, anti-Muslim comments. As we know, he notoriously was tweeting out his opinions about Muslims, about Latinos, and most recently, of course, infamously, over the weekend, about four members of Congress, all women of color. And so, I don't say this lightly but, the President of the United States has been carrying out an explicitly white nationalist immigration and refugee policy. We see this as well with the controversy and litigation over Secretary Wilbur Ross's decision to add a question about the citizenship of everyone living in the United States to the 2020 census. Again, blatantly illegal and struck down by the Supreme Court, as well as the lower court.

All of these policies. from the fraudulent claims by the Trump administration about voter fraud, non-citizens illegally voting, something that was debunked thoroughly by all mainstream media outlets, all of the immigration and asylum policies. the campaign comments about Mexicans and about Muslims, all of these things, disturbingly point to the fact that a top adviser to the president like Steven Miller, people on the outside of the administration, like Kris Kobach who had been recently making the rounds in support of his Senate bid for--from the state of Kansas, really are aimed at pleasing an extremely vocal and mobilized minority in our country that believes in a pre-civil rights era, pre World War II era immigration policy.

[00:10:09] Well, you mentioned Trump's most recent tweets from last week telling four American congresswomen to go back to the countries where they came from, even though three of them were born in the U.S. and all four our citizens, obviously. But this one had an unexpectedly profound effect on me, I think. And, you know, this is despite the fact that the daily news is full of terrible news, this one, somehow, hurt a little more, and I don't think I'm alone in that. And I just wonder how you think about the relationship between this explicitly racist rhetoric and these policy proposals that, as you said, have deep roots in the radical fringe. But I'm usually one who says, “Ignore the tweets, focus on the policies,” but this one seems really hard to ignore. How do you think we should respond?

You know, I think you and I, just talk on a personal level as people of color, know exactly what “Go back where you come from” means, and the four Congresswomen, of course, know what “Go back where you come from” means. Any person of color, any sensible person in the United States, and for that matter, Theresa May and other heads of state from other countries know, exactly what the president means.

[00:011:25] I think what's most disturbing is that his tweets, his public statements, his press conference on Monday where he doubled down on the tweets against the four Congresswomen by repeating, “If you don't like it here, you can leave,” implying, or saying, that they're communists, that they support terrorism. You know, these ridiculous claims come alongside policy announcements, right. We had in one weekend the announcement that ICE was going to raid communities throughout the United States, mostly urban areas, where our local elected officials had expressed opposition to the president. So, this blatantly political action by federal immigration authorities, with the announcement of the new asylum rule blocking virtually any asylum claim filed at the U.S.- Mexico border, and the “Go back where you come from” tweet. All of that is of a piece. And the clear message is that for us people of color, not limited to immigrants, we're not welcome in Donald Trump's America. And so I think that hurts, that has real consequences. As you said, all of us have known from childhood that really deep pain, that real harm of being told, “This is not your country.” And I think that's why this--this weekend really was a new low in two and a half years of many many low points for this administration.

Well clearly the president has been open with his disdain for immigrants and other people of color and all sorts of other marginalized groups, but in the area of immigration, previous administrations have also you been guilty of grave abuses of rights, both at the border and in other circumstances. And you've been doing this for a long time. How do you compare this era to other areas? And also, maybe looking forward, what do you want to see out of the next president, not only to break with Donald Trump but also to break with the long line of presidents who've not respected immigrants’ human rights?

You know, it's such a great question. I really think of the Trump era on immigration policy as someone with really bad intentions picking up a loaded gun that was prepared for him by previous administrations. Before we saw Donald Trump, of course, President Obama was famously called “Deporter in Chief by immigrant communities around the country, and for good reason. He really beefed up the enforcement of immigration laws targeting people for deportation who are longtime residents of the United States. He also targeted so-called “recent border crossers.”

[00:014:26] And what was going on for for many years, you know, I graduated from law school in 1995 and started doing immigrants rights work during law school. The pattern we see is that there is a real xenophobic, retrogressive tendency in U.S. immigration law. Like other areas of civil rights law, there is a real kind of back and forth between racism and white nationalism and periods of greater progressivity as people are trying to build up a more diverse country where everyone has opportunities and everyone has the ability to contribute. And so you see this kind of oscillation in U.S. immigration law ever since the first immigration law passed by Congress in 1790. They said only free white persons can become naturalized citizens of the United States. That wasn't repealed fully until 1952.

The current era, I think, really goes back to 1996 when Congress passed the so-called “Illegal Immigration Reform and Immigrant Responsibility Act.” Bill Clinton signed that into law. And for the first time, we saw a massive expansion of the federal government's power to use police actions against immigrants, to deport people and to throw people in jail while they're defending against immigration cases. And what's unique about immigration is that unlike in criminal cases where an accused person generally has a right to seek a bond hearing, a bail hearing, to get out of jail and fight the case from home among family and support, in immigration, starting in 1996 we saw laws that don't even let people get a hearing to show that they are going to show up for court as directed.

[00:016:22] So all of that is to say that since 1996, there's been a real sea change toward regressive, draconian enforcement policies in immigration. And every administration, since 1996 with Bill Clinton, has ramped up enforcement and ramped up enforcement. And I think what we really see now is the full, kind of, flowering of this tendency toward xenophobia. The depths of the xenophobia in official U.S. policy is unprecedented with the Trump administration at least in the modern era. But its roots go throughout the previous several administrations.

Well, I know that you've fought Obama and his administration on immigration, you're fighting the current administration. I'm sure you will take great pleasure in fighting future administrations, as well. And, you know, the ACLU wins a lot of cases. I think there was a recent week where we won like six big decisions in one week. But we also lose a lot of very enormous cases. And the judiciary right now, from the Supreme Court all the way down, is getting literally more conservative, almost by the day with new appointments. So, I guess I want to finish with a question about how you keep your energy and your hope on a day to day basis given the enormous challenges we have ahead of us.

[00:17:40] You know I can-- We could have a long conversation about that, those of us who are working in all of these social justice movements at the ACLU and throughout the country and other organizations. We're hard pressed these days. There is so much work to do. And you're right, the losses hurt. They really hurt. When the Supreme Court let Trump's Muslim ban go into effect, we still have communities and families who are being torn apart over over that kind of policy. But. you know, what gives me hope is that I've been doing this for a while now, over 20 years, and I look back to the days after 9/11. When the George W. Bush administration took the compassion and sympathy of the world, after we'd suffered this horrific violent criminal action, and we then went-- The U.S. government went on this downward spiral violating everyone's privacy rights, recalibrating all kinds of national security policies in a way that just went beyond the bounds of all reason and law, reinstituting torture as an official policy of the United States. And when we went into court in that post 9/11 period, in the early 2000s, we tried to fight back against the torture policy of George W. Bush, along with other organizations like the Center for Constitutional Rights, on behalf of people who were being imprisoned and tortured by the U.S. government.

And any time we walk into court, we would make our best arguments supported by all the law, supported by all the facts, and we would be confronted by these Justice Department attorneys who would simply get up, and they only had to say basically four words: “United States” and “national security.” And time and again we saw the courts, in the federal judiciary, back down for fear that they would, you know, as a result of some ruling, be accused of letting terrorists do their evil business.

[00:019:48] And what we see now, even in the Muslim ban case, was a very thorough repudiation of that notion that the executive branch gets to do what it wants. We saw courts throughout the country, including the Supreme Court, even in the Trump versus Hawaii case where the Muslim ban was ultimately approved, the court said “No” when the
president came before the court and said, “The courts have no business second guessing what the executive branch has to say about national security and about immigration.”

So I think that's progress. I think it's progress that all of the lower courts rebuked the president for trying to claim that his policies of xenophobia were in fact a national security imperative. That was thoroughly rebuked by the lower courts. And I think we can take heart in that, that as we mobilize--it's not about what happens in court, of course, exclusively. You run to court when you need to put out the fire. But ultimately it's gonna be up to all of the people in our country to mobilize and thoroughly reject Donald Trump's policies and make for the better country that we're all hoping for.

Cecillia Wang. Thank you so much for all of your great work over the years and for joining us today. We really appreciate it.

Thank you, Emerson.

Thanks very much for listening. To learn more about your rights and how to respond to ICE and law enforcement, please visit www.aclu.org/kyr-ice. If you thought this conversation was valuable please share it with a friend. You can subscribe to at Liberty wherever you get your podcasts and Please rate and review the show. We appreciate the feedback.

‘Til next week, peace.

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