The Myth of the "Bad" Immigrant (ep. 118)

September 10, 2020
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Immigrant communities are often asked to “get right with the law,” but is the law right in the first place? That’s what our guest Alina Das asks in her new book No Justice in the Shadows. She taps her experience as the daughter of immigrants and as an immigration attorney to ask whether immigrants who violate the law should be detained or deported. 

Too often, she argues, our immigration system is used as a tool of discrimination and oppression, rather than as a tool of justice, and the consequences are dire. Our current immigration system is breaking up families, forcing people to face persecution – even death – in their home countries, and it’s all based on a false premise of ensuring public safety and national security.

Das is a professor of clinical law and supervising attorney at NYU School of Law. She is also the Co-Director of the Immigrant Rights Clinic. 

We’ve got some exciting news here at At Liberty. Starting on September 15th, we’re launching a special 2020 voting series called At the Polls. This will be in addition to our normal At Liberty episodes. Each week, we’re answering a new question about voting rights in the lead up to the presidential election. If you have a question you’d like us to answer, call us and leave a message at 212-549-2558. Or, email podcast@aclu.org. We so look forward to hearing from you. And until next time, stay strong. 

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MOLLY KAPLAN
From the ACLU, this is At Liberty. I’m Molly Kaplan, your host for this episode.

Immigrant communities are often asked to “get right with the law,” but is the law right in the first place? That’s what our guest Alina Das asks in her new book No Justice in the Shadows. She taps her experience as the daughter of immigrants and as an immigration attorney to ask whether immigrants who violate the law should be detained or deported.

Too often, she argues, our immigration system is used as a tool of discrimination and oppression, rather than as a tool of justice, and the consequences are dire. Our current immigration system is breaking up families, forcing people to face persecution – even death – in their home countries, and it’s all based on a false premise of ensuring public safety and national security.

Das is professor of clinical law and supervising attorney at NYU School of Law. She is also the Co-Director of the Immigrant Rights Clinic.

Alina, welcome to the podcast.

ALINA DAS
[00:01:07] Thank you.

MOLLY
Alina, I wanted to start with your book, No Justice in the Shadows. Part of what you take on here is really dismantling the distinction between a quote unquote good immigrant and a quote unquote, bad immigrant in our immigration policies and beyond, because those categories have huge consequences for people's lives. And just for example, a good immigrant might be an asylum seeker, might be someone who was brought by a parent at a young age and a quote unquote bad immigrant might be someone who's had a brush with the criminal justice system for whatever reason. And I was wondering if you could start us off with a story, a story of Eli, who you represented, because I think in some ways you use storytelling as a way to begin to dismantle how we categorize immigrants in our policies.

ALINA
[00:01:53] I know Eli as this incredible man, this grandfather who takes care of his grandchildren, who's lived a long life here in the United States. And when I started representing him and of course, to this day, he's been in this country for longer than I've been alive. So there's nothing that you can tell me, looking at his life that would make me think that he's anything less than an American.

MOLLY
One anecdote you say is that Nixon was president when he came to this country, just to give a sense of the timeline.

ALINA
[00:03:39] That's right. That's right. He came to this country during a time of incredible upheaval in many ways, in immigration law, in social justice, in race relations in this country. And this is coinciding with the time that the country is kind of reeling from the civil rights movement. And you're starting to see a backlash in our policies. And that backlash takes the form of criminalization.

But for Eli, he's you know, he's just a man who's settling in New York. He starts a family. He's working in this paper factory. And then essentially, like so many Americans, his life starts to fall apart. The paper factory he was working at had filled his lungs with so much dust that at some point he's no longer able to work. He basically develops a disability. And the neighborhood that he's living in New York City, starts to be wracked by violence. And his father is actually killed outside his doorstep by a stray bullet. And this all coincides with a time where he and his wife end up getting a divorce and ultimately Eli ends up struggling through all of this by essentially self medicating. He ends up with a cocaine addiction.

And as we know from the history of America's drug war, America chooses to deal with these problems by criminalizing people, and in particular, treating Eli and people who are from his communities, Black communities, as targets.

[00:03:48] And so he ends up getting criminal convictions for drug possession. But despite the laws, he ends up really trying to climb out of that. At his lowest point, he experienced homelessness and addiction, but he was able to really connect with his family and to get treatment and to get himself on a path where he was then able to really be the family man that he always wanted to be.

And it's around this time that despite the fact he's done everything that our broken and racist criminal legal system has asked him to do, he is then taken into immigration custody and he is facing a deportation case. And that's when he learns that even though he's a lawful permanent resident, a man who has a green card, that he can face deportation based on crimes that he's already paid his debt to society for. This is the way immigration law works. It's filled with all of these terms and these categories that are designed to keep people from being seen as people. And instead, they're seen as the worst version of their criminal record. And he was almost deported because of that.

MOLLY
[00:04:57] And the reason he wasn't deported from what I understood is in part A, because he was able to obtain counsel, which is not true for everyone in his position. And B, because he happened to get a judge who was sympathetic to his case and was willing to hear the story and not just take at face value, an immigrant who has a drug trafficking charge, is that accurate?

ALINA
[00:05:19] Absolutely. So an individual who's too poor to pay for their own attorney and lives in a place where maybe they're not able to find free counsel, that individual will have to face their deportation case alone. And in fact, the majority of people who are locked up in immigration jails don't have counsel. And so they're entirely dependent on an immigration judge who's actually an employee of the Department of Justice and not a separate judge outside of the executive branch. And there's a lot of politicalization of what they do. So that there's a lot of pressure to keep the deportation cases moving and to not give people a real fair day in court. So the combination of the laws that are incredibly harsh, the process, the lack of the kinds of basic due process protections we expect if we're going to face a punishment, and and the ways that people are treated because of our inherent biases. All of that becomes this perfect storm in which people's rights are trampled on on a daily basis in the immigration system.

MOLLY
[00:06:23] Is Eli’s story emblematic of your clients or clients in his position? As in, is he an exception to the rule or is his case more often what you see?

ALINA
[00:06:33] Eli's case is only an exception to the rule in the sense that he was able to prevail. He was right all along. He had argued from the beginning that he should be eligible for a hearing where the full experiences of his life, including the fact that he had gotten drug treatment, that he was a contributing member of his community, that he was taking care of his family. That those factors deserve to be considered. And ultimately, in his case, the Supreme Court agreed with him. The Supreme Court, in a decision a few years later, after we won Eli's case, adopted that rule across the country, saying that you can't just take two drug possession convictions and turn it into a drug trafficking aggravated felony, which is the term that the government was using to try and deny him a hearing. They said that that's not common sense and that's not the law. But countless people were deported before the Supreme Court ultimately weighed in.

[00:07:32] Most of what happens in the immigration system and in these immigration courts and deportations never gets that far. Usually a person is locked up. They're being told by the government that they have no right to a hearing. They see a judge who says, look, I don't see a way out for you. Come back with an attorney. They're not able to find an attorney. And when you're locked up in those conditions, inside a cage, you're under a lot of pressure to give up your rights. So many people end up taking a deportation order or just losing their cases and being deported and never get to see justice in their cases before that happens.

And for me, I think my own journey into understanding how perverse the good versus bad immigrant narrative is really began with my first client. And that's someone that I started representing when I was still in law school and I was 22 years old and learning about immigration law, and I meet this man who is facing deportation as a grandfather. And he had literally been in this country for longer than I had been alive. He had been arrested exactly one time in his life, had gone to prison for it and paid his debt to society. And on the day he was supposed to come out and his wife came to the prison to pick him up. That's when they found out that he was facing deportation and he was a lawful permanent resident. He thought permanent meant permanent, but it didn't. And they ended up taking him down to a prison in Oakdale, Louisiana, even though he was from New York and he stayed there for over two years. And even after he was released because they weren't able to get a document to deport him at the time. And so they allowed him to be released during his appeals. It took another six years for him to finally win his case. And there is nothing that you could say to me as a young person learning about the law and seeing it through his eyes. There's nothing that you could say to me that would convince me that he's any less American than I am. I was born here and because of that fact would never have to face that kind of double punishment that he did. But it had nothing to do with the fact of Americanness or ties to this country. You know, he was a grandfather. He was somebody who had been in this country for decades and was facing deportation to a place that he hadn't been to since he was 11 years old. And so that's what really made me view the deportation of people based on their criminal records as this kind of form of legalized discrimination.

MOLLY
[00:10:11] And I want to drive into the public safety point a little bit, because I'm curious, is this something that is all a false narrative or is, what does the data say about the link between criminal behavior and immigration? Is there a link or is there not?

ALINA
[00:10:25] So there's no link between being an immigrant or coming to the United States as an immigrant and any sort of criminal behavior. So the studies have shown really for decades that immigration, if anything, is linked to lower rates of crime and that people who come here as immigrants themselves are less likely to be arrested. But even that fact, again, doesn't tell us much, because we already know from studying the criminal legal system that arrest rates and how you're treated in the criminal legal system is often much more a factor about your race and about biases than it is about criminal behavior either. So when you look at that as a whole, you have to believe that, OK, well, we know that immigration itself isn't associated with criminality. So we shouldn't be treating deportation as this kind of public safety solution. And we also know that when people do commit crimes, and they happen to be immigrants, they're not doing it because of their status. They're doing it for all of the reasons why people might commit crimes in the first place.

MOLLY
[00:11:39] Well, also things like immigration violations themselves are considered breaking the law. Right. That is also a part of what can end up on a record.

ALINA
And part of what I talk about in my book. And this is something that I had come to learn. It's not something that they teach you in the history books. Is really how much we have made a choice about what ends up getting criminalized and what doesn't. And in the United States, if you go back and look at the times in which we've made these pretty dramatic choices in immigration policy and in immigration law, they've been motivated very openly by a white nationalist, white supremacist agenda. You know, for the first century of our history, the people who are creating federal laws were perfectly fine and even welcomed immigration because it was mostly white, where it was voluntary. And it was only when Chinese immigrants became a prominent part of the population across the West Coast and white residents started complaining about their presence, that we started to see a Chinese exclusion law being proposed. And interestingly, it was a rhetoric of criminality that helped warm the country up to China's exclusion. The predecessor was something called the Page Act, in 1875, which was based on this argument that Chinese women were all prostitutes and Chinese men were petty thieves, and so prostitutes and convicts should be banned from coming to the US. That's the kind of language that we saw. And then a few years later, they went out and said, OK, actually all Chinese laborers are going to be banned.

[00:13:14] So the foundations of immigration law and how we treat migration are very much tied to anti blackness. Before Congress ever came up with a federal immigration law, before they decided to even regulate the borders at all, they used their powers to regulate the migration of enslaved Black people and free Black people. And so when you look at things like fugitive slave laws, this idea that free Black people have to carry their papers and at a certain point in time, they can be sent back to slave holding states if they didn't have the right paperwork.

MOLLY
[00:13:51] And that image actually really resonated. It made me immediately think of Arizona's 2010 SB1070 law, where basically it had people, show me your papers kind of law and it immediately connected back to what you're talking about in the states where basically if you were Black, you had to carry papers with you or be forced into moving from your home.

And you notice the same sort of parallels when we come into the tough on crime era, the era of the war on drugs, that at the same time immigration policies sort of followed track. This connection between the criminal justice system and the immigration system has connections all through our history.

ALINA
[00:14:31] Yeah. I think we have now, thanks to the work of incredible activists, of scholars, of writers. We have a sense of how our current system of mass incarceration is very much a reflection of this backlash against the civil rights movement, that as segregation and other forms of legalized discrimination were being taken off the books, the criminal legal system really rose in prominence as a way to control Black communities.

And you see the same things happening in the immigration space. In 1965 as part of the civil rights movement, Congress finally abolished national origin quotas. These were laws that allow people to immigrate specifically based on their national origin, and they had racial quotas and within them. And so essentially because of those laws which had been on the books since the 1920s, people of color were generally not able to immigrate into the United States. And so that was changed in 1965. People recognized that that was racist and was diminishing America's standing in the world. And instead we have a system of family and employment based immigration that we have today. But it never sat well with people who wanted to see America stay white. The change in the law was sold as erasing an openly racist law without changing demographics. The people who support the law said, look, you're not going to see a lot of people coming to the US from Africa and Asia because they don't have a lot of family members here.

[00:16:03] And they were wrong. In the decade that followed, the color legal immigration changed, where now the majority of people coming to the US were from Africa and Asia and Latin America. And that coincides with this time of rhetoric around law and order needing to control people through the criminal legal system and all of the laws that targeted Black US citizens in this country, like the anti-drug abuse laws of the 1980s, opening into the crime bill in the 1990s, like this period of time. All of those laws created and included immigration provisions as well that suddenly tie the immigration system to the criminal legal system.

MOLLY
[00:16:48] And that's part of this larger movement around coded language that we see in the immigration system, but also beyond. I mean, the Reagan Southern Strategy was basically how do we code being racist into language that seems more innocuous. Another example you give is criminal alien. It doesn't really mean anything except to scare people. Alien is as other as it gets. And then you add criminal and it jars people's public safety notions. It’s meant to be fear mongering.

ALINA
[00:17:14] Yeah. I walk into court at pretty much every level of court and hear government officials using the term criminal alien openly to talk about human beings who live in this country and have ties and families and are very much a part of the fabric of our lives. And there is no doubt in my mind that that terminology, which is not found in a statute or a law, that terminology is being used to dehumanize people.

And I think it's interesting, again, to see it at this issue from a lens of anti blackness and racism in this country, because you don't see that kind of terminology gaining kind of any sort of popular use back at a time where everybody in power in this country was somebody who is foreign born. The people who came to this country to colonize it, to settle it, to take the land from the people who are indigenous here, were all, by definition, folks who were not born on this land.

[00:18:12] And we know that whiteness is a foundation of immigration law, because the very first time Congress was asked to produce a law about naturalization in 1790, the first naturalization law explicitly limited naturalization to free white persons. And that tells us everything we need to know about what the purpose of naturalization law is and eventually what the purpose of immigration law is, to preserve whiteness in this country. And we've never really taken ourselves away from that, even as those explicit terms about requiring a person be white in order to be on this path to citizenship when those got eliminated. Then you see a real popular resurgence of words like criminal alien to talking about the folks who don't deserve to be here.

MOLLY
[00:18:57] When I was reading your book, I got the feeling that the audience is not sort of extreme anti-immigration policymakers like Stephen Miller, but people who are basically trying to do the right thing. But I feel like the place where we risk losing people are instances where it really does seem like there is a public safety. I mean, the Trump administration and Trump himself have used the example of MS-13, an incredibly violent gang, to sort of tout, you know, the threat to public safety. And I'm curious, how did you take that on? How do you address when there really are instances of true public safety violations? And is there ever an instance where deportation is a good idea?

ALINA
[00:19:40] Well, my position is that there is never an instance where deportation ever solves a problem. In my experience, in having represented people facing deportation for all sorts of reasons, deportation is a problem creator, right? It is a destabilizing force. It tears people from their families. It creates the kinds of problems that lead to public safety issues in terms of that lack of stability and support that communities need to thrive.

And so when I hear President Trump or others use the example of like, well, what about the quote unquote, gang banger, the MS-13 person, showing pictures and using a very robust PR machine to pretend as if that's the majority of what Immigration and Customs Enforcement focuses on, which it's not. But when they use those examples, it bothers me in some ways even more, because when you claim that deportation is something that can solve kind of a present threat of violence, it's both factually incorrect and historically quite problematic.

[00:20:47] If you look at the actual facts, MS-13 is a gang that was formed in the United States and it was formed during a time in which the United States had been and used to be engaged in incredibly disruptive and destructive foreign policy in Central America. That helped lead to thousands of people fleeing the Northern Triangle for the United States seeking refuge. But because of the way this was happening in the 1980s and because of the way the Reagan administration had their fingers dirty in what was happening in Central America, instead of recognizing people as political refugees, they claim that they were just economic migrants and were not entitled to protection under immigration law. They essentially thought that they could deport away the problem and keep people safe. But instead, what they did was they took a group of people who ended up being placed in a situation fleeing violence from Central America, placed into a situation of violence in the United States. And then they sent them back to a place of violence in Central America.

And so if if there's any lesson from that, it should be that deportation does not does not address gang issues, that the actual solutions that we've seen over the years that address gang issues have to do with youth intervention, of giving young people alternatives, of helping people who've been members of gangs to come out of those gangs, giving people the kind of education, job security, public health access that they need so that gangs don't become this kind of alternative place that people end up and then can never really leave safely.

MOLLY
[00:22:25] And it creates ripples of effects. It's not just the person who is getting deported. It's also everything that that person is leaving behind.

ALINA
So, you know, there's a story that I tell in my book about a woman who I call Aba who was picked up by immigration officials under the Obama administration when she was dropping off her four year old son at preschool. And when they finally told their children, because we all knew the children had to be there for the bond hearing, for her to get this chance at getting bailed out of immigration jail and her son saw her for the first time and saw her in this orange jumpsuit with her hair matted and and shackled on the other side of the room.

[00:23:08] You know, he cried so hard that the immigration judge had to order the father to take him out of the courtroom. And to see our client in that court, pleading for a chance to just be returned home to her family while she fought her case and hearing the cries of this little boy outside of the double doors. I think it was clear to everyone in this room that she needed to be with her family. And she was ordered released that day. And it was a beautiful moment to see her reunited with her family in her own clothes in the light of the sun after that moment. But I couldn't help thinking, six months of separation, leaving these very young children incredibly traumatized, traumatized at first just by not having their parents there or their mother there, but then traumatized, knowing now that it was the US government, their government, that made this choice to do this to them and to do this to their family.

MOLLY
[00:24:07] And I think a really important point that you touched on is that this happened under the Obama administration. And as we come into the election, I sort of get the sense that there's a lot of hope, that as soon as whenever it happens, the Trump administration is no longer in office. And potentially we have a Democratic administration, that suddenly the zero tolerance policy, the basically ending asylum, that all these policies will suddenly disappear. But I think a really important point that you make through an historical review is that this is an across the aisle situation, that this will not go away with a different administration. And so I'm wondering, how do we think about reform? How do we think about beyond sort of the politicization that both sides of the aisle use? How do we solve this problem?

ALINA
[00:24:53] Well that's the big question. And I think I think you asked earlier about the audience for my book, and it's certainly the case that I'm writing this book for folks who care about immigrants and who want to do right by them, but find themselves pulled into this trap of the good versus bad immigrant narrative. And that is, frankly, how I see President Obama and the Obama administration. It is absolutely clear to me that President Obama cared deeply about immigrants and immigrant rights, that he wanted there to be comprehensive legislation and reform.

MOLLY
And of course, DACA had been on his watch as an executive order.

ALINA
That's right. And so because of activism from communities who were fed up by seeing the deportations under his administration, they were able to get pro-immigrant policies like Deferred Action for Childhood Arrivals. But ultimately, I think with President Obama, fell into a trap of using a good versus bad immigrant narrative. He believed that he had to sell a pro-immigrant platform by proving that there were bad immigrants that he was going to be tough on. And that is a dichotomy that we don't need.

[00:26:03] How do we come up with a system that recognizes that everyone has certain rights that need to be protected, that everyone deserves a day in court, that everyone deserves the right to an attorney, that families, that their unity needs to be protected and intact. And because we know the criminal legal system doesn't recognize any of those things, there has to be a decoupling of those two systems. And one place to start for the new administration would be to end Secure Communities.

Secure Communities is a program that uses fingerprints taken when you're arrested for anything. And then no matter what happens to that case, even if that case is fully dismissed, those fingerprints are sent to the Department of Homeland Security. And that is how we see all of the biases and problems in policing now be replicated in the immigration system. Because if the police decide to pull you over. And you end up getting fingerprinted for an offense, even if you're able to make that go away and resolve the issues there,

MOLLY
You’ve now been flagged.

ALINA
Yeah, you've been flagged. You've been targeted. And ICE can come knocking at your door.

MOLLY
[00:27:12] I'm curious if you think that some of the conversations about police reform in a truly systemic way in response to the killings of Breonna Taylor and George Floyd and now the shooting of Jacob Blake can have knock on consequences for immigration reform. And is it enough? Is it part of the conversation now in a meaningful way?

ALINA
Part of what we need to do in our varied intersectional social justice movements is to center Black voices. So there are a number of organizations that are led by Black immigrants who in the US experience the worst of policing as Black people. And then the worst of our immigration system as Black immigrants. And we know this because if you look at the numbers, Black immigrants are a relatively small percentage of the noncitizen population. And yet you see them disproportionately represented in deportation cases. Ten to 11 percent of deportation cases are Black immigrants, and one in five people facing deportation on criminal grounds is a Black immigrant. And that that has everything to do with the fact that, when you're a Black person living in this country and you get targeted by police and your fingerprints are taken, that follows you as a noncitizen into this other deportation system. And so we see this disproportional representation. It's also true for Latinx immigrants where, you know, if you look at Mexico and then three Northern Triangle countries in Central America. So you're talking about four countries. They make up roughly half of our noncitizen population. Yet they're 90 percent of the folks who are targeted for deportation under a program called the Criminal Alien Program. They're 90 percent of the folks in detention.

MOLLY
[00:29:05] You make the point, too, that eliminating ICE or DHS in any form won't actually solve the problem unless we get to the core roots of some of what we're talking about here.

ALINA
The agencies are created in order to enforce the laws and the laws are created to enforce white supremacy. So until we get to the root of really dismantling white supremacy, changing the name of an agency isn't going to do it. It needs to be much more foundational than that. And we need to really reenvision what the purpose of having any immigration agency is. It's not to help immigrant communities migrate and thrive. Then you're always going to have an agency that is bent on some of the most destructive and harmful actions that we've seen over time in the form of incarcerating people and detaining deporting them. So a fundamental shift needs to happen before we can really see true change on the ground.

MOLLY
[00:30:05] Well, Alina, thank you so much for this. And thank you so much for No Justice in the Shadows. I think it's an incredible contribution to this conversation and hopefully helps to make some of that systemic change that we really need to make in order to go forward here. So thank you so much for joining.

ALINA
Thank you for having me.

MOLLY

Thanks so much for listening. We’ve got some exciting news here at At Liberty. Starting on September 15th, we’re launching a special 2020 voting series called At the Polls. This will be in addition to our normal At Liberty episodes. Each week, we’re answering a new question about voting rights in the lead up to the presidential election. If you have a question you’d like us to answer, call us and leave a message at 212-549-2558. That’s 212-549-2558. Or, email podcast@aclu.org. That’s podcast@aclu.org. We so look forward to hearing from you. And until next time, stay strong.

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