It Wasn’t Just Trump

For the first ninety years of American history under the Constitution, immigration was a matter of state and local concern. But in the late 19^th century, hoping to appease a virulent nativist movement in the western states, Congress passed a series of laws to exclude Chinese immigrants and other purportedly undesirable foreigners. Those nationwide restrictions were upheld as a valid expression of the federal government’s “inherent” sovereign authority, and in 1893 the Supreme Court ruled that unauthorized migrants may be arrested and removed from the United States without trial and without the benefit of constitutional protections that are normally extended to citizens and criminal suspects. This is so, according to the Court’s 128-year-old majority opinion, because “deportation is not a punishment for a crime.”

In The Deportation Machine, Professor Adam Goodman of the University of Illinois, Chicago, puts the lie to this enduring legal fiction, which is often summoned by government lawyers to deprive deportees of basic procedural rights. Drawing on extensive original research, Goodman traces a long and brutal record of immigrant removal practices that were specifically designed to “traumatize migrants and deter future unauthorized migration.” At the same time, Goodman finds that formal deportations, which typically involve a hearing before an immigration judge, only account for a small fraction of the nearly 57 million coercive immigrant removals that have occurred over the last 140 years.

Once the federal government assumed control over the admission and exclusion of foreigners, lawmakers embraced anti-immigrant political trends arising from the spread of eugenics, isolationism, labor market protectionism, and racially charged “law and order” campaigns. Unlike many authors of recent books about immigration and U.S. history, Goodman does not try to distinguish those movements or examine how they have evolved, intersected, or diverged over time. Nor does he reflect on the broader questions that drive most generalized conversations about immigration: Who should be allowed into the United States on a permanent basis, how many, and under what conditions? Instead, The Deportation Machine delivers a unique and long-awaited history of the various removal policies that immigration officials have adopted since the late 19^th century to punish and deter those whom the political arms of government have selected for exclusion.

From the time of the 1882 Immigration Act through the 1996 passage of the Illegal Immigration Reform and Immigrant Responsibility Act, Congress periodically targeted new categories of people for apprehension and removal. With limited resources to keep up, enforcement officials developed cost-effective “voluntary departure” and “self-deportation” tactics to push undocumented immigrants out of the country. Unlike formal deportations (which used to be relatively expensive and time-consuming), Goodman explains that these alternative mechanisms “enabled authorities to unilaterally execute mass expulsions on an unprecedented scale and on a shoestring budget.”

The term “voluntary departure” suggests an unencumbered choice by someone wanting to leave the United States, but it has been used since the early 1900s to describe undocumented people who have been arrested and then persuaded, by whatever means, to waive their right to challenge their removal in court. For those who are candidly informed of what they are signing away, voluntary departure waivers are often induced by well-founded fears of prolonged detention, criminal charges, and other consequences that can befall migrants who insist on having their cases heard by an immigration judge. Based on his reading of newly discovered archival records, Goodman estimates that more than 85 percent of all immigrant removals since the late 19^th century were classified as “voluntary departures.” As such, he argues that “any definition of deportation that excludes them is both inaccurate and misleading.”

Self-deportations are also induced by fear and coercion. With the help of local governments and private entities, immigration officials have often relied on publicized threats, public service restrictions, and other vindictive tactics to make the daily lives of undocumented people as fearful and miserable as possible. According to Goodman, “fear campaigns served as the primary expulsion mechanism in the 1930s,” and a large section of The Deportation Machine is dedicated to a granular history of the mid-century “Operation Wetback” campaign that drove thousands of Mexican residents throughout the United States to flee their homes and communities. Because self-deportation strategies are designed to expel immigrants without the need for accompanying arrests or removal orders, the number of people who have been persuaded to “self-deport” cannot be quantified. But as with voluntary departures, Goodman argues that government-sponsored programs to isolate and frighten immigrant communities should not be overlooked as an essential piece of the larger American “deportation machine.”

Goodman’s case for a broader understanding of deportation tracks with Elliott Young’s expansive account of immigrant incarceration methods in Forever Prisoners. A history professor at Lewis & Clark College, Young reminds us that the large-scale imprisonment of immigrants did not begin with Donald Trump and Stephen Miller, and he cautions pro-immigration activists pushing for the abolition of U.S. Immigration and Customs Enforcement (ICE) to be mindful “of the many ways immigrant incarceration has happened in the past so we do not simply replace one form of prison for another.”

Young traces the evolution of U.S. immigrant detention practices to the 1880s, when hundreds of newly excluded Chinese immigrants were detained in an offshore prison facility while the government searched for a way to deport them. From there, Young recalls how insane asylums and other charitable institutions were used throughout the early- and mid-20^th century to confine hundreds of thousands of documented and undocumented immigrants (as well as large numbers of U.S. citizens) without due process or other constitutional limitations.

Forever Prisoners and The Deportation Machine both explain how the criminalization of undocumented immigration and the eager enforcement of “crimmigration” laws by Presidents of both parties have contributed to accelerating rates of immigrant imprisonment over the last twenty-five years. Young notes that the closing of asylums in the 1960s and 1970s coincided with skyrocketing prison populations, while Goodman describes how the advent of “streamlined” formal deportations in the 1990s and 2000s led to a reduction in voluntary departures and a dramatic rise in criminal prosecutions and prison sentences for asylum seekers and other people whose primary offense was to enter the United States without permission. By the end of the Obama Administration, more than half of all federal criminal cases filed each year were for minor immigration violations. Then Trump took office, and the Department of Justice implemented a “zero-tolerance” policy that required all undocumented adult border crossers to be prosecuted as criminals. In just two years, the number of people charged with “improper entry” or “illegal re-entry” rose by 98 percent, reaching an all-time high in 2019.

Both of these books contain detailed and absorbing (if sometimes tendentious) histories of American counter-immigration practices. Like Goodman, Young does not try to settle longstanding debates about the value of restrictions on legal immigration. While it is clear that neither of these authors consider large-scale migration to be a significant cause for concern, the unique benefits of their respective books arise from their vivid accounts of the many punitive “solutions” that government officials have dreamed up over the course of their long and ineffective battle against the supposed problem of undocumented immigration.

By examining the many ways that asylum seekers and other aspiring immigrants have been incarcerated, mistreated, and expelled from the United States since the late 19^th century, Goodman and Young each provide a good measure of historical context for our current practices. In doing so, they reveal a remarkably consistent approach to immigration enforcement that has always relied on coercion, the exploitation of fear, and the infliction of punishment.

That approach may have finally encountered a genuine skeptic in the White House. On his first day in office, President Biden announced a sweeping immigration reform bill that would, if enacted, open pathways to citizenship for millions of undocumented people. Instead of looking for new ways to punish and deter prospective migrants, Biden’s proposed legislation would target the root causes of undocumented immigration by funding a program to help Central American governments “reduce the endemic corruption, violence, and poverty that causes people to flee their home countries.” With a slim Democratic majority in the House of Representatives, an evenly divided Senate, and predictably large numbers of asylum seekers arriving at the southern border after a year of pandemic travel restrictions, these proposals are not likely to become law anytime soon. But there is much good that can be done without waiting on Congress, and in the first hundred days of his presidency Biden has made several important changes to reduce the government’s reliance on deliberate cruelty as a tool of enforcement.

Within weeks of Biden’s inauguration, his administration released hundreds of families from immigration detention, ordered ICE agents to prioritize arrests based on public safety concerns, reversed the malicious “zero-tolerance” criminal charging policy, and clawed back the “Remain in Mexico” protocols that previously forced thousands of asylum seekers to await their court hearings in squalid and dangerous conditions along the southern border. More recently, the White House has announced that it will allow children in Central America to apply for asylum remotely, abandon a Trump-era rule that excluded prospective immigrants based on their financial means, and offer “temporary protected status” to an estimated 320,000 Venezuelan immigrants currently living in the United States.

Unfortunately, Biden has also made several missteps and short-sighted decisions that have undermined his early efforts to build a more humane immigration enforcement system. As part of a bizarre attempt to deflect attention from the ongoing humanitarian emergency on the southern border, administration officials have refused to call the situation a “crisis,” and they waited far too long to treat it as one. After repeatedly pledging to raise the annual cap on refugee admissions during his campaign, Biden has since dithered and delayed his final decision, seemingly for political reasons (his initial plan to raise the cap by 110,000 did not fare well in at least one public poll). Adult border crossers are still being summarily expelled without a hearing, and when a federal judge overturned Biden’s executive order to freeze all deportations for one hundred days, ICE officials quickly proceeded to remove hundreds of resident immigrants.

But even with these significant drawbacks and caveats, Biden’s approach to immigration enforcement has been markedly different not only from Trump’s, but also from Obama’s and from his many predecessors who prioritized punishment and harsh treatment as a means to deterrence, resulting in the kinds of policies described in The Deportation Machine and Forever Prisoners. It is too early to judge whether Biden’s time in office will represent a consequential turning point (one important metric will be the number of new criminal prosecutions for minor immigration offenses). But so far there are many promising signs that his long experience in government has taught him two important lessons: First, the spectacle of mass detentions and deportations will not persuade Republicans and immigration skeptics to support compromise legislation. And second, punitive enforcement tactics will not solve the problems that motivate desperate and hopeful migrants to leave their homes and travel to the United States in search of sanctuary and opportunity.

Lucas Anderson is an appellate litigator and writer living in New York City.