Immigrants and their advocates breathed a sigh of relief when President Trump lost his bid for reelection, but a return to Obama-era immigration policies should not be cause for celebration. Many of Trump’s harshest changes to immigration rules, more than 400 by one count, can be undone by executive order, but a historical perspective shows that anti-immigrant rhetoric, restrictionist policies and locking up immigrants did not begin with Trump.
Without addressing the root of Trump’s immigration cruelty — more than a century of criminalizing people who migrate — it is unlikely to end with Joe Biden’s presidency.
Criminalizing immigrants in the United States and locking them up indefinitely pending deportation began in the late 1880s after the 1882 Chinese Exclusion Act. This first federal immigration law jump-started the building of an enforcement machinery, but it was an underfunded and improvised jalopy at first. In the Pacific Northwest, White mobs, unsatisfied with the lack of federal action, worked to purge the area of Chinese migrants, creating an atmosphere of racist violence that cast people who were Chinese as unwelcome. At the same time, judges were charging Chinese with being in the country unlawfully. They sent Chinese migrants to McNeil Island Penitentiary, a remote prison in what is now Washington state.
Not only were these Chinese immigrants held indefinitely pending deportation; they were also sentenced to six months of hard labor even though they had not been granted a criminal trial or provided with attorneys as required by the Constitution. In its 1896 Wong Wing decision, the Supreme Court resolved this contradiction by declaring that detaining an immigrant pending deportation was “not imprisonment in a legal sense” and therefore was not subject to the protections afforded to someone accused of a crime.
Even as an increasing number of foreigners were being locked up in immigration detention centers at the beginning of the 20th century, a much larger number were being incarcerated in mental health hospitals. One Census Bureau study in 1906 found that one-third of all patients in “insane hospitals” in the United States were immigrants at a time when the foreign-born represented only 20 percent of the population. Progressive Era ideas about the fitness and rehabilitation of those with mental illness, along with the rise of psychiatry, led to the dramatic expansion of asylums. Immigrants considered “mental defectives” and “feebleminded” or exhibiting strange behaviors, according to the views of ethnocentric doctors and immigration officers, were declared “insane” and locked away in these institutions.
In particular regions, such as the Northeast and the West, the proportion of immigrants in such institutions reached 40 to 50 percent. Newspapers fanned fears that the country was being swamped by mentally ill immigrants, as the New York Times did in 1912 when it ran a headline, “Too Many Insane Aliens.” If we consider all forms of incarceration, including involuntary confinement in mental hospitals, the combined rate of incarceration for immigrants and citizens in the early 20th century rivals our present moment of mass incarceration.
In much the same way that Trump labeled all immigrants from Islamic countries as a national security threat and stigmatized Mexicans and Central Americans as criminals and rapists, during World War II the United States targeted people of German, Italian and Japanese descent living in the United States and Latin America as “enemy aliens.” An FBI program ended up kidnapping 8,500 Latin Americans of German, Italian and Japanese descent and detaining them in camps run by the Immigration and Naturalization Service (INS) in Texas and New Mexico for the duration of the war.
In a cruel twist of logic, the people who were forced onto U.S. military transport ships at gunpoint in Latin America were charged with “illegal entry” when they landed in the United States. The government thus used immigration law to criminalize those who were kidnapped under the guise of wartime defense. The ostensible reason for detaining them was that they posed a threat to national security, but the real reason was that they were supposed to be exchanged for U.S. citizens held by the Axis powers. One INS official admitted at the time, “Only in wartime could we get away with such fancy skulduggery.”
After 1954, the United States moved away from detention of immigrants at seaports and shifted to greater enforcement at the southern border, where record numbers of Mexicans were being detained and forced to return to Mexico. Then, in the late 1970s and early 1980s, hundreds of thousands of mostly Black Haitians and Cubans fleeing their countries were put into mass detention camps, mainly in Florida. By the late 1980s, immigrant detention centers from Louisiana to California were almost entirely filled with immigrants of color, mostly Mexicans and Central Americans.
Immigration detention increased at the same time that the United States embraced mass incarceration and jails and prisons began filling up with people caught up in the criminal justice system. The systems reinforced each other, and in the late 1980s, tough anti-drug and anti-crime laws were increasingly linked to immigration. By the 1990s, a growing list of “aggravated felonies” and “crimes involving moral turpitude,” including drug possession and illegal downloading of material from the Internet, led to mandatory deportation of noncitizens. These laws, combined with a massive increase in the budgets of Border Patrol and other immigration enforcement agencies, resulted in a skyrocketing number of removals, both formal and “voluntary.”
As formal removals increased, so too did incarceration of people who were caught reentering the country. By 2019, the United States was incarcerating more than half a million immigrants per year, more than double the number just 16 years earlier.
As we stand on the threshold of an administration that promises a new direction on immigration, it is worth considering the historical continuity of U.S. immigration policy over the past 140 years. Although the exact shape of Biden’s immigration plan is still not clear, he has promised to reinstate the Deferred Action for Childhood Arrivals (DACA) program, end the ban on people from Muslim countries and increase the number of refugees admitted. He has also committed to facilitate asylum applications, stop family separation at the border, halt indefinite detention of minors and allow for more legal immigrants by easing visa requirements. These would all be major changes that would affect millions of families. In addition, Biden’s rhetoric will move away from the nativism that demonizes immigrants to one that recognizes the United States as a “nation of immigrants.”
However, for all the nastiness of Trump’s rhetoric, he has removed fewer immigrants from the United States than President Barack Obama did during in his first or second term; Obama’s rate of removal (382,000 per year) outstrips Trump’s (325,000 per year). Biden’s appointment of former Obama immigration adviser Cecilia Muñoz to his transition team, a person who defended the separation of children from their parents in 2011, suggests a troubling step backward to a failed and destructive immigration plan. Similarly, the announcement of Alejandro Mayorkas, deputy secretary at the Department of Homeland Security under Obama, as Biden’s pick to head the agency also suggests a continuation of Obama-era immigration policies.
Biden has the opportunity to make a break with the past — not only the past four years but the past 140.