Obama's Legacy: A Three-Part System
At first glance, President Obama's legacy on immigration enforcement appears contradictory indeed. He claimed to be a humanitarian who sought to deport only "felons, not families," while granting relief from deportation to hundreds of thousands of undocumented immigrants. At the same time, he was dubbed the "deporter-in-chief" for a reason. He oversaw historic rises in deportation rates.
To grasp the contradictory nature of his policies, it's necessary to explore three geographically different policy realms when it comes to the undocumented: interior enforcement, border enforcement, and the Mexican Southern Border Program. In the area of interior enforcement, Obama created several protection and priority programs for undocumented immigrants already in the country that did indeed shield whole groups of people from deportation. Immigrant rights supporters who emphasize the humanitarian nature of what Obama did focus on such protections, while downplaying the two border prongs of his policies. Yet, though not much attended to, even the humanitarian programs incorporated a darker side, criminalizing and targeting those not eligible for them.
When it came to interior enforcement, President Obama called on ICE to exercise "prosecutorial discretion." Immigrants who were parents, students, hard-working, had close family and community ties, or served in the military, he suggested, should be granted relief from deportation.
In the process, however, he offered a language of innocence versus criminality and the illusion that, when it came to immigrants, the notion of criminality was self-evident and universally agreed upon. By dividing them into felons versus families, he actually contributed to the criminalization of large groups of immigrants and so fed directly into Trump's future rhetoric. He also drew on Bill Clinton's "tough on crime" policies in ways that linked the criminalization of people of color with the deportation of "criminal" immigrants (also overwhelmingly people of color).
As immigration scholars Alan Aja and Alejandra Marchevsky explain:
"The criminalization of immigrants in part resulted from more aggressive policing of communities of color. In the 1980s and '90s, law enforcement agencies across the nation implemented broken windows and stop-and-frisk strategies, claiming that mass arrests for low-level offenses would prevent more serious crime. As the immigrants who lived in these communities fell victim to racialized policing and mass incarceration, the federal government's rosters of the criminal immigrant exploded."
Once criminalized, they then fell into a separate-and-unequal immigration enforcement system in which due process was eliminated and deportation, the ultimate draconian penalty, could be implemented regardless of the seriousness of the "crime." Worse yet, the ever harsher over-policing of communities of color and the expansion of mass incarceration produced, Aja and Marchevsky point out, "a reservoir of immigrants with criminal records, creating an endless chain of detentions and deportations."
As Michelle Alexander, author of The New Jim Crow, has made strikingly clear, all of this -- the redefinition of minor crimes as felonies, the increasing pressure on those charged to plea bargain, and measures that then excluded felons from public housing, employment, welfare rolls, voting booths, and other aspects of society -- relegated a significant number of black men to a permanent underclass. Undocumented immigrants were also caught in this web, with some special twists.
In the wake of Clinton's 1996 immigration law, for instance, convictions of just about any sort, including the most minor crimes, became grounds for deportation -- even retroactively. So a long-ago violation that resulted in probation and community service, or a small fine, now became evidence of an immigrant's "criminal" status from which deportation naturally followed.
And there was another new catch-22 category as well: so-called immigration crimes. Those with a record of illegal reentry and those who engaged in what was termed "immigration fraud" were automatically re-categorized as "criminals" under President Obama's priority enforcement policy. "Illegal reentry" is, in fact, the most curious of crimes, since it distinguishes between those who succeed in entering the country without inspection on their first try and those who are caught and only succeed on a subsequent try. "Immigration fraud," a broad category, includes common practices like using a false social security number in order to work.
Obama's interior deportation scheme relied heavily on this expansive notion of the criminality of the undocumented, who might otherwise have qualified as people trying to get by as best they could. Now, President Trump is extending that criminalization further by ruling that anybody convicted of, charged with, or even suspected of a crime constitutes a priority for deportation. In the process, he's expanded the concept of the "criminal" even as he's built directly on the Clinton-Obama legacy.
At the Border and Beyond
What earned President Obama the moniker of "deporter-in-chief," however, was his policy towards border enforcement, since it was there that the number of deportees rose most sharply. This was in part because he prioritized "recent border crossers" for deportation; everyone, that is, who had crossed without authorization, which essentially meant everyone apprehended in the border region, was now criminalized. Under previous administrations, most of those caught there had been granted what was called "voluntary departure." In other words, they were returned to the Mexican side of the border without legal sanction. During the Clinton and Bush administrations, more than a million people a year were returned to Mexico in this manner without being transformed into criminals and so were not included in the usual deportation figures.
In the Obama years, those apprehended at the border began to be formally charged and fingerprinted before being issued a deportation order. In this way, they were redefined as "criminals," and if they were caught attempting a second border crossing, as criminal "repeat immigration offenders." It also meant that formal deportations began to skyrocket, although the numbers crossing the border, those apprehended at the border, and those sent back to Mexico were all beginning to fall.
Soon enough, immigration crimes came to rival drug crimes in the federal court system. Obama became the deporter-in-chief not because he deported more people than previous administrations, but because he criminalized more of those he deported. This, then, was how he managed to protect many from deportation, while also racking up deportation statistics far beyond those of his predecessors. In fact, the situations of many of those caught at the border proved remarkably similar to those being granted prosecutorial discretion in the interior. They had family, including children, in the United States, or jobs and strong community ties, or had lived in the country for years. Because they had left and tried to return, however, they were redefined as criminals.