With reports of indefinite detentions and children being separated from their families at the United States border, Maria Armoudian explores how we got here, what the legal and political ramifications are, and what happens next for America with Kevin Johnson and David Kyle.
Kevin Johnson is a Professor of Public Interest Law at the University of California, Davis School of Law. He is an expert in immigration law and policy and is the co-author of Opening the Floodgates: Why America Needs to Rethink its Borders and Immigration Laws.
This interview has been edited for clarity and length
Maria Armoudian: What I thought we would do to start is look at the current events around immigration in the United States and put that in a broader context. The reports I have read have been around these detention centres and separating children from their families, and photos of children in cages and raids of not just business places but hospitals. Can we first talk about what is going on in these processes? Is this normal? Kevin Johnson?
Kevin Johnson: Well it is both normal and it is extraordinary. In some ways it is normal because the Obama Administration did utilise detention and removal in very aggressive ways, so it is nothing new in that respect. However, this administration, President Trump as well as Attorney General Jeff Sessions have made it clear that they were going to conduct what might be called a ‘full-court press’ on immigrants in removals and detention. In the past, for example, President Obama had detained immigrant families in family detention centres trying to keep the families together while their processes were proceeding. This administration in an effort to deter asylum seekers from Central America from coming to the US has set forth a policy of destroying families indefinitely and that has got an extraordinary amount of press and bipartisan criticism from Republicans and Democrats. I do think it is important to note that some of the detention practises including using cages along the US-Mexico border were unfortunately common in previous administrations and are not all that new to this administration, but the separation of families is something that is very different and is part of an overall policy of this administration that they call zero tolerance towards undocumented immigrants.
MA: I have read that they have actually lost something like 1500 children, or at least lost the records of, they cannot figure out where they are. What do we know about that?
KJ: There have been reports of lost records, lost children, and we don’t know for sure precisely what is going on. I think there will be some kind of congressional and agency investigation to try to figure it out, but one of the problems in doing large numbers of detentions and splitting families up is keeping track of the people you have. And it has been a problem for a number of years in terms of detention, in terms of keeping track of people, keeping them healthy, and keeping them out of harm’s way. So it is problem that you would expect to happen when you have hundreds of thousands of people being detained in any one year. I have heard a number of figures including as many as 1500 children being misplaced in the juvenile foster care system.
MA: David Kyle what would you add?
David Kyle: For one I think that some of the information has been inaccurate. I am not sure that it was on purpose. For example, children held in cages, it turns out that some of those photos were from 2014. I think that there was a story about the 1500 lost children that had bounced it out a little bit, I am not sure that ‘lost’ was exactly the right word. I want to add though that I agree with Kevin that this is both old and new, but what is really new about this is one of our values embedded in immigration policy as a core American value is families. You know we think of families first. And that has been one of those sacred aspects of immigration and in fact when the Trump Administration talks about chain migration, that comes out of the social science literature where we really talk about family migration, social networks, and that has always been something that unlike other countries we actually have put a lot of weight in keeping families together and that is one of the reasons why we have these policies. And so to break up children with families that are fine, they are not abusive, all they did was cross the border, this is really new and really going against one of those fundamental values. I think the only other thing I would add to that, is that the old part of this is that this is a very deep ideological current: I would say Social Darwinian ideology, eugenics. Racist is a very strong term but I think [the idea] definitely is embedded in our culture that there are certain people that are desirable and certain people that are not, and that bottom end it is okay to sort of treat them like animals, this is what you would do to animals you can break them up, or for that matter slaves.
MA: I want to go down that path just a little bit more but David, as a sociologist, looking at how you said for example the family has sort of always been revered, do you think that this is a reflection of changing norms or changing values, or do you think that there are exceptions to our values and that is when we demonise a group or make them less than human?
DK: I think that that’s a great question. I think that before the 1965 immigration reform we certainly valued families but we restricted immigrants from entire continents that were viewed as undesirable. I think in this particular case I don’t think this is a change in norms and I think that that is why we are seeing the pushback by even conservative Republican groups as the stories are coming out. By the way they are not held in cages, they are being held in a former Walmart supercentre and it still is pretty shocking that we would put mostly young boys sort of all together, quite literally warehousing them. You know there is something about this that is beyond the pale for most Americans and I think these are two deeply embedded ideologies: not exactly racism but the idea that we should be able to control the most desirable and if they are not in that category we can do anything we want with them. That rubs up against the family value and I think we are seeing both of these intersecting right now.
MA: Kevin Johnson we are talking about race, we are talking about language, we are talking about law. You have written quite a bit on these intersections including around the ‘languaging’ of illegal immigration and that becoming part of the lexicon. Do you see this connected in the same way David does or do you see it slightly different as a lawyer?
KJ: I absolutely see it connected in important ways. In the immigration laws, in the DNA of the immigration laws, there is this concept of the ‘alien’. The alien has limited rights, has limited protections, can be subject to removal, and can be treated in ways that citizens can never be treated. And I think this term alien has evolved over time in US history, but today alien, illegal alien serve as racial code. We think about today the people who are affected by the American immigration laws, we should be aware that ninety percent of the people detained every year are people from Mexico and Central America. We should be aware that ninety-five percent or more of the people deported every year are from Mexico or Central America. So we have what some people might call a ‘Latino removal system’ and a ‘Latino detention system’ encoded in the immigration laws.
Those racially disparate impacts occur even though the immigration laws don’t talk expressly about race as they once did. In one time in US history we had laws that expressly prevented the Chinese from coming to this country, it then expanded to include other parts of Asia, today we have what some would call colourblind immigration laws but at the same time they have disparate racial impacts. One of the extraordinary things about this administration is that this president has made it clear that he has particular views about different groups of immigrants from particular countries who have particular racial and ethnic backgrounds. He has talked about people from El Salvador and Haiti as being from “shithole countries”, he has talked about Mexican immigrants as being prone to crime, and he has used kinds of phrases and terms when talking about immigrant groups, he often invokes [criminal gang] MS13 as a sort of code for all Central Americans. So I think it is important to keep in mind that race is underlying a lot of what is going on when it comes to immigration law and its enforcement, and is often employed as a code word for getting rid of people who are disfavoured in American society. It has historically been the case and I think it is still the case today.
One of the extraordinary things to me is President Trump talks about immigration in racial terms like no other President in the last fifty years. It is jarring to me when I hear him talk about Mexicans as criminals and rapists, as El Salvadorans as MS13 members, to talk about Haiti and El Salvador as “shithole countries.” It is like nothing we have seen in a good fifty years in America. In 1954 President Eisenhower had a deportation operation known as Operation Wetback that focussed on Mexican immigrants. I don’t think we have seen anything like that kind of nomenclature or direct racial reference from Operation Wetback to President Trump and it is kind of startling if you thought a few years ago that a high profile political figure would say something like he has on numerous occasions I would have said ‘No way’.
MA: And it seems to have become accepted among his followers in particular and maybe even supported in many ways that kind of language. There are some scholars who are even looking at this as he’s saying what people were already thinking in a divided America because we have got this divided America that political scientists have been pointing to for quite some time.
KJ: He is certainly talking to one segment of America through some kind of racial code. Some people might talk about it as dog whistle politics of sorts, but it is amazing to me how popular some of his statements are including the statement about building a wall along the US-Mexico border. ‘Build a wall’ became a chant at his campaign rallies and a very powerful one in terms of loudness and the enthusiasm of the crowd. But if you talk to most immigration scholars they would tell you that immigration enforcement may not be well served by a wall along the US-Mexico border, that other devices might prove more useful in terms of immigration enforcement.
MA: Let me turn to something that David said. David was talking about how historically in US culture and values we have talked about the family as kind of the core and that policies have been generally built around that. Now I understand there is a new immigration policy on the table that is called merit-based. Does that take the family structure and turn it upside down?
KJ: I agree very much with David that we have a set of immigration laws that have been devoted to family reunification. We have a devotion in this country to the family, we have a Republican party that in a number of important areas has emphasised family values, and the Republican party often calls itself the party of family values. So I do think that the family is an important concept. Now we are seeing, however, a sort of reaction to that family reunification aspect of our immigration laws. We have a proposal that has been percolating in the US Congress for about a year called the RAISE Act, that is a long acronym for a law that would reduce family immigration by half, would focus on merit-based immigration which would focus on language skills, education, and the kinds of things that are not as prominent in our current immigration laws. Some would say that the real motivation behind the RAISE Act is to reduce migration from Mexico, India, and China. So I think there is a question of the balance between family reunification and skills migration. At the same time, it is not to say that just because you are an immigrant here as a family member that you don’t have merit, because you may have a lot of skills as well as a family connection. But the Trump Administration and some members of Congress want to focus more on employment and high skills, English language abilities, and in some ways try to narrow the racial and cultural composition of the immigrant stream.
MA: David Kyle?
DK: I have been giving this quite a bit of thought recently in a somewhat broader frame, in that we had traditionally what was known as negative eugenics versus positive eugenics. Negative eugenics are all of the evil things that we know that have been committed in the name of racism: sterilisation and concentration camps and the rest. Positive eugenics was simply saying that the smart people should marry other smart people and have children, or smart people should be in our institutions, or smart people should come into the country That was the initial idea behind eugenics when Sir Francis Galton started it in the 1860s built on research called hereditary genius, involving things like talent and merit. Fast forward to 2018, I think that this is the Rorschach test of our time in that when Trump says “shithole countries” he was talking about Africa and Haiti, saying ‘Why do we have so many immigrants from these countries? Why can’t we have more Norwegians?’ Now one half of the country views that as racist. The other half says ‘No this is about skills or merit’.
I think this is a bigger conversation about how this ideology of merit and talent has gotten out of control. And that is precisely the kind of thing that has sparked so much anxiety among Trump voters, their own feeling about whether they are useful, do they have useful talents, will their children have useful talents, this is the core anxiety. And of course, there is the scapegoating happening, but the ideology of a kind of positive eugenics, that is such a wider ideology that whether you are in Silicon Valley or Kansas or Alabama, people don’t have a problem with that. I see this as two sides of the same coin, one feeding the other kind of what I call ‘talentism’, which is sort of the oxygen supply of racism. So we can talk about Norwegians and while when you link it to the “shithole countries” that seems obviously racist, but the fact that we can do that and talk about merit which is not a new idea. I think the two are connected and I think we need to give that some more thought.
By the way, Melania Trump got here on a so-called genius visa. There is always something like this where if you are super-talented, you have won the Nobel Prize and/or you invest in the US. And what this turns into is simply not just merit but high-value individuals and becomes its own class, and I think once again it becomes another hidden form of not only racism, but all kinds of discrimination. It is that high-end worshiping of particular people and the notion of merit that is found throughout our society, it is actually feeding into the idea that you can talk about people on the bottom end as literally animals and criminals.
MA: I think that the US is probably not unique in having what you are calling talentism. In New Zealand we have given citizenship to the billionaire Peter Thiel before he ever lived here. There are a lot of concerns about this type of thing, it is an interesting, potentially global, phenomenon. Kevin Johnson?
KJ: I think we see similar arguments and discussions in higher education. What is merit? What should we consider in the omissions process? And there are a lot of social anxieties that come into play here about access and inclusion and who gets what. But I do think it is important to keep in mind that merit is a contested concept. It means different things to different people, and maybe perhaps if you are talking about the genius visa category which usually goes to athletes more so than actors in the US. I think we should have a discussion about what merit might be and we should also think carefully about whether people who are working people should be admitted and how that benefits the economy as a whole.
MA: I would like to turn a little bit to the legal issues in terms of what kind of legal ground do people have who have been put in these detention centres. I know there were some lawsuits between some organisations and the Trump Administration, there were sanctuary city lawsuits that were going on, could you walk us through that side of it?
KJ: There have been immigrant detention lawsuits as long as there has been immigrant detention. We have had lawsuits that have been enforced, some after twenty years or so. And in response to the recent immigration detention policies of the administration, there are new lawsuits and there is going to be a resolution at some point, perhaps by the Supreme Court, with respect to detention and whether indefinite detention can be constitutional or not. In fact, the Supreme Court in a case in 2018 sent back to a lower court a case that raises the question whether or not indefinite detention of an immigrant while the proceeding is pending is constitutional, it is a case called Jennings vs Rodriguez. And I think that there is a whole line-up of cases challenging immigrant detention, challenging separation of families, challenging the conditions of detention, challenging the medical care provided to detainees, challenging the psychological care provided to detainees. There is a whole range of different challenges that are ongoing and these will percolate their way through the system.
In the past what has happened is that these legal challenges have been successful in some ways, have required the President to change the policies in certain ways, to provide bond hearings for example to allow people to be released. I assume there will be some victories and some losses for the Trump Administration when it comes to immigrant detention and I think it is going to be a long and contested battle. I do think that in the very near future we are going to get a resolution from the Supreme Court about whether something like indefinite detention of non-citizens waiting for their immigration proceedings to go forward is constitutional. We do have a system where citizens can never be held indefinitely without a possibility of a bond hearing and the possibility of being released from custody, but we have an immigration system where certain groups of non-citizens can be held indefinitely without a bond hearing. And the Trump Administration has made it very clear that they want to end what they call the catch and release of detainees. They want to ensure that people stay in custody, and some would say is what they want to do is they want to encourage them to forgo their right to a hearing and agree to deportation because the prospect of staying in indefinite detention is so unpleasant and painful that they just can’t deal with it.
MA: The other thing that I wanted to get to David Kyle with you is you have studied also the underground aspect of migration and smuggling. And I seem to remember in your work something about how when all these borders get closed in a place like the US it actually gives rise to more of this really dangerous underground stuff going on. What can you tell us about that?
DK: Well smuggling is a function of people wanting a good commodity service, to do something that the state has stopped. You think of Prohibition as the perfect example of that. So what happens when you think of people smuggling is that the border makes it a little more difficult, at least the perception of being more difficult, and that simply means that the smuggling fees can go up. As the smuggling fees go up that is what attracts criminal organisations. The profits go up, it starts to change the organisations so you do get more criminal syndicate activity. The only thing I would add to that is that I would not automatically assume that a wall would mean that we are going to see more criminal syndicates. I believe there are lots of creative ways to get into the US: overstay visas, document forgery, many ways to do it other than just crossing the border. I think that is the problem with the wall is that it is not just how we get over or under the wall now. We have had a wall now for most of the border for a long time. What we probably will see are other very different creative strategies that I believe are essentially endless.
MA: If in fact the smuggling does get a boost as a result of these policies and a wall, now I understand that this world is pretty harrowing and pretty abusive but what do we not see? What is not in the spotlight?
DK: I think what we kind of know but we don’t fully appreciate are the conditions in the home countries that they are leaving. The legal categories around refugee versus economic migrant – this is not [self-identifying], this is determined by a state in the first moment they cross the border. No matter what you say is happening that label is sort of what matters. And I think that the side effect of that is the news stories [portray them as] not refugees or the focus is no longer on the home community. So for example, Honduras I believe has the highest homicide rate in the hemisphere and one of the highest in the world. I don’t see a lot of coverage of the facts on the ground, what exactly are they going through. These are people that are very upfront that they can’t live there anymore. In any other normal universe they would be refugees and we would be taking them in and providing shelter. I don’t see that being covered.
MA: And you are saying for example Honduras, if they stay there the chances of them staying alive are pretty slim?
DK: Their odds of being killed or hurt are higher than any normal American would be willing to risk. I think it is telling that I believe the Trump Administration is proposing that, as an asylum seeker, the threat of violence has been taken off the table or it is being proposed that that can’t be one of the things that is a threat.
MA: Kevin Johnson?
KJ: I think that it is important, as David mentioned, these people who are currently coming across the southern border from Central America are fleeing horrendous conditions, violence as well as economic problems, and that some of the women bringing children are bringing them to try and save their lives. And we oftentimes don’t pay as much attention to the human conditions that they have fled that make them willing to take a dangerous and possibly disastrous journey across the deserts into the US. I mean women who make that journey are regularly raped and abused in horrible and horrendous ways. I have heard stories of women taking birth control before they make the journey knowing that they were going to be raped along that journey. You have to imagine what would drive somebody to take that kind of risk perhaps with children and you have to think that they are fleeing some pretty horrendous things. And by all accounts it appears that the conditions in El Salvador and Honduras are horribly violent particularly for certain groups of people.
And I do think that people in the US don’t necessarily have a good idea of the risk taken by the migrants who risk literally everything trying to make it to the US. I think we should pay more attention to the fact that we have people dying each and every day along the Mexico-US border, and that we as part of a nation are responsible for that by making border fortifications that redirect migrants to more dangerous locations where they are more likely to die. There are some places along the border, they don’t even have enough storage spaces to keep all the bodies. It is really a story that is deeply troubling to anybody who cares about the humanity of people who are fleeing horrible conditions. And I do think even President Trump when he talks about MS13 and crime in El Salvador understands the violence there is horrible, but at the same time his administration is denying people access to even applying for relief in the US. And now Attorney General Jeff Sessions just recently has made it clear it is not going to be easy to get relief if you’re claiming persecution by private parties like gangs. So I think we have an administration that is trying to make it tougher to get here, is harsher to people who flee this violence, and then doesn’t want to give relief to people who have fled even though it seems to be required by US law.
MA: What can possibly be done on either end of this David Kyle?
DK: That is a tough one. I think that really more education, understanding, communication with people across the western hemisphere is necessary. I think there is such a lack of awareness of each other’s lives and the interdependency. I think that everybody has been put into boxes in the US in terms of who you are, what you can do, your community, your state. I think that the Social Darwinian dimension of the US in general has increased so much that we can’t look up from our cubicles. We want to be passionate, I think Americans want to do the right thing, they want to figure it out. I think it has more to do with where the nature of our culture has been going recently, but also as I said, I think there is a Social Darwinian aspect that is creeping up on us again and getting a little bit out of balance such that ‘Why would I even want to know about somebody in El Salvador?’. However, we might not be talking about globalization as much but we are still just as connected, the interdependency is still very much there.
MA: Kevin Johnson?
KJ: I would think of it in two ways. One is, we are seeing something of a political reaction to the separation of families, and also with respect to the treatment of the recipients of the Deferred Action for Childhood Arrivals program [DACA]. One of the things that I viewed as being a possibility, not a certainty, but at this point in time with the Trump Administration taking extremely aggressive actions with respect to immigrants, we are seeing a political reaction to that and it includes not simply Democrats who have a particular political bent on immigration. I think we are starting to see Republicans, including moderate Republicans, pushing for some kind of response when it comes to family separation and also the DACA recipients. So I guess I am optimistic in a sense that at some point there will be a political response to at least some of these problems, and I am hopeful that the long-term political solution is going to be just that. It is going to take a lot longer for us to come up with a system of immigration laws that balance all the different things we have been talking about in terms of merit versus families, the rights and status and economic impacts on US citizens, and the humanitarian treatment of people. I think that is going to take a lot longer to come about. In the interim, I do think we are going to see an incredible amount of litigation and legal challenges to the various immigration policies of the Trump Administration. The travel ban on Muslims, we are now really at the third version of that. The first two were struck down and the third one might survive or parts of it might, now it is currently before the Supreme Court. But that is just the tip of the iceberg in terms of litigation. I do think at a minimum it is going to slow things down and in some respects is going to stop some things from going into place. So I think there will be political responses, I think there will be legal responses. But I do think in the short term there is certainly going to be a lot of human misery and it is in my mind unfortunate.
This interview originally aired on the Scholars’ Circle. To access our archive of episodes and download this interview, click here.
Disclaimer: The views expressed in this discussion reflect the opinions of the guests and not necessarily the views of The Big Q.