Immigration Detention in the Trump Era: A Timeline and Analysis
By: Arielle Woods
Tags: Biden, Family Separation, Trump, Immigration Detention, Immigration

Abstract: Beginning with Executive Order 13767: Border Security and Immigration Enforcement Improvements, the Trump Administration has made sweeping changes to the environment of immigration detention in the United States. This paper examines the timeline of this administration’s policy changes in this area through the utilization of executive power- including executive orders and administrative agencies- that increased detention frequency and spending, created new pathways to detention. This paper argues that these policies deepen the conditions of abuse in immigration detention, prolonging the “slow death” experienced by those attempting to enter the United States, especially through the Southern Border. What are the prima facie policy changes made by this administration, and what is the real effect have they had on the experiences of immigrants? What are the legal issues surrounding immigration detention during the Trump presidency? What direct action and community organizing is being done within activist organizations, and what have been the results of these actions? To contextualize and analyze these policy changes and social movements, this paper will also bring together discussions of immigration detention from scholarly sources and from social organizations such as the Detention Watch Network and La Resistancia.

Introduction

For those that continue to seek improper and illegal entry into this country, be forewarned: This is a new era. This is the Trump era. The lawlessness, the abdication of the duty to enforce our immigration laws, and the catch-and-release practices of old are over. - Attorney General Jeff Sessions, April 11, 2017, public statement in Nogales, Arizona

In 2015, presidential hopeful Donald Trump released his first specific immigration plan, which called for the strict enforcement of immigration law, restriction of immigration pathways only to those which provided a domestic benefit, and the construction of a physical border wall on the Southern Border to be paid for by Mexico. While the latter received the most press coverage by far, once elected the Trump administration pushed to deliver on the first two promises as well, much to the detriment of migrants seeking to build a new life in the U.S. Donald Trump’s racialized immigration rhetoric was then and is now famously popular with his supporters, gaining fervent repetition particularly in now-banned forums like Reddit’s r/The_Donald, and in the president’s Twitter mentions.

Since his inauguration in 2016, The Administration’s policies have made good on the campaign’s promises, tightening the restrictions that send immigrants into carceral institutions and keeping them in cages longer and in worse conditions. This paper argues that these policies deepen the conditions of abuse in immigration detention, prolonging the “slow death” experienced by those attempting to enter the United States, especially through the Southern Border. For the purposes of this paper, I use legal scholar Stephen Lee’s framework of “slow death” in immigration law to conceptualize the human impact of immigration policy. The term “slow death” has been used by scholars to conceptualize the kinds of harms that build over time, that can not be as easily visualized as other types of state violence. Lee uses the example of climate change to quantify this term: the harms of pollution do not occur as a single event, and environmentalists are tasked with quantifying the errs of pro-polluting policy using a long-term framework, such as “slow death.” Family separation, a key feature of “Trump Era” immigration law, similarly enacts its greatest harms on a durational scale. Structural conditions that impose “slow death” on an axis of country of origin, race, and poverty, such as our immigration detention system, are often overlooked in discussions about border enforcement reform due to their longitudinal nature. Additionally, this paper will refer to “conditions of abuse” and simply “abuse” to describe the human impact of certain policies and practices. This refers to those conditions which represent a misuse of established legal or human rights norms, and those which exhibit cruel or violent treatment, which may deprive a subject of their dignity, health, wellbeing, liberty, or life.

To unpack this Trump Era immigration law regime, Part I sets out a detailed timeline of the explicit major policy changes from 2017 to 2020. Part II assembles legal analysis from scholarship on these policies’ neglect of due process rights, the conditions of confinement during this Era, and the domestic detention standards that the Trump administration has attempted to eliminate. Part III presents a picture of resistance to these policies, highlighting the work of grassroots movements against detention, and argues that these resistances have made a tangible impact on the state of immigration detention in the U.S. today.

In order to fully understand the policy changes made during the Trump administration, it is important not only to understand the legacy of immigration detention in the United States, but first to understand immigration detention as a part of what political scholars Katherine Beckett and Naomi Murakawa call the “shadow carceral state.” The expansion of the U.S. carceral state, due to political and economic circumstances that incentivised the creation of a prison industrial complex, most often is measured through its most visible element: mass incarceration. However, mass criminal incarceration in America’s prisons and jails only represents those elements of the carceral state which are officially organized into the criminal justice system. In contrast, Beckett and Murakawa call attention to those aspects of the punitive legal system which lie beyond the legal structure of the criminal justice system: those which represent the “annexation” of civil and administrative law and procedure into the shadow carceral state. Legal scholar Marie Gottschalk refers to this process as a “punitive revolution” in immigration policy, and notes that it has taken place over two decades through policies like Operation Streamline, a 2005 “fast track, zero-tolerance” prosecution program for border crossers. Immigration detention, which is governed by civil and administrative law rather than criminal law, has the same punitive function as criminal incarceration despite being situated outside of the state’s definition of punishment. Therefore, it is important to understand the expansion of immigration detention as part of the broader expansion of the prison industrial complex and the rapidly growing penal system in the United States.

Trump Era immigration policy operates within the greater legacy of immigration law in the U.S. For most of U.S. history, immigration detention did not exist. In fact, until the 1880s when the Chinese Exclusion Act was introduced, the U.S. had what many would refer to today as “open borders.” When immigration into America began to be more regulated by the state, illegal entry was very rarely addressed by the federal government, and when it was, the response was a quick and “painless” deportation. This regulation became increasingly racialized, as restrictions on the immigration of “undesirable migrants” began to exclude people on the basis of their country of origin. The Chinese Exclusion Act and the political nativism that led to its implementation created the framework for the exclusion of other “racially inferior” and “unassimilable” groups, including Mexicans as they became increasingly characterized as “foreigners” to the U.S. Civil and administrative law authorized the federal government to regulate immigration and carry out deportations, but it wasn’t until 1952 that criminal law would first become entangled into the organization of immigration law. White supremacist Coleman Livingston Blease proposed 8 U.S. Code Section 1325, which made illegal border entry a misdemeanor and reentry a felony, as a compromise between nativist calls for Mexican exclusion and agricultural labor demand. It is important to note though, that at this point in time and until recently, prosecutions of illegal entry under Section 1325 were not prioritized and generally were pretty rare. While the U.S. briefly operated it’s first immigration detention centers from the 1890s to 1950s on Ellis Island and Angel Island, the U.S.’ capacity for immigration detention began construction during the expansion of the carceral state under the guise of criminal justice reform in the 1980s and 1990s. It was then that Congress began expanding mandatory detention for both documented and undocumented immigrants through what the Clinton Administration would call “Prevention through Deterrance.” These policies laid the framework for the magnitude and character of immigration detention that would take shape through the Trump Era, and serve as important context for understanding not only how these policies fit into the U.S. immigration system, but also why the Trump Administration was able to create such an abusive political environment around immigration detention.

Part I: A Timeline of The Policies of the Trump Administration

We have people coming into the country or trying to come in, we’re stopping a lot of them, but we’re taking people out of the country. You wouldn’t believe how bad these people are… These aren’t people. These are animals. - President Donald J. Trump, May 16, 2018, at a California Sanctuary State Roundtable

2017

The Trump Administration got to work implementing their immigration regime just five days after inauguration. On January 25, 2017, Executive Order 13767: Border Security and Immigration Enforcement Improvements was signed into law by President Donald Trump, marking the beginning of a tumultuous four years for immigration law in the United States. In keeping with the President’s rhetoric during the election, the order states that the Federal Government had previously failed to meet its “basic sovereign responsibility” to secure the nation’s borders. The order mandated two main changes to immigration law: firstly, a physical wall was to be built, and Federal funds allocated to this end, and secondly, new detention facilities were to be built, and the use of detention expanded across the southern border specifically. This second critical change to imigration detention is twofold: the order calls for the Federal government to detain more people from the area around the southern border, and build more cages to hold the new detainees. Additionally, the order called for more judges to be assigned to immigration detention facilities, five thousand more border patrol agents to be hired, and an end to “the practice commonly known as ‘catch and release,’” a goal consistent with the promises made by the president on the campaign trail in 2015 and 2016. In reality, the “catch and release” practice was ended by president George Bush II over a decade prior, but make no mistake: this order did mandate detention at an unprecedented rate. Another element of note in this executive order is the requirement that the Attorney General “accord a high priority to prosecutions of offenses having a nexus to the southern border.” This intentionally worked to intensify the criminalization of unlawful entry from specifically the Southern border, through the use of criminal prosecutions which had previously been applied discretionarily. This executive order was followed by a February 20, 2017 Department of Homeland Security (DHS) Memorandum directing the implementation of the executive order. This memorandum specified some aspects of the practice expanding immigration detention through the authority of the order, removing detention exemptions for the disabled, elderly, and pregnant, and permitting release from detention only in limited circumstances. On May 18, 2017, U.S. Immigration and Customs Enforcement (“ICE”) released a “100 Days” report, which announced a 37.6 percent increase in arrests of individuals suspected of illegally being in the United States. The department claimed to have made over 400 arrests per day between January 22 and April 29, 2017, and that non-criminal arrests alone increased from 4,200 arrests in 2016 to over 10,800 in these first few months of 2017.

These statistics make clear the intention and effect of the Trump Administration’s first actions on immigration law: to use expanded immigration detention as a tool for promoting the Administration’s “tough on immigration” appeal that was used on the campaign trail. A White House statement in June proudly summarized the administration’s policy changes in the context of his campaign promises: “While running for President, Donald Trump promised the American people that he would bring law and order back to our broken immigration system.” In keeping with this promise, the Administration’s Department of Justice announced on July 25, 2017, that new conditions would be placed on the Edward Byrne Memorial Justice Assistance Grant Programs (“Byrne JAG”). Any jurisdiction receiving the Bryne JAG would now be required to “permit personnel of the U.S. Department of Homeland Security (“DHS”) to access any detention facility in order to meet with an alien and inquire as to his or her right to be or remain in the United States; and provide at least 48 hours advance notice to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien.” In September, the Department of Justice issued an Executive Office for Immigration Review (“EOIR”) Policy, putting a gag order on immigration judges themselves. The policy requires all employees of the EOIR, including immigration judges, to have any public statements, even those not related to immigration law, approved through their chain of command. This intentional reduction of transparency must be remarked upon as the administration continues its pursuit of a dramatically more strict and punitive immigration system.

2018–2019

On March 6, 2018, the Department of Justice filed a lawsuit against the State of California, alleging three state statutes (AB 450, SB 54 and AB 103) interfered with federal immigration authorities’ “ability to carry out their lawful duties.” In short, AB 450 (the Immigrant Worker Protection Act) and SB 54 (the California Values Act) limits employers and law enforcement officials, respectively, from releasing information about suspected immigration law offenders and cooperating in their capture by federal immigration authorities. AB 450 furthermore required employers to notify employees of upcoming I-9 inspections, and prohibited employers from “ verifying employment eligibility when federal law did not so require.”AB 103, or the Detention Review Act, authorized the State to inspect and review federal detention facilities within the State of California, which the DOJ alleges is de facto regulation of federal immigration detention from the State, in violation of the supremacy of the federal government. The result of this lawsuit was mixed. In July, a District Court dismissed the DOJ’s claims relating to SB 54 and AB 103, finding them to be “permissible exercises of California’s sovereign power.” However, the Judge also ordered that, while the notification provision of AB 450 was lawful, the supremacy clause of the constitution invalidated the statutes’ provision regarding verification of employment eligibility that prohibited employers from granting immigration officials access to employee records and nonpublic labor areas. An appellate court affirmed this decision, and the Supreme Court of the United States denied the DOJ’s petition for certiorari. Before these decisions had been announced, the Administration’s next move was already under way. On April 2, 2018, the Department announced a quota for all immigration judges, noting a backlog of 700,000 cases waiting to be heard. For each year from October 1st to September 30th, immigration Judges are now expected to complete 700 cases per year, while maintaining a remand rate of less than 15%. The National Association of Immigration Judges (NAIJ) made the following statement:

These unprecedented numeric quotas are so onerous that many judges will rush through cases to protect their own jobs. Decisions in immigration court have life or death consequences and cannot be managed like an assembly line. This policy adds another cog to the administration’s deportation machine that seeks to rapidly remove massive numbers of people at the expense of due process. This push to compel judges to complete cases is new and dangerous and is the latest example of why the courts need independence.

The court process leading to immigration decisions had already been widely remarked upon as rushed and unfair, and the new quota is highly controversial on the grounds that it deepens the due process issues facing detained immigrants. Judges that do not meet the quota could be subject to worse benefits and career stagnation, and those that repeatedly do not meet the quota could face termination.

In April 2018, the Trump Administration would attempt to radically change detention policy regarding children and families in an attempt to deter family migration. The United States government has long grappled with the issue of children crossing the border in a system where detention may be mandated. Since Flores v. Meese (1997), a case litigating the conditions of civil detention for minors, the United States has been required to provide “appropriate care and protection for their age and vulnerability.” Consequently, the United States does not detain minors in the same facilities as adults, and instead families would be placed as a unit into family detention centers, while unaccompanied minors (which critically includes any child that could not verify direct parentage with the people they were traveling with) would be housed in distinct facilities or placed with a “suitable sponsor.” On April 6, 2018, the Trump Administration’s Attorney General (“AG”) announced that the federal government would henceforth prosecute all adults crossing the border (including those seeking asylum) and separate all children from their parents with a new “zero tolerance” approach, intending to deter family migration and reduce asylum claims. The public response to this was justifiably extreme. Polls suggested that this was the most unpopular major policy change in decades.

Sides, John. “The Extraordinary Unpopularity of Trump’s Family Separation Policy (in One Graph).”

A House Judiciary Committee Report issued on October 29, 2020 revealed that the administration had begun pursuing family separation without a formal policy change a year prior to the AG announcement in April 2018 and had “discovered that it was unable to track separated family members in a way that would facilitate eventual reunification” during a pilot program in El Paso. The report also identified inconsistency in the policy across the various Border Patrol Sectors, mistreatment and abuse of minors in CBP or ICE custody, and a complete lack of preparation for the dramatic policy change within the administration’s immigration agencies. Though many of these details were unknown at the time, the public outrage surrounding family separations reached a fever pitch as protests raged. Laura Bush condemned the policy in an op-ed for the Washington Post, and officials from both parties called for an end to the practice.

Despite doubling down on Twitter two days prior, President Trump signed an executive order on June 20, 2018 that effectively ended the policy, preempting the resolution of numerous legal challenges. The executive order, titled “Affording Congress an Opportunity to Address Family Separation,” claimed that “Congress’s failure to act and court orders [had] put the Administration in the position of separating alien families to effectively enforce the law,” mandating immigrant families be detained as a unit “where appropriate and consistent with law and available resources.” After the public backlash from the family separation policy, the Trump administration momentarily allowed US immigration policy to remain stable for a brief cooling off period. Then, on November 9, 2018, the Trump administration issued the “Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States.” This proclamation, colloquially referred to as “Asylum Ban 1.0” by the National Immigrant Justice Center, blocked migrants that entered through a southern port of entry without proper presentation for inspection from applying for asylum in the United States. Situating immigration policy as the administration’s focus once again, the President began tweeting in December 2018 amid conflict between congressional Democrats and Republicans regarding funding for the President’s border wall.

As promised in the President’s twitter statements, the United States federal government shut down on December 22, 2018, when an appropriations bill was not reached that met the administration’s demands for $5.7 billion in funding for the border wall. What followed was the longest federal government shutdown in history. After a thirty-five day stalemate on the appropriations bill, the shutdown was ended on January 25, 2019 when congress and the President approved a temporary funding measure that did not include border funding. On February 14, congress approved a full appropriations bill which only allotted $1.375 billion for the border wall. The next day, the President issued a “Presidential Proclamation on Declaring a National Emergency Concerning the Southern Border of the United States,” attempting to utilize the National Emergencies Act to secure funding for the border wall by redirecting federal funds in an attempt to circumvent the congressional appropriations budget. Despite the President vetoing a congressional joint resolution to end the national emergency, the redirection of funds was blocked by a US district court injunction following legal challenges. The state of emergency, however, remains in place today, in tandem with the “National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak” and others.

2020

While the Trump presidency winds to a close, it is critical to note that hundreds of children remain separated to this day as a consequence of the Trump family separation policy. The October 29 Judiciary Committee Report called the administration’s reunification process “chaotic and disorganized.”

… Because of the Administration’s repeated missteps detailed above — including the insistence on rolling out the policy nationwide without first incorporating lessons learned from the pilot program, the secrecy and lack of cross-agency communication, and the conscious disregard of the welfare of affected families — those efforts continue to be hampered even today. As a result, some children — particularly those whose parents were deported before reunification could take place — remain separated from their parents.

On October 20, 2020, it was reported that 545 children had yet to be reunited with their families, 853 days after the Presidential Proclamation — a figure that was corrected to 666 by lawyers a few weeks later. The search for the families of these migrant children is being led by the American Civil Liberties Union (“ACLU”), who reported on December 2nd that 38 children had been reunited with their families subsequent to the release of new information that had previously been withheld by the Trump administration. They reported that 628 children are still without their parents. After winning the 2020 presidential election, Joe Biden announced on October 29, 2020 his intent to issue an executive order on his first day in office to create a federal task force to reunite the families.

Part II: Legal Analysis

While many of the Trump administration’s actions are clearly morally deplorable, the legality of these policy changes and executive actions has been the subject of scholarly critique. Immigration law, and especially that surrounding detention, is extremely complex. Academic considerations of Trump policies must consider the legal distinction between civil, administrative, and criminal law, and the diverse ways they factor into the legality and practicality of policy changes. While these considerations have practical limitations, they do open some dialectical avenues through which the basis of legal challenges have arisen. The Trump administration has faced numerous lawsuits challenging many different facets of their regime, not the least of which being their immigration policy. Scholarly analysis of these considerations, and of some of the legal challenges faced by the administration, illustrate the lengths to which the Trump administration has stretched the law to deepen the conditions of abuse within immigration detention.

Fifth and Sixth Amendment Rights

First and foremost, the Trump Administration’s policy changes raise deep legal questions about the neglect of due process in immigration detention. Any person under the jurisdiction of the United States is afforded the right to due process under the Fifth Amendment. To unjustly deprive a person of due process rights should be considered abusive, not only because it represents state cruelty, but because it represents the misuse of a foundational protection of Constitutional rights.

Judicial independence is foundational to the functioning of the United States government, and to the due process rights of those under the discretion of the judiciary. To what extent, then, does the president influence the judiciary’s decisions inside the courtrooms of detention centers? Legal scholars Catherine Y. Kim and Amy Semet first analysed the outcomes of 830,000 deportation proceedings decided between January 2001 and June 2019, finding that the presidential administration that appointed an Immigration Judge (“IJ”) was not statistically significant in determining the outcome of a given case- but that the administration in power at the time of the decision was. Concluding that this finding suggests “a sitting president may exert some measure of direct or indirect influence over IJs’ decisions to deport,” Kim and Semet then set out to determine whether this influence affected IJs’ decisions to detain defendants pending proceedings- analysing the outcomes of 780,000 bond proceedings for the same period of time.

We find that on every metric of bond hearings, noncitizens fared worse during the Trump Era than they did during either the Bush II or Obama Eras. Although rates of release on recognizance were extremely low throughout the period of study, they started at 2% of all cases decided during the Bush II Era, dropping to 0.23% during the Obama Era and then to 0.17% during the Trump Era. Similarly, while only 7% of custody hearings during the Bush II Era resulted in an outright denial of bond, that figure rose to 14% during the Obama Era and 18% during the Trump Era. Perhaps more telling, overall noncitizen win rates — release on, granting of bond when ICE denies bond, or lower bond amounts — indicate that all appointee cohorts were less likely to award relief to noncitizens during the Trump Era than during the Obama Era… Bond medians grew from $5,000 during the Bush II Era to $6,500 during the Obama Era, and then jumped to $8,000 during the Trump Era. Indeed, 43% of the bonds set by IJs during the Trump Era were $10,000 or higher, as compared to only 24% and 25% for the Obama and Bush II Eras, respectively. Again, breaking down these results by appointee cohort indicates that earlier-appointed IJs mostly issued higher bond amounts during the Trump Era than during preceding administrations.

While clearly there are many variables impacting a bond decision — only some of which could be controlled for in this data, this raises an important question about the nature of judicial independence in this particular system. Due process should mandate insulation from political interests. However, bond decisions are by law not subject to judicial review, and immigration judges in particular do not enjoy the same independence as judges in other courtrooms, since they are supervised directly by the executive branch, and subject to their employment decisions. Clearly, Kim and Semet’s findings suggest the sitting president influences IJ decisions in at least a statistical sense, as IJs generally have been seen to favor detention in a greater magnitude of cases during the Trump administration. It seems likely that the political messaging from the Trump administration, both to the public and in internal communications within the Department of Justice, has some influence on the decisions made by IJs. It is important to note that the Trump administration’s policies clearly work toward a decline in legal immigration into the United States, a trend identified by numerous social organizations discussed later in this paper. In total, the findings from this data work in tandem with explicit policy changes to illustrate the “big picture” of the expansion of immigration detention in neglect of due process under the Trump administration.

Due process rights also include the limitation that detention should only be used if a defendant is either a flight risk, or poses a danger to society if released. Neither of these circumstances are the case in a vast majority of immigration proceedings, and yet the Trump Administration has pushed for far more mandatory detention. According to ICE’s FY 2019 Enforcement and Removal Operations Report, “85 percent of those removed by ERO had spent time in ICE detention prior to their departure from the country.”

Graph Prepared by ICE for FY 2019 ERO Report

In 2001, Zadvydas v. Davis ruled that civil detention violates due process unless ordered “in certain special and ‘narrow’ ‘nonpunitive’ circumstances, where a special justification, such as harm-threatening mental illness, outweighs the ‘individual’s constitutionally protected interest in avoiding physical restraint.’” According to legal scholar Kara A. Naseef, immigrants generally pose neither threat of flight nor danger to society, and are detained anyways because “IJs do not consistently assess dangerousness and flight to meet the special justification requirement.” This is in clear violation of due process considerations under Zadvydas v. Davis and the Fifth Amendment. Taking into consideration that the proportion and number of migrants detained in the Trump Era is so dramatically increased from previous administrations, it is unsurprising that the standards leading to detention are being disregarded in this administration’s push for what can only be viewed as the legacy of “Prevention through Deterrence.”

Access to counsel within immigration courts is also fraught with legal controversy. The Sixth Amendment grants the right of any criminal defendant to have assistance of counsel, and this has been interpreted by the courts to be limited to those proceedings where incarceration may be the result. Proceedings leading to immigration detention, however, are technically civil proceedings, meaning the Sixth Amendment has been interpreted by courts to not prima facie support the right of counsel for non-citizens facing possible detention. At the same time, immigration reform for the last few decades has undergone a “punitive revolution” as part of a trend toward the criminalization of immigration offenses. It has been well argued that, in particular, the mandatory detention provisions of American immigration law are functionally criminal, not civil. While this punitive revolution has been in progress since the Bush II administration, this is also clear in the Trump administration’s regime. For example, the administration’s family separation policy was part of the administration’s push for “zero tolerance” prosecution of immigration law as criminal charges. This “crimmigration crisis” has created a system wherein defendants, including those without the appropriate legal knowledge to represent themselves including the disabled, elderly, and children, have no right to counsel when they face detention, which is of course a form of incarceration. Pro se litigants, especially those without the capacity to effectively represent themselves, are clearly at a substantial disadvantage, and are statistically much less likely to receive a favorable outcome. Assistance of Counsel should be provided in immigration court proceedings due to the criminalization of immigration law, and the fact that it can lead to incarceration, which in other contexts has been used to affirm that right. To disregard these considerations in denial of the rights of migrants constitutes an abuse of the Sixth Amendment.

Conditions of Confinement

I was placed in a cell that was about 15 feet by 20 feet … [T]here were about 30 to 35 people in the cell. We were like cigarettes stuffed in there…[T]he second station … was worse! The cell was a bit bigger but there were about 60 men in there or more. … The benches and the floor were covered with men sitting, standing or lying down. To get around you had to walk on the benches and jump from bench to bench to avoid stepping on people…Sleeping here was horrible. It was so crowded we just had to lay any way we could, sometimes on our sides, so we could fit more people. If you moved, someone else would take your spot. — C.V.J., former detainee. There was one sink in the cell but it did not work. There was also no soap or paper or cloth towels. It was impossible to wash your hands or clean yourself after using the toilet. — J.A.M.B., former detainee.

Simply put, the conditions inside of detention centers during the Trump administration have been abhorrent and inappropriate for their purported purpose. Detainees are deprived of their dignity by a system that confines them (for dubious causes) in conditions that leave them uncared for and unable to care for themselves. Basic supplies, such as soap and toothpaste, are often not provided. Facilities have been reported to provide inadequate food and water to those in custody. Medical care is poor and often not accessible- and in the case of medically vulnerable detainees, these conditions can have devastating effects. Yazmin Juárez testified before Congress in 2019 that she was forced to watch her “baby girl die slowly and painfully just a few months before her second birthday” due to the conditions and medical neglect they suffered in ICE custody. Similarly, pregnant women face unacceptable challenges in Trump Era detention. This administration’s push for zero-tolerance detention has resulted in far more pregnant women in ICE custody, and the inhuman conditions inside the facilities often result in stillbirth, miscarriage, and other serious health complications. Detainees are kept in “jail-like facilities under jail-like conditions,” often shackled (even pregnant women, to the detriment of their health), subject to body searches, kept in solitary confinement — all when over 70% of detainees have committed no criminal offense beyond illegal entry. Maxi Sopo, a man from Cameroon that was granted political asylum in the U.S. in 2004, served a three year sentence in a federal prison after being convicted of a crime completely unrelated to his immigration status. After his time was served, ICE transferred him to the Stewart Detention Center, where he remained for 20 months awaiting immigration processing: “to my biggest surprise… this place is actually worse than being in prison.” According to legal scholar Whitney Chelgren, these conditions of confinement “do not reflect the regulatory purpose of detention.” In short, immigration detention is preventative detention that has the same characteristics as punitive detention. The course that leads to punitive detention, however, includes due process protections, where immigration detention does not. When the conditions of immigration detention are either indistinguishable or worse than that of jails and prisons, it becomes even more clear that the due process rights afforded defendants in criminal contexts must be translated to immigration hearings as well, particularly bond hearings. These abusive conditions inside immigrant detention also exemplify the disregard for human dignity, care, and wellbeing endemic to the Trump Era.

Flores Settlement

The conditions defined above are not only unacceptable because they are morally reprehensible and by their nature conflict with due process rights, but also because established domestic precedent has set minimum standards for the detention of migrants, which the Trump administration is now attempting to eliminate. In 1997, a fifteen-year-old from El Salvador named Jenny Lisette Flores, and a number of other migrant children who were kept in similar conditions for similar causes, sued the then Attorney General Edwin Meese and the US Immigration and Naturalization Service (“INS”) over allegedly unsafe and unsanitary conditions and indefinite confinement related to immigration processes. The Flores Settlement Agreement (“FSA”) concluded the case after a year of litigation, and set standards for the care and custody of children in immigration officials’ custody for decades. Some of the critical features of these newly established standards include access to sanitary conditions, food and water, medical assistance, separation from unrelated adults, release (to parents or sponsors) without unnecessary delay, and the “least restrictive” environment appropriate for their age. The FSA also limited the custody of minors in DHS facilities to 20 days. On August 21, 2019, the Trump Administration’s DHS announced a “new rule to implement the [FSA]” titled “Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children” — a rule that lawsuits from the State of California and others allege actually work to negate the FSA. The State of California’s complaint lists two conflicts between the new DHS rule and the FSA’s protections: first, that the new rule allows for the “prolonged and indefinite” detention of minors, and second, that the rule replaces the FSA’s requirement for state oversight and inspection with that of the federal government. Preliminary injunction was ordered by the California Central District Court, preventing the DHS rule from taking effect and putting the case in inactive status pending the resolution of Flores v. Barr, a class action taking up the same argument against the enjoined regulation. Flores v. Barr is pending oral argument delayed by COVID19. The Trump Administration’s intent to eliminate the legal protections of the FSA is extremely telling. The Administration’s pursuit of the “prolonged and indefinite” detention of children without oversight is chilling, and can only be understood as an attempt to create a cruel and abusive environment that would affirm both campaign messaging leading into the 2020 election and the “Prevention through Deterrence” approach embraced throughout the Trump Era.

Part III: Resistance

The effects that this turbulent administration has had on the lives of immigrants cannot be overstated. The repeated and dramatic changes to immigration law have created a stricter, crueler system with less empathy- and this is exactly what the Trump administration intended. However, grassroots movements to resist this policymaking have been instrumental to the state of immigration law today. As seen throughout this paper so far, there have been numerous instances where the Trump administration was blocked from implementing some of the most egregious policy changes planned for this Era. Through legal challenges, congressional advocacy, and direct action, social movement organizations have been successful in thwarting some of these policies, with some vocal support from public opinion.

Public Opinion

While public perception is of course limited in its capacity to effect change on its own, it is important to note that the regime imposed by the Trump administration is not widely popular with the American people. After images of the inhumane conditions in detention centers went viral in 2018, one response dominated the social conscious: “this is not who we are.” The public response to the family separation policy is one key example, not only because of how stark the polls were on the issue, but because many theorize that public opinion was the cause of the administration’s reversal of the policy. Revealingly, President Trump denied blame for the policy during the 2020 presidential election debates, asserting that the previous administration was responsible. While this is partially true, since some family detention centers were constructed during the Obama administration, the Trump administration worked tirelessly to expand the detention of children in order to meet campaign promises popular with his supporters. His denial of responsibility, while not uncharacteristic for the President, indicates at least that the public reception of this policy remains on his mind almost two years later.

More generally, polls indicate that the Trump administration’s stricter immigration policies have been unpopular throughout his administration: it was reported in a March 2017 poll that only 41% of adults approved of the Trump administration’s immigration policies, and in November 2020 43% of voters reported that the president’s immigration policies had made them less likely to vote for him. President Trump was of course unsuccessful in his reelection campaign, and it is clearly possible that this was in part due to the highly controversial immigration policies enacted by his administration since 2016. While certainly these policies have had their ardent supporters, the American public as a whole seems to reject this administration’s approach to immigration.

Organized Resistance

The heart of resistance to this regime is in organized resistance groups, which have worked tirelessly since this administration’s inauguration to challenge the expansion of immigration detention. The Detention Watch Network (DWN) is a grassroots organization founded in 1997 amid the expansion of immigration detention during the Clinton administration. Throughout the Trump administration, the DWN has increased its organizational capacity several times in order to efficiently operate its two main grassroots campaigns during this administration: DefundHate, which works directly with Congress to reduce funding to ICE and CBP, and Communities not Cages, which organizes a national framework to prevent the construction of new detention centers and shut down those currently in operation. The DWN also organizes a gathering for those affected by immigration detention called Healing Towards Liberation, launched in 2019, and has a grant program that provides $152,000 to support smaller projects around the U.S. These DWN programs have had significant success: in 2019 the DefundHate program successfully campaigned 75 members of Congress to vote against the FY2020 appropriations bill that did not meet DefundHate demands and the final bill did not appropriate funds to expand immigration detention. Furthermore, the Communities not Cages program prevented the construction of five new detention centers around the U.S. in 2019. The DWN now also advocates for the FreeThemAll COVID19 campaign, which organizes direct action with the goal of mass release. This centers on the extreme vulnerability of detainees to the infectious COVID19 pandemic, which has already claimed the lives of numerous migrants contained by ICE or CBP. This program in particular focuses on supporting mutual aid by providing national strategy and funding. This organization exemplifies the numerous social movement organizations that create a national framework for resistance, and without the work of the DWN, funding for immigration detention would likely have increased, and more detention centers would have been built.

In Tacoma, La Resistencia (formerly known as Northwest Detention Center Resistance) works on a much more local scale to close the controversial Northwest Detention Center (“NWDC”) and improve the conditions of confinement for those presently held there. The NWDC, originally built in 2004, has expanded dramatically in capacity over the last decade to keep in time with the expansion of the prison industrial complex in the U.S. According to legal scholar Angelica Chazaro, “there is no doubt that the NWDC is a prison, and that those held there are prisoners.” The NWDC is operated by the GEO Group, a for-profit private prison company that managed 60% of the private beds in U.S. carceral institutions in 2017. Calling for the closure of the NWDC, La Resistancia centers the leadership and experiences of those detained there, and works to improve their conditions through community organizing: particularly letter writing, near-weekly onsite demonstrations, and selective legal challenges. From inside the NWDC, imprisoned activists demonstrate through hunger strikes, which has reportedly been met with violence from the GEO Group guards. In December 2019, La Resistancia (listed in complaint as NWDC Resistance) filed suit against ICE, alleging ICE has targeted activist immigrants for surveillance, detention, and even deportation. So far this lawsuit has revealed numerous internal emails from ICE officers explicitly identifying and targeting activists working with La Resistancia. The emails, which are now available to the public, shine a light on the internal responses to La Resistencia activism from ICE employees. The emails refer to La Resistancia as “punks,” and “instigators of turmoil at the NWDC,” and discuss the possible deportation of a prominent leader within the organization, who is referred to as the “coach of the so-called hunger strikes.” While this communication is telling with regard to the conduct of ICE employees, it also shows that La Resistencia’s consistent demonstrations and pressures have been effective in that they are disruptive to the functioning of the NWDC. Last month, the District Court denied an ICE motion to dismiss the suit, so the case will continue. Legal challenges to the Trump immigration regime’s policies and practices, such as NWDC v. ICE, have been instrumental to preventing some of the worst abuses intended by the administration, so one can only hope that the Court’s denial of ICE’s motion to dismiss bodes well for the merits of the La Resistencia lawsuit.

Directly challenging the conduct and policy of the Trump administration has been one critical point of resistance, but has not so far been successful in securing guaranteed procedural rights within immigration courts. Since assistance of counsel has been regarded by courts to not be protected in immigration proceedings, pro bono legal assistance is also a key element to preventing some of the direct harms put forth by this administration. The Northwest Immigrants Rights Project (“NWIRP”) reportedly placed 238 cases with pro bono attorneys in 2019. Although the NWIRP also participates in impactful legal action against policies directly, some of their most influential work intends to ease the burden of the complex legal system for migrants that find themselves caught up in the enigmatic Trump immigration regime. In addition to providing direct representation at no cost, the NWIRP also works to provide free legal education to thousands of people each year through the administration of legal orientation presentations. Resultantly, due to the efforts of the NWIRP, countless immigrants have had a fairer experience through their immigration proceedings than they would have without this crucial intervention.

As organizations like the Detention Watch Network work with Congress to resist the Trump administration through legislature, local organizations like La Resistencia demonstrate to disrupt detention centers across the nation, and pro bono attorneys are connected with immigrants through organizations like the NWIRP, it is clear that the work of these organizations has been a thorn in the administration’s side as they have progressed their abusive immigration regime. These resistance movements have faced their obstacles, since they work against politically and economically powerful entities — and therefore it is all the more crucial to recognize their accomplishments in these last few years. As the Trump administration ends, and the Biden administration begins, it will remain crucial for these organizations to hold the next administration accountable for the conditions of abuse that have been established.

The Case for Decriminalization

Empathy demands we consider the effects of this regime on the human lives targeted by these policies. Lee’s “slow death” framework reveals the effect of the Trump administration’s immigration policy: migrants suffer through weeks, months, or even years of waiting in inhumane conditions to be processed through an unfair system that abuses their rights as persons under the jurisdiction of the U.S. Petra Albrecht, who spent fifteen months in ICE detention reports that “…they put me into segregation, abused and tortured me and compromised my physical integrity to a point that I was in need of a walking device and a wheelchair.” Albrecht’s unacceptable treatment is not dissimilar to other detained noncitizens, and the lasting physical consequences of ICE custody are common among voices from inside immigrant detention. As the oppressive conditions in detention become more highlighted in political discourse, especially through the work of social organizations with public outreach campaigns, weight is being given to discussions of possible solutions. One such conversation has turned to the decriminalization of border crossing. This discussion came into public focus in 2019 when the Democratic Party was holding debates to select their nominee for the 2020 presidential election, when primary candidate and former Secretary of Housing and Urban Development Julián Castro called for a repeal of United States Code Title 8 Section 1325, the statute that makes unauthorized border crossing a misdemeanor. Distinct from the Immigration and Naturalization Act (“INA”), which is the statutory authority for most immigration processes, “Section 1325” allows for the referral of prosecutions of illegal entry claims to the Department of Justice. Under Sections 1325 and 1326, illegal entry is punishable by up to six months of incarceration, and illegal reentry is punishable by up to twenty years. This is where the Trump “zero-tolerance” policy fits in, as this policy called for the referral of all cases for prosecution without exception. A repeal of this section, then, would eliminate the criminal law component of immigration proceedings, allowing immigrants to navigate a civil immigration system instead. The introduction of this political agenda to the Democratic Party’s discussions on immigration law reform is promising in that it gives some indication that the status quo is being challenged by party leaders in the controlling executive party beginning in 2021, but it is critically important to note, that this proposed change would not definitively put an end to immigration detention. The most obvious practical result of this action would instead be an end to criminal sentences for immigration crimes, which is certainly one important goal that would ease some of the abuses of the system. However, the limitations of this proposal should not be overlooked: some of the worst violations of non-citizens’ dignity, care, and wellbeing occur in the absence of criminal charges under Section 1325. Therefore, while decriminalization is a clear, progressive goal for the Democratic Party, it is necessary for political goals to reach higher in order to fully resolve those conditions which impose “slow death” onto non citizens that come to America seeking safety and opportunity.

Conclusion

In the aftermath of the 2016 election, many immigrants were incredibly fearful of the years to come. Clearly, that fear was well warranted. The Trump administration used its time in power to dramatically expand immigration detention, making good on promises made using racialized rhetoric from the campaign trail in 2015 until today. The last four years of immigration policy have deepened the conditions of abuse within immigration detention and imposed a “slow death” on non-citizens whose only crime is the pursuit of a better life for their families. Thankfully, this administration will not be given more time to progress this abusive regime. On November 3, 2020, the American voting public ended the Trump Era, and ushered in a new one: the Biden Era. For many, the approaching Biden Era represents hope for positive change. For others, the Obama Era remains a painful memory- the Obama administration’s immigration detention policies indeed were outdone by the Trump administration, but they were a significant expansion compared to Obama’s Republican predecessor. President elect Joe Biden served as Vice President in the Obama administration, raising concerns about what the next four years will look like for immigration detention. Many take for granted that the Biden administration will spend its first days in office reversing the policymaking of the Trump Era. While that would of course be a welcome and progressive change, it would not go far enough to simply “erase” the last four years which have deepened the conditions of abuse. It is possible, and even likely, that the Biden Era will continue the American legacy of caging migrants.

That is why we need to make clear to this administration that now is the time to dismantle the system of abuse created to cage and dehumanize immigrants. The crucial work of social movement organizations, both national and local, must continue through the Biden Era. With the Democratic Party slowly embracing the decriminalization of border crossing, now is the time for the political work to be done to progress another critical goal: the abolition of immigrant detention. Examining the policies of the last four years within the context of the last few decades of prison expansion reveals that the immigration system of the U.S. is fundamentally broken, and predicated on principles that cause “slow death.” Therefore, a reimagining of American immigration law is overdue: a rethinking of the regulation of migration that respects and uplifts human dignity, care and wellbeing must emerge.

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