latest from the magazine
latest journal issue
onald Trump campaigned for the US presidency on a platform of aggressive xenophobia and promises to roundup and deport millions of noncitizens from the United States. Trump’s first several months in office have delivered a raft of policy initiatives on border and immigration enforcement. Some of these initiatives have been implemented administratively by the Departments of Justice and Homeland Security; others have been blocked by the courts; and others still will require appropriation from Congress in order to take effect. Yet it is important to stress that there is very little data to-date that might provide a meaningful basis for assessing whether the practices of the Trump administration herald a marked departure from the buildup of the United States’ deportation machinery under his predecessors. This buildup included a massive expansion of border policing under presidents Clinton and Bush (tripling the size of the US Border Patrol and implementing 652 miles of border fencing), and an unprecedented number of deportations that reached more than 400,000 per year by the end of president Obama’s first term in office.
Nevertheless, several policy trajectories have become clear. To unpack their scope and implications, I’d like to consider several ways that geographers might revisit the legal and spatial categories frequently mobilized to interpret the contemporary landscape of immigration policing in the United States, and then consider how such conceptual innovation, mobilized by geographically-attuned scholarship, might substantively contribute to popular resistance against Trump’s immigration agenda in the months and years ahead.
I’ll begin with the border. As Burridge et al. (2017) observe, over the past several decades scholars of migration and security practice have marshaled an evolving array of spatial concepts and metaphors to make sense of the geographic intensification and extensification of immigration policing in Europe, North America, and beyond. These have generally mobilized the ‘border’ as a normative point of reference, which then becomes “mobile” (Balibar, 2004; Nyers, 2012), “embodied” (Amoore, 2006; Walters, 2011), “topological” (Mezzadra and Nielson, 2012; Martin and Secor, 2014), and “polymorphic” (Burridge et al., 2017). Implicit in many of these conceptualizations is a view of ‘border’ and ‘interior’ space as meaningfully separate and distinct from one another, such that the former might ‘expand’ into the latter, or else enforcement practices in the latter come to augment or ‘replace’ those in the former (Coleman, 2007; Inda, 2013; Steuss and Coleman, 2014). In line with Mountz’s (2011) call for greater geographic and conceptual precision, I have often been concerned about this spatial and conceptual imaginary, insofar as the US border formally designates an area up to 100 miles inland from the country’s geopolitical boundaries. As the American Civil Liberties Union observes, this area incorporates close to two-thirds of the US population). The border may therefore be better understood as a particular category of interior space, a “zone” rather than a locale or region meaningfully separate from it.
Here, however, I’d like to step away from these kinds of spatial metaphors and debates, and consider the border instead as a temporal phenomenon. I’d like to do so by exploring the ways that the legal and biographical facts of a person’s border crossing experience stick with that person and subsequently shape their legal status and access to due process and to various procedural remedies within the immigration court system. To begin this exploration, it is worth acknowledging that it is the very biographical fact of having crossed an international border to arrive at one’s present location of residence that is used by the state to define certain categories of persons as immigrants. The details of that border crossing can vary tremendously from person to person, and it is my contention that these details are today key to the Trump administration’s efforts to detain and criminalize an expanding cross-section of immigrant persons in the United States.
I’ll use several examples to illustrate this point. The first has to do with the criminal prosecution of undocumented persons for acts expressly related to their method of border crossing. Already, such prosecution for “illegal entry” (8 USC § 1325) and “illegal re-entry” (8 USC § 1326) have grown under the Bush and Obama presidencies to comprise a plurality of all criminal charges in U.S. federal courts (see Burridge, 2009; Launius & Boyce, 2013). In his April 11, 2017 visit to the bi-national port of entry in Nogales, AZ, US Attorney General Jeff Sessions announced that the Department of Justice plans to massively increase this prosecution by designating a border security coordinator in every U.S. Attorney’s office nationwide, an office that presumably will also seek to add charges for document fraud, identity theft, smuggling and other immigration-related violations against noncitizens subject to prosecution in U.S. courts. And this is an expansive population, insofar as a charge for illegal re-entry can be leveled against any individual who has previously been deported after having been found inadmissible to the United States, and who is subsequently found physically present within the country. But the implications go even further. By executive order, Trump abolished the Obama-era deportation priority scheme, and replaced it with guidance that includes any individual who has “committed acts that constitute a chargeable criminal offense” e.g. anybody who could potentially be charged for a crime, including illegal entry and illegal reentry. This change affects all categories of undocumented persons except for those who entered the United States on a lawful visa.
The expansion of expedited removal—among the most significant of the president’s executive orders on immigration—reflects another way that the temporality of border crossing has become a key element of the administration’s enforcement agenda. Expedited removal is a discretionary legal mechanism under the Immigration and Nationality Act (INA § 235(b)) that allows a single frontline immigration agent to issue an order of removal (a formal deportation order) to a person designated as an “arriving alien.” Expedited removal is dangerous because it bypasses the immigration court system and puts the power of deportation in the hands of federal agents who have no formal legal training. Although the use of expedited removal expanded substantially under the Bush and Obama administrations, its application was limited to persons apprehended within 14 days of entering the United States and within the 100-mile US-Mexico border zone. On January 25, 2017, Donald Trump expanded the operational definition of “arriving alien” to include any undocumented person located anywhere in the United States who is unable to prove their presence longer than two years (the statutory limit of this authority).
The consequences of expedited removal can further limit a person’s access to procedural due process at any point in the future. For example, in April 2017 attorneys in Chicago with the American Immigration Lawyers Association reported that Immigration and Customs Enforcement (ICE) officials there have begun to apply a reinterpretation of INA § 208(a)(2) to categorically deny jurisdiction over asylum applications for any person with a previous expedited removal on their record, effectively preventing their case from being heard. In this situation, a previous instance in which a person was denied due process is now being used as a basis to deny that person similar access in the future—even when the substance of this person’s immigration or asylum claim may be entirely novel.
Expedited removal is just one of the ways that the consequences of a previous encounter with immigration officials is coming to differentiate noncitizens’ vulnerability to deportation under the Trump administration. In Arizona, officials with the U.S. Border Patrol are reporting that they are under orders to detain and re-initiate removal proceedings for anybody with whom they come into contact (including at any of the 11 “temporary” checkpoints across southern Arizona) who had previously received administrative closure for their immigration case (an administrative measure authorizing certain individuals to temporarily remain in the United States). And of course, any person with an existing order of removal who comes into contact with federal agents is vulnerable to immediate deportation, at any time, generally without any procedural recourse.
I think that one of the implications of all of this is a massive differentiation of the undocumented population in the United States, such that the pivotal differences that may define a person’s future vulnerability to state violence (prosecution, detention, and removal) may not rest specifically on an axis of whether a person has a lawful visa status (the difference between being “documented” and “undocumented,”) but rather on that person’s previous border-crossing experience and history of encounters with state authorities. And the stakes of this differentiation have to do specifically with the question of time–including whether an individual will have the opportunity to fight their case in court, and to remain in the United States while they pursue this fight. Of course, for some individuals this could involve a lengthy stay in detention. But if a person can successfully bond out of detention, the backlog in the country’s immigration courts means that in some jurisdictions an individual may not have their case heard until 2020 or even later (notably, beyond the tenure of Trump’s first term in office). By fighting to remain in the United States, and by having the opportunity to wage this fight, a person can significantly expand the temporal window in which they are able to lawfully remain in the country and hope for some change in its legal and/or political environment.
Of course, the Trump administration is trying to preempt this situation by shuffling immigration judges to jurisdictions with heavy case backlogs, or to jurisdictions where the administration wishes to target enforcement activity for some other reason. But until Congress appropriates funding to hire additional immigration judges, this will amount to little more than a re-arranging of deck chairs—while doing nothing to reduce the average case backlog nationwide.
How can an appreciation of the temporal qualities of the border, including the ways that the experience of border crossing reaches out and sticks to people over time, support efforts to resist the Trump administration’s immigration agenda? Some municipal and state jurisdictions like Los Angeles and New York already have allocated public funds to hire attorneys to provide pro bono representation to persons in immigration court. This is a significant policy move, given that in the United States immigration defendants, unlike criminal defendants, are not guaranteed public counsel. In principle, this type of local policy initiative can increase the number and proportion of individuals who are able to mount an effective defense, and will have the added benefit of exacerbating the court backlog. If more jurisdictions follow suit—either as an outcome of popular advocacy, or grassroots pressure—the court system can be substantially paralyzed, which at the very least would buy tens of thousands of immigrant defendants additional time to fight their case and remain in their homes and with loved ones. Of course, this also depends on successful grassroots pressure to prevent Congress from appropriating the massive increase in spending for immigration judges that the administration has requested.
Meanwhile, additional avenues can be mobilized to reduce peoples’ vulnerability to immigration policing. On the one hand, this can include ‘sanctuary’ policies that limit contact between municipal, state and county officials and federal enforcement agencies. Of course, ‘sanctuary’ itself is a colloquial expression rather than a formal designation, and therefore the details of a sanctuary policy (whether or not these are binding on local officials and include strong accountability mechanisms) matter tremendously to their efficacy. But whether or not a jurisdiction or campus chooses to embrace a sanctuary designation, a great deal can be done to bring sanctuary into the streets through grassroots organizing. In Tucson, AZ, this form of sanctuary is being pursued through rapid response networks that can mobilize when an individual is detained by ICE, Border Patrol, or local police; dissemination of pre-formatted packets by organizations like Keep Tucson Together, that encourage individuals to carry documentation on their persons (school or bank records, etc.) that establish their presence in the United States for longer than two years; and additional tools and resources that encourage people to assert their fourth amendment protections against unlawful search and seizure by demanding that ICE or Border Patrol agents display a judicial warrant (something these agents rarely obtain) before answering questions or allowing entry onto a given property.
Across the country, similar grassroots efforts are proliferating as individuals and communities search for ways to meaningfully protect one another against the harms that threaten to be unleashed under the Trump regime. It remains to be seen how efficacious such initiatives will prove, or how these may be scaled up to significantly impede the workings of the US deportation system. However, an appreciation of the temporal qualities of the border will prove crucial in honing our strategies and applying these in geographically and institutionally sophisticated ways, while also nurturing networks of solidarity that might transcend the current political moment and launch us into the next.