Hey Biden Administration, don’t repair or reform our immigration system, re-imagine it.

These last few months there has been a remarkable lack of attention paid to our immigration system. Certainly COVID-19 and the president’s threat to American democracy has been plenty consuming, but immigration, an issue that was one of the main wedges of the 2016 election and laid bare some of Trump’s most racist and fundamentally cruel positions throughout the last four years, was barely mentioned in the debates or in the national media leading up to the 2020 elections. There was some public hand wringing over the 500+ children who have yet to be reunited with their parents after 2018’s shameful “zero-tolerance” disaster. But reuniting children with their parents shouldn’t be impressive and it isn’t a policy. It is a correction of a human rights violation and the absolute lowest bar for decency. And now Joe Biden has released his proposed agenda for addressing immigration in the beginning of the administration and while it looks as if it might unravel some of Trump’s most nasty policies, there is a real danger that it will do nothing to disrupt the catastrophe that has been unfolding for decades in our country.

Electing a democrat to the White House isn’t necessarily a vote for progressive immigration policy. It is arguable that the modern era of immigration enforcement began under Clinton in 1996 when he signed the Illegal Immigration Reform and Immigrant Responsibility Act, known as IRAIRA and the law that ushered in the strict penalties for border crossings, invented the current deportation machine, and set up the militarization of the southern border. President Obama was known as the deporter-in-chief. His administration deported more american immigrants than all other presidential administrations combined, some 2 million individuals. Obama was also the architect of the deterrence strategy against refugee families on our southern border, the idea being that we can create maximum pain and suffering to force families to choose to stay in countries where their lives are in grave danger. His administration revived the practice of family detention to this end and set up the structure that would naturally lead into the family separation of 2018. We should be scared if the Biden administration telegraphs a return to Obama era policies. And already Biden is tapping people from that administration to be decision makers come January.

Among individuals who care about how immigrants are treated in this country, there is consensus that Trump losing the election was the first step to ending the avalanche of wretched policy that gained strength over the last four years and that the Biden administration represents an opportunity for major improvement. There is a lot that Biden can and should do with executive orders to immediately address the damage wrought by Trump. This includes re-instating DACA in its original form, ending the Migrant Protection Protocols, restoring refugee numbers, ending the public charge rule that puts up barriers for poor people to get green cards, lifting country specific travel bans, walking back changes to asylum rules, and eliminating corporate detention contracts that profit from human suffering. That is a short and non-exhaustive list of the easy stuff that could possibly get us back to where Obama left off. But all that would be is repairing something to less shitty version. The far more complex problem we face as a country is that there is a fundamental rot at the core of American immigration policy which poisons the discourse at every turn and makes good policy impossible.

The rot of which I write is the criminalization of migration. In the US we embrace the premise that people in migration have made an inherently immoral decision that needs to be punished. And once we accept the premise of moral failure, we feel entitled to do anything we want to hurt immigrants. There is evidence of this everywhere: in the way we characterize people as illegal in spite of the fact that they are not charged with crimes; by creating an enormous militarized law enforcement agency, ICE, to police immigrant bodies; by locking migrants up in detention centers that are identical to maximum security prisons; by holding all immigrants in a community to account when one immigrant commits a crime; or how we deny people the right to work legally and contribute in regular ways to civil and economic life in country. Our country is obsessed with the binary of legal vs illegal in this particular issue even though the overwhelming majority of people with opinions on this issue could not describe how one “legally” comes to the US or correctly articulate what illegal thing is actually happening. Our lawmakers and law enforcement agencies constructed a universe where immigrant bodies need to be policed and punished and after 25 years, it makes so much sense to regular people in our country, that we cannot imagine a way of problem solving not based on that structure. This is, of course, the exact problem our country is wrestling with as we attempt to wrap our heads around defunding or abolishing police. The premise that we need militarized law enforcement is so ingrained in our collective consciousness that the suggestion of dismantling it seems disproportionately radical and we find our selves in a cycles of bad decision making.

Here is an example: one of the ways that democrats tend to virtue signal around immigration is by saying they support “comprehensive immigration reform”. I have worked on border and detention issues for the better part of the last decade in my home state of New Mexico and I can’t tell you how many times I have sent our Congress people enraged cries for help only to get the standard response that they have heard my concerns and that they support comprehensive immigration reform. It sounds good, I suppose, because it has the word “comprehensive” and “reform” in it but the phrase is vague doesn’t really define what CIR actually means in practice. What CIR tends to seek is compromise between the fact that there are millions of undocumented individuals living in the United States and the myth that increased criminalization of immigration will prevent that. CIR promises to find a pathway to a more regular immigration status while at the same time pouring money into the militarization of the border, a classic carrot and stick approach. It is important to point out that increase in immigration enforcement in 1996 is one of the things that caused the numbers of undocumented individuals to balloon in the 2000’s because it forced migrants from Mexico and Central America who previously migrated seasonally for work to choose a side of the border to live on. The other extremely important fact to point out is that the border already is secure. The sort of economic migration that CIR was designed to disincentivize doesn’t represent the current phenomena at the border. We currently have a refugee crisis on our hands. CIR would trade legal pathways for undocumented people for enhanced enforcement structure that would impose further suffering on individuals exercising their legal right to seek asylum and deteriorate the US’ already crumbling commitment to humane treatment of refugees. The notion that CIR comprehensively addresses modern immigration issues is outdated and should absolutely not be accepted as a pillar of progressive policy.

One example of a policy that almost kinda sorta gets it right is DACA, which suspends the threat of removal for a certain class of young immigrants and offers them temporary work permits that have to be renewed, now, every year. This policy comes close to acknowledging that when we stop focusing on punishment and instead create opportunity to thrive, immigrant communities grow more essential economic, civil, and social contributors. The DACA program has absolutely proved this thesis. But is also falls woefully short. The only people who this exception is carved out for are “dreamers”, individuals who were brought to the US as children and have thus been absolved of their sins because they did not make the decision to come and should not bear the punishment. And even yet in that program there are ridiculous fees and bureaucratic hoops to jump through, a lack of access to basic benefits like federal financial aid or affordable health care, and the threat of deportation looms for even a slight criminal infraction.

What is funniest about our criminalization of immigrants is that is assumes that we all agree that people coming to our country would be bad. It begs the question: at what point in history did our nation of immigrants decide it was closed and that we had enough people and that a bunch of immigrants trying to come to the US was a crisis? There is a sincere and not-stupid rebuttal to easing our immigration restrictions that suggests that too many people would try and come here if we made immigration too easy or too painless. But we have been trying the difficult and painful strategy for decades now and if you believe the national narrative we are constantly in the throes of immigration crisis. If it worked to deter people why aren’t they deterred? If we know people are still coming then what is the use in investing in torturous and deadly policy?These are fair questions and here is another one: what if none of this was a crisis? What if it were an opportunity? Can we just choose to change the way we characterize something and go from there? My answer to that last question is: why not try?

First, we need to admit that the last 25 years of intensely criminalizing people who migrate has been a failed strategy. This is, of course, not isolated to immigration policy. We have seen similar failure with the war on drugs and mass incarceration. These strategies do not work. They inflict enormous trauma on communities and they box individuals into lives with ridiculous barriers to success, not to mention the fact that they are outrageously costly to the taxpayer. We need to acknowledge that the word legal is a smokescreen for racism, classism, and xenophobia. When getting immigration status in this country is so complex and where the laws disproportionately punish migrants of color and lower socioeconomic status, we have to recognize that “illegal” is a dog whistle for brown and poor and when people say that they only support immigration when people do it “legally” we cannot allow that to be an assumption of moral high ground. If we can bring people around the table who are willing to start there, we might have a chance towards re-imagining what actually progressive and anti-racist immigration policy could look like in the United States.

Here is the thing: we can coast through a Biden presidency where children are not ripped from their parents arms and Dreamers are not deported. We can extract smug satisfaction from the fact that we are actively not hurting a tiny cross-section of the immigrant population who have been deemed as innocent enough to avoid being ground up by the DHS machine. But there is another option. We dream bigger and be more radical and can insist that time is up in a decades old enforcement regime that doesn’t fit in 2020. Practically speaking here are some positions that immigration advocates (by advocates I mean not just those of use that work in the field but rather all of us who felt disgusted and helpless and angry watching Trump’s policies destroy peoples’ lives)can occupy:

• Yes to everything Biden has already said he is going to do. But also…
• Abolish ICE. ICE is a militarized and bloated law enforcement agency that terrorizes communities and hardly ever demonstrates how they keep our country safer. We need to re-think that agency completely.
• End corporate detention contracts immediately. If we are going to detain people the very least we shouldn’t allow rich white people and their corporate stakeholders to profit off it. But we shouldn’t detain people at all (see next bullet).
• End immigration detention. Full stop. It’s completely unnecessary. The Department of Homeland Security has proved to be dangerously bad at caring for the very basic needs of people in their custody. Just think of the cash that would be in play if we completely defunded detention and kicked funding over to Health and Human Services or USAID to care for immigrants on our border in a more humane way.
• Create very basic pathways for all undocumented people to work legally and pay taxes. There is already a mechanism for this. It is called Deferred Action. It’s not enough but it is a start. People live here. Let them work and pay taxes. We might be amazed by the economic civil, and cultural benefits we see. It worked with the Dreamers. There is absolutely no reason to think it won’t work with the other 10 million people living in the country without papers.
• Completely overhaul the immigration court system. It is a joke and a complete vacuum of due process and an extraordinary waste of time and money.
• Create a national public defense force to make sure immigrants are always represented by competent counsel in any proceedings in front of the US government. Give. People. Lawyers. Use the billions of dollars we save from defunding ICE to make this possible.
• […] Literally insert your own good idea here. These are just mine. Allow yourself the mental exercise of re-imagining a country where things like this are possible.
• (There is a lot more that Congress can do too but Congress is a mess and Congress didn’t just have huge political shift)

None of this will be easy. Politics are disgusting and difficult and morally corrupt. People in all positions of power will try to make you believe that hurting migrants is a defensible political position that has to be respected if incremental change is going to pass. I say no to that! Let others do their work in the center of that debate. Scales tip and arcs of the moral universe only bend if we are willing to occupy a place of weight and conviction and there are plenty of immigrants rights organizations in our country doing just that and demanding more visionary change. Join them! Let’s force the Biden Administration to pivot away from the failures of the past Republican and Democratic administrations and re-imagine what a true country of immigrants can look like.