Hey everyone, Sarah here. Thanks for joining me for another episode of From the Borderlands.
Today, I want to shine a light on the notion of “criminality” in US immigration enforcement because it’s a word that’s bandied about a lot without explanation. For example, Trump & Co state that ICE raids are targeted, that they are only going after “bad guys.” Border Czar, Tom Homan, says that every time a media outlet puts him on camera. But basic evidence would suggest otherwise: ICE is surveilling apartment buildings in Silver Spring, Maryland; boarding school buses in Alice, Texas; raiding places of business in New Jersey; racial profiling all along California byways.
The truth is that Tom Homan is not telling the truth.
Never mind my short list of collected first-hand reports, my friend and fave immigration data wonk, Syracuse University Research Professor
writes in his February 3, 2025, Substack newsletter [link below] that the numbers present a reality that is the polar opposite of White House and Department of Homeland Security blah-blah. Basically, there is simply no way for Trump 2.0 to achieve the mass banishment of their dreams without targeting non-criminals.This difference between rhetoric and reality does not surprise me. My general takeaway after dealing with ICE while researching Crossing the Line is that the Department of Homeland Security agency—which knows no transparency and suffers little accountability—hides behind these fantastical statements issued by faceless spokespeople who rely on our taking their word as gospel. They rely on our believing that they have the best interest of people at heart.
Tom Homan himself is a product of the anti-immigrant Tanton Network that’s been infiltrating our politics—and groupthink—for decades. Another falsehood he maintains is that ICE has the highest standards of incarceration of any nation in the world. Well, if that’s true, we should all be horrified. The routine brutality and human rights abuses experienced by people trapped under the cruel knee of ICE are legion and well documented. It isn’t common knowledge, but you have only to scratch the surface to find that the civil rights and civil liberties complaints committed by agency actors are myriad and mounting.
Sadly, this shouldn’t surprise anyone either, given the fact that 80% of ICE prisons are run by for-profit corporations, like GEO Group, CoreCivic, LaSalle Corrections, whose priority interests are not the health and wellbeing of their captives. Their priority interest is their bottom line.
They are running a business. Their revenue model is warehousing people until they are expelled. So why feed them enough? Why spend on their medical needs? Why provide soap and masks even during a pandemic?
Basically, it is modern enslavement.
But getting back to Homan’s claim that his agents are only targeting “criminals”—there is nothing original in this strategy. It is part of the dehumanizers’ playbook going back to the dawn of time: to paint the “other” with the brush of “criminality” in order to justify committing cruelties against them.
It’s been a part of the US immigration landscape since Congress put Chinese workers under attack in the late 1800s. But today’s tale of US federal officials tarring everyone with the trope of “criminality” dates back to a 1916 book called, The Passing of the Great Race.
The language parroted by Trump, Homan, Stephen Miller, Fox News talking heads, and their anti-immigrant ilk can be found in this book, which posits that too many non-whites in the US will augur the eventual collapse (read: replacement) of the “greatest, most desirable, and superior human race on earth.”
The book was the work of a lawyer and conservationist named Madison Grant, who espoused a quack science, called eugenics. His conclusions were harnessed by the Trumps of his day to whip up fears that anyone not of Northern European stock was something to be feared: a “diseased and criminally inferior” devil walking among the folk. This created a moral panic following 40 years of unprecedented migration from eastern and southern Europe, that non-whites posed a threat to the future greatness of the US nation.
It was perhaps the country’s first Culture War, and it played an active role in Congress passing the Emergency Quota Act of 1921. Known as Title 8, § 1325, of the US legal code, this is when we first see humans referred to as “aliens” and when entry into the US without inspection by a border official first becomes criminalized. The legislation also put into place for the first time caps on how many newcomers would be permitted to set foot on US soil and where they could originate from.
The follow-up Immigration Act of 1924, Title 8, § 1326, also known as the National Origins Act, further tightened the quotas, made them more durable, and stipulated penalties for what was now considered “unlawful entry.” Mexicans, who had moved throughout the region without issue for centuries, who lived and worked and had family on both sides of the line, were no longer allowed to cross unless they could pass a literacy test and purchase a visa.
The quota system, which advantaged northern Europeans with wealth and those who already had family ties in the US, remained in place until 1965, keeping America white for several generations. Then came the Civil Rights Movement, and the quotas came under attack for being racially discriminatory. The 1965 Immigration and Nationality Act, also known as the Hart-Celler Act, abolished a quota system. Since then, racist white guys from John Tanton to Donald Trump have fretted about their people becoming an endangered species in the US; about their people being replaced by the “wrong sorts.”
They’ve been out to reverse the effects of the Hart-Celler Act ever since. It’s been a long haul, but they’ve finally arrived at their destination, aided by a steady 40-year transformation of legislation that lawmakers on both sides of the aisle fell for… if they even noticed it was happening.
It started—as so much of today’s crises do—with Reagan. His 1988 amendments to the Immigration and Nationality Act invented the concept of “aggravated felony.” It defined the term narrowly at the time, limiting it to murder and trafficking in drugs or firearms, which didn’t raise any flags. But it also made immigrants deportable for such offenses and mandated indefinite detention of all noncitizen “aggfels” until their deportation could be realized.
This would provide a legal loophole just waiting for determined white supremacists to manipulate.
That opportunity came six years later under Clinton. His 1994 “Crime Bill” brought 100,000 new cops onto the nation’s streets and built 125,000 new prison cells, amped up federal surveillance capabilities, and further enlarged the definition of “aggravated felony.”
The Antiterrorism and Effective Death Penalty Act of 1996 added still more bullet points to the “aggfel” category. But the coup de grace came later that year when Clinton signed into law the Illegal Immigration Reform and Immigrant Responsibility Act.
Referred to as IRA-IRA, this legislation expanded the list of “aggravated felonies” yet again, as it simultaneously closed off pathways for relief for immigrants by stripping from federal courts the ability to hear civil rights cases on their behalf. Since then, even a misdemeanor can leave an immigrant subject to criminalization as well as mandatory detention and deportation, with little hope of appeal. Since then, there can be no second chances for noncitizens.
Even now, 30 years later, the category of offenses considered to be “aggravated felonies” apply only to immigrants and may not be “aggravated” at all. They include civil transgressions that might warrant a wrist-slap, monetary fine, or community service for a US citizen, like me. What’s more, the application of IRA-IRA was made retroactive, meaning a hard-working 40-year-old father of three could be picked up, detained, and deported for, say, a marijuana possession charge dating back to his teens if ICE wanted to get rid of him badly enough.
IRA-IRA centered imprisonment and punishment as core components of the US immigration system. It greased the engine of the now Goliath detention-to-deportation pipeline. It caused the US prison-industrial complex to swiftly metastasize into the largest immigration detention system in the world. And made it possible to create “hardened criminals” out of jaywalkers and shoplifters.
Which comes down to this: the exaggerated “aggravated felon” category in US immigration law has led to much collateral damage over the years as many legal permanent residents, including veterans of US foreign wars, including my friend and story collaborator Robert Vivar, have been made to pay as much as three times for the same mistake or transgression: first under state or federal penal systems, depending on the jurisdiction of their so-called “crime.” Then under the immigration prison system for upon release they’re almost always transferred to the auspices of ICE. And finally, by suffering the greatest punishment of all: banishment – which for many means exile from the only home they’ve ever known.
In place for going on 30 years, IRA-IRA has forced double and sometimes triple jeopardy upon immigrants, alone. It makes it possible for ICE and Homan to trump up criminal charges where there really should be none.
Robert’s story is a prime example of how such stereotypes as “criminal alien” and “bad hombres” are right now being weaponized so that demagogues and profiteers can get away with playing politics with real lives.
From Chapter 15 of Crossing the Line: Finding America in the Borderlands, entitled Collateral Damage, here’s Robert’s story…
“I had developed a drug problem,” Robert tells me as we sit in his crowded office, half a block from Tijuana’s infamous Chaparral tent city. He was on the phone with Representative Mark Takano (D-CA) when I arrived. They were discussing the latest news in their effort to bring unjustly expelled veterans home under the Honoring the Oath Act (HR5151) and other bills. He flashed a warm, gap-toothed grin and waved me into a tattered chair that faced his wide metal desk topped with a black Dell computer. As I listened to him cite chapter and verse of the US Legal Code, sounding more like a member of the US Bar Association than co-director of the Unified Deported US Veterans Resource Center, I took in the railroad-style, one-room storefront.
On the wall behind Robert hung a banner: Stop the Deportations of Military Veterans, it read. A water cooler stood next to a standing fan, which worked hard to push the sticky September air around the room. Know Your Rights brochures and manuals neatly littered every inch of a white, thigh-high bookshelf with an invitation, handwritten in blue and red magic marker, to feel free to take one. A stained Mr. Coffee machine stood in salute formation atop a four-drawer filing cabinet.
A second desk tattooed with a bumper sticker announced the group with whom Robert shared the space: Veterans for Peace. Above it hung the five medallions of the US global security regime: the Army, Navy, Coast Guard, Air Force, and Marine Corps. Everywhere, framed pictures of veterans—some marked with a somber RIP—danced on the stuccoed walls alongside stars painted red, white, and blue. None hung quite straight. All faces pictured were Latinx.
“When you consider the opioid crisis,” explained Robert, “there’s no such thing as recreational use.” He continued, “It’s a big lie. First, you’re getting together with friends, experimenting with drugs, once in a blue moon, because everyone else is. Or you’re using stimulants to stay awake through back-to-back job shifts. And before you know it, you’re a full-blown addict.”
It didn’t help that Robert’s experimentation with methamphetamines coincided with an epidemic pushed onto the US public by Sackler family-owned Purdue Pharma. For the longest time, he was a “functional addict,” going to work as expected; showing up like a responsible husband and father for family and community events.
“But you get to a point where addiction takes over every part of your life. And you start doing things that you never thought you could be capable of, things that can lead to legal trouble.”
Robert agreed to boost some boxes of Sudafed in exchange for a fix. Subsequently taken off pharmacy shelves in 2006, the active ingredient in the otherwise benign decongestant, pseudoephedrine, was then being chemically modified to produce crystal meth.
Robert got caught. He was arrested for shoplifting.
“At first, it was a relief,” says Robert. He knew he had slipped into addiction and he wanted help. He pled guilty, on the advice of his public defender, believing he would do time, but in a rehabilitation facility. And that would have been true if, like me, Robert was a US citizen. But he had never naturalized. For him, being a legal permanent resident, or green card holder, had always been enough.
He had no idea that a guilty plea would compromise his residence status; nor did his court-appointed attorney. She knew nothing of how the spate of immigration laws had been stacked against Robert. She failed to clock that the plea agreement she handed him to sign translated his shoplifting charge, through the lens of IRA-IRA, into one of “theft with the intent to manufacture.” This transformed him on paper from a shoplifter into a “drug trafficker,” and plunged him squarely into the now greatly expanded legal category of “aggravated felon.”
Robert was branded a “criminal alien” and jailed until deportation. He tried to appeal, but IRA-IRA made it impossible for even a judge to take into consideration Robert’s life history, his professional achievements, and what he meant to his family, or that his offense was a misdemeanor for his citizen fellows. Once upon a time, a judge could have given Robert a second chance and sent him to rehab.
Instead, he fell victim to the place where racialized laws and ineffective legal counsel meet. “I trusted the attorney. I believed that she’d worked in my best interest and that I would be sent to rehab. So I signed.”
Robert could blame her, and maybe should. But he doesn’t. He understands now that this is precisely what the crime-trifecta laws were written to do.
It wasn’t until he was returned to the detention center, however, lashed in five-point restraints, “because,” he says, “that’s how ICE transports everyone, even non-criminals: to court, to the doctor, to the border,” that Robert discovered he would not be getting the help he desired. He had to kick his addiction and clean up on his own—in prison.
Stripped of his rights, he was also stripped of his green card, and his dignity.
“I didn’t wish to give up my legal residence status just like that,” states Robert. So he set about learning everything he could about the law and appealed to overturn the lower court decision, pro se, on his own. Imprisonment was just too much to bear, however. No good to his family locked up and unable to provide, he grew depressed, despondent, demoralized. When his case stalled out within the ever-increasing backlog of the US immigration court system, now choked by IRA- IRA cases, Robert agreed to “voluntary deportation” to the now foreign country of his birth.
“That’s the point of immigration criminalization,” Robert explains. “To wear you down to the point when you agree to ‘self-deport.’”
Eight months after losing his case, Robert was shackled in five-point restraints again, bused to the San Ysidro port of entry, and escorted across the border into Tijuana. He was dumped there by ICE with nothing to his name but a US driver’s license and a criminal record for the aggravated felony of drug trafficking: a crime he did not commit.
He spent three months pounding the pavement. “I couldn’t even get a job as a parking lot attendant, let alone with an airline or in a hotel. I had no connections. Even if I got an interview, I was found to be ‘overqualified.’”
Traumatized at being separated from his loved ones and growing financially desperate, Robert risked everything: “I went back to the US undocumented.”
Forced, now, to live in the shadows, Robert never touched drugs or alcohol again. “I could not afford to get caught a second time. So, I dedicated myself to a quiet life of working and taking care of my family.”
He had to, for as an “aggfel,” Robert could no longer seek asylum or citizenship. He suffered a twenty-year ban on ever being able to return home, and had little hope of ever recovering his previous status as a legal permanent resident.
Robert made a mistake. Lots of us do. And yet he became collateral damage in a war said to be about drugs, but which served him up as fodder to fuel the flames of a manufactured crisis stoked every day by the Tanton network propaganda machine: that the newcomer cannot be trusted and that the US border is spinning dangerously out of control.
Now we have the reprehensibly named Laken Riley Act that states the quiet part of IIRIRA out loud: everyone will be made a criminal for such actions that you and I may commit all the time. When’s the last time you jay-walked? When’s the last time you drove with a busted tail light? When’s the last time you walked away from a shopping expedition with your young child sucking on a piece of candy you did not buy?
Do any of these things make you a criminal? Of course not.
Will you ever get incarcerated and deported for any of these things? No.
You might get ticketed. You might have to pay a fine. You might have to apologize. But this is not criminal behavior.
When Homan says, we’re only going after criminal offenders and gang members, he wants you to think of the man who took Laken Riley’s life. Now it was a heinous act of violence and I grieve for her and her family. But painting an estimated 11-12 million people with the same brush simply is not correct. Nor is it right.
Homan is referencing our neighbors, family, friends, and colleagues: they could be our kids’ teachers, our radiologists, and valued members of our places of worship. They could be our legal counselors. They may be living and working and bringing up families and contributing to society without a fancy piece of paper, but that does not make them violent and it should not make them criminals.
They certainly aren’t “aliens” or “collaterals” or “got aways”—just some of the linguistic abominations to trip off Homan’s twisted tongue.
Homan, who let us not forget, is the “father” of Trump 1.0’s family separation policy.
Millions of mothers, fathers, sisters, brothers, aunties, uncles, grandparents, and children are under attack by a racist US administration that—like centuries of dehumanizers before them—has harnessed the age-old trope of “criminality” to whip up a moral panic that the folk walking among us with darker completed skin or the gift of a language other than English are people to be feared.
To justify disappearing them at Guantanamo Bay—a military black site synonymous with torture.
By all indications, this administration is waging an undeclared war: A war against immigrants. Which begs the question: who are the real criminals in this equation?
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NOTES:
Austin’s Kocher Feb 3, 2025, Substack Newsletter: Will Trump's Immigration Enforcement Policies Target Dangerous Criminals? - A Close Look at the Data. ICE represents its enforcement surge as targeting dangerous criminals, but data tells a different story. Why non-criminals will make up the bulk of ICE arrests, detentions, and deportations.
On the crime against humanity that is ICE detention, I recommend, as a start:
Tom Dreisbach’s NPR investigation: Government's own experts found 'barbaric' and 'negligent' conditions in ICE detention.
Shah, Silky. Unbuild Walls: Why Immigrant Justice Needs Abolition. Haymarket Books, May 2024.
Sharpless, Rebecca A. Shackled: 92 Refugees Imprisoned on ICE Air. University of California Press, February 2024.
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