President Trump's Efforts to Turn Back the Clock and Change the Racial Demographics of Immigration

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Trump

Cross-posted from the Daily Journal (subscription required) and UC Davis Law Faculty Blog

Earlier this week President Donald Trump called to abolish birthright citizenship, which few reputable scholars believe would be constitutional. This latest action on immigration demonstrates what is becoming more and more apparent: Trump does not feel bound to the rule of law. His immigration initiatives share two fundamental characteristics. First, he seeks to reduce immigration and specifically to reduce the number of immigrants of color coming to, and living in, the United States. Second, despite the frequent claim that the administration is committed to simply enforcing the immigration laws, he attacks judges that issue rulings that he does not like, calls for changes to our immigration laws that he calls ridiculous, and all-too-often ignores laws with which he disagrees.

In 1965, Congress amended the immigration laws to explicitly prohibit discrimination in the issuance of visas on the basis of "race, sex, nationality, place of birth, or place of residence." Passed on the heels of the Civil Rights Act of 1964, the 1965 amendment repealed laws mandating racial and national origin discrimination in the U.S. immigration laws. In so doing, Congress established a blueprint for immigration diversity, allowing millions of people of color to immigrate to the United States. The trajectory toward a more diverse nation, however, is likely to change due to a myriad of policies embraced by the Trump administration that can be aptly characterized as waging war on immigration diversity and the rule of law.

Trump's racial goals should not be surprising. Unlike any president in modern U.S. history, he regularly makes racially explosive comments about Mexicans as "rapists" and "criminals," Salvadorans as MS-13 gang members, Muslims as "terrorists," and El Salvador, Haiti, and nations in Africa as "s***hole countries." Trump has followed up on the incendiary rhetoric with a number of policies -- many of them in tension with the law -- that aim to restrict noncitizens of color from immigrating to the United States.

Consider a few of the Trump administration policies that emphatically demonstrate the President's desire to restrict immigration diversity and, in many instances, have been found to be unlawful.

First, within days of his inauguration, Trump issued an executive order that was intended to bar immigrants from a number of predominantly Muslim nations from entering the United States. When the first ban was enjoined, another one followed. The second version was struck down by the courts, in no small part because of the failure to comply with the law and because of the President's own venomous anti-Muslim statements. Although the third draft of the Muslim ban was upheld on national security grounds by the Supreme Court in Trump v. Hawaii, four justices found that it was motivated by anti-Muslim animus.

Second, Trump has called for ending "chain migration" by restricting family-based immigration to the United States. He also has expressed support for the RAISE Act, which would reduce legal immigration by one-half through reducing family-based immigration, primarily impacting people from Mexico, India and China. Those nations today send the most immigrants to the United States.

The Trump administration also has sought to restrict legal immigration with a recent proposed rule that would tighten the "public charge" exclusion, which has resulted in many immigrants declining to seek public benefits to which they are lawfully entitled.

Third, the Trump administration's "zero tolerance" policies have been enthusiastically directed at migrants from Mexico and Central America. In response to Central Americans seeking asylum, the Trump administration adopted a harsh detention and family separation policy, blaming it on the Democrats and the courts. A public outcry and persistent litigation compelled the Trump administration to end family separation. Now we see similar rhetoric being used against asylum seekers from Central America -- known as the "migrant caravan" -- who are currently in route to the U.S. border.

Courts have played important roles in stopping the administration from engaging in racially charged policies designed to stop Latino families from immigrating to the United States. In particular, the courts have upheld the rights of immigrant children subject to detention under what is known as the Flores settlement, which the Clinton Justice Department agreed to comply with in the detention of minors. The administration continues to resist this legal precedent. It has proposed to undo the Flores settlement so that the administration can detain immigrant children and their families indefinitely.

The Trump administration has challenged "sanctuary" states and cities for refusing to fully cooperate with the U.S. government. Although blocked by the courts, the administration has tried to halt federal funding from going to "sanctuary" cities.

In addition, the Trump administration has sought to eliminate the Deferred Action for Childhood Arrivals, aka DACA, policy for undocumented youth. The policy benefited hundreds of thousands of young undocumented immigrants, with an especially large percentage from Mexico and Central America. Courts have enjoined the rescission of DACA.

The Trump administration announced the end of Temporary Protected Status for Haitians, Salvadorans, Nicaraguans, and nationals of other developing nations. Litigation has challenged those actions.

The Trump administration has aggressively increased removals and adopted approaches that would ensure that more than 95 percent of the noncitizens removed are from Mexico and Central America.

Collectively, these policies would significantly reduce diversity in the number of immigrants admitted to permanently reside in the United States each year. Importantly, such policies violate the spirit if not the letter of the 1965 amendment to the immigration laws and Congress's goal of promoting diversity in immigration law.

Courts time and again have prohibited the Trump administration from pursuing immigration policies that violate the law. Legal and political attention must continue to be paid to these policies in order to prevent the country from returning to its pre-1965 immigration law policy of establishing a white nation. The unlawful war on immigrant diversity should not be permitted to continue.

KJ

This post originally appeared on ImmigrationPro Blog


About The Author

Kevin Johnson Kevin Johnson is Dean, Mabie-Apallas Professor of Public Interest Law, and Professor of Chicana/o Studies. He joined the UC Davis law faculty in 1989 and was named Associate Dean for Academic Affairs in 1998. Johnson became Dean in 2008. He has taught a wide array of classes, including immigration law, civil procedure, complex litigation, Latinos and Latinas and the law, and Critical Race Theory. In 1993, he was the recipient of the law school's Distinguished Teaching Award.Dean Johnson has published extensively on immigration law and civil rights. Published in 1999, his book How Did You Get to Be Mexican? A White/Brown Man's Search for Identity was nominated for the 2000 Robert F. Kennedy Book Award. Dean Johnson’s latest book, Immigration Law and the US-Mexico Border (2011), received the Latino Literacy Now’s International Latino Book Awards – Best Reference Book. Dean Johnson blogs at ImmigrationProf, and is a regular contributor on immigration on SCOTUSblog. A regular participant in national and international conferences, Dean Johnson has also held leadership positions in the Association of American Law Schools and is the recipient of an array of honors and awards. He is quoted regularly by the New York Times, Los Angeles Times, and other national and international news outlets.


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