“When They See Us,” Ava DuVernay’s miniseries about the wrongful convictions of the Central Park Five, was the most-watched series on Netflix during the first half of June. The runaway success of this painful series about Black and Brown boys who were caught up in a national hysteria about violent “wolfpacks” of dark-skinned youth is the latest moment in an ongoing societal reckoning with the racist mass incarceration policies of the ’80s and ’90s.
Of course, not everyone is taking part in this reckoning. Donald Trump refuses to apologize for his own prominent role in persecuting the Central Park Five — in 1989 he took out full–page newspaper ads that proclaimed his desire to “hate” the accused teenagers, his hopes that they “be forced to suffer,” and for New York to bring back the death penalty. Trump continues to insist on their guilt years after overwhelming evidence exonerated them.
As president, Trump uses similar methods to dehumanize young people of color in order to justify the cruelties of his immigration policies at and inside the border. Last month, Trump named as his choice to lead Customs and Border Protection (CBP) Mark Morgan, a man who last year told Fox News’s Tucker Carlson said he’d looked at the eyes of “so-called minors” in immigrant detention centers and determined “that is a soon-to-be MS-13 gang member.”
It’s important to remember, however, that American racial panics have generally been bipartisan affairs. In fact, much of the current reckoning around mass incarceration has involved confronting Bill Clinton-era Democrats for their support of the 1994 Crime Bill, which funded states to lengthen sentences and build more prisons, and its accompanying “superpredator” rhetoric.
Similarly today, many immigrant justice activists are raising concerns that, even as Democrats rightly decry the horrors that the Trump administration is carrying out against migrant families seeking asylum at the southern border, they are again “triangulating” to a middle ground that cedes too much to his racist logic about young migrants posing a threat.
Recently, the Democrat-led House approved provisions that target youth who are alleged to be gang members and “public safety threats.” The provisions were tucked inside otherwise progressive immigration legislation that passed in early June — just as the country was watching “When They See Us.” The bill raises questions about whether we’re laying the basis for a new round of gang youth hysteria even as we condemn the last one.
A Dream, a Promise, a Catch?
Passed by the House on June 6, H.R.6, known as the Dream and Promise Act, would offer legal protections and a path to citizenship for many of the undocumented immigrants who came to the U.S. as children and are commonly known as “Dreamers,” as well as people who have Temporary Protected Status (TPS) and Deferred Enforced Departure (DED) status based on their country of origin.
By expanding inclusion provisions and adding TPS and DED recipients, H.R.6 would cover an estimated 1 million more people than previous Dream Acts. It also sends a message that TPS and DED recipients from El Salvador, Haiti and other countries that Trump infamously disparaged as “shitholes” deserve the same protections as the broadly popular Dreamers.
For those reasons, H.R.6 is a “huge grassroots victory for TPS communities,” says Pabitra Benjamin, executive director of Adhikaar, an organization that represents the Nepalese American community, which includes many TPS recipients whose legal status is set to expire within a year.
Adhikaar worked alongside dozens of other organizations to influence the bill, and Benjamin credits its passage to years of activism that built both public awareness about TPS and solidarity-building that kept the diverse TPS and DED populations from being pitted against one another.
However, at some point during the crafting of the final version of the bill, provisions were added to exclude from its Dream Act section a number of young immigrants, including those with a record of juvenile adjudications that resulted in detention in a youth jail or prison and those who the Department of Homeland Security (DHS) has deemed to either have gang affiliations or be a “threat” to public safety.
“It was almost like a tale of two bills,” says Paromita Shah with Just Futures Law, a legal organization working on ending immigration criminalization. “The first [version] adhered more to this visionary sense of what it was supposed to do, bring in as many people as possible. Then for no reason at all, the Democrats released a bill that had criminalization provisions in there that were not needed.”
A coalition of 26 organizations, including the NAACP and the Sentencing Project, signed on to a letter urging the House Judiciary Committee to take out the new provisions. The letter noted that, in contrast to “superpredator” myths, most of those detained by the juvenile legal system — disproportionately Black and Latinx — are “there for low-level offenses, including technical violations … truancy, running away, or violating curfew.”
Despite evidence that immigrants are actually convicted of fewer crimes than nonimmigrants, undocumented youth may be more vulnerable to winding up in juvenile detention if they are arrested, because they could be less likely to have support in court. “If you’re an immigrant family you might have legitimate reasons to be scared to walk in a courtroom,” explains Sarah Bryer, executive director of the National Juvenile Justice Network, “and if the parents aren’t in the courtroom vouching for their child, the judge is far more likely to put them in a detention facility.”
The letter from advocates also argued that accusations of gang affiliation shouldn’t be used to determine citizenship, noting that Immigration and Customs Enforcement (ICE) uses flimsy criteria to allege gang involvement, including “frequenting an area notorious for gangs … wearing a particular soccer jersey or writing the area code of their home country.”
Negotiating Against Themselves
While some of these criminalization provisions exist in previous legislation — as well as in the criteria for acceptance into the temporary legal status of the Deferred Action for Childhood Arrivals (DACA) program — advocates argue that their inclusion in H.R.6 is a needless concession to Republican anti-immigrant rhetoric. They warn that it might set harmful precedents for future bills and executive actions.
Bryer says it’s important to understand that the juvenile legal system, for all its flaws and abuses, was established with a different set of rules from the criminal legal system.
“It was understood that the ramifications of the juvenile court process were not meant to be as severe as the adult courts and therefore the due process protections [such as trial by jury] were less,” she says. It’s called an ‘adjudication’ because it’s not actually a criminal conviction.”
But that entire framework is undermined, she continues, “if the ramifications [of a juvenile adjudication] are so great that you might not be able to stay in this country that you’ve been in your entire life.”
H.R.6 attempts to address some of these concerns with language that guarantees due process rights for immigrants who are determined to be excluded from the program, bars DHS from relying exclusively on the notoriously inaccurate “gang databases” compiled by state and federal law enforcement, and exempts certain misdemeanors, such as some marijuana offenses and certain types of civil disobedience, from being grounds for exclusion.
These mitigating measures, maintained in the face of strong Republican opposition, reflect the progress that activists have made in exposing the injustices of the immigration and criminal legal system. “For the broader criminal justice movement, that’s a big deal,” says Benjamin.
However, House Republicans are now declaring that H.R.6 would give “green cards to gang members,” and many advocates worry that even these modest carve-outs won’t stand up in the event that the Republican-led Senate decides to stop burying House legislation and take up the Dream and Promise Act.
“I don’t think any of these provisions will be enough for Republicans,” says Shah. “Instead of starting off on the strongest possible footing that you have, knowing that it would be facing a number of amendments, we’ve given them a whole range of provisions that they can start opening up and expanding.”
“I don’t understand how a very progressive bill included these provisions that are meaningless for public safety but are harmful for immigrant kids,” says Bryer. “It feels like the authors of this bill were negotiating against themselves.”
Like All People, Immigrants Are Not “Good” or “Bad”
For all of its advances, H.R.6 shows that most national Democrats are still firmly wedded to what many grassroots immigrant advocates criticize as a “good immigrant/bad immigrant” framework.
In a climate where Trump and his followers denigrate most or all immigrants as “dangerous criminals,” it’s tempting for progressives to try to counter them by pointing to examples of “good immigrants,” i.e. those who have more successfully adapted to U.S. capitalism, running small businesses or obtaining graduate degrees. But this comes at a price.
“People want to exemplify the ‘good immigrant,’ explains Tania Mattos, an organizer with Queens Neighborhoods United, which is working to stop the gentrification of immigrant neighborhoods. “But the bar becomes a lot higher if we put people like this on a pedestal. Meanwhile, the window for being considered a ‘bad immigrant’ grows larger and larger every day.”
The good/bad framework guided the policies of Barack Obama, who declared his administration’s policy to be the deportation of “felons, not families.” What was intended to sound progressive and rational instead revealed liberal Democrats’ complicity in the dehumanization of millions of immigrants with arrest records as pariahs without loved ones.
“Felons, not families” gave valuable liberal acceptability to the right-wing notion of dangerous criminal immigrants. Now, the Trump administration has both heightened the demonization of those who are deemed “bad immigrants” and relentlessly pushed to expand who is included in the category.
“On the news, you hear, ‘Trump deported 100 people and they all had prior arrests,’ and people think, ‘oh, these are bad people,’” Mattos says. “But they don’t tell you that some of them are not even convicted, and that it can be as minimal as running a stoplight. In our neighborhood, people have been given summonses for things like spitting on the sidewalk and jaywalking, and all these interactions with the police, if you have a deportation order, can lead right to deportation.”
The Need for an “Abolish ICE” Framework
When activists and insurgent Democratic candidates like Rep. Alexandria Ocasio-Cortez brought the slogan “Abolish ICE” into national prominence last year, they offered a path toward a truly humanistic and progressive immigration politics.
While the slogan can mean anything from dismantling all border controls to simply reverting to the immigration bureaucracy that existed before it was swept up in the post-9/11 security state, all interpretations rest on the idea that ICE (like the Border Patrol) is an inherently biased agency based on the flawed premise that immigration is a national defense issue rather than an economic one.
Ilhan Omar, Rashida Tlaib, Ayanna Pressley and Ocasio-Cortez are putting the slogan into action by rightly calling out Trump’s migrant camps at the border as “concentration camps,” and leading an important public fight against their party’s ongoing funding of ICE and the CBP.
But other than an unsuccessful attempt by Pressley and Rep. Jesús “Chuy” García to have the language about gang affiliation removed from the bill, left-wing Democrats were largely silent in public about the criminalization provisions that view many young immigrants as threats to public safety and gives DHS expanded powers to ruin lives through allegations of gang affiliation and criminality.
In Ocasio-Cortez’s New York City district, many immigration activists have been heartened that their representative has reached out to them for feedback on H.R. 6 and other issues, but some feel that she should be doing more to shape her party’s immigration bills so that advocates don’t have to approve criminalization measures in order to support TPS recipients.
“AOC has criticized Democrats for having no national plan on immigration, but instead always reacting to Republicans,” says Lupita Romero, a Queens-based activist and DACA recipient. “But in reality, she’s been just as reactive. She’s calling us to talk about how to react to legislation from Democratic leaders. I’m glad to see her take up the Abolish ICE slogan, but I think that, unlike health care, it’s not an issue she’s leading on. It’s disappointing when it was one of the main reasons her district fought for her.”
As Romero points out, the lack of opposition to the criminalization provisions in H.R.6 shows that centrist immigration policies have not been subjected to the same kind of challenge from left-wing Democrats like Ocasio-Cortez and Bernie Sanders as have the party’s centrist positions on issues like health care and climate change.
This is dangerous, given Republican aims to ride anti-immigrant alarmism all the way through the 2020 election. Over the next year, we can expect a steady drumbeat of fantastical stories about immigrant violence and criminality in the right-wing media echo chamber that extends all the way from neo-fascist websites to the White House.
For many immigrant advocates, the criminalization language in H.R.6 shows how far most Democrats are from a position that would defend communities against these coming attacks without ceding crucial ground.
As an advocate for Nepali Americans with TPS status, Benjamin strongly supports the Dream and Promise Act, but she’s clear-eyed about its flaws. “How the Democrats came up with the bill is a reflection of who the Democratic Party is,” she says. “Democrats are not the immigrant rights movement.”
For her part, Shah is saddened by how little the party seems to have learned in the three decades since the tragedy of the Central Park Five.
“I think Democrats are still not very clear about where they are on [the] superpredator narrative,” she says. “We should be past that.”