William Diaz-Castro is about to become one of the “criminal illegal immigrants” whom Donald Trump campaigned against for 17 months—and whom, as president-elect, he now plans to deport immediately.
“What we are going to do is get the people that are criminal and have criminal records—gang members, drug dealers, we have a lot of these people, probably 2 million, it could be even 3 million—we are getting them out of our country,” Trump said in an interview on 60 Minutes four days after his victory. “Or,” he added, “we are going to incarcerate.”
This statement had the appearance of softening his earlier position; at times during the campaign, Trump threatened to deport every one of the estimated 11 million undocumented immigrants who live in the United States. But the impact on families and communities of immediately removing even 3 million people would be cataclysmic. That’s equal to the population of the state of Mississippi, and more people than Barack Obama removed during his entire presidency.
The people Trump says he will target—those “bringing drugs,” “bringing crime,” who are “rapists,” as he put it in the speech that launched his campaign—sound terribly scary. The idea that there are millions of them is quickly seeping into our political discourse as though it were fact. In reality, any effort to deport 3 million “criminal” immigrants will first require branding law-abiding people as criminals—a process that’s been unfolding across presidential administrations stretching back to Bill Clinton’s, but that Trump plans to escalate massively.
This is how it happened for Diaz-Castro: On March 22, the soft-spoken 30-year-old construction worker and his partner, Linda Guzman, 29, who works the day shift at a laundromat, were awakened by the sound of urgent knocking on the door of their two-bedroom apartment in New Orleans. Their 3-year-old son, Willie, was asleep in a bed beside them; a friend was spending the night in the second bedroom. Before Diaz-Castro could get out of bed and dress, his friend opened the door and found five armed Immigration and Customs Enforcement agents in black jackets. Documents say they were conducting a “knock and talk,” the name ICE gives to its home-based roundups. The friend let the agents in without asking if they had a warrant (they did not).
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The officers began to question Diaz-Castro in the living room. He says they insisted on scanning his fingerprints. The scan didn’t turn up any criminal warrants, but it did turn up two past deportations. ICE took Diaz-Castro into custody and sent him to an immigration detention center in central Louisiana run by the private prison firm GEO Group. The facility is one of many that ICE uses to house people whose immigration cases are being adjudicated in the civil immigration system—the main way undocumented immigrants have historically been processed. The penalty in a civil proceeding would be deportation, like Diaz-Castro had faced before.
But in April, instead of moving through the civil immigration system, he discovered that ICE had referred him to federal prosecutors to be charged with the crime of “illegal reentry,” or returning to the United States after deportation. Over the past 25 years, federal law enforcement has responded to political pressure to prosecute border crossing as a crime. At the beginning of the Clinton administration, the federal government prosecuted fewer than 4,000 people a year for crossing the border without permission. Last year, the Obama administration charged some 70,000 people for border crossing. It’s now the most prosecuted category of federal crime, punishable by months or even years in prison. For the past seven months, Diaz-Castro has been locked in the St. Tammany Parish jail awaiting trial. If he’s convicted, he’ll instantly become a “criminal”—and will count toward the 3 million people that Trump has vowed to deport.
No federal agency tallies how many of this country’s undocumented immigrants have been convicted of a crime. Trump’s estimate is likely drawn from ICE data indicating that approximately 1.9 million noncitizens of every status—including green-card holders—have convictions. The nonpartisan Migration Policy Institute has come up with a best estimate, based on an analysis of ICE’s data on people deported in 2012. The MPI calculates that roughly 7 percent of this country’s estimated 11 million undocumented immigrants have a criminal conviction, or around 820,000 people. Of these, says Randy Capps, MPI’s director of research, an estimated 300,000 were convicted of felonies.
Some of those 300,000 felonies were serious or violent crimes—assault, burglary, manslaughter—but most, Capps says, were drug crimes. And many of those convicted are felons in the sense that Diaz-Castro may soon be: guilty of the crime of border crossing.
“There just are not enough of these criminals to deport,” says Susan Long, the head of the Transactional Records Access Clearinghouse, a research group at Syracuse University that analyzes federal law-enforcement data. “So we go looking for people to deport, and we’re catching grandmothers who had a shoplifting charge 30 years ago.”
Just as often, we’re catching people like Diaz-Castro—working parents whose only crime is immigration itself. For Trump to meet his deportation goal, he will need to criminalize millions more immigrants like him. And disturbingly, most of the legal tools to do so are already in place.
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In late October, the Trump campaign released a plan for his first 100 days. Among the items on that list is legislation that would impose a mandatory minimum sentence of two years in federal prison for people caught in the United States after having been deported. Those who return after being deported twice would face a minimum of five years.
The proposed legislation—a version of which was introduced by Senator Jeff Sessions, the hard-line anti-immigration legislator whom Trump says he’ll nominate for US attorney general—is called “Kate’s Law.” It’s named after Kate Steinle, a 32-year-old woman who was shot and killed in San Francisco by a man who’d returned to the United States after having been deported five times. Though research consistently shows that immigrants are less likely than native-born residents to commit crimes, the Trump campaign has used Steinle’s death as a bludgeon, presenting her killer as the archetypal undocumented immigrant and, along the way, reframing the immigration debate as a question of being tough on crime and protecting Americans.
In this sense, Trump’s vision has striking echoes with the one President Obama laid out in 2009. Back then, the plan was to pass an immigration-reform package that would give millions of undocumented immigrants a path to citizenship. But first, the Obama administration committed to vigorously enforcing the immigration laws and deporting criminals. Since taking office, Obama has trumpeted an 80 percent increase in the rate of criminal deportations—ridding the country, as he said in 2012, of “gang bangers, people who are hurting the community.” But each year, as data about those deportations have been released, we’ve learned that a growing share of these Obama-era deportees were convicted of nonviolent offenses like driving without a license and unlawful entry. In 2012, Obama’s immigration forces deported a record 409,000 people.
Diaz-Castro was among them. He was first deported in 2007, when he was stopped while crossing the border and sent directly back to Guatemala. Fearing the increasing violence there, Diaz-Castro immediately traveled north again, crossing along the Texas border later that same year. He hopped a bus to New Orleans, where he’d heard there was plenty of work rebuilding the city after Hurricane Katrina.
Then, in 2012, ICE agents detained Diaz-Castro as he left his apartment one morning. He was deported again. At the time, his domestic partner Guzman was five months pregnant. Unable to make the rent without his earnings, she became homeless. Desperate to help, Diaz-Castro crossed the border again right away. He was back in New Orleans in time to hold Guzman’s hand as she gave birth to their son Willie.
After Willie was born, the couple moved to a new apartment near the airport. Willie learned to walk, then talk. The couple began to feel safe again. “We thought we would be left alone,” Guzman said, her bright eyes watching her son eat Cheerios in a chair beside her. “We thought the raids had stopped.” That feeling was cemented in November 2014, when President Obama announced a new policy intended to protect the parents of American-born children from deportation. The administration now intended to target “felons, not families.”
The Department of Homeland Security released a memo directing agents to prioritize serious criminals and recent border crossers, not undocumented immigrants who’d arrived in the country before 2014 and had no criminal convictions, or who’d been convicted only of driving violations. After the DHS memo, deportations fell; by 2015, they had dropped 44 percent from their 2012 peak.
Still, in the first 17 months of the new policy, fully a third of the 183,000 people deported for criminal convictions had been prosecuted for nothing more than illegal reentry. “The only thing he did was cross the border to be with his family,” Guzman said of Diaz-Castro. She is homeless again, staying for the moment with her son in a co-worker’s spare room. “That’s the thing that he did. That is his crime.”
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The Obama administration’s historic number of deportations was possible in large part because of a set of programs launched under George W. Bush. Paramount among them was one called Secure Communities, created administratively by ICE in 2008, which gave the agency direct access to arrest data from local law-enforcement agencies. The system flagged all noncitizens booked into local jails and then allowed ICE to request that local officials hand the immigrants over for deportation. Because the system flagged people at the point of arrest, not conviction, it allowed for the speedy deportation of immigrants held for any reason.
Secure Communities was met by a wave of resistance, not only from immigrant-rights advocates, but from local law-enforcement agencies and state and local governments. Los Angeles, New York City, Chicago, and the District of Columbia refused to fully cooperate in the program. Federal data obtained through open-records lawsuits showed that the program was resulting in the removal of people charged with—and not even convicted of—violations as minor as driving without a license or running a red light. Hundreds more counties refused ICE cooperation as a result.
In the face of this resistance, as well as a series of federal-court rulings that the program violates the Fourth Amendment, the Obama administration suspended Secure Communities in 2014 and replaced it with the Priority Enforcement Program. This program used the same technology—sending digital fingerprint data to Washington—but set clear guidelines: Only immigrants convicted of serious or multiple crimes, or who entered the country after January 1, 2014, were to be deported.
Crucially, this technology remains in place for the next administration. Trump has said that he wants to “restore the highly successful Secure Communities program” and turn up the voltage, deporting people swept up in its dragnet even without a conviction. “My plan also includes cooperating closely with local jurisdictions to remove criminal aliens immediately,” Trump said in an August speech.
The hundreds of localities that have refused over the past six years to honor federal requests to detain immigrants beyond their scheduled release date have become known as “sanctuary” cities and counties. Some hold immigrants for ICE only if they’ve been convicted of a serious crime; others require a court order. No matter the approach, it’s a trend that Trump campaigned against heavily and has promised to stamp out.
Trump has said that his administration will withhold federal funds from any local government that refuses to hand over undocumented immigrants in its custody. New York, Los Angeles, Seattle, Boston, Denver, and several other cities with Democratic mayors have said they’ll resist Trump’s plan nonetheless. “We certainly hope that all jurisdictions will hold to their earlier promises,” says Lena Graber, an attorney with the Immigrant Legal Resource Center, which champions a firewall between ICE and local police. “It’s a serious threat to withhold funds.” However, most jails are run by county sheriffs, and they will decide whether to hold their detainees for ICE.
Trump has also vowed to remove all of the protective executive orders that Obama put in place. This includes high-profile orders like Deferred Action for Childhood Arrivals, or DACA, but it could also include lesser-known guidelines, such as the ones imposed in 2013 to protect detained parents from losing parental rights over their US-born children. And Trump has promised to reinvigorate 287(g), an earlier local law-enforcement program created by a 1996 immigration bill, which deputizes local sheriffs and police officers to act as ICE agents.
The Bush administration expanded 287(g), prompting protests from immigrant-rights groups that were eventually joined by police and law-enforcement associations, who argued that it facilitated racial profiling and undermined community-police relations. By 2012, the program had become so discredited that the Obama administration canceled most existing 287(g) agreements.
Yet 32 state or county jails, mostly in the South and Southwest, now operate with 287(g) status. Any sheriff, police chief, or state police authority who wants immigration powers will likely be able to enter into an agreement with the Trump administration after January 21.
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In his November 13 60 Minutes interview, Trump made a point to add the word “incarcerate” to his list of punishments that undocumented immigrants would face. Here, too, Trump’s surrogates have long hoped to expand the programs created and implemented by previous presidents—in particular, a Bush-era program that has already flooded federal courtrooms with criminal prosecutions.
In 2005, the DHS and Justice Department launched a program called Operation Streamline, which sought to criminally charge nearly every single border crosser caught by the Border Patrol. In what amounted to a judicial conveyor belt, as many as 80 border crossers, their ankles and wrists cuffed, appeared en masse before magistrate judges in federal courts at the border. In proceedings that took about a minute for each defendant, the men and women pleaded guilty to misdemeanor illegal-entry charges. At its height, Streamline operated in eight of 20 federal-court sectors along the border. For years, Jeff Sessions has pressed to expand the program to all 20—and as attorney general, he could finally enact that proposal.
Under the Obama administration, criminal prosecution for border crossing also extended into federal-court districts in places like Utah, Virginia, and Louisiana, where Diaz-Castro was charged with illegal reentry. Inside the St. Tammany Parish jail, Diaz-Castro said he has met at least a dozen others with stories like his—undocumented immigrants living with their families in Louisiana who were detained by ICE and then charged with illegal reentry. Since 2005, three-quarters of a million people have been prosecuted for border-crossing crimes, according to estimates by the advocacy groups Grassroots Leadership and Justice Strategies.
Yet there’s no clear evidence that the prosecutions deter crossing. The Border Patrol doesn’t measure their long-term effect, and social scientists have found they have no impact on deportees’ intention to return. “Of course I would come back,” Diaz-Castro told me when we met at the jail in September. He spoke from behind the glass in the visitation booth, handcuffs digging into his wrists. “There’s no question—this is where my family is.”
Trump has said that after the “criminals” are deported, he will “make a determination” about what to do with the rest. But his advisers and presumptive cabinet members have already indicated that Trump may expand the prosecutions beyond border crossing, and Republicans have previously attempted to create several tools that would allow him to do so. In 2015, congressional Republicans introduced legislation that would criminalize overstaying a visa, which currently remains a civil offense that is punished only with deportation. The bill died in committee.
In 2002, the Bush administration also launched the National Security Entry-Exit Registration System. “Special registration,” as the program was known, required all noncitizen men on temporary visas who were over the age of 16 and who came from 24 Muslim-majority countries (as well as North Korea) to register with federal authorities. More than 80,000 men registered, and 13,000 were placed in deportation proceedings, mostly because of visa irregularities. Though the program was mostly unenforced at the time, it also allowed courts to levy misdemeanor penalties against those who weren’t properly registered.
Trump’s top immigration adviser, Kansas Secretary of State Kris Kobach, helped design the program as a lawyer for the Bush administration. He was photographed carrying a memo on DHS priorities in a recent meeting with the president-elect; reactivating “special registration”—a proxy for Trump’s promised “Muslim registry”—topped the list. If that happens, men who refuse to sign up could join the ranks of Trump’s 3 million “criminals.”
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All told, Trump’s agenda will likely spur a massive expansion of the federal prison system. The ACLU estimates that Kate’s Law alone could require the Bureau of Prisons to open nine new facilities. The morning after the election, stock prices soared for two of the country’s largest private-prison companies, Corrections Corporation of America (which recently changed its name to CoreCivic) and the GEO Group. These companies manage both the prisons and the civil-detention facilities where the majority of immigrants are held. In March, Trump told a crowd at a town hall, “I do think we can do a lot of privatizations, and private prisons—it seems to work a lot better.”
In October, Trump pledged that within his first 100 days, he’d impose a hiring freeze on the federal workforce. It’s a promise that Bill Clinton made as well back in 1996, even as the War on Drugs dramatically expanded the number of federal inmates. The resulting tension led the White House to begin privatizing some federal prisons, a test program that ultimately led the Bureau of Prisons to erect a subsystem of privatized prisons used specifically to hold its noncitizen inmates. At the peak of that program, 30,000 noncitizens convicted of federal crimes were held in these facilities, run by CCA, the GEO Group, and Management and Training Corporation (MTC).
A Nation investigation published earlier this year [February 15; July 4/11], produced with the Investigative Fund, found that at least 25 men died inside these facilities in the wake of medical neglect. Nearly half had been locked up for immigration-related crimes. Claudio Fagardo-Saucedo was sentenced to four years; he died of complications from untreated AIDS in a GEO Group–run prison in Texas. Carlos Aguirre-Venegas died at age 30 after medical workers in a CCA-run facility overprescribed a risky tuberculosis drug and then failed to monitor its side effects. Seventy-year-old Jose Vazquez-Favela died of complications from pneumonia while serving a year-long term for illegal reentry in a facility run by MTC.
In August, after the release of a critical report by the DOJ’s inspector general, the Justice Department ordered the Bureau of Prisons to begin closing down all of its private facilities. That process will now likely come to a screeching halt.
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On September 1, the Congress of Day Laborers, a local advocacy group, petitioned the US Attorney in New Orleans, Kenneth Polite, to drop the charges against Diaz-Castro and two other New Orleans fathers charged with illegal reentry. “Their prosecutions and potential convictions,” the letter said, do not “advance the interests of the communities you have been charged to protect.” The prosecutions also made a mockery of President Obama’s commitment to deport “felons, not families,” advocates said.
In a rally held outside Polite’s office, Linda Guzman spoke to a small gathering of fellow immigrants and called for her husband’s release. “They arrested my husband in front of my son,” she said. “The prosecutor has the power to drop those charges, and that’s why we’re here today. I strongly believe that it’s not a crime for him to want to reunite with his family.” Similar campaigns have been launched across the country to challenge the deportations one case at a time. In June, a federal prosecutor in Oregon dropped a case against a community activist facing illegal-reentry charges after community members launched a protracted campaign.
Diaz-Castro still spends his days in the New Orleans jail. In October, Polite agreed to lower the charges against him and another man, Jose Lara-Serrano, from the felony charge of illegal reentry to the lesser misdemeanor of illegal entry. The office wouldn’t respond to questions about the case, or about how it sets priorities for prosecution. ICE said in response to questions that Diaz-Castro remains a deportation priority because he has not firmly established that he has been in the country continuously since January 2014. Diaz-Castro and his lawyers contest this. The agency didn’t reply to questions about why it referred him for criminal prosecution.
Sima Atri, an attorney with the Congress of Day Laborers who represents Diaz-Castro, argues that a single misdemeanor conviction for illegal entry shouldn’t turn her client into a deportable criminal under the current guidelines. “We argue, basically, that nothing has changed from before he was picked up by ICE and today,” Atri says. “He’s still a father who has lived here for years, and who has never been convicted of a crime.”
On November 25th, Jose Lara-Serrano, who had already pleaded guilty to illegal entry, was released from ICE detention and allowed to return home to his partner and their young son. Diaz-Castro is still waiting to be sentenced. He hopes that after he pleads to the misdemeanor and is transferred back to ICE, the agency will agree to release him too. Yet his chances of halting his expulsion are evaporating. His sentencing hearing is set for December 7, six weeks before Trump becomes president.