There’s an element of fear in living as a person of color in this country. That fear is that white people can lay hands on you, can come for you, can take you, whenever they want. They can take you out of a job; they can take you from your family; they can find a reason to justify erasing you.
This fear is not an accident. It’s not in my head. It’s not a victimization card I pull out to shut up the white folks at parties. This fear has been taught and cultivated by a legal and social system designed to propagate the continued political, social, and economic supremacy of white people in this county.
Instilling fear is a tactical choice by this society. We’ve all seen those tactics put on display: the raids and the deportations, the walls and the cages, the ripping apart of families and the separations of children from parents. These tactics are familiar to anybody with a working understanding of how apartheid was enforced in South Africa or how slavery was enforced here in America. These are the tactics of terrorism: the physical, well-publicized violence against some to carry out psychological violence and trauma against all.
On Thursday, the Supreme Court affirmed the validity of these terror tactics yet again when it ruled against an immigrant named Andre Barton in a 5-4 ruling that broke along the standard ideological lines. The case is a purposeful reminder that white people can reach into your life and destroy it, if they feel like it.
There is increasing national awareness that “law enforcement” is at the vanguard of terrorizing black and brown lives. But we don’t often talk about judge-sponsored state terrorism, even though judges are a critical part of the law enforcement apparatus of the state. That’s in part because the media is bad at appreciating the human cost of rulings dressed up in legalese, and in part because Donald Trump and his minions are such obvious goblins that it’s hard to take your eyes off them.
But yesterday’s Supreme Court decision was so legally and morally violative that we must not look away. It’s not a hot-button immigration controversy; it’s not a wedge issue in the ongoing culture war. It’s just a tragedy. It’s an act of terrorism against one man, carried out to make every immigrant feel a little less safe.
Andre Barton is a Jamaican-born man in his mid-40s, and he’s been living in the United States since he was around 10 years old. He and his mother came here legally. Barton is a legal permanent resident—a green card holder. He is a father to four children and owns a small business. Barton is an American immigrant success story by most definitions of that concept.
But it didn’t always look like he was going to be. In 1996, when he was a teenager, Barton was convicted of aggravated assault and possession of a firearm. Apparently, his friend shot a gun into Barton’s ex-girlfriend’s house; Barton claimed he didn’t know the friend was armed. Later, in the aughts, it would appear that Barton developed a substance abuse problem. He was convicted on two drug possession charges.
After that, Barton found his way, graduated from college, and went on to live his life. He was never in trouble with the law again.
Until the Trump administration got its hands on him. In 2016, 10 years after his last arrest, the government started deportation hearings against Barton based on the old possession convictions. Trump didn’t invent this government power (proceedings likely started under Loretta Lynch’s Department of Justice), but his administration has exploited it. The power to deport people over a broad list of crimes and offenses committed years or decades prior has been a thing in this country since the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. It’s a power Bill Clinton, and every administration since, has used whenever they need to look “tough” on immigrants. It’s a trash law, and it would be nice if one day there was a liberal political party that stopped triangulating so hard for xenophobes and instead tried to fix it.
When I talk about terrorism, this is what I mean. Andre Barton was out there living his life; he’s got a family, he’s got friends, he’s an employer in his community. And the government reached out through space and time and snatched it away. It’s not like he had gotten away with his crimes; he was convicted for them. Whatever debt he owed to society, he paid that price over a decade ago. And yet Barton (and thousands similarly situated) can just be kicked out of the country, legally discarded, on the whim of the administration in power. It’s terrifying—and meant to be so.
As I said, every recent administration has used this power to hunt and deport legal immigrants, but the Trump administration can be distinguished for the cruel and borderline absurdist lengths it goes to in order to strike fear in the hearts and minds of immigrants of color. Barton and his legal team agreed that his possession charges were “removable offenses.” They did not fight the notion that he could be deported. But they did fight the notion that he should be deported, by turning to a safety valve for people in Barton’s situation. According to the Immigration and Nationality Act, if Barton can convince an immigration judge that, notwithstanding the removable offense, he had been a basically decent person with strong and long-standing ties to the community, that judge could cancel his deportation.
Barton, who, again, owned a business, hadn’t been arrested for a decade, and hadn’t been back to Jamaica for 25 years, was a good candidate for such a cancellation.
So the Trump administration got creative (so creative that a group of former immigration judges filed a brief opposing the government’s position). It dug all the way back to his 1996 conviction for aggravated assault. Now, both sides agreed that aggravated assault is not grounds for deportation (the fact that this country basically treats violence against women as a lesser offense than drug possession is an infuriating topic for another time). But aggravated assault is grounds to deny entry into the country in the first place. It makes sense that we have a lower threshold for crimes that can keep a person from coming into the country than we do for crimes that would kick a person out of the country. Not being allowed to go somewhere is a different thing entirely from being kicked out of your home.
Enter the Supreme Court. The legal issue is dry enough to suck the blood out of your veins from 10 feet away. Essentially, in order to be eligible for one of these deportation “cancellations,” you have to meet a number of requirements. One of those requirements is that you didn’t commit certain crimes during your first seven years of legal residence. Barton’s drug conviction happened after he had already been here for seven years, so his drug conviction is not something that could have prevented him from getting a deportation cancellation.
But, according to the court, his aggravated assault conviction occurred (wait for it) six and a half years after Barton first gained legal residence. That’s why the Trump administration had to bring it up. Even though Barton can’t be deported because of the aggravated assault, the administration decided to argue that aggravated assault can stop him from getting an exception to the crime he can be deported over.
From there, the legal battle was over whether the list of requirements for an exception should be understood as “no crimes which would deny you entry” or “no crimes which could get you deported.” The conservative majority argued that any old crime, even one for which Barton could not have been deported at the time he committed it, was enough to bar him from getting an exception. The liberal dissent argued that it’s illogical madness to stop Barton’s clock on seven years of good behavior for a crime that can’t be used to deport him.
Don’t lose the human for the technical jargon. In essence, the conservatives decided that they could deport a man in his 40s based on a crime he committed in his late teens, even though they could not have deported him in his late teens when he committed that crime. And the only reason deportation was even on the table was because he’s got a 10-year-old drug conviction, which is never the kind of thing Chadwald Karenström ever gets deported back to Sweden for.
This is not the kind of “policy” you can put up on your campaign website, unless your name is Steve King or David Duke. This is the kind of twisted disregard for justice that can only be nationally administered by a law enforcement official who knows he never has to face the voters and can never be fired. This kind of miscarriage almost has to come from a judge.
The particular judge who wrote the conservative opinion administering this wanton cruelty was Justice Brett Kavanaugh. That’s the man who had a crying rage-fit at the notion that he’d be denied a job based on allegations from his teenage years. That’s the man conservatives rallied behind while saying it was unfair to resurrect his high school yearbook and tales of drunken parties when assessing his fitness for a lifetime position of prestige and power. Alleged attempted rapist Brett Kavanaugh is the one who decided that Andre Barton should be banished from America forever because he did a bad thing when he was a teenager.
It’s not flying a plane into a building or putting a bomb on a bus, but make no mistake: This is terrorism in the service of white supremacy. Kavanaugh is a white man in a position of unassailable power letting a black man know that he can always reach out and take his life away. Or my life. Or my immigrant wife’s life. Or the life of anybody who doesn’t enjoy the entitlement of a white American male who acts like he owns the place.
If Barton v. Barr doesn’t clue you into the whites-only project that undergirds conservative views on immigration, just wait until the Kavanaugh crowd gets a whack at the DACA case. Maybe the most terrifying thing about the Barton case is that it’s a mere appetizer for what conservative justices are really cooking up for American immigrants.