By Diego F. Salinas, Woodson Martin Democracy Fellow, JMU ’18, School of Theatre and Dance and Modern Foreign Languages
The issue of immigration is usually framed in dollars and cents. Pundits and politicians debate about how much immigrants pay in taxes, their contributions to vital American industries, and whether they would be reliant on socialized assistance like SNAP and Medicare. These scenarios are used to argue why or why not someone deserves the opportunity to immigrate or seek asylum.
There’s a lot to unpack when it comes to the border, those trying to cross it, and those tasked with policing it. This comprehensive look at the past two decades of immigration, refugee asylum, and border policing seeks to clarify common terms, empower readers to understand the evolving nature of the U.S. border, and understand how this election is pivotal in molding the next chapter of U.S. immigration policies.
America and Open Borders
In the eighteenth and nineteenth century, it was normal for people to pack their bags and move to a new country without any paperwork or immigration application. While there was debate about when someone should become a U.S. citizen, undocumented immigrants were welcomed en masse into the country. The 1850 census shows that roughly 10 percent of the U.S. population at the time was made up of undocumented immigrants. When discussing issues of immigration, it’s not just a matter of being a citizen or not. Citizenship itself has a history of being used to determine who is deserving of rights and who isn’t. It is important to note that the 1850 documented population includes scores of indigenous peoples and enslaved Black people, all of whom were born on US soil but denied the rights of white, male birthright citizenship.
The 1798 Alien and Sedition Acts, some of the earliest immigration laws in the nation, were designed to silence and weaken political opponents. The Acts’ increased the residency requirement for citizenship from five to fourteen years, authorized the president to imprison or deport aliens that were a danger to the “peace and safety” of the United States, and restricted speech critical of the government. These acts galvanized President John Adams’ opposition and led to Democratic-Republican victory in the 1800 elections making John Adams the nation’s first one-term president. The Naturalization Act was repealed in 1802 while the other acts were allowed to expire without renewal. As these policies expired, the United States entered a Golden Age of Immigration where the population and economy boomed.
Upon arrival at a U.S. entry point such as 1800s Ellis Island, immigrants were not asked to present passports or visas. Sometimes the only information required was the name of the boat they came on and their country of origin. This time of open borders was marked by an increase in life expectancy, decrease in child mortality, the introduction of electricity and plumbing in cities, and a general increase in the standard of living encapsulated by the creation of the 40-hour work week.
The 1875 Page Act and 1882 Chinese Exclusion Act set the tone for future immigration policies by banning the entry of the immigrant boogieman of the time. The Immigration Act of 1882 levied a head tax of fifty cents on each immigrant and blocked (or excluded) the entry of “idiots, lunatics, convicts, and persons likely to become a public charge.” The Golden Age of Immigration began to fade as systemic barriers were enacted to limit immigration from “undesirable” countries like China. The list would grow to include southern and eastern Europeans in the 20th century and eventually Central Americans and Muslims in the 21st century.
The 1924 Immigration Act, also called the Johnson-Reed Act, set the tone for American attitudes towards immigration for the next 100 years. Passed during a wave of national security concerns pre-World War I, the law codified the practice of national origin quotas and effectively ended immigration from Asian countries. Anne Frank was denied entry to America because of the national origin quotas. Mexico was excluded from these quotas in part because of business interests’ need to access low-wage workers. However a new form of terror and control would soon grip the southern border.
From its inception in 1924, the U.S. Border Patrol became an instrument of race vigilantism, recruiting white men with a background in military and police training to patrol the U.S.-Mexico border. The organizations these men came from often had their own checkered past of unaccountable violence towards Latinos, such as the Texas Rangers and Ku Klux Klan. The 1924 Immigration Act made it illegal to cross the border outside official ports of entry which allowed the Border Patrol to humiliate, harass, detain, imprison and even kill migrants with unchecked impunity. What had once been a daily or seasonal trip across the border for life and work soon became a ritual of horror and humiliation as migrants had their heads shaved, were being stripped and daubed with kerosene, their clothes fumigated with gasoline, kerosene, sodium cyanide, cyanogens, sulfuric acid and Zyklon B. Later, Gerhard Peters would modify the Zyklon-B used to delouse migrants in El Paso for use in the Auschwitz gas chambers. These procedures and laws received high praise from Adolf Hitler, writing in Mein Kampf:
There is currently one state in which one can observe at least weak beginnings of a better conception. This is of course not [Germany], but the American Union… The American Union categorically refuses the immigration of physically unhealthy elements, and simply excludes the immigration of certain races.
The politicization and harassment faced at ports of entry led some migrants to cross the border elsewhere, an act that white supremacist South Carolina Senator Coleman Livingston Blease sought to criminlize with the passing of the Immigration Act of 1929. Now it was a misdemeanor to cross outside a designated port of entry and a felony to return to the U.S. illegally if you’ve previously been deported. Throughout the 1930s, the incarcerated Mexican population boomed making up no less than 85% of immigrant prisoners, at times reaching staggering heights of 99% of the prison population according to the U.S. Bureau of Prisons. The outbreak of World War II halted the boom and prosecutions for unauthorized border crossings decreased until 2005.
Following the September 11, 2001 attacks, the Bush administration established the U.S. Department of Homeland Security, creating under it the Bureau of Customs and Border Protections (CBP), Bureau of Citizenship and Immigration Services (CIS), and Bureau of Immigration and Customs Enforcement (ICE).
Since the beginning, CBP and ICE have been plagued by corruption and crime from within their own ranks. The agency is fatigued by high workloads and routinely under-trained staff. Between 2005 and 2012, at least one CBP officer was arrested for misconduct per day. In 2020, reports emerged that hysterectomies were being conducted on Central American women within ICE detention centers. At this moment, makeshift slums have been erected along the border as Central American asylum seekers wait for months to have their claims processed.
Just like the Immigration Act of 1924, this year’s election is poised to set the tone for U.S. immigration policy for the next hundred years. Let’s review what’s on the ballot.
DACA
Created in 2012 by President Obama’s Executive Order, Deferred Action for Childhood Arrivals (DACA) is largely seen as a response to the inability of multiple administrations to pass the comprehensive immigration reform bill commonly referred to as the DREAM Act. While not a path to citizenship, DACA allows undocumented individuals that pass a background check and arrived into the U.S. at a young age to receive temporary work authorization, a social security number, and temporary protection from deportation. Under President Obama’s original order applicants must renew their DACA every two years, paying $495 to do so.
Under President Trump’s administration the program has undergone some changes. On September 5, 2017 President Trump sought to scrap the program, but multiple legal battles and a 2020 Supreme Court decision ruled the administration had acted “capriciously and arbitrarily” when ending the program, and ruled that DHS must continue to accept new applications and renewals.
Acting Homeland Security Secretary Chad Wolf issued a July 28 memorandum, which instructed the agency to bar “first-time applicants from applying for DACA, requires recipients to apply for work authorization annually instead of every two years, and limits their’ ability to travel outside of the U.S.” in defiance of the United States Supreme Court ruling to return the program to its pre-September 2017 status.
Family Separations
In May 2018 the Trump administration began enforcing a policy of family separation for people detained for seeking asylum or crossing the border. This “zero-tolerance” policy was described by then-Attorney General Jeff Sessions as a “deterrence” to other people who would seek asylum at the U.S. border. While previous administrations have detained and deported families before, the concept of family separation was a policy unique to the Trump administration that led to over 2,000 children, some under one year of age, to be separated from their parents upon being intercepted by CBP. While the official policy was reversed in June of that year, recent findings show that there are still 545 children whose parents cannot be located and up to two-thirds of parents were deported without their children. Though the policy has been officially ended, there’s a mountain of work required to reunite families that were separated back in 2018.
Asylum
In the asylum process, an individual or individuals must present themselves to ask for protection and an officer performs a “credible fear” screening. If there is a chance they could face danger in their country of origin, the individual is then allowed to remain in the U.S. to await their day in an immigration court. In order to qualify for asylum, refugees must prove that they are being persecuted due to “race, religion, nationality, membership in a particular social group, or political opinion.” The Trump administration has also encouraged judges to interpret the qualifications for an asylum seeker very narrowly in an aim to reduce the number of people granted asylum status. Historically, the chances of being granted asylum are low with less than 40% of all claims being granted.
In July 2019, the Trump administration issued a new rule, often called Asylum Ban 2.0, that makes “all individuals who enter, attempt to enter, or arrive to the United States across the southern border ineligible for asylum if they have transited through at least one country outside of their country of origin, and have not applied for protection in that country.” This has severely limited the number of people who qualify for asylum.
The Trump administration has also enacted the Migrant Protection Protocols which require asylum seekers to wait in Mexico while their claim fully plays out in U.S. immigration courts rather than admit them to safety first. This has led makeshift camps to emerge on the Mexican side of the border where asylum seekers wait for results, often with little access to food, shelter, or clean drinking water.
Safe Third Country Agreements are another measure that has been put in place by the Trump administration in an attempt to reduce the number of eligible asylum seekers. This deal between the U.S., Honduras, El Salvador, and Guatemala allows the U.S. to bar asylum seekers by encouraging them to seek asylum in one of the three Central American countries. These are the same countries that many asylum seekers have fled from due to fear for their life and safety. In addition, Guatemala, Honduras, and El Salvador have no robust asylum systems in place to provide for asylum seekers.
Title 42 of the U.S. Code was also invoked in 2020. It’s a public health provision that gives the government broad powers during a public health crisis. The Trump administration claims that Title 42 allow the administration to close the border to all migrants due to the pandemic. Furthermore, the administration claims that Title 42 allows the government to expel asylum seekers who are already in the U.S. and expel them with no due process. Nearly 200,000 people have been deported under Title 42. Title 42 will likely be extended indefinitely if President Trump secures a second term.
TPS
Created as part of the Immigration Act of 1990, Temporary Protected Status (TPS) is “a temporary immigration status provided to nationals of specifically designated countries that are confronting an ongoing armed conflict, environmental disaster, or extraordinary and temporary conditions.” People who are granted protection under TPS are provided with a work permit and are protected from deportation, but are not provided a path to citizenship. The Secretary of Homeland Security has the power to grant this protection to a country and their decision is not subject to judicial review. In 2019, DHS sought to remove El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan from the list of designated countries however this ruling has not gone into effect and is currently awaiting the resolution of two lawsuits. The designations are set to expire on January 4, 2021. In September 2020, a federal appeals court decided that President Trump can end TPS, meaning that TPS recipients would have to find another way to stay in the U.S. or be removed following a six month wind-down period.
Presidential Candidates
Jo Jorgenson (L) | Challenger
Dr. Jorgenson believes that the freedom to trade and travel is fundamental to human liberty and as such she would decriminalize border crossing. Dr. Jorgenson supports repealing arbitrary quotas on the numbers of people who can legally enter the United States and would seek to reform the immigration process to shorten waiting times and expand visas. She also supports providing a pathway to citizenship for the undocumented persons already in the country and is in favor of abolishing ICE. Dr. Jorgenson believes that a border wall “will prove ineffective at stopping illegal immigration” and is critical of President Trump’s use of emergency military funds to build a wall, calling the action unconstitutional.
Response in JMU Civic 2020 Voter Guide
Question 5: What is broken in our immigration system and what will you do to address immigration reform?
Dr. Jo Jorgensen: “I support decriminalizing border crossing, and creating easy paths for peaceful people to visit, work, or reside in the United States.
The freedom to travel is fundamental to human liberty. As American citizens, we should be free to travel anywhere we choose. As President, I will work to repeal arbitrary quotas on the number of people who can legally enter the United States to work, visit, or reside. I would abolish ICE. It was not needed 40 years ago, and is not needed now. It is a threat to the liberty of immigrants and citizens alike.
Separating peaceful people from their children is inhumane and beneath us as a nation. As President, I would end this practice immediately.
Trump’s use of emergency military funds to build a wall was unconstitutional, a gross expansion of presidential powers, and will prove ineffective at stopping illegal immigration.”
Donald Trump (R) | Incumbent
According to the official White House website, the Trump administration touts their success in winding down DACA in “an orderly fashion,” citing that it will give “Congress the opportunity to consider appropriate legislative solutions.” In an August 23rd post to his official website, President Trump includes a bullet-point list about his second term immigration agenda. Though it doesn’t mention DACA, it includes other goals such as “an end to sanctuary cities” and requiring “new immigrants to be able to support themselves financially,” reminiscent of the Immigration Act of 1882. In an October 29, 2020 phone interview with NBC, senior adviser Stephen Miller outlined second term goals as “limiting asylum grants, punishing and outlawing so-called sanctuary cities, expanding the so-called travel ban with tougher screening for visa applicants and slapping new limits on work visas.”
Expanding on the Trump administration’s second term goals in regards to asylum, Stephen Miller explains that the administration would seek to expand “burden sharing” with El Salvador, Honduras, and Guatemala. The idea would be to expand these policies to include the rest of the world in the “burden sharing” of asylum seekers.
Joe Biden (D) | Challenger
The Biden campaign website emphasizes former Vice President Biden’s support for the program during the Obama administration. If elected, Vice President Biden would “remove the uncertainty for Dreamers by reinstating the DACA program, and he will explore all legal options to protect their families from inhumane separation.” Vice President Biden would go further by allowing DACA recipients to be eligible for federal student loans and that they be included in his plans to access community colleges without debt. A Biden administration would also support a roadmap to citizenship not only to DACA recipients, but also to TPS holders and the 11 million other undocumented immigrants in this country. Vice President Biden has also called for a reversal of President Trump’s public charge rule which the campaign refers to as running “counter to our values” and “discriminatory.”
As part of his first 100 days plan, Vice President Biden intends to end “the prosecution of parents for minor immigration violations as an intimidation tactic, and prioritize the reunification of any children still separated from their families.”
A Biden administration would bring an end to the Trump administration’s metering policy that has led to migrant slums to emerge on the Mexico side of the border as asylum applicants await the processing of their paperwork. Vice President Biden also promises to end the Trump administration’s Migrant Protection Protocols. This would be coupled with a surge of humanitarian resources to the border and a commitment to “end prolonged detention and reinvest in a case management program” that help asylum seekers navigate the legal system.
In addition to supporting a legislative pathway to citizenship for TPS holders, the Biden campaign promises to review the program in order to protect TPS and Deferred Enforced Departure (DED) recipients from being sent back to the countries they fled from.
Senate
Mark Warner (D) | Incumbent
A supporter of “tough but fair” paths to citizenship for undocumented immigrants, Sen. Mark Warner has previously voted in support of sanctuary cities and against efforts to build a wall along the southern border. Sen. Warner has been critical of the Trump administration’s efforts to rescind DACA and deport its recipients. He has also said that he would block legislation that seeks to deport people protected by TPS. Sen. Warner would also like to make it easier for “entrepreneurial and highly skilled immigrants” who attended U.S. colleges and universities to stay in the U.S. and create jobs after graduation.
Response in JMU Civic 2020 Voter Guide
Question 7: The Shenandoah Valley specifically and Virginal broadly are home to diverse populations and is a refugee resettlement area. What is your position on immigration policy? What policies and measures will you support for immigration reform?
Senator Warner: “I support a comprehensive approach to immigration reform. I voted in favor of bipartisan, commonsense immigration reform that would strengthen border security, and offer a tough but fair path to citizenship for millions of undocumented immigrants who are already living, working and paying taxes in the United States. I have also introduced proposals that would reform our immigration system to meet the needs of an innovation-driven 21st century economy by making it easier for entrepreneurial and highly skilled immigrants educated at U.S. colleges and universities to stay here and create jobs after graduation.”
Daniel Gade (R) | Challenger
Dr. Gade is in favor of blocking deportations for individuals who are currently protected by TPS and believes the federal government should grant more H-1B visas, which allow employers to hire “nonimmigrant aliens as workers in specialty occupations.” He is a supporter of President Trump’s border wall but remains largely silent on issues affecting DACA recipients. When it comes to so-called “low-skill workers,” Dr. Gade remarks that “we need to welcome low-skill workers who do important work, provided that we know who they are, where they are, they pay taxes and they go back when they’re done.”
House of Representatives
District 2
Elaine Luria (D) | VA-02, Incumbent
In 2019 Rep. Luria sought to end the longest government shutdown in U.S. history by asking her colleagues to reopen the government followed by an immediate vote for DHS funding, followed by “a process that would allow members to offer amendments to address current gaps in protections” for DACA, TPS, and DED recipients.
Scott Taylor (R) | VA-02, Challenger
Mr. Taylor represented Virginia’s second district from 2017-2019 when he was unseated by current incumbent Elaine Luria. In 2018 Mr. Taylor agreed with President Trump’s assessment that the country needs “more money for security for the wall, whether that’s technology, people, or [a] physical wall.” He has previously voted for an additional $1.6 billion increase to border security. He is also in favor of ending America’s immigration lottery system in favor of a merit-based system. When it comes to DACA, Mr. Taylor supports “protecting children who are in the country through no fault of their own.”
David Foster (I) | VA-02, Challenger
Mr. Foster is running in Virginia’s second district as an Independent candidate. He is the only candidate running in the second district that had a section on his website dedicated to immigration. If elected, Mr. Foster seeks to develop “a comprehensive regulatory set of guidelines for those seeking citizenship” requiring immigrants to provide “work history, federal and state tax returns, pass criminal background checks, DMV records and educational background.” He would like to continue “to deport all Illegal Aliens [sic] with criminal backgrounds [and] end sanctuary cities in every state [sic].” He concludes by vowing to “never again allow an individual born on foreign soil … to be sworn in as President of the United States” adding that “The birth certificate has been forensically proven to be a forgery by U.S. and Italian Companies.” alluding to the conspiracy theory that President Obama’s birth certificate is fake.
District 5
Cameron Webb (D) | VA-05 Candidate
“Humane” is the self-described keyword of Mr. Webb’s approach to immigration reform in America. He clarifies that he wants to have security at the southern border but that the immigration process must reflect “our values as a nation.”
Bob Good (R) | VA-05 Candidate
If elected Mr. Good would seek to increase law enforcement spending, including for border patrol and immigration enforcement. Mr. Good would like to see the wall along the southern border completed and an end to birthright citizenship for all. He’s in support of a merit-based immigration system based on the economic needs of the nation. His campaign website lists mandatory E-verify implementation, an end to sanctuary cities and in-state tuition for undocumented immigrants, and a strengthening of immigration biometric identification systems.
District 6
Ben Cline (R) | VA-06 Incumbent
Rep. Ben Cline sees a “crisis at the border” caused by facilities that were not meant to deal with as many people as they are currently imprisoning. He has supported legislation that would allow families to remain together in these facilities. He has also co-sponsored a bill that would increase the caps on family-based immigrant visas and would eliminate the cap for employment-based immigrant visas.
Nicholas Betts (D) | Challenger
Mr. Betts’ website doesn’t offer insight into his views on immigration issues and previous reporting by news outlets do not cover this issue, but he did respond to the issue in our 2020 Nonpartisan Voter Guide (see response below).
Responses in JMU Civic 2020 Voter Guide:
Question 7: The Shenandoah Valley specifically and Virginal broadly are home to diverse populations and is a refugee resettlement area. What is your position on immigration policy? What policies and measures will you support for immigration reform?
Rep. Cline: “I have had the great privilege of attending several naturalization ceremonies here in the Sixth District. There are few Americans more patriotic than naturalized citizens. I support immigration policy that makes it possible for people from around the world to apply and be admitted to come to our country and contribute their talents to making America a better place.
Additionally, there are numerous agriculture producers in the Sixth District which rely on seasonal workers to produce the foods and products we consume. Our immigration policy must meet the demands of these industries, especially in the current climate where the mechanisms of our food supply have been strained by the COVID-19 pandemic.”
Nicholas Betts: “America is a nation of immigrants. We should be welcoming people from other countries and make it easier for people to immigrate here legally. In regards to undocumented immigrants who are here already, I believe there should be a pathway to citizenship for people who are actively trying to pay their back taxes that have accrued since their 18th birthday.”
District 7
Abigail Spanberger (D) | VA-07 Incumbent
Rep. Spanberger believes that the need to strengthen security at the border should be matched with action to reform the current immigration system. If elected she would seek to “[give] certainty to DACA recipients, and [create] an earned pathway to legal status for undocumented immigrants currently living here as long as they abide by the law, work hard, and pay taxes.” In the past she has voted to increase the number of “immigration judges, Customs and Border Protection officers, and technology to detect drugs at ports of entry.”
Nick Freitas (R) | VA-07 Challenger
A supporter of stronger border security, Mr. Freitas supports President Trump’s plans to build a border wall. In a 2018 tweet, Mr. Freitas claims that a lack of border enforcement and “policies like DACA have left Americans, legal immigrants, and children at the border vulnerable to crime and injustice.” He supports a merit-based immigration reform and opposes granting drivers licenses or permits to undocumented persons. He is against sanctuary cities and against providing in-state tuition for undocumented students.
Harrisonburg City Council
Laura Dent (D)
A self-proclaimed “pragmatic progressive,” Laura Dent has been involved with protests for immigrant rights in Harrisonburg. If elected to council, Dent said she would continue to support Harrisonburg’s immigrant population and would seek representatives from “our diverse community to participate in committees, advisory boards, and community dialogues.” She also believes “the local police should build trust with our immigrant and refugee populations” and says she’ll support “local nonprofits who work with [immigrants and refugees] to help them establish their lives in their new home.”
Charles Hendricks (D)
A father and small business owner, Charles Hendricks would seek to continue supporting organizations like New Bridges which provide aid to the immigrant and refugee communities in Harrisonburg. Mr. Hendricks also believes that expanding translation services is essential to making sure all voices in Harrisonburg are heard.
George Hirschmann (I) | Incumbent
When asked about the needs of Harrisonburg’s immigrant and refugee population, Mr. Hirschmann responded with a call to reign in spending and empowering the community to invest in itself. He believes that the community’s need for more language training for English Language Learners (ELL) could be met with a program that partners ELLs with older folks in the community who are in need of socialization during this time. Though the specifics of the plan are up in the air, he sees this a one-two punch that would meet the needs of ELLs and elders in Harrisonburg.
Kathleen Kelly (R)
Dr. Kathleen Kelly sees an unfamiliarity with the system as key towards understanding the issues that the immigrant and refugee community faces. She recounts how several young refugees that she’s met “were literally dumped here,” with no idea what to do or where to go. Dr. Kelly advocates for the resettlement program to do more than relocate individuals. She advocates for a program that would match refugee families with volunteer families who can “show them the ropes” and help them when they need help. She thinks that beginning language learning programs before the families arrive would give them a better start, a sense of hope, and independence. She acknowledges that most of these families live below the Asset Limited Income Constrained Employed (ALICE) threshold and believes that closing the communication gap with ELL classes can help uplift these families.
Deanna Reed (D) | Incumbent
Elected by the City Council as Mayor of the City of Harrisonburg in 2017, Deanna Reed is seeking re-election to continue the work she has done as mayor. Mayor Reed acknowledges that many immigrant and refugee community members also are included in the ALICE population and that their struggles are “compounded by issues of equality and inclusion.” She believes that increasing local government’s interaction and communication with the community can help include these communities.
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