NEARLY ONE HUNDRED YEARS before Trump’s inauguration, lawmakers in Washington put in place the roots of the country’s modern system of border controls. The cruel science of eugenics had gained credence after the turn of the century, propelled by leading scientific institutions and embraced by politicians eager to justify their xenophobic beliefs with “biological laws.” Motivated by a fear that the “American identity” was slipping away, Congress passed the Immigration Act of 1924, establishing quotas based on an immigrant’s national origin and restricting the entry of southern Europeans, Italians, Japanese, Chinese, and others. The reluctance to welcome foreigners continued through World War II, as the United States turned away Jews fleeing Adolf Hitler’s Nazi Germany and politicians warned that the United States was in danger of being “overrun, perverted, contaminated or destroyed” by immigrants.
The anti-immigrant sentiment of the 1920s was just one of many such surges of racism and hatred in America, described by Daniel Okrent in The Guarded Gate as “a perfect sine wave, periods of welcoming inclusiveness alternating with years of scowling antipathy.” Nearly forty years earlier, the hostility of native-born Americans to Chinese laborers who poured into the United States to work on the booming railroads gave rise to the Chinese Exclusion Act of 1882. By the 1950s, anxiety about the spread of communism fueled efforts by lawmakers to wall off the United States from ideological threats around the globe. The 1952 McCarran-Walter Act granted the president new powers to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” It wasn’t until the mid-1960s, during the political convulsions of the civil rights movement, that Congress began debating the Immigration and Nationality Act, to eliminate quotas based on national origin and replace them with preferences based on skills and family connections. That law, signed by President Lyndon Johnson in 1965 in the shadow of the Statue of Liberty, opened the door to waves of migrants from new parts of the world. In 1960, nearly 75 percent of the immigration into the United States was from Europe. By 2010, more than 80 percent came from Central or Latin America or Asia.
But the changes that Johnson unleashed reinflamed racial resentments that would simmer for a half century before Trump seized upon them to get elected. He was not the first to do so; his campaign rhetoric bore the echoes of previous politicians who rose to power by stoking fear, anger, and anxiety. More than sixty years before Trump’s call for a border wall to stop an invasion from Mexico, Nevada senator Pat McCarran warned that “today, as never before, untold millions are storming our gates for admission and those gates are cracking under the strain.” But in 2016, at a moment when his party had concluded it had to embrace the country’s growing diversity, Trump yanked it back, winning the presidency with a nativist appeal to struggling white Americans at a time when immigration levels were near their lowest in two decades. Once in office, Trump and Miller invoked remnants of the immigration laws of the 1920s and 1950s to empower their crackdown. Defending the travel ban, Miller repeatedly cited the language of the McCarran Act to insist that Trump had the power to act unilaterally, a claim that was later upheld by the Supreme Court. The administration invoked the same authority in 2018 to defend the president’s attempt to bar asylum seekers who crossed the border illegally.
It didn’t take long for the impact of Trump’s crackdown to be felt in immigrant communities across the country as ICE agents began enforcing immigration laws more aggressively.
For eight years, Meldy Lumangkun had made regular visits to the Boston offices of Immigration and Customs Enforcement, checking in annually like clockwork. An Indonesian Christian who had fled religious persecution in his country, Lumangkun had entered the United States illegally. But since September of 2010, he had lived and worked openly under an ICE program known as Operation Indonesian Surrender, a compromise of sorts worked out during the Obama administration that was designed to allow Lumangkun and others like him to remain in the Boston area without fear of deportation. He and his wife, Eva Grasje, had done just that, along with their three children, two of whom are American citizens. The arrangement seemed to work for both sides. As long as Lumangkun and his family stayed out of trouble and checked in with ICE, they could avoid being deported back to Indonesia, where Christians routinely face torture and persecution from the Muslim majority. For their part, ICE agents could move on to more important cases involving serious criminals and the Lumangkun family could become productive, tax-paying members of the community.
Then Trump arrived. On February 28, 2017, a week after Sean Spicer told reporters in the briefing room that the president wanted to liberate immigration agents from their shackles, Lumangkun received a Denial of Stay, signed by Chris Cronen, the field office director for ICE’s Enforcement and Removal Operations division. The document ordered Lumangkun, an elder in the Rochester Indonesian Seventh Day Adventist church, to report to an ICE office on October 6, 2017.
The directive was a result of the executive order that Trump had signed days after taking office the previous month, and an indication of the way in which Miller and the rest of his administration were determined to carry it out—quickly, aggressively, and without exception or apology. One key provision in that order targeted what the president called “removable aliens,” who—like Lumangkun—were living in the United States illegally, often because of a fear of persecution or because their home countries refused to take them back. “The presence of such individuals in the United States, and the practices of foreign nations that refuse the repatriation of their nationals, are contrary to the national interest,” the president’s order said. “We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement.”
It took only weeks for law enforcement agents to put the legalistic language into practice on the ground. Rather than continue to look the other way when it came to Lumangkun and his family, the president’s new approach meant that they and other Indonesian Christians like them would be summarily sent back home.
By the time Lee Gelernt, the ACLU lawyer, began hearing about the plight of the Indonesian Christians in Boston, he was already trying to block the immediate deportation of a group of Iraqis in Detroit. Gelernt, at fifty-five one of the nation’s best-known immigrant rights lawyers, had expected that things would calm down for him after the travel ban and the team of attorneys that had swung into action for the frenzied legal battle to beat back that first executive order. Instead, his workload was growing with each passing week, as Trump pushed the boundaries of the law, seemingly on every front, to carry out his immigration agenda. There were no days off, and multiple cross-country flights, as Gelernt flitted from courtroom to courtroom acting out the equivalent of a legal game of immigration whack-a-mole with the Trump administration. “Every month, week, he’s doing something that’s really novel and dramatic,” said Gelernt, a soft-spoken New Yorker who lectures at Columbia Law School, where he received his law degree in 1988. “The whole thing is just so extreme that we have to sue on everything.” So by the time the Indonesians came along, Gelernt knew exactly what he was up against.
Like the Indonesians, the Iraqis living in Michigan’s largest city—many of them Chaldean Christians—were at risk of deportation. They had arrived in the United States decades ago after fleeing Saddam Hussein’s autocratic rule, and some had committed crimes that caused immigration judges to order them sent home. But for years, Iraq refused to accept them back, making it diplomatically impossible for the United States to deport them. As a result, immigration officials had assured the Iraqis that they could raise their families without looking over their shoulders. But that changed in the summer of 2017. ICE agents descended on the community and rounded up 114 of the Iraqis in a single raid. Among them was Usama Jamil Hamama, an Iraqi known as “Sam” who had entered the United States legally in 1974, but was ordered deported in 1994 after he was convicted of assault and possession of a firearm in 1988. Hamama had served his time and settled in West Bloomfield, Michigan, where he had married a U.S. citizen. The couple had four children, including two who went on to attend the University of Michigan. On June 11, 2017, ICE agents arrived at Hamama’s home and arrested him. He was going back to Iraq, they said.
The president’s directive translated into orders for ICE to round up everyone. No group was exempt from deportation. But the Iraqis were also vulnerable because of the travel ban. The first version of the ban had included Iraq, but when Mattis and McMaster convinced the president to take Iraq off the list of banned countries, officials cut a deal with Iraq to allow the United States to finally send immigrants like Hamama back to their country. It was the final straw for nearly 1,400 Iraqis around the country who were in similar situations—subject to deportation at any moment even though they had built lives in the United States over years and even decades.
Hamama became the lead plaintiff in Gelernt’s case to stop the Iraqi deportations, at least until people like Hamama had a chance to make their argument that they would face persecution, torture, and even death if they returned to their country. “They are all American. They lived here. They’ve grown up here. It’s been twenty years,” Gelernt said. “We rushed to court and said you can’t deport them without giving them a chance to show that circumstances have changed and they will be killed if they go back to Iraq, because they’re Christian.” For the ACLU, Hamama’s case became the first in a series of urgent legal efforts to protect small pockets of immigrant communities around the country. In addition to the Indonesian Christians in New England and 1,400 Iraqis throughout the United States, ICE began rounding up Somalis in Miami, Cambodians in Los Angeles, and scores of Mauritanians in Ohio. During hearings in courtrooms across the country, ICE lawyers bluntly explained that they were just carrying out Trump’s orders. “It’s against the law for them to remain in the United States. They no longer have a legal basis to be in this country,” Jennifer Newby, a government lawyer, told Judge Mark A. Goldsmith of federal court in Michigan. “It is ICE’s job to enforce those orders.”
Judge Goldsmith seemed unmoved, asserting in a ruling in June of 2017 that there was no reason why the deportations should not be delayed until Hamama and the others like him could have an opportunity to present information about what they would face in Iraq. In a ruling that day, Goldsmith issued a nationwide injunction preventing ICE from deporting Hamama and the other Iraqis. It was another blow to Trump and Miller and their theory of the executive’s vast power when it comes to immigration. Once again, a judge was sending Trump a message: there are limits to the actions you can take, even against those without the protection of citizenship. The judge’s ruling added to the seething anger in the West Wing. Similar rulings delayed—at least temporarily—the immediate deportation of other groups of Christian immigrants.
Six months later, in January of 2018, Gelernt would be back in federal court, this time before Chief Judge Patti B. Saris in Massachusetts, who was hearing the ACLU’s case involving the Indonesian Christians. In long exchanges with Vinita Andrapalliyal, the government’s lawyer, Judge Saris became more and more exasperated. Why, she kept asking, is the government insisting on deporting the Indonesians so quickly? What’s the rush? Why send them on a plane back to Indonesia—where they could face danger—before the immigration courts have a chance to fully evaluate their case? “You know, it’s that old song, ‘Slow down, you move too fast,’ ” Judge Saris told the lawyer, quoting from the lyrics to “The 59th Street Bridge Song” by Simon and Garfunkel. “I mean, you’re moving so fast to get them out of here that a court hasn’t even had a chance to read it.”
Andrapalliyal tried to make the case that Judge Saris shouldn’t have jurisdiction in the case, arguing the technicality that the proper venue is an immigration court, not a federal district court. But the more the lawyer pressed her case, the more the judge seemed to push back. From everything that she could see, Judge Saris said, the government was refusing to guarantee that the Indonesian Christians would get a hearing on their predictions of persecution before they were put on planes. How in the world could they appeal their case after they’ve already been sent home? And worse, if they did suffer persecution, torture, or death when they got back to Indonesia, it would make a mockery of laws in the United States that are supposed to prevent the government from deporting people into exactly that situation.
About halfway through the hearing, Judge Saris asked Andrapalliyal whether she had seen a recent article in The New Yorker about immigration and ICE. The article, titled “When Deportation Is a Death Sentence,” had mentioned the 1951 Convention on Refugees, which enshrined international norms that prohibit asylum seekers and refugees from being turned away if they might be tortured or killed in their home countries. The article also referenced the St. Louis, a German ship filled with more than nine hundred Jewish refugees fleeing the Holocaust that was turned away by the United States and other nations. More than two hundred of the Jews were killed when they returned to Germany.
“The country said, ‘Never again are we going to do that,’ those shipments of people,” Judge Saris told Andrapalliyal and the other lawyers in the courtroom that day. “ ‘We are not going to do that ever again.’ And so I think that’s the law they’re talking about—is this one. Am I right? I think that’s the convention against torture.
“So you know,” she continued, “we’re not going to be that country. So I think we don’t want to put them on the ship back unless somebody has had a chance to look at whether there’s a really bad situation for them. That’s the concern I have.”
Judge Saris barred the government from deporting the Christians back to Indonesia without giving them a chance to make their case to an immigration judge. Across the country, other judges did the same for the Somalis, the Mauritanians, the Iraqis, and others. The legal battles would continue for months. Trump’s government was on notice: it had to give persecuted minorities their day in court.
But the long-term impact of the legal setbacks was unclear. The president vowed to fight in court, condemning the judges as tools of a political establishment unwilling to protect native-born Americans from an immigrant invasion. Almost single-handedly, Trump had given birth to an era of anti-immigrant sentiment that rivaled those of decades past. The idea that a handful of judges might get in the way of his agenda made him furious and more determined than ever to push forward.