Donald Trump's campaign has sent conflicting signals about his immigration policy in recent days, but on one point it’s stayed the course: the need to deport immigrants who are “criminals.”
During a town hall Tuesday, Trump said that he is open to "softening" laws dealing with undocumented immigrants. His pivot on the issue came after a meeting with Hispanic leaders Saturday, when he told them that he plans to release a new immigration policy that could include legalizing some undocumented immigrants.
But on Fox News Monday, Trump reiterated his as yet unspecified plan to zero in on criminal immigrants. "The first thing we're gonna do, if and when I win, is we're gonna get rid of all the bad ones," he said. Meanwhile, his campaign has spoken of the need for tougher border security - including Trump's wall - and enforcement of immigration laws.
But what sort of crimes might Trump be referring to? Experts say defining “criminal immigrants” is problematic, in part because of the range of crimes that can trigger deportation - including the simple act of entering the country.
Targeting criminals for deportation
While Trump has continued to rail against so-called criminal immigrants, in reality the Obama administration has already made this the centerpiece of its enforcement approach. Immigration authorities must prioritize those who committed felonies, three or more misdemeanors, and significant misdemeanors for deportation, among other infractions, as detailed in a Department of Homeland Security memo.
"We’re going to keep focusing enforcement resources on actual threats to our security," Obama said when he announced the policy in November 2014. "Felons, not families. Criminals, not children. Gang members, not a mom who’s working hard to provide for her kids."
But that doesn't always work in practice: most deportation cases don't involve serious crimes. From October 2015 to July 2016, 84% of deportation cases in the courts stemmed from immigration violations, according to the Transactional Records Access Clearinghouse (TRAC).
And even if immigrants get detained by police without getting charged, such as for a traffic violation, they still risk deportation. Immigration and Customs Enforcement (ICE) can ask jails to keep undocumented immigrants in custody to transfer them to immigration detention centers - and then potentially deport them. About half of ICE requests for jails to hold immigrants are for people without criminal records, TRAC found.
Immigration advocates have criticized the current administration for targeting immigrants without serious criminal records and dubbed Obama as the " deporter-in-chief" since his administration has deported more immigrants than any other president.
"We don't have to wait for President Trump as the 'Deportation Force' is already in action," wrote prominent immigration attorney Matthew Kolken on his blog.
What is a "criminal" immigrant?
"It's something politicians and government officials tend to bounce around," said César García Hernández, a law professor at the University of Denver and the author of the Crimmigration blog. "Other than the political symbolism of that rhetoric, it's a term that's largely meaningless."
One reason is that the number of deportable offenses has grown since the mid-1980s under federal legislation.
"There's an enormous range of criminal activity that can result in deportation - everything from jumping a turnstile in the New York City subway system to the most serious of crimes," said García Hernández. "Most [immigrants] who we're seeing throughout the Obama administration being targeted for criminal activity are folks who are not murderers and rapists; they're people engaged in much more ordinary criminal activity, including things like immigration offenses."
That's because some immigration violations are considered crimes under federal law. For example, if a non-citizen crosses the border without going through an inspection with authorities, he can be charged with a misdemeanor. Illegal reentry - crossing the border without inspection after being deported - is a felony.
A law for Mexicans
Congress first made immigration a crime in 1929. Five years earlier, in 1924, an immigration act was passed that explicitly sought to keep the United States “white” through a stringent national origins quota system. But the law exempted people from the Western Hemisphere from the quota system and a record number of Mexican immigrants entered the United States to work on farm lands. As a result, in 1929, South Carolina senator and white supremacist Coleman Livingston Blease introduced a legislative compromise: Mexican workers could come and go, but the federal government would ensure they went home, through criminalizing unlawful entry. Immigration law and criminal law were effectively fused.
“That was the first law to criminalize immigration, intentionally designed to control Mexican migration to the United States,” says UCLA history professor Kelly Lytle Hernandez. “And that’s the same law that is still in effect today when we talk about criminal entry into the U.S.”
The 1929 law passed legislation to turn crossing the border into a misdemeanor, and crossing the border after deportation a felony.
Why words matter in the immigration debate
Just using the term "criminal" to describe immigrants is problematic, some immigration advocates say. "The fact is that the vast majority of immigrants are not 'criminals' in any meaningful sense of the word," explains a 2015 American Immigration Council report on the criminalization of immigration.
"Those wholesale labels are not helpful," said Avideh Moussavian, a policy attorney at the National Immigration Law Center in Washington, DC. "It's a way of dehumanizing millions of people that are parents, colleagues, neighbors."
And it's precisely this kind of rhetoric that helps shape how Americans feel about immigration, according to Karthick Ramakrishnan, a professor of public policy and political science at the University of California, Riverside. He co-authored the forthcoming book "Framing Immigrants" from the Russell Sage Foundation, which analyzes how the media covers immigration and how the public's views change as a result.
Through a series of surveys since 2007, he and fellow researchers found that people exposed to media framing immigrants as lawbreakers become less amenable to legalization and more likely to favor deportation.
"When you look at the discourse and people's perception of reality, the crime statistics seem to be less important than these claims or even just these adjectives that are repeated time and again," said Ramakrishnan. "Study after study has shown that immigrants are much less likely to commit crimes than the native-born population."
Indeed, perception may be the key to understanding Trump’s about-turn on immigration. The appearance of his softening may appeal to independents who are on the fence about voting for him, while his hardline base still expects him to strictly enforce immigration laws.
When he launched his presidential campaign in June last year, Trump made a direct link between immigration and crime. "When Mexico sends its people they’re not sending their best,” he said. “They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists, and some, I assume, are good people.”
Lytle Hernandez, the UCLA historian, calls it “code talk.” Trump has “decoded what other people have often said in much more complicated ways,” she says.