Listen to the full interview in the player below or read the transcript that follows, and find past editions of “Scheer Intelligence” here.

Robert Scheer: Hi, I’m Robert Scheer, and this is Scheer Intelligence, our weekly podcast where the intelligence comes from my guests. And today it’s immigration lawyer, Helen Sklar, who’s had 33 years dealing with immigration law. And during those 33 years, it’s been up and down as far as immigrant rights and how effectively the law and how punitively the law is enforced. Are we in the worst of times now with Donald Trump? That’s certainly the way the story is being reported.

Helen Sklar: There are aspects to that scenario that are correct, and others that aren’t. To really evaluate what’s going on requires FOIA requests,  journalistic investigations, academic investigations. And those have been going on. But the turnaround time on the data production can be years. The response by the government to a FOIA request can be years. So what we’re–

RS: So for people who don’t understand, you’re referring to the–

HS: Freedom of Information Act.

RS: The Freedom of Information Act, on a federal level, requires them to give information. This is a federal matter, immigration.

HS: Exactly.

RS: And so you’re saying despite all of the lurid stories about people being rounded up, and Obama did this, some people thought he was the Deporter-in-Chief, but then Trump comes in and he calls Obama a wimp, and he’s going to really get rid of 11 million people who have been living here fairly, peacefully and productively. And you’re saying we really don’t quite know what the extent of the damage is?

HS: There was a lot of damage during the Obama administration. In the realm of abuse of people in detention by Customs and Border Protection and ICE, Immigration and Customs Enforcement. There are stories coming out now through data production, document production, under the Freedom of Information Act that are showing thousands of complaints have been filed for sexual abuse, battery, abuse of children—under Obama.

There’s a lag time, because when these documents are sought, either through court actions or through Freedom of Information Act requests, when the data is finally produced, it tends to reflect things that happened, say, between 2010, 2017. So we’re seeing now activity that you would really describe as unconscionable, horrific, to people in the most vulnerable positions, people detained by these agencies that really lack accountability, that lack oversight, that lack systems through which to discipline people. We know that Customs and Border Protection has the highest disciplinary rate of any of the immigration enforcement agencies. And right on the heels of Customs and Border Protection is Immigration and Customs Enforcement, when you compare the level of discipline and termination to all the other federal law enforcement agencies. So it’s a very serious problem, and it’s not one that began with Trump.

Some ways that the situation is worse now is this the separation of parents and children, which is—which has been a level of violation of all standards of decency beyond what I’ve certainly seen in my lifetime. I mean, historically, if you want to go further back, you’re talking about the Chinese Exclusion Act, you’re talking about the detention and rounding up of Japanese Americans—I mean, clearly, there are other events in history that parallel to some extent. But this is the singling out of children, and making them orphans. And as of now, they haven’t all been reunited. And the way it looks, they may never be reunited with their parents. Children were taken without gathering data on who they are, and they were taken at an age when they cannot identify themselves.

RS: Let’s deal with that, the most recent incident. Basically what happened was, Trump came in, defined these people as lawless, as a problem, as another, you know, that we shouldn’t care about, didn’t need to care about, and could just get rid of, and neglected the fact that by any definition, a significant number were innocent, being children. And did they now act just out of stupidity, or meanness, or they didn’t know what they were doing?  Because the publicity for Trump was awful. And up until that point, they’d been able to disguise what they do much more effectively.

HS: He doesn’t strike me as a person who’s that interested in disguising at least some of the terrible things he does. I think it was a matter of pushing the boundaries, not realizing what kind of pushback, outrage he would see as a response. And it’s not just him, it’s [Attorney General Jeff] Sessions, who is very much the architect of this thing as well. You know, in some respects, it has opened the door, it’s pulled back the curtain. And so a wider swath of the public is now seeing the kinds of things that we’ve seen for years. And that’s the substance of the offense, of the abuse, of the disregard of what in fact is causing people to flee from the places that they would like to stay but for the political conditions that are untenable. People don’t come here out of the desire to not live in their home countries; people come here because they can’t stay there. There’s data that show that for every murder in one of the Northern Triangle countries—Guatemala, Honduras, El Salvador—they have determined how many people flee in relation to each murder. And there’s so much data on the fact that it is not an economic motivation, it’s not the desire for better lives for the kids, it’s not some other more insidious intent that causes people to leave their homeland. It’s because they have to. These places are the most homicidal, unsurvivable places in the Western Hemisphere. And it takes very little investigation to see that.

RS: The issue with the Central American countries and so forth had a lot to do with, yes, social instability, crime, gangs. And a lot of that situation was the creation of the, or abetted by, U.S. foreign policy.

HS: Yes.

RS: There’s no doubt, we were a major destabilizing agent, “we” being the United States government, in those countries. But it’s somewhat different than the problem with the Mexican border, which Trump said he wanted a wall.  The Pew Center and others that have studied immigration in a fairly rigorous way concluded that in fact, the border with Mexico was more stable than it had been for some time.

HS: Absolutely.

RS: This is an extreme solution for a problem that at the point was not extreme; it was becoming manageable, the point of immigration. Particularly to the degree that it was fueled by economics, with the great meltdown in the United States, and the recession made coming across the border less attractive. And the fact is, we didn’t have this great flow across the border.

HS: Right. Yeah.

RS: So it’s a problem largely of Trump’s invention.

HS: Exactly. I mean, the number of people being arrested by the Border Patrol in the last year or so has dropped dramatically, by something like 70 percent, in relation to 10 years ago.

One of the things that I’ve tried to communicate with people who don’t know as much about this business is that there was a time when people from Mexico could establish the requirements for lawful permanent residence; they could get a green card and live here in peace without worrying about being apprehended and deported.  During this time, what was required was a showing to an immigration judge that they would suffer extreme hardship if they were deported. And it could be a showing of hardship to one’s self, or to one’s U.S. citizen spouse or children.  Everybody agreed, and that included immigration judges; it even included the person who sat across the other side of the courtroom from where I sat, who represented the government; it included people who employed my clients. Everybody agreed that, assuming a person hadn’t committed any kind of serious crimes, that they had been here seven years or more, they could basically show hardship—which was really just a showing that you had U.S. citizen children here; they were in school, they were either struggling or they were soaring and they were superstar kids—it didn’t matter. If you could make a showing that you’ve got the seven years and you were basically, you know, serious-crime-free, you could get a green card. And that was, that was sort of the golden age of immigration representation and the conferring of benefits under the immigration laws.

HS: When we talk about Mexicans, there were political forces that did not like this program because it was the resolution of the immigration problem for so many people from Mexico. It was really a way for Mexican people to put the stress and the fear of being undocumented behind them, and getting their families on, you know, track with the so-called American dream. So this was in the middle ’80s until the middle nineties. And then there was a bill that came along, it was signed by Bill Clinton, called the Illegal Immigration Reform and Immigrant Responsibility Act. It was passed in 1996, it went into effect in 1997, and it eliminated that program. There has not been a remedy for Mexicans to regularize their status ever since; unlike the know-how that went into the drafting of the Reagan legislation that created what’s known as the legalization program.  So that program I think was passed in 1986; it went into effect in the later ’80s. And that, of course, was the resolution for many people from Mexico. But for the people that came to the United States after 1982 from Mexico, they were the people that relied on suspension of deportation. And this began getting more negative public attention. And people in Congress who reflect the sentiment, an anti-Mexican sentiment—a sentiment that, based on different political analyses, does not want to see the Mexican population in this country documented. Whether it’s based on labor interests and the extent to which people’s undocumented status could be exploited in the workplace, because they’re vulnerable to termination; whether it’s because, you know, there are racial, there’s a racial animus that motivates the desire for Mexicans not to be able to regularize their status. The bottom line is, those people prevailed in getting rid of suspension of deportation. And since that time, I would say among the people from Latin America that are the most vulnerable, separate and apart from the people fleeing persecution, it’s Mexicans. Because the majority of them have come and are here undocumented, and have entered without inspection, and there’s no relief for them.

RS: We started with the devil Trump on the immigration issue, and suddenly you threw in Bill Clinton.

HS: Ah. Yes.

RS: And let me understand his role, because we haven’t heard much about Bill Clinton. We heard that Obama was very rough on immigration. But we should understand, the Democratic Party was generally associated with a much tougher anti-immigration position than the Republicans, traditionally. The Republicans wanted the labor force, they were pro-growth, and so forth. And a part of the labor movement was very anti-immigrant, also was racist for quite a long time. And they were exclusionary.  Ronald Reagan did something enlightened, right? And Bill Clinton messed it up.

HS: Yeah. It was really not widely known among people that have an otherwise sympathetic, you could say, political bias toward people in this country who, have come here to do nothing other than improve the lives of their children and their families, work hard and do right by this country.  As we know, the vast majority of immigrants who come here, including the people who come here without inspection across the U.S.-Mexico border, we know that is what drives most people to come here, is—if it’s not fleeing untenable conditions in Central America, the push factors in relation to Mexicans have been by and large economic.

RS: Let’s be clear about this. So the suspension of deportation started, really in the early ’50s—

HS: Yeah.

RS: I guess Truman was president, and then was continued under Eisenhower and went through different presidents, Republican and Democrat. And you’re saying it got reversed by Bill Clinton.

HS:  Yes, the standard of proof for hardship was raised by virtue of the language of this bill, the Illegal Immigration Reform and Immigrant Responsibility Act.  In order to essentially eliminate it, the standard of proof was elevated by virtue of a new set of words that was adopted to describe what people had to establish to win.

RS: Again, this is under Bill Clinton.

HS: This is under Bill Clinton.

RS: And Democrats supported it, as well as Republicans, or—?

HS: Well, it passed. It wasn’t just the elimination of suspension of deportation; there were multiple features in that legislation that operated together to make all relief basically out of reach.

RS: You’re basically saying that there was a pathway—not the best pathway to citizenship, but there was a pathway to documentation, green cards, that obtained in this country from 1952, you know, at the time of the Korean War; it survived Reagan, it survived Nixon, it survived a lot of people. And then you get to Bill Clinton push through this legislation.  What was the defense of it?

HS: There was a popular political trope at the time that the country was being overrun by criminality; whether you’re talking about people born in the United States or not, there was a very strong sort of attribution of all social problems to a criminal element. And it was very generally defined at the time, and there was a political perspective that took hold in this country. I mean, you know, you recall during the Hillary Clinton campaign that she was forced to confront this repeatedly. People asked her about, how was it that you could support your husband’s position on criminal justice so-called reform? Which included increasing sentences, having all kinds of legislative changes that impacted people in the criminal justice system very negatively. Well, that—there was a parallel for that in the immigration realm.  It’s called IIRIRA for short. This bill, unlike previous legislation in the eighties, was very carefully crafted by people with very good legal minds that figured out how to change the structure of immigration programs and benefits and inadmissibility in different parts of the statute in such a way that people were not eligible for suspension. If they entered without inspection.  So by statute, these people, if they marry a US citizen, for example, or if their child turns 21, a child born in this country—if the person comes with a visa, they’re able to get a green card in the United States. So you come through a port of entry with a visa, as is the case with most people from Europe and other parts of the world that aren’t south of the border. Those people come in with visas, they meet someone, they get married, the person’s a US citizen—they can get a green card in the United States without leaving. If the person is here for many years, and they have a child here, and the child turns 21, that person can be petitioned for by the child and get a green card in the United States if they’ve come with a visa. If they’ve come without inspection, they cannot get a visa in the United States; they have to leave.

RS: And so they’re criminals, by definition. And this was defined by Bill Clinton, and this is exactly the law that Donald Trump is now referring to.

HS: Well, so the piece of it that Bill Clinton brought into being was that being in the United States became illegal. It’s called “unlawful presence.” So if you leave the United States to get that green card through your spouse or through your adult child, you are now inadmissible. Why? Because you’ve been in the United States accumulating what’s called “unlawful presence.” So it’s like a three-legged stool, you could say; the person comes without inspection, they’re not eligible for a green card, they could get the green card if they leave the United States, but if they leave the United States they trigger inadmissibility based on unlawful presence. And this remedy that used to be available, called suspension of deportation, was eliminated.  This is all in one piece of legislation. And it was so extreme, and the consequences of these three statutes working together were so devastating legally.

RS: OK. But basically, Trump is building on a legal precedent that he inherited

HS: You’re hearing now, Trump is building a wall without building the wall. He’s building an invisible wall by tinkering with legislations, changing denial rates, increasing denials, increasing this level of nitpicking around statutory and regulatory interpretation. That’s essentially putting people, putting benefits that people once took for granted out of reach, based on interpretation of the law. So there are all kinds of ways that the numbers of people who are allowed to be here—everyone from people who work in the fields to Ph.D scientists who work for NASA—everyone, all along the spectrum, is being impacted by this ideology of immigrant-bashing. And that’s what’s going on now. And in all of that are some aspects that are unique to this administration.

RS: Then what happened under Bush, the second Bush and then Obama, and then we get to Trump.

HS: So, one of the things that has happened over the last, say, starting in 1988, we could say, is there’s been an expansion of the number of people who are deportable for criminal offenses. So what once were minor offenses, what were once not offenses that would make a person deportable, have been reclassified as aggravated felonies. They’ve been reclassified as crimes involving moral turpitude. This has been done through case law, through administrative decisions, through statutory changes. The drug laws have become much more onerous under the Immigration and Nationality Act, in terms of making people deportable. There are many, many examples of how since 1988, the numbers of people who are deportable for what were once considered relatively minor crimes are now deportable. And many of these grounds of deportation have no pardons or remedial options connected with them. So you can’t apply for a waiver, you can’t apply for relief.  The criminal justice system, most people do not go to trial and have a jury of their peers. They plead guilty, because the bail system is set up in such a way that unless people agree to plead guilty, they have to sit in jail forever. And now, you know, there’s legislation in Sacramento right now that hopefully will reform that, but that’s the case now. So there’s enormous pressure people feel to plead guilty, because they don’t have any other way to get out of jail. So they end up with criminal convictions; there’s more done by, in the public defenders’ offices now than before, in giving people good advice about the immigration consequences of pleading guilty, so there’s quite a bit of improvement there. There’s been a lot of money that’s been allocated under the L.A. Justice Fund to increase the training of public defenders and give them access to immigration people. So there is improvement, but the reality is immigrants have it tough.

RS: OK, but just to we complete the trajectory here to the Donald. And because it is so convenient to think that somehow he invented this problem and this terrible behavior. And I’m not hesitant at all to say he’s certainly exacerbated it, but I just want to get the dimensions straight.

HS: Sure.

RS: So, going from Clinton’s policies up through Trump—you didn’t mention the second President Bush, George W.; I don’t know, did it change much under him?

HS: There was legislation under the second Bush, my recollection of the legislative changes under Bush II have to do mostly with the expansion of criminal, you know, crime-related deportability.

RS: So then you go up through Obama, who was even more aggressive than Bush was—

HS: One of the ways that Trump is very different than, certainly, Clinton and Obama, is that you know, it’s clearer what we have. I mean, he’s, he’s obviously way more upfront about his disdain for immigrants and for people of color.  In a sense, at least it’s clear what we’re up against. I think the revelations about the abuse by the border patrol and Customs and Border Protection, all the immigration enforcement agencies, that’s coming to light now is really coming as a shock to people, because it wasn’t known.

RS: So the glove has come off, but the fist was there all along.

HS: To some extent.

RS: And so, because we don’t have all the data, we don’t know the extent of the cruelty. But there’s one point on which Trump is valid, not morally, but technically and legally, when he says “I am arresting criminals.” And they were left in that exposed position, basically by a policy that Bill Clinton inaugurated.

HS: It’s still not a criminal act to be in the United States illegally. That is not criminal, that’s a civil violation. When I spoke before about accumulating unlawful presence and then leaving and becoming inadmissible, so you can’t come back—that is a civil violation. Crossing illegally is a misdemeanor, but not the act of being here; that’s a civil violation. So we can’t really pin that on Bill Clinton. I mean, this practice of separating the children in order to prosecute the parents for misdemeanor entry without inspection that really is something that we’ve never seen before, nothing like it. I never heard of a prosecution for misdemeanor entry without inspection before Trump. Entry after deportation, yes. But not entry without inspection.

RS:  As you say, because of Trump, suddenly a lot of people are aware of really how basically unstable, horrid, exploitive, people are in this—well, the situation is.  Can you give me just a very brief view of where we’ve been and where we are now? In the 30-odd years that you’ve been an immigration lawyer.

HS: Well I, you know, I remain optimistic that a more sane immigration program will be legislated. I suppose the conditions that would make something like that happen are the same conditions that we’re all hoping for, that would create a saner world for all of us in the realm of the environment, and criminal justice, and welfare rights, and dealing with the homeless problem. I mean, we’re seeing society around us dissemble in Los Angeles. And you know, in order to get to my office to fret about the difficulties my own clients face, I have to step over people on the sidewalk all around my building. And so I ask myself sometimes, you know, how are we going to get through this? But I do remain optimistic that we will.

HS: It seems to me that in some areas, the country is not being governed right now. There just is no governance. It’s becoming—and not just at the federal level. I mean, when you see a level of suffering in the streets of the city you live in, you have to wonder, is there no governmental responsibility for the well-being of the citizenry any longer?

RS: And you live in a city where people you probably voted for are running the city.

HS: Exactly.

RS: You know? This is the Democratic, somewhat liberal city of Los Angeles.

HS: Right, exactly.

RS: And yet you asked the question, is there governance. So the tragedy extends beyond Trump.

All right. That’s a depressing, but perhaps unfortunately realistic view of the impasse in our country, and the immigration issue is another example of our inability to make rational decisions in our own national interest. On that note, let me end with thanks for our guest, Helen Sklar, an immigration attorney of vast experience. And thank you for joining us. The producers for Scheer Intelligence are Josh Scheer and Isabel Carreon. Our engineers at KCRW are Kat Yore and Mario Diaz. And at USC, Sebastian Grubaugh here at the Annenberg School provided excellent engineering work. Thank you, see you next week.


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