Rotten to the core: racism, xenophobia, and the border and immigration agencies

• Author: Sophia Porotsky
• Position: Graduated magna cum laude from Fordham University School of Law in May 2021
• Pages: 349-398

ROTTEN TO THE CORE: RACISM, XENOPHOBIA,

AND THE BORDER AND IMMIGRATION

AGENCIES

SOPHIA POROTSKY*

ABSTRACT

This Note traces modern xenophobia and racism in U.S. border and immigra-

tion policy to colonial times and argues that this legacy is the foundation on

which border and immigration agencies, including the Department of

Homeland Security (DHS), were built. Subjugation of the racial “other” is evi-

dent throughout American history, often taking the form of surveillance and con-

trol under the law to address a perceived threat from this group’s presence. This

Note reveals how the modern national security system stems from American

imperialism and racial subjugation, and the U.S. national security apparatus—

which enveloped border and immigration policy and enforcement—was turbo-

charged after the 9/11 terrorist attacks. DHS was formed in the wake of the 9/11

attacks and the ensuing War on Terror. Against this backdrop, Immigration and

Customs Enforcement (ICE) and Customs and Border Patrol (CBP), the border

and immigration agencies under the DHS umbrella, have perpetrated atrocities

against vulnerable populations. For example, subjecting women and children to

sub-human living conditions in detention facilities at the border, rampant exces-

sive force incidents, and well-documented corruption, racism, and bigotry

infecting the highest echelons of the border and immigration agencies. This

Note argues that the existing institution is so intertwined with racism and xeno-

phobia, and the accompanying human rights abuses, that the only way to

achieve meaningful change is to dismantle DHS and reimagine border and im-

migration policy as we know it.

* Sophia Porotsky graduated magna cum laude from Fordham University School of Law in May

2021. Prior to attending law school, Sophia received an M.A. in Security and Diplomacy Studies from Tel

Aviv University. She graduated from the University of St Andrews in 2013 with an M.A. in International

Relations, specializing in terrorism studies. Thank you to Professor Karen J. Greenberg for her invaluable

feedback, wisdom, encouragement, and for fundamentally influencing my academic work. Thank you as

well to Professor Olivier Sylvain for keeping me motivated, on track, and for the helpful feedback on

early drafts of this Note. A special thanks to Mark Jannot for his excellent editing skills and for being one

of my biggest cheerleaders. Thank you to my supportive family and friends, who always understood that

even though I loved them and wished I could see them more often, I was on a mission and fulfilling my

purpose. Thank you to Morty for being my constant companion and support system. And finally, a special

thanks to Ashley Ulrich, I could not have done this without you, and I am forever grateful. © 2021,

Sophia Porotsky.

349

TABLE OF CONTENTS

INTRODUCTION ......................................... 351

I. RACISM, XENOPHOBIA AND NATIONAL SECURITY IN THE UNITED

STATES: EARLY LEGAL HISTORY AND MODERN NATIONAL SECURITY

REGIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352

A. Conceptualizing the “Other” in Early America . . . . . . . . . 353

B. Treatment of the “Other” under Color of Law . . . . . . . . . . 354

D. The Modern National Security System . . . . . . . . . . . . . . . 363

C. Subjugation and Control Through U.S. Immigration Law. . 359

E. The Role of the Courts: Extreme Deference to the Political

Branches to Determine Issues Affecting National Security . 366

II. CBP AND ICE: CONDUITS FOR WHITE SUPREMACY . . . . . . . . . . . . . 369

A. Theorizing Violence and Control: Securitization of

Migrants and Migration and the Militarization of the

Border and Immigration Agencies .................. 369

B. Creating DHS: Conflating National Security with

Immigration Enforcement by Design . . . . . . . . . . . . . . . . 373

C. Founding and History of Customs and Border Patrol . . . . . 375

D. Founding and Recent History of Immigration and Customs

Enforcement ................................. 380

III. SPIRALING OUT OF CONTROL: MOUNTING ABUSES ............. 382

A. Recent Atrocities at CBP and ICE During the Trump

Administration ................................ 382

B. Turning Inward: Summer 2020 DHS Violence Against

Citizens in Portland. . . . . . . . . . . . . . . . . . . . . . . . . . . . 388

IV. DISMANTLE DHS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390

A. Reform Does Not Go Far Enough in Addressing Systemic

Problems at DHS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390

B. Dismantle DHS............................... 392

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 397

350 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 36:349

INTRODUCTION

U.S. border and immigration policy and enforcement are at an inflection

point. The Trump administration’s shocking and brutal deployment of the

Department of Homeland Security (“DHS”) machinery at the border and in

U.S. cities has subjected DHS to a much needed, and long overdue, level of

scrutiny. Specifically, DHS and the border and immigration agencies, provide

a stark example of the contemporary manifestation of white supremacy.

Border and immigration policy have been motivated by racism and xenopho-

bia since colonial times, obscured by national security rationales. These

national security justifications facilitate civil and human rights abuses, which

have predominantly impacted vulnerable minority populations. To illustrate

this, this Note will trace the history of racism and xenophobia in the nation’s

founding documents, founders’ philosophies, and early border and immigra-

tion policies. This Note will further buttress this conclusion by investigating

the history and early practices of DHS’s two lead agencies, Customs and

Border Protection (“CBP”) and Immigration and Customs Enforcement

(“ICE”).

1

After finding that DHS was built on a foundation of bigotry and

injustice, this Note argues that the agency must be dismantled, and border

and immigration policy and enforcement must be fundamentally reimagined

to ensure the protection of civil and human rights of all people, not just white

people.

This Note proceeds in three parts. Part I will give a historical overview of

“othering” persons of minority race, ethnicity, and national origin in this

country, then trace how this differentiation was molded into longstanding

practices of surveillance and control. In particular, the Note describes the

experience of Indigenous, Chinese, Mexican-American and Japanese-

American people, who were subject to a variety of immigration restrictions,

counting and surveillance practices, and abrupt, politically motivated expul-

sion and resettlement orders. These case studies also expose the inextricable

relationship between racism, xenophobia, and national security, as the latter

was often cited as a rationale for restrictive immigration and border control

laws. Part II dives deeply into the history of CBP and ICE, revealing a history

intertwined with racism and white supremacy, escalated by the 9/11 attacks

and the accompanying abusive conduct. Specifically, DHS’s immigration

1. This Note focuses on these two DHS entities specifically because 1) they comprised a significant

portion of the DHS agents deployed to Portland, and their conduct directly implicated questions of consti-

tutional rights violations; Marissa J. Lang, Josh Dawsey, Devlin Barrett & Nick Miroff, Operation

Diligent Valor: Trump Showcased Federal Power in Portland, Making a Culture War Campaign Pitch,

WASH. POST (July 24, 2020), https://perma.cc/4TCA-29N8; and 2) out of DHS’s twenty-two agencies,

CBP and ICE—along with the Office of Biometric Identity Management (OBIM), which serves a support

function for the other two agencies—receive 40 percent of total DHS funding. Jonathan Blitzer, Is it Time

to Defund the Department of Homeland Security?, NEW YORKER (July 24, 2020), https://perma.cc/

VZ8V-5LX3. “For the past decade and a half, the annual budget for these three has dwarfed the

appropriations given to all other federal criminal-law enforcement agencies combined.” Id. Significantly,

congressional funding to these agencies has “steadily increased despite evidence, which has been

amassing for years, of alarming [ICE and CBP] misconduct.” Id.

2021] ROTTEN TO THE CORE 351