Leighton Woodhouse

This story is co-published by Capital & Main

On Tuesday morning, in the administration building named after her father, Janice Hahn settled into her seat alongside her colleagues on the Los Angeles County Board of Supervisors to hear more than 100 members of the public speak on a measure that Hahn helped write.

The bill, co-written with Supervisor Hilda Solis, Obama's former Labor Secretary, would make the county part of a program providing $10 million in public and private funding for a legal defense fund to provide attorneys to immigrants in deportation proceedings.

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The L.A. bill ultimately passed by a vote of 4 to 1. It's part of a movement that's happening in various cities and states across the country on the eve of the Trump presidency. Similar legal defense funds are being considered in San Francisco and New York City. And a smaller fund has already been put into place in Chicago. In Sacramento, a bill is moving through the California legislature that would create a legal fund at the state level.

Stripped of power in Washington, DC, Democrats have embraced these rear-guard actions in an effort to defend their communities—proactively or perhaps desperately—against the expected onslaught of deportations from the Trump administration.

California appears to be on its way to codifying a unanimous commitment to extending the universal right to due process to all undocumented immigrants. That would send a strong message of solidarity at a time when immigrants are in greater jeopardy than ever before.

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But it could all be undermined if politicians continue to use the divisive rhetoric of “deserving” and “undeserving” immigrants — language that was fundamental to the immigration policies of the Obama administration.

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As President-elect Trump promises a wave of mass-deportations in his first 100 days in office, even some hardline Republicans are rallying to defend the segment of undocumented immigrants, known as the “Dreamers,” who arrived in the United States as children. A new bipartisan bill seeks to extend by three years a temporary reprieve from deportation, called Deferred Action for Childhood Arrivals (DACA), that Obama extended to the Dreamers in 2012.

The Dreamers hold a special status in the moral outlooks of many lawmakers when it comes to immigration. Even among politicians who view unauthorized immigration as a criminal act, there are those who regard the Dreamers as essentially blameless.

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It's a group that has long offered one of the only slivers of potential compromise and agreement in Congress on what is perhaps its most polarizing issue. That sliver has been slimmed even further by the results of the last election.

Obama and congressional Democrats have reached for this bipartisan brass ring repeatedly, introducing the Dreamers' namesake bill, the Development, Relief, and Education for Minors (DREAM) Act, which would legalize the Dreamers' status, four times over Obama’s two terms. But in  characteristic fashion, the president  always counterbalanced his embrace of the Dreamers with an enormous concession to his  hardliner adversaries: The implementation of the most aggressive deportation regime the country has ever seen.

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The impact of this bargain has been almost exclusively negative for immigrants. The DREAM Act has yet to pass but the Obama administration has deported millions anyway.

Obama’s line on deportations, outlined in a speech in 2014, is that his administration targets “felons, not families.” Rhetorically, it’s a distinction with obvious appeal. But procedurally, immigrant advocates say it has been used as an excuse to deny due process to a broad cross-section of people who do not conform to what Democrats have long held up as the types of immigrants who deserve priority protection, such as college-bound Dreamers, undocumented parents of U.S. citizens who have lived here for decades, or undocumented immigrants who have served in the military.

In practice, the "felons" label is boundlessly elastic. It can mean summary deportation for an immigrant with a drug charge from more than two decades ago for which he or she has already served time. It can cover a grandmother accused of being a gang member by a single police officer. It can include an old DUI or marijuana charge, or a citation for street vending without a license. It can even be someone with no criminal charge at all, or someone whose only offense is illegal entry or re-entry. According to a recent study by the Marshall Project, those last two categories made up 60% of the 300,000 deportations that have been carried out since Obama first made his "felons, not families" speech.

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If the privileging of certain classes of immigrants over others has served the undocumented population poorly under Obama, it's likely to get much worse under President Trump.

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With the president-elect just a few weeks away from taking office, California’s Democratic lawmakers  have been pushing a slate of bills at the state and local levels to insert a layer of protection between federal law enforcement and the state's undocumented immigrant population. Immigrant rights activists are pushing these measures hard — but many of them argue that it’s imperative that they dispense with the specious distinction between “criminal” and “non-criminal” when affording immigrants protection from deportation.

"If we create a system where we're providing representation for some categories of people because we consider them 'deserving, we're just reinforcing this really hateful, fear-mongering rhetoric of the incoming Trump administration," says Emi MacLean, an attorney with the National Day Laborer Organizing Network.

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Obama's good immigrant vs. bad immigrant dichotomy, MacLean believes, helped usher in Trump’s vilification of all undocumented immigrants. For example, during the presidential debates Trump noted that his proposed policies merely followed practices put in place by Obama.

"Obama's rhetoric of 'we're going to deport felons, not families' created the mentality and the reality that we're living today, where our president-elect, in his initial speech announcing his candidacy, talked about Mexicans coming into the United States as 'rapists' and 'criminals',” MacLean told me.

Trump has already proclaimed that there are between 2 -3 million immigrants with criminal records who he will instruct Immigration and Customs Enforcement (ICE) to deport immediately upon taking office. By comparison, Obama has deported about that number of immigrants — 2.5 million — over the course of eight years. That was more deportations than any other president in history, and more than all of the presidents of the 20th century combined.

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Former Los Angeles Mayor Antonio Villaraigosa believes that Trump’s figure is a red herring that indicates just how wide a net he plans to cast over the undocumented population. He told me there is "no evidence" that there are actually 2-3 million undocumented immigrants in the United States with criminal records. The real number, he claimed, is closer to 800,000. Trump tossing around the larger number might indicate that he plans to go "far, far beyond" merely focusing on immigrants who pose a legitimate public safety threat, Villaraigosa warns.

One immigration attorney I spoke with suspects that Trump’s 2-3 million figure is less about criminality and more about low-hanging fruit. Roughly that number of immigrants, she says, are already "in the system" — through arrests and convictions, but also DACA enrollments, asylum requests, and old removal orders. If you're an undocumented immigrant or an asylee and you've ever been fingerprinted for any reason, the federal government has your biometric data and probably has a paper trail that leads to your residence, the lawyer explained. There's no "hiding in the shadows" under such circumstances. Trump’s 2-3 million figure, she suspects, may be an estimate of the number of people who the government could track down and deport without much trouble, using the “criminal” label as an excuse to expedite the deportations and evade due process.

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The distinction between “felons” and “families” has already been stretched to the point of legal farce under the Obama administration. If undocumented immigrants are to have any protection from deportation under Trump, it is incumbent upon Democratic-controlled states like California to undermine what has become a tool for summary deportation by purging contrasts between “deserving” and “undeserving” immigrants from their own laws and policies.

Leighton Woodhouse is a journalist and documentary filmmaker in Los Angeles, and the director of Fusion's Trumpland. He blogs at leightonwoodhouse.com.