On this week’s episode of my podcast, I Have to Ask, I spoke to Cecilia Muñoz, who served as the director of the White House Domestic Policy Council under President Barack Obama and is an expert on immigration policy. Before joining the government, Muñoz—the daughter of Bolivian immigrants—worked at the National Council of La Raza, a Hispanic advocacy organization. She now works at the New America Foundation.
Below is an edited excerpt from the show, which has been edited and condensed for clarity. In it, we discuss the mechanics of the Trump administration’s war on immigrants, the future of the Dreamers, and whether Trump’s policies will hold up in court.
You can find links to every episode here; the entire audio interview is below. Please subscribe to I Have to Ask wherever you get your podcasts.
Isaac Chotiner: How has American immigration policy changed the most over the past year and a half?
Cecilia Muñoz: I guess the way to boil it down is that we used to have a policy based on the premise that immigrants were good for America, and we now have at least a policy regime, or policymakers in place, who believe that immigrants are bad for America. And that’s kind of driving the whole the conversation.
Let’s start with legal immigrants who are here, or people who have been here for a very long time. I’m not talking about border crossings or refugees trying to come over to America but people who are in the United States. What has been the biggest change?
In some cases, [there are] people who’ve been in the United States with permission to work for decades who are now being told, “No actually, thank you very much, but now you’re going to need to leave the country.”
I’m referring to, for example, people who were here with something called temporary protected status. In some cases, they’ve been here for decades. They’re from countries like Honduras or El Salvador, and they have had this temporary protected status for a really long time. It gets renewed every few years. They’ve been able to work in many cases, in fact in most cases. They’ve built lives here. They have children here. They run businesses here. This is their home. This assumption that has been true since the 1990s with respect to people who have TPS, which is that this status will keep getting extended, is no longer true.
This administration has demonstrated that it is willing to revoke that status, and it expects people to return back to countries where it may still be dangerous to return and where in many cases, they haven’t been for decades. There are other statuses of people in the same situation where it makes eminent sense for them to be able to stay legally, and this administration is actually revoking their ability to stay legally. If they stay, they’re going to be here illegally, or they have to go back somewhere where they’re going to be less productive, where their lives are not at all certain.
Now the huge example of this, of course, are the Dreamers, people with Deferred Action for Childhood Arrivals. It’s about nearly 800,000, [whose] ability to stay and work and go to school legally in the United States has been revoked by this administration.
With both TPS and the Dreamers: Was there more that could’ve been done in the previous administration to make these things permanent?
I can certainly speak for the previous administration because I was responsible for this area of policymaking, and we used absolutely every administrative tool we believed that we had under the law on behalf of immigrants. That’s why we have DACA. It’s why we had the 2014 executive actions. The president instructed his team to use every tool available and we did. The problem here is that the executive branch does not have the capacity to convert TPS into a permanent status. It does not have the capacity to make DACA a permanent thing. If we’d had that capacity, we’d have used it.
The DREAM Act came up for a vote in 2010. It passed the House of Representatives for the first time ever. We fell short by five votes in the Senate when there were 11 Republican senators who had voted for it or even co-sponsored it in the past. We didn’t need all of them, but we didn’t get enough of them to make the DREAM Act become law. Yes, there’s definitely more that Congress should’ve done. Congress passed or the Senate passed a strong bipartisan immigration reform in 2013. It is a source of enormous frustration that we could see the finish line on a common-sense immigration reform, but we couldn’t get the House of Representatives to act. That’s why we are in the situation we’re in now.
Obama was criticized from the left, especially in his first term. Some people referred to him as the “deporter in chief” for ramping up deportations from the Bush administration. Do you think that was a fair characterization?
I don’t think it was a fair characterization. What we spent eight years doing in the Obama administration is establishing the first ever set of enforcement priorities. Now people push back and say that it took too long for those enforcement priorities to take hold, and I think that’s a fair criticism. The fact of the matter is before the Obama administration, the enforcement strategy for people illegally in the U.S. was find as many of them as you possibly can and remove as many of them as you possibly can. What happened in the Obama administration is we started to draw some lines and set some priorities on the assumption that there are 11 million people which Congress deems removable, [and] it’s reasonable to use your enforcement resources to pick and choose who your priorities are for removal. Ultimately the strongest iteration of that was the 2014 enforcement priorities where we drew some clear boundaries, and very importantly, the immigration authorities respected those boundaries as they conducted immigration enforcement around the country. What you saw was removal of people who had been convicted of crimes, but even when a warrant was being acted upon against somebody who was convicted of a crime, if there were other undocumented immigrants in that home, DHS was not removing them.
They were following a set of priorities that was clearly articulated that the enforcement agency itself participated in developing, and that was an enormous sea change for an agency that is not known for its use of discretion or its discernment with respect to how it enforces the law. [Now] we’re back to a free for all in which anybody who is undocumented, evidently the administration thinks is fair game, and the result is a terrible climate of fear where people now are fearful of contact with any civic authority because they fear they could get caught up in immigration enforcement, which has a very negative effect on our ability to address crime in any community.
There was a sense, and Obama administration officials did not try to deter people from this point of view, that the stepped-up pace of deportations was meant to be a building block for a bipartisan solution, and that if Obama showed that he was very serious about enforcing immigration laws and deportations, it would make it more likely that a bipartisan bill with Republican support could pass. Given that nothing was able to pass, do you think that was a mistake?
Let me push back on the assertion. I am very familiar with the advocacy groups and even journalists who believe that there was a calculation made in the Obama administration to be tough on enforcement as a way to build credibility towards immigration reform. I was there all eight years. I will tell you: That [was] not the calculation. Look, we took very seriously the oath that you take when you assume office to uphold the law, and this is a broken law that we tried mightily to fix. What we tried to do was enforce the law with a strategy and with a set of priorities.
Ultimately, your job is to enforce the law, such as it is, even as you try to reform it. That’s what we tried to do. It is true that it would be definitely harder for the administration to advance immigration reform if it could be accurately accused of shirking its responsibilities, but ultimately, we upheld our responsibilities because that’s what you’re supposed to do when you’re in office. We tried to do it in a way that moved us closer to enforcing the law in a way that reflected American values and in a way that reflected reasonable law enforcement priorities. I recognize that that’s not the narrative, but I will just tell you, I was there all eight years. I know what the rationale was behind the choices that the administration made.
You mentioned that the policy the Trump administration is pursuing is actually bad for law enforcement. Why is that?
It’s abundantly clear, and we’re seeing it all over the country. This administration has been aggressively courting local law enforcement to get into the business of immigration enforcement. It’s been lifting up the voices of people like Sheriff Arpaio, who was convicted of abusing people’s civil rights in the name of immigration enforcement. What that has done is created a climate of fear so that you have people who, when they are victims of crimes, when they are witnesses to crimes, when they see public safety hazards and threats, are unwilling to call the authorities because they believe, and not for nothing, that they may become targets of enforcement themselves if they call the police.
Immigration and Customs Enforcement has been at the center of a number of controversial raids that we’ve seen. Some on the left have talked about abolishing ICE, and I think something about ICE will be part of the debate in the 2020 Democratic primaries. What do you think when you hear the words abolish ICE? And do you think the Obama administration should have done more to change ICE from the agency that we see now?
Well we did change ICE from the agency that we see now. Again, the 2014 enforcement priorities took hold, and ICE agents were behaving very, very differently from the way that they behave now. I think the campaign to abolish ICE, I understand where it comes from, and I understand the community’s hatred of this law enforcement organization. It comes from a real and reasonable place, but at the end of the day, as a policy goal, I don’t think abolishing ICE is realistic. I also think the argument has the effect, has the potential to push away folks who ultimately we need on our side in order to make the kinds of reforms in the way ICE behaves and in the immigration laws themselves.
Immigration enforcement, whether we like it or not, is a reality. I think where we can make a difference is in how it is conducted. That’s not an easy thing to do, but it is a vital thing to do. If the debate is whether there should be immigration enforcement, then I think we give the other side a really powerful tool to win hearts and minds. I think that’s a mistake. Look, abolishing ICE sounds very close to saying, “Well maybe we don’t need a border. Maybe we don’t need immigration enforcement.”
I don’t believe that’s where the country is, and I don’t believe we can be successful in protecting people if that’s the argument that we’re making. If we want to protect immigrants, if we want to protect our values, if we want to have an immigration system that functions and is rational, then I think we need to be willing to address how do we think immigration enforcement should be conducted, what’s a way to do that, that actually values people’s lives and their civil rights. The abolish ICE argument doesn’t touch those questions, and I think that’s a mistake.
You have said of Tom Homan, who you worked with in the Obama years and who is running ICE until he retires in the coming months, that “I find the Tom Homan that I see on TV now unrecognizable compared to the one that I saw in the situation room.”
Is that something that you have seen more broadly with people who worked on immigration issues during the Obama administration who stayed on, or is he an exception?
What I observed of the immigration enforcement infrastructure is that, this is too simplistic, but basically you can divide that world into two factions. There are the folks who are tough law and order guys, who just think anybody who is undocumented is the same—that all 11 million people are the same and are equally worthy of enforcement, and you should just go after as many of them as you can find, as harshly as possible. Then the other faction are folks who see themselves as law enforcement officers who want to go after bad guys, and were interested in advancing enforcement priorities that were focused on public safety and security and people who were convicted of crimes, and recognized that when there’s 11 million undocumented people, you’re never going to reach all of them. You should pick and choose, and that’s what a real law enforcement does.
In the Obama administration, this latter group was ascendant. In this administration, the former group is ascendant. What I’ll say about Tom Homan, who was an ICE official who I worked with pretty closely, is that he helped develop the enforcement priorities that the Obama administration put forward. They weren’t just developed by political officials, or political appointees like me. Secretary Jeh Johnson was scrupulous about making sure his officers were developing these law enforcement priorities. Tom Homan was helping lead that effort, and it produced a really good product and that folks in the advocacy community thought was really thoughtfully done.
That guy feels very different to me than the guy I see on TV. Look, we know that officials in the Trump administration when they go on TV, recognize that there is one very important person watching everything they say, and that is the president of the United States. They adjust their rhetoric accordingly. It was pretty shocking. It was shocking for me to see that kind of rhetoric coming out of a guy who I experienced as a more thoughtful person, and I honestly don’t know what the truth is.
You have done work on the issue of Puerto Rican statehood and have written about Puerto Rico. How prepared is the island for another natural disaster as we’re heading into the season when natural disasters tend to happen?
I lose sleep over that. I lose a lot of sleep over that. Look, we know that the island has not recovered from the last one. There are still people without power. The state of medical care is appalling. We are not applying the same standards that we apply to ever other U.S. citizen living everywhere else in this country as we are applying to Puerto Rico. Evidently, we have demonstrated that we’re willing to settle for much, much lesser treatment and much, much worse conditions for the American citizens who live on the island. We should be ashamed of that. I am outraged by the inadequate federal response.
I think we should be deeply worried about what happens to people on the island if there is another storm. We are entering hurricane season now. We never accept people being without power for months at a time in any state of the United States, ever. It would be a scandal. The fact that it’s not a scandal and the fact that it’s not something that regular Americans talk about every day is appalling.
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