JC: I’m so excited to welcome our guests for this episode. First, we have the immigration lawyer Sophia Elena Gurulé. Sophia has worked at the Bronx Defenders since 2017, and as a New York Immigrant Family Unity Project senior staff attorney, she handles both detained and non-detained removal cases defending immigrant New Yorkers from deportation. Welcome, Sophia.

Sophia Elena Gurulé: Hello.

JC: And second, we have recent Jewish Currents author and longtime immigration reporter, Tanvi Misra. Tanvi is a writer and investigative journalist covering migration and justice issues whose work has appeared in The Nation, The Guardian, Politico magazine, and The Baffler, among other publications. Hi Tanvi.

Tanvi Misra: Hi. It’s nice to be here.

JC: Let’s begin our discussion with a case that many of our listeners are going to be familiar with, which is the case of Mahmoud Khalil. As we know, Khalil was a pro-Palestine organizer at Columbia who was picked up by ICE agents in early March, and he was moved to a detention facility in Louisiana, and has been there for two months and counting on the allegation of being a threat to US foreign policy. There’s a lot about this case that raises alarm, and we’ve discussed some of that on this podcast before. But here, I want to turn specifically to the immigration-related concerns the case raises. In particular, most people were shocked that Khalil was arrested with no warrant despite being legally present in the US and being a green card holder. He was then taken by plainclothes ICE agents who wouldn’t ID themselves, he was transported by a caravan of unmarked cars, and initially, his whereabouts were unknown. And now, despite there being no finding of any guilt or criminality and only for his political speech, he remains in ICE detention. All of these are concerning patterns, and they have repeated in multiple cases with people like Rumeysa Ozturk and Bader Khan Suri being picked up in the weeks afterward in the same way. People have been referring to these arrests as essentially political disappearances or abductions, as something completely disjunct from what normally happens, and I want to just ask you, as longtime immigration observers: What do you make of these characterizations of these events? What is new and what is old in the tactics that ICE and the government are using? What precedents are being built on, and what precedents are being set?

SEG: Yeah, what’s not so new is people being arrested without a judicial warrant. That is standard practice by ICE. That is how the majority of people are arrested by ICE in the United States. That also applies to people who are what we would call lawful permanent residents, or LPRs. And oftentimes, LPRs are arrested under the same conditions, aka without any warrant. But oftentimes, people who are LPRs and are being arrested—there has to be some basis by which they’re actually trying to deport the person. There’s a higher standard when someone is arrested and they’re an LPR. Normally, the people that I work with, or that I have defended in court, when they are LPRs, the Department of Homeland Security is alleging that they have violated some sort of—obviously immigration law, but it’s usually tied to a criminal arrest or specifically a criminal conviction. And then, the Department has to establish by clear and convincing evidence that that person is deportable. So there is a higher standard approved for people when they’re LPRs. Unfortunately, it’s pretty easy for the Department to meet that burden. But all of that is pretty standard. What’s not standard is that they didn’t allege that he violated immigration law because of a criminal conviction. They’re alleging that he violated immigration law because the Department of State issued a memorandum that’s saying that he’s a foreign terrorist, has ties to foreign terrorism, and included various tabs that corroborated what the Department of State was talking about. But the Department of Homeland Security didn’t even file those additional tabs from that original memo. All they filed was the publicly available memorandum. And a lot of people were like: There’s no way an immigration judge is going to keep him in. There’s no way that the judge is going to uphold it. But to me, at the time, before it happened—before the immigration judge’s order came out—I was like: I can very much see this memo being sufficient.

SEG: And that’s exactly what happened. Because I think what most people don’t know is that even when there is this heightened burden of clear and convincing evidence, which is basically the civil equivalent of beyond a reasonable doubt, the way that immigration law is practiced and interpreted and enforced by the immigration judges, and even the Board of Immigration Appeals, is basically bullshit, for lack of a better word. They often rely on evidence—for example, what’s called a Form I-213, which is a document that is basically a database document that is filled out either by CBP officials (Customs and Border Patrol officials) and/or Immigration and Customs officials (ICE officials), and it’s all basically hearsay. There is no federal evidence standard within immigration court. There’s no real federal rules of evidence that apply—even though, technically, it’s within a federal court, it’s still a federal administrative court. So for some reason, they think that they don’t apply. And by the way, time out: I’m also speaking here today as a member of the Association of Legal Advocates and Attorneys, UAW Local 2325. I’m not speaking on behalf of the Bronx Defenders; I am simply employed by them.

SEG: But imagine ICE officers or CBP officers writing whatever they want about you, putting in whatever data information they want about you, then submitting it to the court. The Department of Homeland Security, Office of Principal Legal Advisor, which is like, the prosecutor’s advice, would then argue that that evidence is sufficient. And usually, they’ll be like: Yeah, that’s sufficient. There’s case law that corroborates that, and I-213 is sufficient for establishing alienage and also whatever charges of portability or removability that they’re trying to lodge against someone. And oftentimes, even when there’s bold-faced lies within those documents, those are sufficient. So if they say, “Okay, all of the charges that were lodged against Mr. Khalil are sufficient,” then they’re going to continue with the deportation proceedings. In the criminal court context, theoretically, it would not be sufficient, but here, you could basically be held indefinitely because of hearsay. That’s unfortunately the way our immigration laws are written. And it’s fascinating to me to see people being outraged about this, as they should be outraged by it. But at the same time, it made me think: Wow, people really are unfamiliar with the way that these deportation courts are operating every day, because every day, there’s thousands of people who are being held in ICE detention, facing deportation because of, basically, hearsay that’s written by the cops that are doing the arresting.

TM: I also had a very similar reaction. One of my first thoughts was: Oh, this is the first time that most Americans, or most people who are now reading this news, are coming to know about what this system actually looks like in practice for most people who are subject to it. So many times over the years, I’ve heard attorneys and families of people undocumented or who had some legal status that was then challenged in court, who were arrested in this way without a judicial warrant by plainclothes ICE agents. There have been so many lawsuits about ICE agents trying to lure people out or having misleading information, trying to get people to come out—because if they don’t have a warrant, they can’t go inside. So they try to lure people out onto the street, where they can do these arrests. This is actually quite routine for ICE to do. These are tactics that are not singularly being used for these arrests. I think it’s just the first time that there’s such scrutiny around them, and people are seeing them for the first time.

TM: I think what a lot of people might be confused about is the role that these different agencies play, the DHS versus the Department of State, in this case. And that, in these cases, has been very important. The Department of State has (as Sophia mentioned), in practice, unreviewable power over visas in particular. And they’re arguing also over green cards at this point. So that authority is pretty broad. And what a lot of experts, including former consular officers, told me when I was trying to get an understanding of what was happening here, was that what ICE is basically doing is laundering illiberal decisions or actions through the broader power that the State Department has. It’s the muscle, is how I think of it. It’s the agency that has the enforcement capacity to actually go out, pick people off the street, as it has been doing, arrest them, trigger deportation proceedings, and then hold them in detention. So these agencies are both working together, and a lot of authority, and tactics, and powers that they’re using have always been on the books. They’re being used now in unprecedented ways, but they’ve always been in the books, and they’ve always been used.

SEG: The law that’s being used specifically against Mr. Khalil is a law that was written—my understanding is it’s from 1952—because of antisemitism and because of anti-communism. And so, what we’re seeing right now is both new and old at the same time, which is the United States using deportation as a tool and the targeting of political speech. I mean, that is something that is definitely not new. That happened to Marcus Garvey. That happened to Claudia Jones. We’re seeing it being used right now, and they’re basically repeating the same tactics. But these, again, are laws that are on the books that sit quietly, that no one takes seriously until someone like the Trump administration and Stephen Miller gain control and are trying to deport truly as many people as possible.

JC: Thank you. That’s super helpful. I want to turn to a second related theater of terror, basically, for immigrant communities but also increasingly for just mainstream Americans who, like Tanvi, you were saying, are seeing videos for the first time, or hearing stories for the first time that many people have been going through for a long time. And one of the other places that’s happening is at the border, and specifically, at airports. There have been stories emerging on social media, in the mainstream news. There’s counts of people being subjected to invasive searches of their bodies and their possessions, including their phones, by Customs and Border Protection (CBP), people disappearing for hours or days into airport screening rooms, people directly being sent back from airports to wherever they were coming from, or people being moved directly to an ICE detention facility from an airport. There’s a case at Harvard of a scholar researcher who was just caught at Boston Logan Airport for bringing in—I think it was like research specimens that were not allowed to be brought in—and has been in ICE detention since then. These people are coming in with valid visas. Some of them, there’s not an “ideological offense,” quote, unquote, to speak of. There’s not necessarily always even a political speech trigger, although that’s there in some cases. Just what do you make of this set of cases? Is this just long-established authorities that are being weaponized now, or is there something new happening here?

TM: At the border, or at ports of entry, Customs and Border Protection has really broad authority, broad search and seizure powers. This has always been the case, and actually, some of the reporting I’ve done in the past is around the quote, unquote, “100-mile zone,” which is the geographical area in which the agency has this authority, these extended powers. They have argued it is whatever they say it is.100 miles is also 100 nautical miles. It’s like the whole of Michigan is a part of this zone. They have literally miles of leeway. And this has always been the case. But of course, again, now you’re seeing this happen at airports where people who have legal permission to be here are being questioned for extra periods of time, are being sent away or being held in detention, as you said. And the one thing I want to point out about that is, in my conversations with lawyers and experts, one of the things that became really clear to me was that a lot of this is around just bureaucratic culture, which means that if your boss up top in Washington says, “I want more detentions,” you’re going to try to fill those detention centers any way you know. So that’s one answer to why there are a higher number of detentions that would not have been detentions before. And in terms of these searches, again, it’s like you get these orders from the top—that this is the priority, or this is the scrutiny. Like the State Department, in some of its guidance that it’s given out around additional scrutiny of visa applicants, for example, has said: Anything that’s anti-American can be considered an issue. Like that’s a flag, right? And the way that is trickling down, and what you’re seeing as a result of that, is these extended detentions, these questionings of lawyers about their call lists and things like that.

SEG: I also want people to think about what it means to prove that you’re a US citizen. We’re already seeing people being arrested who are US citizens and then being like: Wait a minute, I’m a US citizen. Here’s my birth certificate. And then the birth certificate itself is being challenged. Passports are great; passport’s, like, gold standard. But imagine if you don’t have a US passport on you when you’re within 100 miles of the border, which again, is a legal construct that really can be interpreted in various different ways. My understanding is that two out of three people live within 100 miles of “the border,” and I’m putting quotation marks in midair when I say “the border.” And they have no idea that actually, their constitutional rights are basically gutted at the border. And I don’t say that to freak people out. I say that because—I have said this for many years, that what is happening at the border is fascist. If you think it’s only going to apply to people that are not born in the United States, that it is their problem rather than our collective problem, then you’re not paying attention to what’s happening. Because, to Tanvi’s point, it is bureaucratic. And when you have people that have an overt white supremacist national agenda that is rooted in disposing of and exiling people who are Black and Indigenous and brown and Muslim, it leaves the door open for expanding the fascist white supremacist state.

SEG: That infrastructure has existed this whole time. If you look at like the Fugitive Slave Act, for example, and you look at the way that people had to establish that they were freed people, freed Black people, it’s basically like a deportation or immigration hearing. And again, let’s not forget—simultaneous to all this happening, this administration is challenging birthright citizenship, which is from the 14th Amendment. So this is a long history in the United States of deeming nonwhite men as second-class citizens, as people who don’t belong here, and that is what the Trump administration is trying to bring back. And I really want people to take that away because I feel like now, a lot of people care about immigration. They didn’t really care so much under the Biden administration. And I hope you stay and realize that Abolish ICE is a very practical goal, actually, and there’s very key ways to actually do that. And I also want people to really question the concept of the border, and border enforcement, and immigration law enforcement, and ask yourselves why you think it is necessary that we need to arrest, cage, and deport people because they weren’t born here.

TM: The only thing I’ll add to that is a couple of data points. One of them, just going back to the border and that particular 100-mile zone, is that according to Supreme Court precedent, racial considerations can be one of the considerations why a CBP agent stops and orders additional searches of someone. So they’re allowed to do that. And Sophia mentioned the Fugitive Slave Act_there are a lot of concepts from that era that are very applicable today and are actually coded into the system. Like the original quote, unquote, “sanctuary cities” come from that era. And people have a big misunderstanding of what sanctuary cities are. They don’t stop any federal government from deporting anyone or arresting anyone. But what they do is they say that the local government will not actively collaborate. The local government will not put its own resources into that. So it’s an opting-out versus a shielding, which is what sanctuary cities, when you think of it, that might be what, to many people, it sounds like. But that actually comes from back when the Fugitive Slave Act—a lot of counties and local governments told their sheriffs not to, essentially, go after suspected enslaved people. That was an opting out that came from that era. And that’s something that you see in its new iteration now. Another thing that comes from that era is this idea of the public charge. The idea is that someone might be dependent on the government, and so you cannot have them come here. Which is why, if you are someone who’s an immigrant, it doesn’t matter how you’ve come, but that is always in consideration. You have to prove that you have the resources to sustain yourself in a normal immigration proceeding. You have to show your bank statements, you have to do blah, blah, blah—all of that stuff. That comes from that era, too—when enslaved people would go to the courts and be like, “Hey, we’ve earned our freedom,” one of the big points that was used in court to argue against their freedom was that they are going to become public charges. And so just kind of underscoring that there are many ways in which that era is very much relevant and that those concepts are actually coded into the legal and the bureaucratic and the policing machinery that we’re seeing today.

JC: I think the other question I have is actually—and maybe I’ll put it this way—is when Trump was on the campaign trail, we heard a lot about mass deportations as a campaign promise. Like, there was this idea that we’re gonna deport—what, 15 million people, or some huge number of people, and they’re all illegal, or they’re criminals. And I think what has taken a lot of people by surprise is that that assault hasn’t happened out of the public eye, and quietly, and with decorum, the way that it has in the past, and that it has actually been these huge spectacles, right? All of these people being loaded onto planes and being sent to El Salvador, and the White House is tweeting about it. And also the second thing is that not only is it spectacular, it’s also not contained at the bottom of the economic ladder, in a certain way. It’s not just people who are low-wage workers working in farms and restaurants. You’re seeing this happening at Ivy League Universities, where people are being taken to ICE detention, and that there’s an ideological bent to it. So it seems like, basically, a two-pronged immigration assault happening at once, right? And I just am curious about how you guys are thinking about continuity and change with that, because it seems like both of those actually have precedents. Like there is a precedent from all of the prior 20 years (and many more years than that) of deporting immigrants who are at the bottom of the economic order and are actually undocumented. And there’s precedent of censoring speech of students, and activists, and visa holders. And it seems like both of those are happening right now at a supercharged scale, I guess. So I’m just curious how you’re seeing both of those things, whether they’re happening in the same way or building on precedents, or is there something qualitatively different going on with either of those?

SEG: I mean, this whole time, we’ve been like: This has all been happening this whole time. This is how the immigration system is. But what is unprecedented is the scale, for sure, and the theater of it all. These are people who are absolutely loving it. I mean, the tweets and things we see from the White House are—I don’t know how else to put it, just fascist propaganda. And that, to me—I started as an immigration attorney in the first year of the Trump administration. I have been an immigration attorney throughout that administration, throughout the Biden administration, and now for Trump 2.0. That, to me, is a whole new level. And I also think that, in general right now, the Trump administration is a lot more strategic and put a lot more work in preparing for the second term than they did the first time around. Stephen Miller, in particular, has really stepped up his game in the past few years, and they feel fully empowered to just overtly mock, humiliate, and push overtly fascist propaganda every opportunity that they can. And that should be alarming to people. I’ve never seen the White House talking like this about immigrants in modern US society. So that, to me, is alarming. And the fact that he’s even talking about a third term—also, we want to gut birthright citizenship. These are things that are unprecedented. People have talked about it, but the actual putting down the resources from the executive branch to make it happen is very unprecedented and alarming.

JC: Yeah, I would 100% agree. I mean, I also covered the last Trump administration. Every day was something new, and you had to figure it out, and it was all confusing and rushed. And whether or not those policies that they were implementing or the orders that they were putting out—the executive orders, etc.—stood the legal tests is a different question. What it did do immediately is cause fear and confusion and have a lot of people fall through the cracks. And I think that is very much something that this administration—they’ve taken to a new level. And I think Trump 2.0 has taken that to a new level, 100%, but I do think the confusion and the fear is the point. I’m thinking about the visas, for example, the way that these visas for students were revoked. A lot of that was done in a very haphazard—almost as if they were using this as a test data set. And it didn’t matter that it turned up so many errors or that people’s lives were affected. What mattered was that it caused confusion and fear, and people have left as a result of it. That was what mattered, and I think that is what matters over all. And making a spectacle out of it, which means that you create fear and you create—you make it an unlivable environment. Even if you don’t physically deport people, it becomes an unlivable environment to live in for a lot of people. So that is why people are, quote unquote “self-deporting,” or deciding to leave, because it doesn’t seem feasible to go on here. And I think that is their point. Any critical or more apolitical idea of who should come here, who is good for the country, who is not good for the country, as conservatives in the past have argued—I think this goes beyond that. Yeah, this is very much race-based and ideological thing. I think, from the government’s perspective, I think this is like: Let me spread as much fear and confusion in as little time as possible and overwhelm people.

SEG: Yeah, I fully agree. It is all about fear, and intimidation, and making it an unlivable and untenable situation for people to want to stay here. But another thing I wanted to mention was, a really terrifying example that I think is part of the intimidation and fear, is now that they have access to the IRS records and they have requested—and the IRS I believe is complying—turning over all of the data points of people who are non-US citizens. And that is just so evil. I can’t really explain. There’s so many people that have gotten ITINs, which are special numbers that folks use to file their taxes. They did that because if they didn’t file taxes, they would be condemned for not filing taxes and leeching off the United States, and if they didn’t file taxes, that would be used against them in their deportation cases—that they weren’t following the law, and that they don’t deserve to be here as a matter of discretion, or they don’t deserve the privilege of eventually becoming a US citizen because of that. I’ve had judges make those points in court before, and now, people were trusting the US government to respect a longtime promise that that information wouldn’t be turned over for immigration law enforcement purposes, and now it is. I mean, they’re really fully on the hunt for people right now. I believe there’s budget reconciliation going on. They’re asking for—I couldn’t even tell you the amounts because they’re so wildly high. And the whole idea is to just keep investing in these systems of human caging and deportation, simply because, again, the ideologies that Tanvi and I were talking about. So I really, again, want to emphasize that while we can be out in the streets, and going to rallies, and advocating for people—as we should—we need to be thinking on a much more structural level of how to gut the infrastructure that has been established this whole time and also is being rapidly expanded right now. People who live in the United States are basically being constantly policed and surveilled without us even knowing it. And it’s all really being done under the premise of immigration—that immigrants need to get out. But again, it’s going to and is impacting all of us.

JC: Yeah, I think that’s anticipating my final question, basically, which is: If people are listening to this, and they didn’t know any of this before, and they just plugged in and are learning about this for the first time, and are now learning that this is not, unfortunately, new, what are the political horizons or solutions that those people need to look toward, if the answer isn’t going to be wait for 2028 for an election, or something? Which seems to be the ceiling of a lot of imagination. So I’m curious: Given what you have outlined, both of you, what is the way to address this in a comprehensive way? And I know I’m asking a huge question, but just your first thoughts on that.

TM: I think one of the big takeaways I want for people to know is, again, legal and illegal are extremely flimsy and tenuous things and can be changed, and blurred, and made up. And so, what does that mean if you’re an organizer, or if you are someone who’s doing deportation defense, or if you’re someone who’s an academic and writing about it? What does that mean to look at it from that lens? What do solutions look like if you’re looking at the problem with that structural lens? I think the lens is important here. My other big ask, and I don’t know, I think about this so much. I’ve covered this for, like, more than 10 years at this point, and I still am sometimes surprised and quite dejected by how much people don’t know about how the system currently works, even before this administration, and how that attention span fluctuates. Like, why are we following the cues of a Trump or a Biden? Why aren’t we setting the agenda ourselves? I don’t have an answer to that, but I do hope that people, maybe under this administration, realize that throughout history, people who are immigrants are deemed as outsiders. The hatred against these groups has always coincided with the rise of fascism, the fall of democratic institutions. And so, I just hope that this is an opportunity for people to maybe learn a little bit more about how the systems work, and how those histories work, and how those connect to, maybe, whatever else you care about, like climate change. I mean, the nativist movement in the United States was started by a guy who didn’t claim to be an environmentalist. So there’s just all of these connections between nativism, between xenophobia, between political violence, in particular, against immigrants that are related to whatever is your issue that you care about. And maybe that’s a good entry point for people to learn more about immigration and how it connects to everything else.

SEG: Yeah, I think people should study the abolitionist movement from the 1800s—how many decades it took and the many different types of strategies that people used to push back against chattel slavery as the rule of law in the United States. I think there’s a lot to learn from that history, whether it’s learning about what Congress was doing at the time, learning about how communities kept people safe. Obviously, the Trump administration could very easily criminalize that as well, as we’re seeing with the attack on the judge, I believe in Minnesota. And I mention that as well because, to the point that Tanvi mentioned around illegal versus legal and how tenuous that all is, I hope people also view the label of being a criminal in that way, because that is just as much of a moving target that can really be applied to whoever. And that’s what we’re seeing. We’re seeing Mahmoud Khalil being targeted because he was organizing as a Palestinian for Palestinian human rights. And that’s another thing I want to mention, is that this is about Palestine. The immigration enforcement that we’re seeing is deliberately being targeted against people who have been outspoken for Palestine. The actual enforcement technologies that are used are, oftentimes, exported from Israel, particularly at the US-Mexican border.

SEG: So, for anyone who thinks that Palestine is irrelevant, you’re not paying attention because they’re using it as a pretense to strip potentially millions of people of their constitutional rights. It’s not just going to be people who weren’t born in this country. We’re seeing it happen to all of us. Them trying to expand categories of criminalization in New York State, for example, with wearing a mask. So people need to be critically thinking about what criminality means and entails. I also want people to think about how there is a way to fight back against the Trump deportation machine, and it’s via states rights. Meaning that the states can choose to opt out. And many states have done this. Illinois has done this, California has done this, Maryland has done—this in varying degrees. It’s not like a full opt-out, but opting out in some of the ways that are most impactful. So in New York State, for example, there’s two bills that are pending. There’s one called the New York for All Act, and there’s another called the Dignity Not Detention Act. The New York for All Act would basically limit the data and information that’s being shared with ICE, as well as prohibit local law enforcement from doing the work of ICE throughout New York State. And the other bill, Dignity Not Detention, is a bill that would end current and prohibit future ICE detention contracts throughout New York State. There would still be a federal detention facility because state law can’t necessarily impact that—in the same way you can’t cut the contract with a federally-run facility. But most of the people in New York State are held in county jails, which are now rapidly expanding because there are racists throughout law enforcement that want to do the work of federal immigration law enforcement.

SEG: And I can’t emphasize enough that reducing bed space in the community—this is based off a Detention Watch Network report, I think it’s called, “If you build it, they will fill it.” This report establishes that when there is less bed space in the community, then there is less enforcement in the community, because, again, it’s all about the infrastructure of ICE being able to do what they do, and it’s about shrinking that infrastructure as much as possible. Of course, we have seen, already, how they transfer people across the country, which costs taxpayers millions the more that they do that. But that has always been something that’s within their authority and discretion. And the idea is that if various states continue to push these types of bills—again, you’re shrinking the capacity for them to do it. It’s not perfect because, again, nothing is a silver bullet. And I know sometimes people don’t think state legislation is the most exciting, radical thing, and it’s not. But this is, again, why I say: Look at the abolitionist histories. It takes a multifaceted approach to fight fascism. There is no one silver bullet that’s going to do it. It’s going to be taking people resisting in every manner that they feel best equipped to. So if you’re the type of person who likes to lobby—you like going and talking to politicians about stuff—these are the bills that you should be organizing around, talking to your communities about, contacting politicians about. There is a weekly phone zap that the Abolish ICE New York/New Jersey Coalition does to contact legislators in the New York State Legislature to say: Why are you not introducing this bill, or putting it up for a vote? Or why aren’t you releasing it from the committee? So I urge people to put pressure on local elected officials to do something. So those are like the structural things that I think people can support. Every fight matters. You could actually win when you fight, and when you don’t fight, you can’t win. And it’s always stronger when it’s coming on the local community level rather than just watching the news.

JC: Thank you so much for that. I really appreciate how both of you reframed the problem at its scale to basically show that this is not a problem at the level of: Something happened in the news today or yesterday. This is a problem at the level of overhauling a system of caging, and the solutions required will be at that scale as well. Thank you both for being here, and thanks everyone for listening. Until next time.