It probably never crossed Fabian Schmidt’s mind that he wouldn’t breeze through security at Boston’s Logan Airport. A legal resident of New Hampshire, he flew back to the United States on March 7 after a visit to Luxembourg, but never made it through security. According to his mother, who didn’t get to speak with him until four days later, Schmidt was “violently interrogated” for hours, stripped naked, and forced into a cold shower. Given little food or water, suffering from sleep deprivation, and prevented from taking anxiety and depression medication, he collapsed and was hospitalized (where he learned he also had the flu), she said. Schmidt is now reportedly locked up in an Immigration and Customs Enforcement detention center in Wyatt, Rhode Island.
Schmidt is not your usual profile of an immigrant subjected to alleged abuse by U.S. immigration authorities. A 34-year-old German national with a green card since 2008, he’s an electrical engineer whose partner, a cardiologist, is a U.S. citizen; they have an 8-year-old daughter. Schmidt’s mother said his green card had been flagged, possibly over a since-dismissed misdemeanor for marijuana possession in California. His case, along with a growing list of other examples, shows how large a role discretion plays in the immigration system—and how that discretion appears to be changing drastically under the second Trump administration, as emboldened authorities throw the book at and even abuse those who once could consider themselves relatively protected.
Some of these cases have made national headlines in the U.S., like the detention and attempted deportation of Mahmoud Khalid, the pro-Palestinian organizer who has a green card, or the actual deportation of Brown University professor Rasha Alawieh, an H-1B visa holder (she too was detained at Logan Airport after a trip abroad). But there was also Jasmine Mooney, the Canadian tourist detained for 12 days after arriving at the San Ysidro border crossing near San Diego; the entrepreneur and former actress reportedly slept on the floor with 30 other women in a holding cell. Two German tourists faced similar treatment after arriving at the same checkpoint; one was held for 46 days. A British backpacker, meanwhile, was handcuffed after arriving at the border from Canada—apparently because authorities felt her arrangement with her host family in Portland, Oregon, warranted a work visa rather than a tourist visa—and wasn’t released for three weeks.
These are just a few of the people who are being unexpectedly exposed to the brutality of our immigration detention scheme. Despite being technically “nonpunitive,” these detention facilities are indistinguishable from jails, or are in many cases literal jails that the federal government is effectively renting from local law enforcement. And the decision to throw people there over some minor visa deficiency or perceived intent comes down to one very basic but very powerful concept in law enforcement, and the law more generally: discretion.
You have, at some point within the last week, probably broken the law. You jaywalked or smoked in a no-smoking park or ignored a stop sign or any of a thousand other daily things that we hardly think about but which are on paper illegal. The reason you most likely weren’t arrested or even ticketed for these things is because it would not be possible for police to spot every single one of these violations and because even if the cops did witness it, they decided that it just wasn’t worth the bother (or the paperwork).
That same principle applies up and down law enforcement, including immigration. The entire Deferred Action for Childhood Arrivals program is an exercise in executive discretion, with the government laying out that the folks covered by it are legally deportable but that it will choose not to deport them as long as they keep participating in the program and complying with its requirements. At an individual level, determinations are made every day by officers and their supervisors as they encounter the messy realities of our immensely complicated immigration system.
Customs and Border Protection is supposed to ensure that airport or border arrivals are going to comply with the terms of their visas, for example, an inherently discretionary act. If, for whatever reason, they determine that someone is out of compliance or deportable, they decide whether to detain that person, whether to parole them, and so on.
For a long time, certain populations in particular have been used to generally favorable discretion. Undocumented immigrants—in particular those from developing countries—never could expect much grace, but high-skill work visa holders, international students, European tourists, Canadian day-trippers, and others in this higher-status sphere enjoyed a lighter touch. Perhaps if there was confusion around their visa, they would get directed to file paperwork to fix it and sent on their way, or at worst merely turned away at the border. But now, it seems, immigration agents are increasingly using the full statutory powers that they always had, choosing to detain, abuse, and deport these tourists and workers instead of working with them.
It’s not that this never used to happen—there have always been isolated stories of customs agents slapping the cuffs on indignant white tourists—but the volume of high-profile recent cases suggests these aren’t one-offs. Indeed, Trump has already formally axed certain types of prioritization and discretion when it comes to ICE enforcement operations, but it seems like this is either explicitly or implicitly being filtered down to all manner of other routine interactions between immigration agents and noncitizens, including those who once felt somewhat protected by dint of status.
This is not to say that we’ve done a 180 on this. For every arrested German we hear about, there are probably many more who are given a polite warning and sent on their way or allowed to simply board a flight back. But as these alarming stories mount, they have implications well beyond the discrete incidents themselves. I wrote recently about how the administration has fomented a climate of fear among undocumented immigrants by making its deportation efforts appear much larger and more successful than they are, and the same is true for the nation’s vast population of current or would-be visitors, long-term visa holders, and permanent residents.
All it takes is for a handful of lawful residents to be arrested or have visas canceled over speech, or for tourists to be inexplicably detained in the horrible gulags that pass for our “nonpunitive” immigration detention, for people to start wondering if it’s safe to come to the U.S. at all, even in what seems like a fully lawful manner. Add to that individual harshness the uncertainty of shifting policies—what if there’s a travel ban? What if the standards for maintaining a certain visa change overnight or the government simply decides to cancel them? The choice starts looking less and less appealing. Germany recently issued a travel advisory for trans and nonbinary people traveling to the U.S., and while I wouldn’t necessarily expect this to open the floodgates of official warnings, people worldwide are getting the message.
It is also proof that Stephen Miller’s totalizing nativism, which in Trump’s first term was tempered to some extent by corporate interests in maintaining the flow of tourism and technical workers, has completely won out. Trump has already shown himself perfectly willing to drive the economy off a cliff and destroy the sources of much of America’s global cultural, economic, military, political, and technical primacy. The insulation that once provided some additional protections to this class of immigrants and visitors—that they were good for business, wealthy enough to spend money or invest in the U.S., propping up critical industries, and their mistreatment would anger powerful allies—has been torched.
Those of us who’ve made the U.S. our long-term home will have to wonder if it’s worth it. The likelihood remains low that any given green card holder or tourist will be subjected to the alleged abuse that Schmidt and others have faced, but when the consequences are so immense, rolling the dice at all feels risky—and that’s by the Trump administation’s design.
