Examines immigration enforcement and discretion during the first eighteen months of the Trump administration
Within days of taking office, President Donald J. Trump published or announced changes to immigration law and policy. These changes have profoundly shaken the lives and well-being of immigrants and their families, many of whom have been here for decades, and affected the work of the attorneys and advocates who represent or are themselves part of the immigrant community. Banned examines the tool of discretion, or the choice a government has to protect, detain, or deport immigrants, and describes how the Trump administration has wielded this tool in creating and executing its immigration policy.
Banned combines personal interviews, immigration law, policy analysis, and case studies to answer the following questions: (1) what does immigration enforcement and discretion look like in the time of Trump? (2) who is affected by changes to immigration enforcement and discretion?; (3) how have individuals and families affected by immigration enforcement under President Trump changed their own perceptions about the future?; and (4) how do those informed about immigration enforcement and discretion describe the current state of affairs and perceive the future? Shoba Sivaprasad Wadhia pairs the contents of these interviews with a robust analysis of immigration enforcement and discretion during the first eighteen months of the Trump administration and offers recommendations for moving forward.
The story of immigration and the role immigrants play in the United States is significant. The government has the tools to treat those seeking admission, refuge, or opportunity in the United States humanely. Banned offers a passionate reminder of the responsibility we all have to protect America’s identity as a nation of immigrants.
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About the Author
Shoba Sivaprasad Wadhia is the Samuel Weiss Faculty Scholar and Founding Director of the Center for Immigrants’ Rights Clinic at Penn State Law in University Park, Pennsylvania, and author of Beyond Deportation.
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Immigration Enforcement and Discretion
Every day, officers and employees within the Department of Homeland Security (DHS) carry out immigration laws. Congress created DHS as a cabinet-level agency in the wake of the September 11, 2001, terrorist attacks. DHS houses many different units of the federal government, but three units deal primarily with immigration. Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) are two enforcement arms in DHS. While ICE focuses on interior enforcement and CBP on enforcement at or near a border, both agencies apprehend, detain, and deport people from the United States. According to the DHS Office of Immigration Statistics, CBP made 415,000 apprehensions and ICE made 110,000 arrests during fiscal year 2016.
A third unit within DHS is called U.S. Citizenship and Immigration Services (USCIS). While the focus of USCIS is to make decisions about applications for immigration benefits such as citizenship or asylum, USCIS also plays an enforcement role. In some cases, USCIS is required to issue charging documents known as the "Notice to Appear" (NTA). As described in chapter 3, the Trump administration issued a memorandum expanding the situations in which USCIS is required to issue NTAs. In short, ICE, CBP, and USCIS all have authority to enforce the immigration laws against a noncitizen. This authority is derived from many legal sources including the Immigration and Nationality Act (hereinafter, "INA" or "immigration statute").
Congress enacted the INA in 1952. It has been compared second in complexity to the U.S. tax code. While the language has been amended over the years, the immigration statute remains the primary framework for immigration law. The opening language of the statute gives DHS the authority to enforce and administer the immigration laws of the United States.
One goal Congress had in creating DHS was to separate the immigration enforcement and service functions once held under one umbrella in an agency known as Immigration and Naturalization Service (INS). In reflecting on the creation of DHS and how it functions in the time of Trump, government official 2, based in the East Coast, who formerly served in INS, shared, "One of the greatest ironies to me is that one of the arguments for breaking up the INS was that you need to split the service and enforcement because the enforcement was polluting the service side of the business. And that the service side of business was too enforcement minded. Well, now that it's all in the Department of Homeland Security, look at what we're seeing coming out of USCIS in the current era. You see an enforcement outlook and actions that USCIS is taking that would never have happened in INS days."
Immigration enforcement is not limited to deportation or what is formally called "removal." Instead, there are ranges of actions that are considered "enforcement." For example, street arrests, interrogation at a workplace, detention in a correctional facility, and prosecution as a trigger for removal proceedings are all actions that constitute immigration enforcement. DHS statistics indicate that in fiscal year 2016, one arm of ICE known as Enforcement and Removal Operations (ERO), booked about 350,000 people into detention and that DHS removed 340,000 noncitizens. Data from DHS shows that arrests of noncriminals made up 26 percent of ERO arrests in fiscal year (FY) 2017.
The details of the immigration law and the agencies responsible for carrying them out are indeed complex — but the role of discretion is also significant. As Justice Anthony Kennedy noted in Arizona v. United States, "Discretion in the enforcement of immigration law embraces immediate human concerns. ... The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service."
Discretion is interwoven with deportation. Immigration scholar Daniel Kanstroom identifies three forms of discretion — prosecutorial, ultimate, and interpretative, all three of which are addressed in this book. One powerful form of discretion in immigration law is called "prosecutorial discretion." Importantly, DHS has the prosecutorial discretion to refrain from taking action against a person at each enforcement stage. For example, if an ICE officer chooses to not detain a woman who is pregnant or nursing but who legally qualifies for detention, discretion is being exercised favorably.
Prosecutorial discretion is necessary because the government has limited resources it can use to carry out enforcement against noncitizens. According to the former director of ICE, in 2011, ICE has the resources to deport less than 4 percent or 400,000 of the roughly 11.2 million people living in the United States without authorization today. This number does not include the many lawful permanent residents (green card holders) who are eligible for immigration enforcement because of post-entry conduct.
As showcased in Beyond Deportation, the government has exercised discretion for largely humanitarian reasons that include a person's family ties, age, or medical condition. Deferred action is one kind of prosecutorial discretion that existed for decades but came to light with President Barack Obama's announcement of Deferred Action for Childhood Arrivals (DACA). DACA is a policy that was implemented by the secretary of Homeland Security and enabled nearly 800,000 people who came to the United States before the age of sixteen, have continuous residence, and are in school or graduated to receive deferred action for a renewable period of two years.
Deferred action is not the only way prosecutorial discretion can be exercised. Before a court hearing, DHS may exercise discretion by choosing not to bring charges against individuals who overstay their visa. After an immigration judge decides to grant asylum, DHS may exercise discretion by choosing not to file an appeal. DHS may also choose to grant a stay of deportation after a person has been ordered removed. Finally, DHS may exercise prosecutorial discretion invisibly. For example, discretion is opaque when DHS chooses not to enter a schoolhouse to carry out an enforcement action or chooses not to arrest a person who clearly lacks immigration status. The discretion exercised by DHS employees is often framed by memoranda and guidelines by the DHS secretary or the agency heads within ICE, CBP, and USCIS. For example, DACA requests are processed by USCIS and must satisfy a set of requirements set forth in a DHS memorandum for anyone seeking deferred action under DACA.
Beyond the significant relationship between prosecutorial discretion and immigration enforcement is the prominence of discretion in other immigration domains. DHS officers may be required to consider discretion or the balancing of positive and negative factors when deciding whether to grant someone a green card, asylum, or a waiver. For example, asylum seekers must prove that they have suffered persecution in the past or face a well-founded fear of persecution in the future because of race, religion, nationality, political opinion, or membership in a particular social group and further must show that they qualify for asylum as a matter of discretion. As explained in chapter 6, guidance from USCIS seeks to expand the number of discretionary denials made by asylum officers in certain asylum cases.
Discretion is also used by immigration judges (IJs) in the Department of Justice (DOJ). DOJ is an executive branch agency that houses fifty-eight immigration courts and employs more than three hundred IJs across the country. When individuals appear before an immigration judge for a hearing, they could respond to charges made by DHS and then request relief from deportation. Many of these defenses have specific criteria that must be proven by the applicant or noncitizen, as well as a discretionary component. Immigration judges also make discretionary decisions about how individual cases will proceed, such as whether to permit a noncitizen more time to prepare a case by granting a "continuance" or whether to remove a case from the active docket by granting "administrative closure." The discretion exercised by immigration judges is often guided by agencywide directives by the U.S. attorney general and DOJ officials. For example, in guidance dated January 17, 2018, DOJ announced that immigration judges would be evaluated based on the speed and volume of cases they complete. The immigration law also gives broad power to the attorney general to make immigration policy unilaterally without a specific check.
Consular officers employed by the Department of State (DOS) also use discretion in deciding whether to issue or grant a visa for an individual to travel to the United States. For example, a foreign national from India who seeks admission to the United States as a student must apply for a nonimmigrant visa. Once a visa interview is scheduled, a consular officer will interview the person to determine if she qualifies for a student visa. If the Indian national can show that she meets the requirements for an F-1 but is ineligible because of an exclusionary ground listed in the immigration statute, the consulate will decide if she qualifies for a waiver and, in doing so, use discretion. Most decisions by a consular officer are final and cannot be challenged in a court.
At the macro level, the legislative and executive branches hold a great deal of power over immigration law and policy. Congress wrote the primary framework for immigration law when it passed the INA. The INA outlines who may be eligible for admission to the United States, reasons a person may be excluded, conduct that may trigger deportation after entry, and the bases under which a person may qualify for a waiver or pardon. Congress delegated immigration functions to many federal agencies including the Departments of State, Justice, and Homeland Security as illustrated above. In the White House, the president also wields great power over immigration policy decisions. Article II of the U.S. Constitution includes a provision known as the "Take Care Clause," which has been interpreted as "placing an obligation on both the President and those under his supervision to comply with and execute clear statutory directives as enacted by Congress." The INA authorizes the president to set annual refugee numbers in consultation with other agencies like DOS. The INA also authorizes the secretary of DHS to designate any foreign state or a portion of a nation for a remedy known as "Temporary Protected Status (TPS)." As described in detail in chapter 4, the choice by the Trump administration to end policies that have historically granted temporary protection or status to people reflects a priority shift that, in practical terms, could uproot an estimated one million noncitizens who have lived in the United States for well over a decade and further expand the number of people living in the United States without immigration status. As a final example, the president is authorized to designate, extend, or end a prosecutorial discretion policy known as "Deferred Enforcement Departure (DED)." During President Trump's tenure, the administration used each of these authorities to make changes to the refugee, Temporary Protected Status (TPS), and DED programs. Importantly, no administration can make changes that violate or conflict with the Constitution, immigration statute, or existing regulations.CHAPTER 2
The common thread I see among every single person that walks into my office is, I need my Mom because I'm gonna be in labor and I can't do this without her. Or, I'm the first person in my family to get a PhD; it would mean the world to my parents to be there at my graduation ceremony. Or I'm in love and I'm getting married and I'm getting engaged and this is a huge moment in my life and I would like my parents to meet my future husband. They're moments in our lives that we normally share with family. Big moments in our lives. Graduations, birth of a child, engagement, weddings; all of them are destroyed for people [because of the Muslim ban].
This chapter describes the three Muslim bans announced by President Donald Trump and also summarizes the challenges made in federal courts, by advocates, and in the court of public opinion. While the Muslim bans do not focus on prosecutorial discretion in immigration law, they are relevant to a broader discussion of discretion as it relates to the president's choice to introduce them in the first place. Further, they provide discretion in certain cases, such as in the waiver scheme.
For purposes of this chapter, I use the term "Muslim ban" to describe policies by the executive branch that prohibit certain nationals from entering the United States. What to call the three bans signed by the president since January 27, 2017,2 has itself emerged as a question. Some prefer the term "travel ban" because it is more neutral. Others prefer the term "Muslim ban" or "Muslim/refugee ban" because the restrictions imposed directly affect or block the admission of nationals from countries with majority Muslim populations or refugees. While I have used and continue to use "travel ban" when describing the contents of these bans to the general public, I simultaneously believe the term is inaccurate. The bans signed by the president do not merely restrict travel (e.g., a long weekend to Disneyworld) but in fact prevent people from entering the United States, period. In my view, "Muslim ban" is an accurate description of the first three bans signed by the president, two as executive orders (EOs) and one as a presidential proclamation. In all three versions, most of the nations targeted have populations that are overwhelmingly Muslim, and the bans have had devastating impacts on nationals of these countries.
The choice by President Trump to use executive orders was criticized by government official 5, based on the East Coast, who spent more than fifteen years at the Immigration and Naturalization Service (INS), and who rarely used EOs as a tool for policy making. He described the choice to issue executive orders rather than publish regulations by asking, "How much higher do you go if you want to comment or complain about an executive order? It's a dramatically different way of doing business, and not a better way ... there's no public input in the executive order process ... judgment is being made by one or two people."
Muslim Ban 1.0
The first ban was issued as an EO and signed at 4:30 p.m. on January 27, 2017.4 The most controversial pieces of the ban suspended the entry of foreign nationals from seven countries — Iran, Iraq, Libya, Sudan, Somalia, Yemen, and Syria — for ninety days, suspended the admission of refugees from Syria indefinitely, and suspended the overall refugee admissions program for a period of 120 days.
By its terms, the ban was effective immediately. For this reason, it caused chaos in airports around the country, confusion about applying the ban to certain classes such as lawful permanent residents (green card holders), and long nights and days for lawyers. Said Sirine Shebaya, a civil rights attorney for Muslim Advocates who worked as an "airport lawyer" in the hours after the ban went into effect, "We were trying to both help family members there, draw attention to the chaos that was going on, and identify people who needed legal assistance" (see figure 2.1). Attorneys provided on-the-ground support and education to affected and interested community members in the hours and days following the ban. My own experiences as an attorney in the aftermath of Muslim Ban 1.0 were similar, and involved helping individuals stuck outside the United States, detained at or near a U.S. airport, or residing in my community and unsure about their ability to leave the United States or reunite with a loved one. The fallout of Muslim Ban 1.0 was not limited to the immediate chaos but also extended to the later discovery that the White House had not consulted with its own attorneys before issuing the ban. While attorneys and former government officials with whom I spoke characterized later versions of the ban as equally problematic as the first, more than one person I spoke to singled out the first ban. Said attorney 4, based on the West Coast, "That [first ban] was like an acute disease, and this [current situation] is chronic.(Continues…)
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Table of Contents
1 Immigration Enforcement and Discretion: A Primer 1
2 Banning Muslims 7
3 Everyone Is a Priority 29
4 Deporting Dreamers 62
5 Speedy Deportations 79
6 Rejecting Refugees 98
7 Reform: A Way Forward 116
Table of Authorities 141
About the Author 197