The Race to Dismantle Trump’s Immigration Policies | The New Yorker

Update: Today, February 2, 2021 Joe Biden issued a series of Executive Orders revoking key Trump administration anti-immigrant rules and orders hours after the Senate confirmed Alejandro Mayorkas as Secretary of the Department of Homeland Security, the Times reports.

Three of those orders have been posted on this blog today.

Much of modern federal law is the product of regulatory measures - Rules issued after Notice and comment under the Administrative Procedure Act, `emergency' orders, etc. But much of the meat is contained in guidances, directives, and other procedures.   The Trump administration used those too and very effectively.  The APA authorizes judicial review of federal agency regulations for arbitrariness and constitutionality and sufficiency of evidence.  But the 870 Article III judges are a force of limited ability to manage the array of administrative measures taken in the past four years.  

The writ possessed by federal Article III judges over agency action is quite broad under 5 U.S.C. 706.  They are empowered to set aside regulations deemed "(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right..." But they are limited by the doctrines of deference to agency expertise, and to the presumption that an executive agency charged with faithful enforcement of a law has reasonably understood that law and construed its ambiguities in good faith. 

Finally there is the range of complexity and sheer volume of agency actions - ones undertaken in the past four years by an administration dedicated to reducing the compliance burdens placed on regulated industries.  The Biden administration will find much of its restorative agenda has been aided by Harvard law students who have developed the Regulatory Rollback Tracker.

The Biden transition team after the election issued a comprehensive immigration plan.  But as transition team member and Yale/Stanford professor described in an interview cited in The New Yorker, reversal will be a prodigious effort. Most press attention has gone to the most dramatic of the Trump administration efforts to stem the flow of immigration: asylum seekers trekking from Central America to the southern border, the Muslim-ban upheld by the Supreme Court after cosmetic changes to cleanse the taint of campaign rhetoric.  Those efforts were accomplished by a variety of means: Notice and Comment rule-making, Presidential Proclamations accompanied by `emergency' Rules adopted without notice, hiring Immigration Judges But the devil is often far from the headlines.  

For example, the American Bar Association Commission on Immigration has described the Immigration Courts as in an existential crisis.  Production quotas and time-based deadlines undermine judicial independence, according to the ABA report prepared by Washington, D.C. based law firm Arnold and Porter.  Other obstacles include the so-called Migrant Protection Protocols which the Department of Homeland Security asserts are designed to "end exploitation of our generous immigration laws".  But immigrants advocates describe the program not as "faithful execution" of laws and treaties but rather as measures to deter and expel migrants to Mexico without granting  the asylum interviews and hearings to which  asylum law entitles anyone who crosses the border and states a plausible claim.

But such measures are only the tip of the iceberg of administrative measures by which the Trump administration cut even legal immigration in half, and virtually blocked immigration across the 2,000 mile southern border.

- GWC

The Race to Dismantle Trump’s Immigration Policies | The New Yorker

(click through for audio..56:10)

By Sarah Stillman

In 2017, Lucas Guttentag launched a project to track every Trump-era change to the immigration system.

One of the most fastidious chroniclers of this vast record is Lucas Guttentag, a law professor at Yale and Stanford. Guttentag is in his sixties, with plastic-framed glasses and the warmth of a genial high-school principal. In the eighties, he founded the A.C.L.U.’s Immigrants’ Rights Project, and later worked in Barack Obama’s Department of Homeland Security. When Trump came to power, Guttentag was alarmed not just by the pace of executive orders but also by the dozens of provisions tucked within them like “ticking time bombs,” as he put it. One created a special office to study the effects of crimes committed by “criminal aliens.” Another sought to expand the use of “expedited removal,” a tool for fast-tracking deportations.

Cartoon by Liana Finck

In the fall of 2017, Guttentag assembled a group of law students in a wood-panelled room at Yale. He proposed creating a communally sourced database of every change that Trump made to the immigration system. “So many things have happened in year one of Trump that are already receding from our memory, because we’re looking at the latest disaster,” he said. “If we don’t keep track, it will take a new Administration years just to unearth everything that’s happened.” They called it the Immigration Policy Tracking Project. Guttentag hoped that the database would prove useful to whoever succeeded Trump. “Going forward, we’re going to capture everything,” he told the team. “Someday we’ll need a road map for reversing all this damage.”

The students carved up immigration policy into what one of them, Rebecca Chan, described to me as “little fiefdoms”: humanitarian protections, labor laws, immigrant visas, citizenship. Then they performed a kind of public-policy forensics, searching for evidence of new policies in the Federal Register, legal blogs, government Web sites, Listservs for immigration attorneys, and nonprofit newsletters. When they found a change, they logged it in a private database, along with the text of the Obama-era policy that preceded it, and might otherwise be lost. They worked in relative secrecy: some students worried that their database would get hacked by white-supremacist trolls or be co-opted by Trump officials for bragging rights.

Many of the tweaks in the Tracker seem deceptively mundane. Last year, the Administration finalized a rule to nearly double the cost of the naturalization application, from six hundred and forty dollars to a thousand and thirty. (A federal judge in California blocked the rule’s implementation, much as dozens of other changes identified in the Tracker have been enjoined in court.) Guttentag told me, “Literally changing one single word on a form can make a lot of difference.” In January, 2020, the ombudsman for U.S. Citizenship and Immigration Services issued an alert that the agency had begun rejecting certain paperwork if the blank spaces weren’t filled out with the term “N/A,” for “non-applicable.” In December, U.S.C.I.S. redesigned the civics exam given to those applying for citizenship, doubling the number of questions, and giving some answers a conservative bent. The answer to the question “Who does a U.S. Senator represent?” used to be “All people of the state,” but now specifies “Citizens of their state.” All told, new administrative hurdles and other obstacles have cut the number of legal immigrants to the U.S. nearly in half.

***In politics, the status quo has uncanny power. In 2008, during Obama’s first Presidential campaign, he promised to close Guantánamo Bay. On the night that he won, detainees at Guantánamo chanted, “Obama! Obama! Obama!”; defense lawyers paraded before military prosecutors in a conga line, singing, “Hey hey hey, goodbye!” Obama issued an executive order on his third day in office, calling for Guantánamo’s closure within a year. But he was soon fighting with Congress, which passed legislation that made transferring detainees to the U.S. difficult, and engaging in tense negotiations with foreign countries about their willingness to accept prisoners. Toward the end of his second term, Obama was asked, by a seventh grader, if he had any regrets. “I would have closed Guantánamo on the first day,” he said. “The path of least resistance was just to leave it open.”

Today, Guttentag hopes that the minutiae won’t be forgotten. Later this month, he will make his Tracker public. He hopes that it will provide a useful model for reversing Trump-era policies in other sectors of the government as well. At Harvard Law School, a team has created a “Regulatory Rollback Tracker,” to log the ways in which Trump eroded environmental regulations. The Leadership Conference on Civil and Human Rights has inventoried dozens of assaults on civil rights. “To undo the damage, we’ll have to keep getting deeper and deeper into the weeds,” Guttentag told me. “That’s where so much of the change still needs to happen.”

Maria, in Miami, knows that her fate depends, in part, on how quickly Biden transforms asylum policy. Noemi Samuel Del Rosario, a lawyer at Americans for Immigrant Justice, which is working with the Door to fight Maria’s removal, told me that she hopes Biden will go further than ending the Migrant Protection Protocols; he also, she said, “needs to right the wrongs for families like Maria’s, who didn’t get a fair chance to present their cases in the way they should have in the first place.” Maria’s mother, Gabriela, is in hiding. Her sister, Paulina, is on the run in Honduras. “My wish is to eat around the same table as my family,” Maria told me. She still has the sketch of the pink hibiscus flower that she drew on the night that ice came for her at Abbott House. She kept her journal from the facility, too, in which she did an exercise envisaging her life ten years in the future. She imagined herself as a lawyer, in a pink suit, fighting for immigrant kids in court. “I’m proud of all that you’ve been able to achieve,” she wrote. “I see you as a woman warrior.” ♦

This story was produced in collaboration with the Global Migration Project, at Columbia University’s Graduate School of Journalism, with contributions from Adriana Carranca, Eileen Grench, and Isabela Dias.