In less than two years in office, Donald Trump has rolled out an impressively diverse set of measures to close America to immigrants. From sweeping prosecution policies to obscure administrative changes, these measures are designed to radically remake the US’s immigration system—except they haven’t, at least not yet.
US civil society groups are holding back a tidal wave of change, one lawsuit at a time. Some of those fights, like the ACLU’s lawsuit against family separation, have been become national news. So far, the ACLU is winning: after ordering that all the children be returned to their parents by July 26, the federal judge overseeing the case also temporarily barred the administration from immediately deporting the reunited families last week.
There are many other cases that have potential to shape Trump’s immigration policy through the push-and-pull happening in the courts. These legal fights have not only forced the administration to return immigrant children to their parents, but influenced the wording of Trump’s travel ban, and kept the Department of Homeland Security from breaking its own rules. In some areas the administration’s campaign to close off immigration has been rebuffed entirely, in others, it has been stalled.
Immigration lawsuits are booming
Immigration-related lawsuits are on the rise. This has partly to do with the fact that civil groups now have more money to fight government policies that they disagree with. The ACLU, for example, has seen a surge in donations since Trump took office. But it also reflects the administration’s widespread and allegedly illegal actions on immigration.
The International Refugee Assistance Project, which provides legal aid to immigrants, has filed eight suits against Trump policies that they say violate refugees’ rights. The NAACP sued on behalf of Haitian immigrants over their loss of temporary protected status, which allows victims of natural disasters stay in the US. Earlier this week, a federal judge denied the Trump administration’s request that two similar lawsuits be dismissed. Like the one filed by the NAACP, they alleged that the administration’s decision to end the immigrants’ special status was racially motivated. For now, the fight over that policy continues.
Meanwhile, the Northwest Immigrant Rights Project has filed a lawsuit challenging what it calls discriminatory vetting at US Citizenship and Immigration Services, the agency in charge of processing immigrant visas.
Although it’s hard to systematically track immigration-related lawsuits over time, a register kept at the University of Michigan suggests that immigrant rights have become a much higher-profile area of litigation in the past two years. The Civil Rights Litigation Clearinghouse, as the database is called, collects information about notable civil rights cases, which are flagged by news reports and civil rights groups. Since 2017, the Clearinghouse has documented nearly 150 lawsuits involving immigrants.
The data it provided Quartz offers a window into the immigration battles of the Trump era so far. These are the top 10 most frequent issues that appear in the registered lawsuits in 2017 and 2018:
- Admission criteria and procedures
- Discrimination (national-origin, race, and religion)
- Deportation criteria, procedures, and judicial review
- Detention
- Constitutional rights
- Due Process
- Visa criteria and procedures
- Equal Protection
- Undocumented immigrants—rights and duties
- Asylum criteria and procedures
The Trump administration’s “
really sloppy, rapid-fire policy”
Another reason for the proliferation of lawsuits, according to experts: Trump’s ill-thought-out policies make it easy to poke holes in them. Mary Giovagnoli, who worked on immigration issues under Bill Clinton, George W. Bush, and Barack Obama, says she sees no evidence that Trump’s measures are undergoing the painstaking legal review that was the norm during previous administrations.
She recalls hours of meetings to discuss “the most minuscule nuances” on the policies. Multiple federal agencies were looped in. The measures were not only tested for legality, but also for what Congress intended when drafting the law, the White House’s own goals, and the likelihood of buy-in among enforcement officers on the ground, she says. “There was a pretty involved, time-consuming process for ensuring that there was a document that the government could stand behind,” she adds. These days, she says the government is issuing “really sloppy, rapid-fire policy.”
Some of the Trump administration’s missteps have been major and public; a travel ban on citizens from several majority-Muslim countries was chaotically implemented, and courts found several times that its legal standing was tenuous. It had to be rewritten twice before finally passing muster.
While the travel ban was unprecedented, the Trump administration could have learned from the Obama administration in crafting its family separation policy; Trump’s predecessor fared poorly when he tried to detain women and children in 2014. ”There are tons of people within DHS who will tell you that’s a terrible idea,” said Giovagnoli, who now directs Refugee Council USA, a coalition of non-profits that advocates for refugees.
Keeping the Department of Homeland Security honest
Immigrant advocates tracking the administration’s more obscure policies are also finding legal shortfalls. One example is a suit filed by the ACLU and other immigrant rights advocacy groups that argues that the Department of Homeland Security is violating its own regulations by denying parole to asylum seekers. Earlier this month, the judge overseeing the case sided with the plaintiffs and ordered Immigration and Customs Enforcement to follow its own rules.
In another case, this one related to a USCIS memo from February, the administration was accused of issuing policies that contradict rules at another federal agency: The USCIS memo makes it harder to get H-1B visas for workers who are employed by one company, but do their work at another, for example, an IT tech who provides outside support for one of his employer’s clients. But the Department of Labor, which is also involved in the H-1B visa process, does not restrict employers from deploying workers to third-party sites.
On top of that, says Jonathan Wasden, the lawyer who filed the USCIS suit, the administration issued the new policy without first asking for public comment on the changes, which is a requirement under the Administrative Procedure Act. “The policies aren’t being vetted very closely,” adds Wasden, a former lawyer at USCIS’s Administrative Appeals Office. USCIS officials ”are taking the regulations on the book and they’re putting a spin on them that is really contradictory and bears no resemblance to the original rule.”
Pushing back against an ideological campaign
The Department of Homeland Security did not immediately respond to a request for comment.
Lucas Guttentag, who founded and directed the ACLU’s Immigrants’ Rights Project in 1985 and ran it until 2014 , says previous administrations, too, have tried to restrict immigration. What he sees as categorically different this time around is the thrust of the changes.
“It’s part of an agenda to limit immigration to privileged, white immigrants and to do it through it executive fiat rather than following the law,” says Guttentag, who was senior counselor to Homeland Security secretary Jeh Johnson during the Obama administration. “As a result of that ideological agenda, they’re doing things in an often careless and often illegal way.”
He points to what he calls “the poisonous atmosphere” created by Trump’s disparaging comments about non-white immigrants, and the kind of policies he’s pushing. His administration has proposed making it more difficult for immigrants whose American children have used welfare programs to get a green card. The president has said repeatedly said he wants to end the diversity visa program, known as the “visa lottery,” whose beneficiaries are mostly African and Asian.
Trump has also spelled out his goals more directly: at a January meeting with lawmakers, he reportedly advocated for more immigrants from Norway and fewer from what he called “shithole countries” in Central America and Africa.
Given Trump’s approach to immigration, challenging his policies in court is crucial, says Guttentag, who is now a law professor at Yale and Stanford Universities. But it’s only the first step, he adds. Civil society also has to fight those policies in the political arena.
A long fight to shape the political landscape
The president has broad authority to determine immigration policy. This can be traced back to the late 1800s, when the US was trying to keep Chinese immigrants out. Back then, the Supreme Court ruled that the courts can’t limit the government’s power to bar foreigners.
Though Trump’s administration did not invoke that opinion to defend its travel ban, it did successfully invoke the same principle. “Trump is enforcing the laws that are on the books,” said Tanya Golash-Boza, a sociology professor at University of California, Merced, who has studied the US’s immigration system. “That’s the reason immigrants don’t have a lot of rights.”
To protect immigrants, advocates therefore have to push Congress to change the law. In the long term, that will require electing new lawmakers committed to making changes. That’s one reason the ACLU is now getting into the electoral business as well.
For the first time in its history, the ACLU will get directly involved in the 2018 mid-term elections. It won’t weigh in on races in which civil liberties are not at stake, nor endorse any candidates. Rather, it will grade the candidates on their civil rights record, and educate voters. The goal, according to national political director Faiz Shakir, is to make the protection of civil rights an issue citizens vote on, so over time, government policies reflect that.
“The ACLU has never shied away from a fight when civil liberties were at stake, whether that fight was in a court room, Congress, or a state legislature. In 2018, we add one more venue,” he wrote in his announcement of the new initiative.